EUROPEAN SUCCESSION LAWS

Transcription

1 EUROPEAN SUCCESSION LAWS Second Edition Edited by Professor David Hayton LLD School of Law, King's College, University of London Barrister and Recorder, 5 Stone Buildings, Lincoln's Inn n JORDANS 2002

2 CONTENTS Contributors Preface Table of Cases Table of EC Materials Table of Conventions and Treaties Table of National Legislation INTRODUCTION THE RELEVANCE OF FOREIGN SUCCESSION LAW FOR A LOCAL PRACTITIONER v ix xxvii xxxiii xxxiii xxxix lxiii Chapter 1 Chapter 2 THE PROBLEMS OF DIVERSITY Professor David Hayton 1. INTRODUCTION 2. SUCCESSION AND ADMINISTRATION OF ESTATES Domicile and habitual residence Matrimonial property regimes Mandatory family protection provisions Unity or scission of succession The doctrine of renvoi Change of connecting factor 3. THE HAGUE SUCCESSION CONVENTION 4. THE HAGUE MATRIMONIAL PROPERTY CONVENTION 5. THE HAGUE ADMINISTRATION OF ESTATES CONVENTION 6. THE HAGUE TRUSTS CONVENTION 7. MEANS OF MINIMISING PROBLEMS AUSTRIA Dr Andreas Lintl 1. INTRODUCTION Austrian civil law System 2. PROCEDURAL ISSUES 3. INTESTATE SUCCESSION General rules 4. DISPOSITIONS ON DEATH Will (Testament), Codicil (Kodizilt), Inheritance contract (Erbvertrag)

3 xii European Succession Laws 5. THE STATUTORYINHERITANCE SHARE 32 Possibility to reduce statutory inheritance share 32 Persons who are entitled to statutory inheritance share 32 Amount of the statutory inheritance share WATVER AND DISCLAIMER OF INHERITANCE LIABILITY OF THE HEIR PRIVATE INTERNATIONAL LAW INHERITANCE TAX MEANS OF MINIMISING PROBLEMS WHERE INTERNATIONAL ELEMENTS ARE CONCERNED 35 Chapter 3 BELGIUM 37 Professor Dr Alain Verbeke and Anton van Zantbeek 1. GENERAL PRINCIPLES 37 Opening of the succession 37 Transmission of the succession INTESTATE SUCCESSION 40 General principles 40 Intestate devolution in the absence of a surviving spouse 44 Intestate devolution if there is a surviving spouse WILLS 55 Types of wills 55 Limits on freedom of disposition PRIVATE INTERNATIONAL LAW 63 Conflict rules 63 International jurisdiction SOME PRACTICAL PROBLEMS 66 Problems 66 Movables 66 Immovable property 66 Structuring purchases 67 Purchase en tontine 67 Purchase by a Company INHERITANCE TAX 68 Introduction 68 Criteria for levying inheritance taxes 69 Determining the taxable basis 69 Fictitious acquisitions 70 Valuation 71 Calculation of inheritance tax - Regional differences 72 Tax rates for public institutions and non-profit associations 76 Special inheritance tax regime for family-owned enterprises and shares of family owned companies 76

4 Contents xiii Avoidance of double inheritance taxation 77 Transfer tax at death 78 Chapter 4 THE BRITISHISLES 79 James Denker 1. INTRODUCTION 79 ENGLAND AND WALES 81 James Denker 1. ADMINISTRATION OF ESTATES 81 Introduction 81 Grant of administration 81 Assets not covered by the grant of representation 83 Formalities for the grant of representation 84 Process of administration 87 Jurisdiction SUCCESSION TO ESTATES 89 Introduction 89 Matrimonial property regimes 89 Devolution of assets where the deceased died domiciled in England 90 Devolution of assets where the deceased died domiciled outside England 92 Jurisdiction and conflicts of laws aspects MINIMISING PROBLEMS WHERE FOREIGN ELEMENTS ARE CONCERNED TAXES ON DEATH 96 Introduction 96 The basis of the taxable estate 97 Rates of tax 97 Exempt transfers 97 Chargeable lifetime transfers 98 Reservation of benefit 98 Special reliefs from tax 98 The international element 98 The Variation of wills 99 Collection of tax TABLE OF RULES OF INTESTACY 101 NORTHERN IRELAND 104 Sheena Grattan 1. INTRODUCTION 104 Court System and the doctrine of precedent ADMINISTRATION OF ESTATES 106 Introduction 106 Grant of administration 106 Probate office and branch office 107 Assets not covered by the grant of representation 107

5 xiv European Succession Laws Property situate outside Northern Ireland 108 Formalities for the grant of representation 109 Process of administration SUCCESSION TO ESTATES 110 Devolution of assets where the deceased died domiciled in Northern Ireland DEVOLUTION OF ASSETS IN NORTHERN IRELAND WHERE DECEASED DIED DOMICILED OUTSIDE NORTHERN IRELAND - AND MINIMISING PROBLEMS TAXESONDEATH MISCELLANEOUS DIFFERENCES BETWEEN NORTHERN IRELAND AND ENGLAND AND WALES NOTER-UP OF EQUIVALENT LEGISLATION 118 SCOTLAND 119 Ross Macdonald 1. INTRODUCTION GRANT OF ADMINISTRATION 120 Assets not covered by confirmation 121 Formalities for confirmation 123 The process of administration 125 Jurisdiction FORMALITIES FOR WILLS 127 Formalities for execution 127 Revocation of wills DOMESTIC LAW OF SUCCESSION 129 Intestate succession 129 Restraints on testamentary disposition 131 Disqualification from inheritance 132 Testate succession PRTVATE INTERNATIONAL LAW ASPECTS 133 General principles 133 Intestate succession 134 Testate succession 134 Executry administration MINIMISING PROBLEMS WHERE FOREIGN ELEMENTS ARE INVOLVED 135 JERSEY 136 Steven Meikkjohn and Keith Dixon 1. INTRODUCTION ADMINISTRATION OF ESTATES 137 Movable and immovable property 137 Domicile 138 Grant of representation 139 Grant of probate 140 Grant of letters of administration 143

6 Contents xv Contentious matters - Variation of dispositions 144 Cases where a grant of probate or administration is not required JERSEY LAW OF SUCCESSION 147 Immovable property (Real estate) 147 Movable property CONFLICT OF LAWS MINIMISING PROBLEMS WHERE FOREIGN ELEMENTS ARE CONCERNED 153 Separate wills 153 Inter vivos settlements 154 Joint ownership TAXESONDEATH 156 ISLEOFMAN 157 Neil Morris and John Wright 1. INTRODUCTION GRANT OF REPRESENTATION 157 Cases where deceased died domiciled in the island 158 Cases where deceased was domiciled outside the Island THE WILL ASSETS NOT COVERED BY A GRANT OF REPRESENTATION ADMINISTRATION OF THE ESTATE 161 Collection of assets 162 Payment of debts PROBATE JURISDICTION SUCCESSION TO ESTATES 163 Where the deceased died testate 163 Where the deceased died intestate CONFLICT OF LAWS MINIMISING PROBLEMS WHERE FOREIGN ELEMENTS ARE INVOLVED TAXES ON DEATH 167 Chapter 5 CYPRUS 169 Emily Yiolitis 1. INTRODUCTION 169 Legislation 169 Domicile WILLS 170 In general 170 Capacity to make wills 170 Formalities of a will 170 Declaration of death 171 Unworthiness 172

7 xvi European Succession Laws The disposable portion of the will 173 Rights of surviving spouse and succession 174 Contribution 174 Legacies 175 Gifts in contemplation of death 175 Revocation of wills DEGREESOF KINDRED FOR TESTACY AND INTESTACY PRIVATE INTERNATIONAL LAW ADMINISTATION OF ESTATES 178 In general 178 Letters of administration and probate 178 Probate registrar and registry 178 Deposit, discovery and production of wills 179 Grants 179 Vesting of estate on grant and after administration 180 Administration generally 180 Power of the court to remove or replace personal representative 181 Determination of certain matters by originating summons 181 Resealing of probates or of letters of administration MINIMISING PROBLEMS WHERE FOREIGN ELEMENTS INVOLVED SUCCESSION AND DEGREES OF KINDRED 183 Chapter 6 DENMARK 185 JQviste 1. INTRODUCTION MATRIMONIAL PROPERTY REGIME TYPES OF MARRIAGE CONTRACT THE SURVIVING SPOUSE DANISH INHERITANCE LAW 187 Conditions for inheritance 187 Distribution rules on intestacy WILLS 190 Formal validity: The Hague Convention 190 Formal validity: Danish Law 190 Capacity 191 Invalidity 191 Revocation 191 Restricted dispositions 191 Trusts and Danish Law CONTRACTS REGARDING INHERITANCE 192 Renunciation of inheritance 192 Agreements not to make or revoke a will 192

8 Chapter 7 Contents Dispositions of inheritance 8. GIFTS 9. PROBATE Undivided estate 10. PRIVATE INTERNATIONAL LAW Jurisdiction of Danish Courts in matters of succession 11. DOMESTIC SUCCESSION LAW 12. TAXESON DEATH Inheritance tax Taxable base Rates Income taxation on the estate FINLAND Professor GO Zacharias Sundström 1. INTRODUCTION 2. INTESTATE SUCCESSION Order of succession 3. EXCEPTIONS TO THE NORMAL ORDER OF SUCCESSION The right to deprive someone of the right to inherit Loss of the right to inherit Giving up the right to inherit 4. THE SIZE OF THE INHERITANCE Compulsory legal share Advance inheritance Contributions Compensation for work done 5. THE WILL Making a will Revocation of a will Beneficiaries Notification of a will 6. AVAILABLE REMEDIES Contesting a will Action to declare a will non-existent Action to reinstate a will Action for determination of the testator's competency Action to obtain interpretation of a will 7. THE POSITION OF THE SURVIVING SPOUSE 8. MARITAL PROPERTY 9. PRIVATE INTERNATIONAL LAW Lex successionis Doctrine of renvoi Reform xvii

9 xviii European Succession Lews 10. MINIMISING PROBLEMS WHERE FOREIGN ELEMENTS ARE INVOLVED TAXESON DEATH 209 Chapter 8 FRANCE 211 Marie L Revillard 1. INTRODUCTION CONDITIONS FOR AVALID WILL 212 Formal validity 212 Central register of testamentary dispositions 216 Essential validity DOMESTIC SUCCESSION LAW 219 Some important features 219 Devolution on intestaey 220 Devolution by will, gift or contract 222 Administration of the estate ASPECTS OF PRIVATE INTERNATIONAL LAW 231 Conflictoflaws 231 Conflicts of jurisdiction MEANS OF MINIMISING PROBLEMS WHERE FOREIGN ELEMENTS ARE CONCERNED 237 Choosing the right nature of property 237 Tontine 237 Changing the matrimonial property regime 237 Estate planning 238 Ensuring that one law governs both the deceased's estate and his matrimonial regime TAXESON DEATH 239 Principles 239 Gift and estate tax 239 Double taxation treaties concerning inheritance and gift tax 240 Chapter 9 GERMANY 243 Dr Karsten Kühne, Stephan Dollinger and Dirk Krome 1. INTRODUCTION MAIN PRINCIPLES 244 Universal succession 244 Automatic devolution 244 Intestate succession or disposition 244 Capacity to be an heir 244 Disinheritance and compulsory portion (statutory share) 245 Conflicts with corporate law INTESTATE SUCCESSION 247 Order of inheritance DISPOSITIONS ON DEATH 250 Personal capacity to make a will 250

10 Contents xix Formalities and revocation 251 Official safe custody and opening of will 251 Many possibilities with regard to dispositions 252 Beneficiary with interest in possession and reversionary beneficiary 252 Legacy 253 Directions and conditions 254 Administrative executors 254 Joint will 255 Inheritance contract 255 Anticipated succession CALCULATION OF ESTATE AND SHARES IN THE ESTATE LIABILITY OF THE HEIR WATVER AND DISCLAIMER OF INHERITANCE CERTIFICATE OF INHERITANCE DISTRIBUTION OF THE ESTATE PRIVATE INTERNATIONAL LAW GERMAN INHERITANCE TAX 260 Personal tax liability 261 Arising of tax, 'taxable person' 262 Notification Obligation, tax return 262 Valuation 263 Tax brackets and tax rates 263 Aggregation of acquisitions, allowances 264 Inheritance tax privileges of the property regime of the Community of surplus 264 Privileges for domestic business property 265 Disclaimer as means for an arrangement 266 Cross-border cases: prevention of double taxation 266 Common law trusts SOME SIMPLE MEANS OF MINIMISING PROBLEMS WHERE INTERNATIONAL ELEMENTS ARE CONCERNED 268 Chapter 10 GREECE 271 KD Magliveras 1. INTRODUCTION 271 Historical overview 271 The conflicting interests in succession 272 The general principles of succession THE WILL 273 Ordinary wills 273 Extraordinary wills 276 Legal capacity to make wills 277 Revocation of wills (arts 1763 to 1768) 277 The contents of wills (arts 1781 to 1808) 278 Substitution of heirs (arts 1809 to 1812) 280

11 x x European Succession Laws Validity of wills (arts 1781 to 1788) 280 Legal consequences of invalid or voidable wills and dispositions 282 Publication of wills (arts 1769 to 1780) 283 The testamentary executor (arts 2017 to 2031) INTESTATE SUCCESSION (ARTS 1813 TO 1824) FORCED HEIRSHIP (ARTS 1825 TO 1845) DISINHERITANCE (ARTS 1839 TO 1845) UNWORTHINESS (ARTS 1860 TO 1864) ACCEPTANCE OF SUCCESSION - THE BENEFIT OF INVENTORY (ARTS 1901 TO 1912) RENUNCIATION OF SUCCESSION (ARTS 1847 TO 1859) CONTRACTUAL RENUNCIATION WHERE FOREIGN SPOUSE INVOLVED THE FIDEICOMMISSUM (ARTS 1923 TO 1941) LEGACIES (ARTS 1967 TO 2010) THE CERTIFICATE OF INHERITANCE (ARTS 1956 TO 1966 AND ARTS 819 TO 823 CCP) PRIVATE INTERNATIONAL LAW (ART 28) MINIMISATION OF PROBLEMS WHERE FOREIGN ELEMENTS ARE INVOLVED TAXESON DEATH 300 The constitutional provisions on taxation 300 An overview of the Greek tax System 300 Bilateral treaties for the avoidance of double taxation 301 Taxation of succession 302 Chapter 11 IRELAND 305 Drjohn Mee 1. INTRODUCTION ADMINISTRATION OF ESTATES 305 General 305 Appointment of personal representatives 306 Distribution of assets SUCCESSION TO ESTATES 310 Testate succession 310 Freedom of testation 312 Intestate succession THE INTERNATIONAL DIMENSION 318 Introduction 318 Formal validity of wills 318 Law governing rights of succession 318 Applications by children where a foreign element is involved 318 Claims by the surviving spouse where a foreign element is involved 319

12 Contents xxi Intestate succession 319 Avoidance of limits on freedom of testation 319 Minimising problems where foreign elements are concerned TAXATION 320 Capital acquisitions tax 320 Where a foreign element is involved 321 Probate tax 321 Chapter 12 ITALY 323 DB Macfarlane 1. INTRODUCTION 323 Fiduciary obligations in Italian law of succession FORMALITIES FOR A VALID WILL IN ITALIAN DOMESTIC LAW 324 The notarial function 324 Formsofwill 324 Revocation THE DOMESTIC LAW OF SUCCESSION 325 Reserved portions 325 Testamentary capacity; grounds of vitiation 327 Capacity to succeed and disqualification 327 Acceptance with benefit of inventory and renunciation 327 Other provisions: certainty; delegation; conditions; public order 328 Executors 328 Intestate succession 329 Administrative procedures on death INTERNATIONAL ASPECTS 331 Connecting factors; renvoi 331 Form 332 Substance 333 Jurisdiction THE MINIMISATION OF PROBLEMS WHERE FOREIGN ELEMENTS ARE INVOLVED 338 Chapter 13 LUXEMBOURG 339 Professor Dr Alain Verbeke and Anton van Zantbeek 1. GENERAL PRINCIPLES 339 Opening of the succession 339 Transmission of possession and administration 339 Transmission of ownership: three options 340 Conditions to inherit INTESTATE SUCCESSION 341 Intestate devolution in the absence of a spouse 341 Intestate devolution with spouse 344 Special regimes 347

13 xxii European Succession Laws 3. WILLS 347 Types of wills 347 Registration of wills 348 Limits on freedom of disposition PRIVATE INTERNATIONAL LAW 351 Conflict rules 351 International jurisdiction TAXES 353 Inheritance tax 354 Transfer tax upon death WAYS TO MINIMISE SUCCESSION PROBLEMS WHERE INTERNATIONAL ELEMENTS ARE INVOLVED 359 Chapter 14 MALTA 361 Simon Tortell 1. OVERVIEW TYPES OF WILLS 362 Ordinary wills 362 Wills unica charta CAPACITY TO MAKE AND RECEIVE BY WILL LEGITIM AND DISINHERITANCE 368 Legitimate and illegitimate issue 369 The surviving spouse 370 Ascendants 370 Disinheritance 370 Abatement of legacies and donations to satisfy legitim LEGACIES CONDITIONAL DISPOSITIONS ACCEPTANCE AND RENUNCIATION TESTAMENTARY EXECUTORS INTESTATE SUCCESSION MATRIMONIAL PROPERTY REGIME PRIVATE INTERNATIONAL LAW WAYS FOR FOREIGNERS TO MINIMISE PROBLEMS TAXATION 383 Chapter 15 THE NETHERLANDS 385 FAA Duynstee and KMFJ Houben 1. DOMESTIC LAW 385 Formalities for a valid will 385 The law of succession 385 Administration and division DOMESTIC LAW-NEW LEGISLATION 392 Succession rules on intestacy (arts 4:9 et seq) 392 Restrictions on powers of disposition 393 Statutory portions 393

14 Contents xxiii Avoiding statutory portions 394 Executors PRIVATE INTERNATIONAL LAW 395 Introduction and sources 395 The law relating to the form of testamentary dispositions 395 The law relating to the capacity of a person to make testatmentary dispositions 396 The law applicable to the succession of estates 396 The law applicable to the administration and the liquidation of estates 399 International jurisdiction of Dutch courts in matters of succession 401 Recognition and enforceability of foreign court Orders WAYS TO MINIMISE PROBLEMS WHERE ELEMENTS OF FOREIGN LAW ARE INVOLVED 402 Choice of lawclauses (Professio juris) 402 Substantive law reference 403 Trusts 403 Replacement of assets 403 Tontine arrangements and deferral of statutory portions TAXES ON DEATH 404 Basic principles of taxation 404 Deemed acquisitions 404 Taxation on death of non-residents in respect of Dutch situs assets 404 Valuation 405 Exemptions 405 Rates 406 Double taxation 406 Tax declaration 407 Assessments and payment 407 Chapter 16 PORTUGAL Professor FA Ferreira Pinto 1. INTRODUCTION Historical background General layout and basic characteristics of succession law 2. DOMESTIC LAW OF SUCCESSION Succession by testament Succession by contract Compulsory succession shares Intestate succession 3. ASPECTS COMMON TO THE DIFFERENT TYPES OF SUCCESSION

15 xxiv European Succession Laws Opening of the succession and summoning of eligible persons 420 Right of representation 421 Acceptance and rejection of inheritance 421 Administration of inheritance 422 Distribution of the estate ASPECTS OF PRIVATE INTERNATIONAL LAW 423 Conflictoflaws 423 Conflict of jurisdictions 428 Chapter 17 SPAIN 431 ProfessorJulio D Gonzalez Campos and Professor Dr Alegria Borräs 1. INTRODUCTION 431 Pluralism of Spanish succession law 431 Succession in Spanish law - general characteristics DOMESTIC LAW ON SUCCESSION 433 Wills 433 Agreements as to succession 442 Intestacy 443 Matters common to the different kinds of succession PRIVATE INTERNATIONAL LAW ON SUCCESSION 450 General aspects 450 Conflict of laws: general rules 451 Conflict of laws within Spanish regions TAXESON DEATH WAYS FOR FOREIGNERS TO MINIMISE PROBLEMS 463 Chapter 18 SWEDEN 465 Lennart Herslow (deceased) and Per Gellström 1. INTRODUCTION ORDER OF SUCCESSION MARITAL PROPERTY 466 General principles 466 Shares and portions THE COHABITANTS (JOINT HOMES) ACT THE INHERITANCE RIGHTS OF A SPOUSE WILLS INTERNATIONAL PROCEDURAL LAW INTERNATIONAL PRIVATE LAW 472 General principles 472 Property relations of spouses 472 Property relations of cohabitants 473 Inheritance TRUSTS INHERITANCE TAX 474

16 Contents xxv 11. GIFT TAX TAXATION OF SWEDISH ESTATES TAXATION OF FOREIGN ESTATES AND BENEFICIARIES OF FOREIGN ESTATES MINIMISING PROBLEMS WHERE FOREIGN ELEMENTS ARE INVOLVED 477 Chapter 19 SWITZERLAND Dr Duri Berther 1. PRIVATE INTERNATIONAL LAW Introduction Jurisdiction Applicable law Recognition of foreign decisions and other legal acts 2. SUBSTANTIVE LAW Introduction Principles Heirs on intestacy Wills and testamentary pacts (testamentary dispositions) Administration and devolution of the estate 3. THE WAY FOR FOREIGNERS TO MINIMISE PROBLEMS 4. TAXESON DEATH General Liability to tax Basis for taxation Tax charge Double taxation Conventions APPENDICES 515 APPENDIX A: HAGUE CONVENTION ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR RECOGNITION APPENDIX B: HAGUE CONVENTION ON THE LAW APPLICABLE TO THE ESTATES OF DECEASED PERSONS APPENDIX C: GUIDE TO THE LAWS OF DIFFERENT STATES 531 Index 533