Regulation No. 650/2012 has been in force for no fewer than eight years already; even so, there still exist cases in which no court is willing to exercise jurisdiction and open inheritance proceedings upon the demise of persons who moved to another EU member state to receive institutional care there.
For eight years already, the European Succession Regulation (Regulation (EU) 650/2012) has been in place, governing all cases of death and succession after 17 August 2015 in the EU (outside of Denmark and Ireland) – and yet, one continues to be confronted with cases in which no court finds itself competent to conduct the inheritance proceedings of EU citizens who passed away in another EU member state than that of their origin, having (been) moved there to receive nursing care. The Court of Justice has already ruled in several cases on the issue of “habitual residence” within the meaning of Art. 4 of the European Succession Regulation, but not as unambiguously as needed.
For several years now, nursing homes in the border regions of Hungary (with respect to Austria), the Czech Republic and Poland (with respect to Germany) have specialized in providing care to the elderly of those neighboring countries, for instance senior citizens suffering from Alzheimer’s disease – a phenomenon sometimes rather flippantly referred to as “intra-European dementia tourism”. In addition, German pensioners are also drawn to Spain and Portugal (including their islands in the Mediterranean and off the Atlantic coast); these countries have become popular old-age residences for pensioners with EU passports from more northerly member states.
However, if death occurs and the deceased did not draw up a testament during their lifetime in which they made a choice of law and, where relevant, specified the court competent to hear their case of succession, then, as per Art. 4 of the European Succession Regulation, the courts who have jurisdiction to hear the case are those of the EU member state in which the deceased had their “habitual residence”; as a rule, this will also mean that the inheritance laws of that EU member state shall apply to the case (Art. 21 of the European Succession Regulation). German law recognizes the same connection, in Sec. 343 (1) FamFG (i.e., the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction) – for a recent example, see ruling 33 UH 4/23e by the Higher Regional Court in Munich of 9 February 2023 on a case in Bavaria.
If the deceased’s move to Spain, Portugal or Poland was deliberate, it is usually safe to assume that their habitual residence is located there. After all, the CJEU (in Oberle, E.E., Registru centras, and Kubicka) has interpreted habitual residence to mean the place to which the deceased had their closest connections at the time of death. However, in the case law to date, the CJEU has failed to provide a clear interpretation of the indeterminate legal term “habitual residence” (some guidance is contained in Recitals (23) and (24) of Regulation (EU) 650/2012) – and the crucial provision of Art. 4 of the European Succession Regulation contains no definition, nor does the provision of Sec. 343 (1) of the German Act on Proceedings in Family Matters.
What should happen – and which law applies, and which courts have jurisdiction – if the testator did not in fact make a conscious decision to move, having already been demented at the time? But was put into a nursing home in Poland, Hungary, or Czechia by their relatives, to receive more affordable care for a few years before their death? In such a case, can their “habitual residence” within the meaning of Art. 4 of the European Succession Regulation, be said to have been in that other EU member state (i.e., Hungary, Czechia, or Poland), or would it still be Germany – where their closest of kin are resident, where they have bank accounts and real property? These questions are not merely academic. For one, if the habitual residence is at the place of death, then the courts of notaries of those countries will be in charge of inheritance proceedings – so that Hungarian, Czech, or Polish notaries will make decisions on to-be-inherited property in Germany. For another, the inheritance laws of the “new” home country would in such a case have to apply.
The latter may pose not inconsiderable hurdles in the form of language barriers. But above all: the laws of Hungary, Czechia or Poland will apply to the inheritance – with a number of crucial differences, compared to German law, e.g. as to forced heirship (i.e., a compulsory portion of inheritance), the right of the heirs in the first class of succession (i.e., spouse and children), or disinheritance. It is always recommendable to draw up a testament during one’s life time, but when the case of succession materializes, such advice comes too late.
Several cases overseen by bnt have in fact wound up in a situation in which neither the court at the place of death (i.e., the Czech Republic) nor the court of the country of the deceased’s origin (Germany) considered themselves competent. Lawyers call this a “negative conflict of competence”, and it makes for an attractive nut to crack if you are a legal scholar. For the heirs, however, it is a nightmare – the inheritance is blocked because no court in the EU will hand down a decision and no binding referral in the EU exists – see Art. 17 of the European Succession Regulation which, however, addresses strictly the situation of two courts within the EU declaring themselves competent, but not a situation in which no court does so. The latter can only be resolved by bringing legal remedies in both countries. In our view, the basic rule should be that the place of death was the place of habitual residence if death occurred where the deceased had spent the last years of their life (as opposed to e.g. a one-time vacation or a short-term medical visit).
Where the case of succession has yet to materialize, and provided the testator is still legally able to do so, a testament should be drawn up as a matter of priority. If the testator is already incapacitated by dementia, or death has struck in the absence of a testamentary disposition, heirs are well-advised to swiftly retain competent legal counsel in the country in which the competent inheritance court is located according to the European Succession Regulation.