As a result, an individual can use other instruments to enact the same function, for example, a court order. Equally, a member state that is presented with a certificate cannot thereafter request a different type of instrument to perform the same purpose.
For the sake of clarity, it should be noted the certificate does not bypass the need to complete and comply with necessary administrational steps within a member state (Article 62(3)).
Nationality test
The UK, Ireland and Denmark have all opted out of Brussels IV and so will not apply the regulation within their own national frameworks.
This does not change the fact that the other signatory EU member states will apply the new rules and that the new rules can affect residents within the EU or individuals with assets within the EU, no matter what their nationality.
A national and/or resident in the UK, Ireland and Denmark can still affect the administration of assets held outside their respective jurisdiction of habitual residence.
For example, if a French national resident in the UK dies having validly elected France as their jurisdiction of choice, any UK held assets will pass as per the UK system, because the UK opted out, but any assets held elsewhere will be administered via the elected jurisdiction set out within the will.
Similarly, if a national and/or resident in the UK, Ireland or Denmark chose to have their assets administered via the jurisdiction of their habitual residence using a valid will, the choice would likely have applied anyway owing to the opt-out, but it would however be applied to any assets held in other EU member states – that is, a UK resident’s assets held in the UK would follow the UK system no matter which jurisdiction they had chosen.
By contrast, other member states would adhere to Brussels IV and follow the valid UK choice. Had the UK national been resident in another EU member state, the UK would enforce its own administration procedure for UK-based assets, but the EU member state would adhere to the Brussels IV rules and therefore the choice for foreign-located assets.
Article 20 of Brussels IV says its application is universal to individuals living within the EU. This means the regulation will apply no matter what the nationality of the resident. For example, an Indian residing in Spain can choose the jurisdiction of their nationality to apply in the same way an Italian national living in Spain could.
As a result, no matter where they live, individuals who are EU nationals or who own EU-based assets should be advised to have a valid will or declaration of a disposition of property with a valid election of jurisdiction.
What is more, individuals should be advised to take advice and elect nominated beneficiaries, or the equivalent, in respect of excluded arrangements, such as life insurance contracts and pensions and so on to ensure they can have certainty over the administration of their estate.
Laws may come and go, but when it comes to succession planning – no matter what the jurisdiction – Greek tragedian Euripides summed up all those ill-prepared for what happens on their demise: “No one can confidently say that he will still be living tomorrow.”
