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Will professionals in other countries be able to rely

on a European Certificate of Inheritance
for all purposes?
Prof. Dr. Mathijs. H. ten Wolde*, Groningen
______________________________________________________________________

Before I start this short presentation I want to express my great respect for the
excellent way in which the present study has been carried out. Obtaining and
compiling the laws of the fifteen states was already no small task, and mapping
a workable draft regulation that is at the same time acceptable for all member
states was even more difficult. That the employees of the Deutsches Notarinstitut and the two expert counsellors (prof. Drner and prof. Lagarde) have shown
themselves as true Europeans becomes clear from the fact that they had no preferences for their own national (German or French) rules of private international
law when formulating the proposals (the application of the national law of the
decedent or the scission principle were not advocated by them).
It is also clear from the notice of this conference that this conference is designed
to discuss perspectives from which to view harmonisation of the private international law of succession and the relevant rules on jurisdiction and the recognition and enforcement of judgements and national acts concerning succession.
My task in this discussion is to contribute to the proposed regulation by holding
up to the light the European Certificate of Inheritance (the ECI) in order to
highlight the features that need critical examination. However, before I do so it
is necessary to discuss the aim and the character of a European Succession
Regulation, since the contents of the ECI may also depend thereon.

1. Aim of a European regulation concerning succession and winding

up of international estates; a European Succession Regulation
The inheritance laws of the Member States are characterised by their diversity.
Unification efforts for this sensitive field of law still appears insurmountable. In
the Netherlands work on modernising the law of inheritance has been going on
for fifty-five years. How would this be if the other fourteen states were to be
involved in trying to harmonise the substantive laws of succession within the
European Union? It might take up to fifteen times this period of time which
would mean the project would not be finished until after another eight hundred
twenty five years!!!

Rijksuniversiteit Groningen.

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Within the European Union the nationals of the Member States can freely move
themselves about, and in the different states they can freely acquire property or
freely move property. The report makes it clear that the potential number of
multistate inheritance law cases is large. This fact, in combination with the
time-consuming and expensive way international estates are in legal practice
settled, now provides sufficient reasons for adopting a European regulation that
will set forth uniform conflicts of laws rules in matters of succession. The primary aim of such a regulation should be an equitable but above all efficient
regulation of succession cases that touch upon different EU-states. Predictability
and ease of application of the conflicts rules to be formulated are therefore the
key words. The ECI belongs with, and should be structured in line with, the
legal tools needed to carry out this purpose.

2. Character, structure and scope of a

European succession regulation
The contents of the conflicts rules in a European succession regulation will
strongly depend on what turns out to be the scope of this regulation. If proposals
are exclusively directed to legal matters between EU-states, these intraEuropean conflicts of laws rules will have a different character than proposed
conflicts of laws rules that would also take into regard non-EU member states.
When the regulation aims exclusively at the regulation of legal matters between
the Member States in an equitable and efficient manner, in my opinion, we are
dealing with rules of private interregional (interlocal, or interstate) law (hereinafter to be referred to as: intra-European conflicts of laws rules) for which
other principles apply than for rules of private international law. Let me cite
some differences.
The private international law conflicts of laws rules of the different countries of
the world are part of their national legal systems. Every country has its own
conflicts of laws rules formulated in the light of its own national values and
standards. On the other hand the interregional conflict of law rules will rely on a
common basis within the region. This foundation will be a state link within
which the countries concerned are themselves unified. In this way the Netherlands, Aruba and the Netherlands Antilles have been linked in a unified way as
parts of the Kingdom of the Netherlands. The same concept applies to the European Community, which is the "state link" by which the Member States have
unified themselves. This fact of a common basis (the state link) brings with it
specific principles which should be applied in the interregional conflicts of
laws, and which do not (or just partly) apply in international conflicts of laws.
Furthermore, this basis will bring about another result, namely that all kinds of
artificial legal concepts used in attempts to coordinate private international law
systems with each other (such as renvoi, harmonisation, Nherberechtigung and

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retorsion) will play no role in private interregional law. In a private interregional law system the following principles will have an important role:
a) First of all legal decisions of one Member State will be generally recognised in all other Member States and they can be executed there without
additional procedures. There will exist therefore a lot of confidence in each
other's jurisdiction. Within the EU this is not an unknown phenomenon. In
my opinion the Report therefore rightly adopts this solution where it concerns the recognition and enforcement of decisions in intra-European succession cases.
b) In the interregional conflicts of laws the principle of decisional harmony
will be strongly enforced. According to this principle the judge, in whatever Member State a case has been pending, always applies the same law.
The prevention of forum shopping will be an important result. Moreover,
the common structure of the EC would require this result. The Report also
identifies the problem of forum shopping and rightly proposes a conflicts
rule that will make forum shopping no longer possible.
c) Moreover, the principle of equivalence applies. This principle also results
from the structure of the EC. Under it, respect for each others culture and
legal order play important roles. A preference for ones own law (the lex
fori) can therefore not exist; the law of the other Member States must be
treated in a manner that is the same as ones own law is treated. In addition, public policy will not be quickly asserted against applying the law of
another Member State.
The interregional character of the conflicts rules will, in my opinion, also influence the way in which the concerned conflicts rules will have to be structured.
In private international law conflicts rules are fashioned in light of the social
values and standards of ones own country. The social values and standards of
other countries are only taken into account in the abstract; there the conflicts
rule has been aimed at a solution acceptable to international criteria. In private
interregional law this is set differently. Here it is known which legal systems it
concerns (that of the Member States). So, in the formulation of a conflicts rule
the social values and standards of all Member States, as well as principles of
European law, have to be taken into account.
Finally, there is one other point of difference between private international law
and private interregional law. In international conflicts law, in principle every
legal system in the world randomly qualifies for application. It is a kind of a
"Sprung ins Dunkle". This factor influences the choice for the connecting factors to be used in a conflicts of laws rule. However, in private interregional law
it will be completely clear which legal systems possibly qualify for application.
Thus, doctrines such as public policy, renvoi, Nherberechtigung and retorsion
will in principle have no place. With respect to situations outside of EC borders

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these doctrines will still be necessary. This also means then that a distinction
will have to be made between the appropriate laws to be applied within - and
without the borders of the EC.
Naturally the formulation of intra-EU conflicts rules may be inspired by international conflicts rules of the Member States. However, the last mentioned rules
cannot be adopted lock, stock and barrel when they have a character that is not
consistent with intra-EU application.
In my opinion the discussion today must primarily concern the intra-EU conflicts rules. Within the European Economic Area also legal obstacles should
exist as little as possible. So, the discussion concerning the intra-EU conflicts
rules does not have to be made confusing by also involving the national conflicts rules that apply to persons with their habitual residence outside the EU.
Naturally, alongside of these intra-EU conflicts rules international conflicts
rules can exist which apply in the relation to persons who are legitimately not
EU country habitual residents. The fundamental question that must be placed in
this context, however, is whether or not this issue should be left for the international conflicts rules of the member states, possibly in combination with an
effort to review the Hague Succession Convention 1989, or whether it should be
dealt with in a separate section of the European Succession Regulation in conjunction with the aforementioned effort to establish a new Convention within
the framework of the Hague Conference.
The report (vide p. 56/57) makes a choice for applying the same rules to intraEU and international situations; Duality would mean that a distinctive element
should have to be introduced in order to distinguish the two conflicts of laws
systems. However, I do not consider the fact that two systems must be applied
side by side and that for this a distinguishing criterion should be formulated as
being too difficult or inconvenient. The scope of the intra-EU regulation will
simply be restricted to situations in which the decedent has had a last habitual
residence in one of the Member States. Moreover, it must be accomplished in a
manner appropriate to the intra-EU character of intra-European conflicts rules.
However, even if it is decided to deal with the international aspects of succession in respect of non-EU countries as well, to my way of thinking this should
be regulated in a separate chapter of the Succession Regulation. In that event,
the scope of the intra-EU conflicts rules also have to be determined, as discussed above.

3. The connection between the ECI and the applicable law

on succession and estate administration
The regulation of ECI's must coincide closely with the applicable law on succession and estate administration. The ECI must contribute to an equitable but,
above all, efficient regulation of European legal intercourse concerning cross-

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border inheritances. Predictability and ease of application of the conflicts rules

and instruments to implement them, such as the ECI, in my view, are thereby
the key words. The ECI should be structured in line with this aim. The report
(vide p. 81) has the same view: the European conflicts rules concerning succession must, among other things, aim for a practical and simple administration of
decedents estates.

a) Recognition of foreign certificates of inheritance, or introduction

of a European Certificate of Inheritance?
In my opinion, the Report opts on good grounds for a European Certificate of
Inheritance. From the standpoint of comparative law it becomes clear that
among the Member States there are large differences in the contents of the national certificates of inheritance. The great advantage of the ECI is that a number of substantive requirements can be regulated directly (such as the legitimacy
of the beneficiaries, third party protection, and evidentiary functions). functioning). Within the framework of the aim for a practical and simple administration
of decedents estates the ECI therefore deserves to be preferred.

b) Must the introduction of the ECI be paired with the unification of

conflicts rules in respect of succession and administration of estates?
It is almost superfluous to bring up this question again. One of the main reasons
for the lack of success of the Hague Convention of 2 October 1973 on the International Administration of the Estates of Deceased Persons was the absence of
uniform conflicts rules in respect of the applicable law on the succession of
decedents estates. As the report rightly notices, an ECI only makes sense when
it is paired with unification of the conflicts rules as to succession. (vide p. 27
and p. 92). To that can be added, in my opinion, that in this context unification
of the conflicts rules concerning the matrimonial regime of spouses is just as
necessary. The death of one of the spouses affects the matrimonial regime.
Within the framework of estate administration the question as to the applicable
law on the matrimonial regime will also come up for discussion. It is then both
from the point of view of planning and from the point of view of a smooth administration desirable that this question be answered in the same manner in all
Member States.

c) Problems concerning the determination of the last habitual residence

The ECI is to be issued by the judge or notary of the country where the decedent
had his last habitual residence. By also choosing the last habitual residence as
the connection for determining what state's law applies to the succession of the
estate in the event no law was designated by a will, "Gleichlauf" is brought
about with the competence rule presented in the report (p. 58). By also connect-

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ing the issuance of the ECI to the last habitual residence all legal proceedings
will be concentrated in the same country.
However, in practice determining the last habitual residence is not always simple.
A more precise explanation of this term, possibly by means of a range of examples, within the framework of the European Succession Regulation is, in my
opinion, very desirable. The notary or judge, before he issues the ECI must,
determine the decedent's last habitual residence. Some grip on the description of
the term "habitual residence" can be found in the explanatory report (by
D.W.M. WATERS) on the Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons, 1 August 1989 (vide p. 549):
"It is a regular physical presence, enduring for some time, and a clearly stronger
association than 'ordinary' or 'simple' residence, of which the de cujus (the decedent MHtW) may have had two or more. However, the manifest hopes and
plans of the de cujus are also elements that may be legitimately considered by
the person who would have to know which State is the habitual residence."
Moreover determination of the habitual residence is not only important post
mortem, it is also very important within the framework of lifetime estate planning for death! An appropriate designation of the law of the habitual residence
(either at the time of choice of law, or directed to the time of death) can only
have an impact (legal effect) when there is such a habitual residence. For the
practice of furnishing estate planning services therefore within the framework of
providing adequate advice, it will be necessary to be able to have a grip on possible habitual residence issues.
With a view to the easy application of conflicts rules it therefore deserves to
have recommendations that provide closer consideration devoted to the contents
of the term "habitual residence".
Moreover, it is deserving of consideration to examine whether the notary or
judge who must issue the ECI should have another tool that can be provided in
the form of a presumption (like the one that is used in Article 4, paragraph 2 of
the European Contracts Convention 1980). For example, in the sense that it is
presumed that, when the decedent had his place of residence (which could be
defined as the place where he is registered in the civil registration of a municipality; the place where he can be summoned in court) during a certain time (for
example, five years) in the country where he dies, that he had his habitual residence there at the time of death. This will eliminate the need for the notary or
judge to do a thorough study into the expectations and plans of the decedent.
This presumption would be able to offer a solution, for example, with respect to
the thousands of Dutch families who have their houses in Germany only a few
kilometres from the Dutch border, which are houses that are much larger and
cheaper than those in the Netherlands but where the husband works generally in

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509

the Netherlands and frequently the children also go to school in the Netherlands.
Also, the question where the habitual residence is of elderly people who live
during the six winter months in Southern Europe and the other six months in
their homeland can be more easily answered by use of this presumption.
I note here that the presumption of the five year period differs from the following rule laid down in Article 3, paragraph 2 of the Hague Succession Convention 1989:
"Succession is also governed by the law of the State in which the
deceased at the time of his death was habitually resident if he had
been resident there for a period of no less than five years immediately preceding his death."
The Dutch in legal practice came across some difficulties in applying this rule.

d) Extension of the right to choose the applicable law in order to

have a less time consuming administration of decedents estates?
I suspect a considerable portion of the international decedents' estates that exist
include holiday houses abroad (exact figures are not available, but the Report p.
xxiv mentions for Germans alone already a number between 800,000 and
1,000,000). The application of foreign succession laws (for example the Dutch
parental division on French immovable property) on the immovable property
(holiday houses) in another country leads to a conflict with the lex rei sitae and
will cause delay in the administration of this part of the decedents estate. The
question arises whether or not it would be desirable for the testators to be
granted the competence to choose the law of the lex rei sitae. This could shorten
the time for the administration of the estate considerably. In such cases succession and the administration is split in two, which would mean that there would
also be two authorities competent to issue an ECI for each of the two parts of
the inheritance. Of course, this would also mean an extension of jurisdictional
grounds. Would such a partial competence to choose violate the unity principle?
The Report (vide p. 57) contains as an argument for the unity principle and as
the biggest disadvantage of the scission principle the fact that the testator cannot
make in advance of death an appropriate arrangement with respect to the transfer of his property upon death to his children. Here the choice for the lex rei
sitae is now proposed precisely as an instrument to enable planning for such
inheritance rights in a practical manner. An additional advantage would be that
the chosen succession law of the lex rei sitae could be connected to the chosen
lex rei sitae for the matrimonial regime of the spouses, which would also lead to
a very practical administration of this part of the decedents' estate. Extension of
the right to choose the applicable law in respect of immovable property must
thus be viewed especially from the standpoint of efficient estate planning.

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4. As to the ECI requirements in light of the ECI's aim and function;

Trust is good, certainty is better
The aim of the ECI is to promote the practical and simple administration of
international decedents estates (vide Report p. 27 and p. 92). In that regard the
ECI thereby will only work well in practice when authorities and private institutions in other Member States can rely on the correctness of the contents of the
ECI. To my way of thinking, trust in this respect can only be established by at
least making it clear in the ECI why the authorities are competent to issue the
certificate, why a certain law is applied to the succession, and what the entitlements of the various beneficiaries are. Does the ECI presented here meet these
requirements?
It appears from the Report that the ECI will contain the following elements:
a) Statement of the issuing authority
The issuing authority must be mentioned in order to enable authorities and private institutions in other countries to verify the contents of the certificate, or to
request rectification or withdrawal of the certificate. In my opinion it is also
desirable here to indicate on which grounds the issuing authority considers itself
competent for that purpose. An extensive enumeration of the facts (possibly in
combination with the proposed five year presumption) that lead to the conclusion that the decedent had his last habitual residence in the Member State of the
authority that issues this ECI, will certainly make it easier to accept such an ECI
in the other Member States. Trust is good, certainty is better; legal practitioners
normally want to verify for themselves whether the contents of a foreign legal
document meet the requirements of law.
b) Statement concerning the person of the testator
The Report (vide p. 93) correctly states that the facts concerning the person of
the decedent must establish his identity with certainty. The connection of this
requirement with the Hague Convention 1973 on the International Administration of the Estates of Deceased Persons 1973 seems a good choice.
c) Statement in respect of the law of inheritance in absence of a last will
The report proposes, and I agree, that it is desirable that the ECI also indicate
the heirs and their actual portions of the estate. Particularly when there is no
estate representative present at the time, this task offers the possibility to the
heirs, jointly, to get access to property in another Member State.
In connection with the preceding, I consider it desirable that the issuing authority also indicate how it determined the applicable law. In absence of a last will,
the law applicable is the same law as the one on which the authority based its
competence for the issuance of the ECI. Therefore, for the way it determined
the last habitual residence it could refer to the statement under a) above.

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d) Statement concerning last wills

First of all I would strongly advise setting up an (electronic) European register
of last wills. Reference should be required to be made to such register. The ECI
needs to express the results of consulting that register, and of any other registers
which have been consulted.
Indeed, attaching a certified copy of the last will to the ECI with a view to facilitating its conversion in cases of unknown legal concepts under the lex rei
sitae appears to be a good measure.
Similar to the observation under c) above, in the event of a last will, it is even
more desirable to indicate in the ECI how the issuing authority has determined
the applicable law: by the testators' choice for his national law or the law of his
habitual residence, either at the time of choice or at the time of death. Then it
must be established with certainty that the testator had such nationality at that
moment. The same applies to the point about applying a choice of the law of the
decedent's habitual residence. The point of the last habitual residence can be
referred to in the statements discussed under a) above concerning the competence to issue the ECI. If the choice concerns the habitual residence at the time
of choosing, then it ought to also indicate in that place the facts that led to the
determination of a habitual residence at the time of choice.
To my opinion the ECI should additionally deal with the formal validity of the
will. It should point out which law applies as to the form of the will and state,
that according to this law, the will is formally valid. The conflict of law rules in
this respect will need to be reviewed for intra-European cases. Special attention
should be paid to the question regarding minimum form requirements.
The same counts for the question whether the testator had the capacity to make
testamentary dispositions. One conflicts of laws rule for intra-European cases is,
to my opinion, advisable. The rules for choosing this applicable law then need
explanation in the ECI.
Extensive considerations concerning the applicable law here will also contribute
to the trust that authorities and private institutions of other Member States will
place in the issued ECI.
e) Statement concerning the scope and the authority to dispose of the decedent's estate property
It is indeed very desirable that it be closely specified to which persons the authority is granted in accordance with the succession law applicable to dispose of
the decedents' estate property and whether they can act jointly or separately.
With respect to the scope of their powers, it seems more practical to make a
negative demarcation of these powers rather than to make a long list of assets in
respect of which these persons can have such powers.

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f) Statement concerning the matrimonial property regime

It might be a good idea to pay attention to the contents of the applicable matrimonial law regime. Often this law also affects the property of the deceased.
g) Referral to the authorities in the State of the applicable law?
An ancillary ECI?
Another question that will need answering is whether the issuing authority
should apply the applicable foreign law itself, or should for reasons of certainty
request the authority in that EU country to issue an ancillary ECI? Legal practice now already is often that the civil law notary or judge demands a legal opinion or statement from a judicial authority in that other country explaining the
contents of the applicable foreign law. This, for the heirs, is a costly measure
and also leads to serious delays in the administration of the decedent's estate. I
would therefore strongly advocate the possibility of requesting an ancillary ECI
from the issuing authority in that other country. This ancillary ECI should only
deal with the questions concerning the content of that law as far this is questioned, and should not deal with the questions as to the competence of the issuing authority and the conflicts of laws issues, which should be decided solely by
the competent authority which that makes the request.
This will save costs and hopefully will accelerate the winding up of the decedent's estate. In order to really achieve these goals an efficient European network of civil law notaries or courts should be established. The CNUE and other
notarial organisations can probably assist by setting up such a network.
After the issuing authority receives the ancillary ECI, it can attach this (together
with a certified translation) to its own ECI and issue the two together. Only after
issuance of the main ECI should both ECI's become effective.

5. The legal effects of the ECI

a) Legitimation of dispositive power
The persons named in the ECI should be considered by government institutions
and private institutions and parties to be the persons competent to dispose of the
property of the decedent's estate. Any disputes must, in my opinion, be concentrated in the forum of the country of the issuing authority.
b) Adequate protection of third parties' interests
The Report (vide p. 96) rightly advocates the protection of third parties who are
dealing in good faith with the persons named in the ECI as the persons competent to act in respect of the decedent's estate.
c) Evidence
Subject to counter-evidence, the contents of an ECI will be deemed complete
proof of the same. The Report (vide p. 97) proposes that counter-evidence can
be provided in the presence of every competent judge. Abrogation on the other

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hand can only be done by the issuing authority. The question arises whether it
would or would not be desirable to bring procedures concerning alleged incorrect contents of an ECI exclusively before a judge of the country of the issuing
authority.

6. Remaining questions concerning the ECI

The Report deals with a few other issues concerning the ECI.

a) Is an ancillary ECI necessary, or is simple registration sufficient?

If a legal concept provided for in the applicable law is not used in a Member
State where immovable property is located, the question arises whether such
state may adapt it to its own legal system, or whether an ancillary ECI is necessary. In my opinion, this issue should be dealt with in a practical manner. Therefore an ancillary ECI would not be absolutely necessary. Stating the reasons for
the adaptation in the notarial deed needed to register ownership of the property
would be sufficient.

b) Limited scope of the ECI

The ECI is exclusively for cross border use and not for use within the borders of
the issuing country. The reason for this limitation on intra-country use is not
completely clear to me.

c) Competence to issue the ECI

In the previous pages I advocated the concept of having an ECI and ancillary
ECI's.

d) Issuing authority's duty to examine all relevant facts

There can be no doubt as to the obligation of the issuing authority to examine
all the facts relevant to the administration of the decedent's estate. Setting up a
list of matters they should examine, but that is not limited to those matters,
would be helpful. For purposes of acceptance of the ECI in other Member States
the issuing authority must be an authority like the civil law notary or a court
authority.

e) Abrogation of the ECI

As stated above and in the Report (vide p. 99) the procedure for abrogating the
ECI should be exclusively in the issuing State, in accordance with its law.

f) Non-EU Certificates
It is interesting to see that the Report (vide p. 100) limits the scope of the ECI to
the European Union for which it applies the last habitual residence of the decedent. Recognition of certificates of inheritance from non-EU countries should
be left for the private international law rules of the Member State involved or
should be dealt with in a separate chapter in the Succession Regulation.

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7. Conclusion
The proposed solutions of the Deutsches Notarinstitut for the ECI are of high
quality and they reflect careful thinking not withstanding my disagreement with
some of the points.
I am grateful for the honour of being selected to participate in this useful endeavour.

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Prof. ten Wolde:

Le Certificat Europen est-il suffisant pour la Liquidation
de la Succession l'Etranger tous gards?
- Sommaire Les auteurs de ltude ont fait abstraction de toute prfrence nationale. Leurs
propositions montrent plutt une approche europenne.
Le droit des successions matriel des Etats membres est caractris par sa varit. Il existe un besoin dharmonisation lchelon europen. Cependant, cette
harmonisation ne se fait pas du jour au lendemain. Il faut compter plusieurs
centenaires. Pour cette raison, il faudrait dabord harmoniser les rgles de
conflit de lois en matire de successions.
Lharmonisation au niveau europen devrait avoir pour objectif principal la
rglementation efficace et quitable des successions internationales. La Rglementation devrait tre prvisible et facile appliquer.
Dans ce contexte, les discussions portent sur le champ dapplication dune ventuelle rglementation au niveau europen, notamment sur la question de savoir
si le rglement devrait avoir un caractre interlocal ou mme international. En
matire de droit international priv de lUE, il serait important de reconnatre et
dexcuter les dcisions dans tous les Etats membres. Pour le commerce juridique interlocal, il serait galement important dharmoniser les dcisions. Car il
faut respecter la culture des autres Etats membres et ne pas tolrer une prfrence du propre droit. Les principes comme lordre public, le renvoi et la Nherberechtigung ne devant plus jouer aucun rle au niveau du droit interlocal,
ils gardent leur importance en matire de droit international priv.
Dans le cadre des dvolutions successorales transfrontalires, la prvisibilit et
lapplicabilit facilite revtent une importance particulire. Il faut approuver
lide de ltude de crer un certificat dhritier europen au lieu de reconnatre
les certificats dhritiers trangers. Les grandes diffrences dans les ordres juridiques nationaux sont incompatibles avec lide de la reconnaissance. Un certificat dhritier europen permettrait par contre de rgler directement certaines
conditions. Il devrait accompagner lharmonisation de la loi applicable. La dernire rsidence habituelle, comme critre de rattachement propos par ltude,
nest pas toujours facile constater. Il faudrait donc donner une dfinition
exacte de la notion.
Le certificat dhritier europen ne sera dutilit dans la pratique que si les instances qui le dlivrent bnficient de la confiance. Linstance comptente devrait dsigner la loi applicable ainsi que les faits justifiant la rsidence habituelle. La liquidation de la succession pourrait tre facilite par un registre europen des testaments tenu sous forme lectronique. Le certificat dhritier de-

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vrait porter sur la validit formelle du testament et sur la capacit de tester du de

cujus. Il faut quil contienne des informations sur le champs dapplication et sur
la comptence de lautorit qui dlivre le certificat dhritier. Par ailleurs, il faut
y inscrire le rgime matrimonial puisque celui-ci produit des effets sur les biens
successoraux. En plus, ten Wolde examine la ncessit de crer un certificat
europen complmentaire.
Ensuite, la contribution traite les effets du certificat dhritier europen: Lgitimit, bonne foi, force probante. Finalement, ten Wolde soulve la question de
savoir si le certificat dhritier europen, pour faire lobjet dune inscription au
livre foncier, demande lauthentification dun acte, la question de la comptence
pour dlivrer et retirer ce certificat et enfin, la question des problmes dans les
rapports avec les Etats qui ne font pas partie de lUE.

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517

Prof. ten Wolde:

Gengt der Europische Erbschein in jeder Hinsicht
zur Nachlassabwicklung im Ausland?
Zusammenfassung Die Verfasser der Studie haben sich nicht durch nationale Prferenzen leiten
lassen, vielmehr haben sie bei ihren Vorschlgen einen europischen Ansatz
gefunden.
Das materielle Erbrecht der Mitgliedstaaten ist durch seine Vielzahl gekennzeichnet. Es gibt ein Bedrfnis dies zu harmonisieren, doch wren fr eine Harmonisierung auf europischer Ebene mehrere 100 Jahre zu veranschlagen. Aus
diesem Grunde sollten primr die Kollisionsnormen des Internationalen Erbrechts vereinheitlicht werden.
Hauptzweck einer Harmonisierung sollte dabei eine faire und effiziente Regelung von Nachlassfllen in den verschiedenen EU-Mitgliedslndern sein. Die
Regelung muss voraussehbar und leicht anwendbar sein.
Diskutiert wird der Anwendungsbereich einer etwaigen Regelung, also die Frage, ob die Verordnung eine nur interlokale oder eine internationale EURegelung sein sollte. Im interlokalen Privatrecht der EU wird von besonderer
Bedeutung sein, dass Entscheidungen in allen Mitgliedslndern anerkannt und
vollstreckt werden. Weiteres wichtiges Prinzip fr den interlokalen Rechtsverkehr ist die Notwendigkeit eines Entscheidungseinklangs. Schlielich ist die
Kultur der anderen Mitgliedslnder zu achten und eine Prferenz fr das eigene
Recht darf nicht bestehen. Whrend Prinzipien wie ordre public, renvoi, Nherberechtigung im interlokalen Recht keine Rolle mehr spielen drfen, werden sie
im internationalen Privatrecht weiterhin von Bedeutung bleiben.
Im Rahmen der internationalen Nachlassabwicklung bei grenzberschreitenden
Fllen ist von besonderer Bedeutung die Voraussehbarkeit und eine leichte Anwendbarkeit. Hinsichtlich der Frage, ob auslndische Erbscheine anzuerkennen
sind oder ob ein einheitlicher europischer Erbschein geschaffen werden sollte,
ist der Studie zuzustimmen. Einer Anerkennungslsung widersprechen die zahlreichen Unterschiede in den nationalen Rechtsordnungen. In einem europischen Erbschein hingegen knnen bestimmte Anforderungen unmittelbar geregelt werden. Er sollte gekoppelt werden an einen Gleichlauf mit dem anwendbaren Recht. Das in der Studie vorgeschlagene Kriterium des letzten gewhnlichen Aufenthaltsortes ist nicht immer einfach festzustellen. Dieser Begriff wre
genauer zu bestimmen.
Ein europischer Erbschein kann nur funktionieren, wenn die ausstellende Instanz Vertrauen besitzt. Die zustndige Instanz sollte das anwendbare Recht
angeben, sowie die Tatsachen, worauf sich der gewhnliche Aufenthalt begrn-

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ten Wolde, European Certificate of Inheritance

det. Zur Nachlassabwicklung aufgrund Testaments sei ein elektronisches europisches Testamentsregister hilfreich. Der Erbschein sollte Aussagen zur Formgltigkeit des Testaments treffen und zur Testierfhigkeit des Erblassers. Erklrungen ber den Anwendungsbereich und ber die Zustndigkeit der Behrde,
die den Erbschein erstellt, sind aufzunehmen. Aufzunehmen sind auch Erklrungen ber das Ehegterrecht, da sich dieses auf das Nachlassvermgen auswirkt. Untersucht wird weiter die Notwendigkeit, einen zustzlichen europischen Erbschein zu erstellen.
Nachfolgend geht der Beitrag auf die rechtlichen Auswirkungen des europischen Erbscheins ein: Legitimationswirkung, Glaubenswirkung und Beweiswirkung. Abschlieend wird errtert, ob dieser europische Erbschein einer zustzlichen Urkunde bedarf, wenn die Registrierung im Grundbuch erforderlich ist,
die Zustndigkeit fr die Ausstellung und die Einziehung des Erbscheins sowie
die sich stellende Problematik im Verhltnis zu nicht EU-Mitgliedslndern.