EUROPE WILLS PROGRAMME

Transcription

1 EUROPEAN NETWORK OF REGISTERS OF WILLS ASSOCIATION EUROPE WILLS PROGRAMME Interim report The Europe Wills programme benefits from co financing by the European Commission within the framework of the specific Civil Justice programme.

2 PRELIMINARY NOTE ENRWA would like to thank all experts who collaborated in the Europe Wills programme. ENRWA would also like to thank the Council of the Notariats of the European Union (CNUE) for the rereading of this report and the European and Comparative Law Research Center (CEJEC) of the University of Paris Ouest Nanterre la Défense for the rereading and the comments made. The rereading was done within the framework of a research contract by the Professors Sylvestre Bergé, Marie Noëlle Jobard Bachellier and Janine Revel.

3 SUMMARY Introduction p. 2 I. The different forms of wills in European countries p. 4 II. The circulation of wills within Europe p. 7 III. European registers of wills p. 10 A. The existence of a register of wills p. 10 B. Management of the register p. 11 C. Computerisation of the register p. 12 D. The presence of wills of European citizens in the register and the response to inquiries from other European registers p. 12 E. Rules governing the way the register is run p Obligation to enter wills in the register p Information held by the register p Consultation of the register at the time of the settlement of the inheritance p Confidentiality of the existence of the will p. 17 IV. Obstacles to the interconnection of the European Network of Registers of Wills (ENRW) p. 19 Conclusion p. 22 Annexes p. 23 1

4 Introduction The European Network of Registers of Wills Association (ENRWA) was founded in 2005 on the initiative of the European Notariats. It currently has 14 members 1. The ENRWA obtained co financing from the European Commission at the end of 2008 in order to implement the Europe Wills programme. The objective of this programme is to contribute to the creation of the European judicial area for citizens in the field of inheritances and to encourage, from a practical point of view, the mutual recognition of last wills and testaments, by making it possible for legal professionals but also for European citizens to search for wills or probate documents throughout the European Union. On October 14, 2009, the European Commission published a proposal for a regulation relating on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matter of succession and the creation of a European Certificate of Succession 2. The explanatory memorandum sets forth that in accordance with the conclusions of the impact assessment, the question of the registration of wills will be dealt with as part of a future Community initiative. In this context, the objective of the Europe Wills programme is to provide the European Community with avenues of thought regarding the issue of registers of wills, while not, however, giving its opinion on the others aspects of the draft regulation. A questionnaire was drawn up and sent to specialists in the field of wills and testaments in the countries of the European Union and in Croatia, candidate country to join the European Union. The experts from 28 States answered us: Austria, Belgium, Bulgaria, Cyprus, Croatia, Czech 1 The members of the ARERT are the Belgian, Croatian, Spanish, French, Italian, Latvian, Dutch, Polish, Portuguese, Romanian, Slovenian, Swiss Notariat and the Notariat of St Petersbourg. 2 Proposal for a regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, of 14 October 2009, COM (2009) 154 final, 9)0154_en.pdf. 2

5 Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. Based on the responses given by the experts, a status report on schemes of wills registration and search in Europe has been established 3. This interim report summarises this status report. It will envisage successively the forms of wills in the countries of the European Union and in Croatia (I), the circulation of wills within Europe (II), registers of wills and the way they operate (III) and lastly the obstacles still to be overcome to achieve an actual interconnection of registers of wills (IV). 3 The list of the experts who replied to the questionnaire is annexed to the document intitled «Status report on schemes of wills registration and search in Europe». 3

6 I. The different forms of wills in European countries Wills may come in different forms depending on the legislation and the judicial system existing in each State. A differentiation may be made between the civil law systems often referred to as Roman law or Romano Germanic law, judicial systems derived from Common Law and Nordic judicial systems. Unlike the other two, the judicial systems belonging to the civil law family are characterised by the existence of the authentic act. According to the Court of Justice in the Unibank judgement delivered on 17 June , the authentic act is an act the authenticity of which has been established by a public authority or any other authority empowered for that purpose by that State. The Unibank judgement also refers to the Jenard Möller Report which mentions the three characteristics of the authentic act. The authenticity of the act must have been established by a public authority, and should relate to its content and not only its signature. It also has to be enforceable in itself in the State in which it originates. In the countries whose judicial system is derived from the civil law family, the civil law notary is a legal professional to whom public authority is delegated. He or she may therefore formally draw up and register wills as an authentic instrument. That is why the authentic will is a form of wills that is to be found in all the European countries whose judicial system is based on civil law, i.e. in Germany, in Austria, in Belgium, in Bulgaria, in Spain, in Estonia, in France, in Greece, in Hungary, in Italy, in Latvia, in Lithuania, in Luxembourg, in Malta, in the Netherlands, in Poland, in Portugal, in the Czech Republic, in Romania, in Slovakia, in Slovenia and in Croatia. 4 Court of Justice of the European Union, Judgement of 17 June 1999 C 260/97, Unibank, ECR 1999, p. I

7 In the systems based on civil law, there is also the sealed will (also called secret will), which is a will handed to the civil law notary (or to another public authority) in a sealed envelope. Many States allow this form of wills, but it is not widely used by testators in practice. Denmark has a particularity. One of the forms of wills allowed by Danish law is the public will. This will is established by Notaries public. These legal professionals may not however be compared with the notaries of the systems based on civil law because, if they certify a number of items (testator s identity, testator s signature, etc.), they do not appreciate the validity of the content of the instrument. The holographic will exists in most the judicial systems. It validity requirements vary, however, according to the judicial family to which the State in which it is drawn up belongs. In the systems based on civil law, it is valid with the prerequisite that it has been written, dated and signed by the testator s hand. The ensuing risk for the testator is that his or her will is not found or is found belatedly, unless other provisions have been made 5. A similar form exists in the Nordic judicial systems. However, this form of will is exceptional and will only be admitted when it is impossible to have recourse to the main form of will, i.e. the will before witnesses. This situation exists in Finland and Sweden. Some States, without considering their judicial system, are also familiar with wills before witnesses (sometimes referred to as allographic wills in civil law countries). The formal rules vary according to the States. Generally, they are not necessarily written by the testator s hand. By contrast, they are either signed by the testator and by two witnesses or signed by the testator in the presence of two witnesses. Sometimes, they may then be registered with a notary in a sealed envelope, in a system close to that of the mystic will. Some States admit oral wills. This form is reserved for exceptional circumstances, as a general rule, whenever recourse to the other forms provided for by law is not possible. They have a fairly short period of validity, in the region of a few months. Once that period has 5 For example, certain legal systems allow the registration of holograph wills in the registry. 5

8 elapsed, the testator s last wishes have to be indicated in another will (using a written form), in order to be valid. Oral wills are admitted in Croatia, in Finland, in Hungary, in Latvia, in Poland and in Sweden. Lastly, the International Institute for the Unification of Private Law (UNIDROIT) has drawn up a Convention proposing an additional form of will, the international will. However, the Washington Convention dated 26 October 1973 providing a uniform law on the form of an international will has only been signed by 6 Member States of the EU (Belgium, France, Italy, Portugal, United Kingdom and Slovenia) and has only been ratified by Belgium, Cyprus and France. The international will is therefore not widespread. In addition, it is little used in countries having integrated this form into their civil law. Furthermore, without having signed the Convention, some States, such as Croatia, have integrated these provisions into their national law. 6

9 II. The circulation of wills within Europe The conditions in which a will draw up in a Member State can produce legal effects in another State especially depend on its form. The objective of the Hague Convention of 5 October 1961 on the conflicts of laws relating to the forms of testamentary dispositions is precisely to facilitate the circulation of wills considering them as valid if they respect one of the seven to eight connecting factors provided for by the Convention. This last one was signed and ratified by many Member States. Eighteen (18) of the 28 States for which an answer to the questionnaire was obtained signed the Hague Convention and 13 of them ratified it 6. It was also adhered to by Ireland. Some countries, like Romania and Hungary, did not sign the Convention but integrated some of those provisions into their international private law. Some countries entered reservations in respect of that Convention. Those reservations are mainly laid down by Articles 10 and 12. Article 10 lays down that the signatories of the Convention may reserve the right not to recognise testamentary dispositions made orally, save in exceptional circumstances, by one of its nationals possessing no other nationality. As for Article 12, it lays down that each Contracting State may reserve the right to exclude from the application of the present Convention any testamentary clauses, which, under its law, do not relate to matters of succession. The Hague Convention broadens the series of laws required to validate the form of wills 7. In this way, in addition to the States which have ratified the Hague Convention (Germany, Austria, Croatia, Denmark, Spain, Finland, France, Greece, Luxembourg, The Netherlands, Poland, Slovenia and Sweden), five States fulfill all the connecting criteria provided for by the Conventions and will be valid as regards their form if they comply with one of the laws laid 6 Cf. table No. 1. Overview 7 Cf. table No. 2. The circulation of wills within Europe 7

10 down by its Article 1 st8. Among them, two countries have signed the Hague Convention (Belgium and the United Kingdom) and one has adhered to it (Ireland). Finally, Hungary and Lithuania have chosen to adopt in their private international law the same connecting criteria as the Convention. On the other hand, there are still Member States that only recognise the validity of the will as regards its form if it complies with some of the laws envisaged by the Hague Convention. These States are Bulgaria, Czech Republic, Estonia, Italy, Malta, Romania, Portugal and Slovakia. Lastly, two States present a particular situation. In Cyprus, the form of the will must comply with the law of the deceased s place of residence at the time of his or her death while in Latvia, Latvian law must have been respected regarding the form of the will. The law of the deceased s nationality may sometimes be a connecting criterion according the bilateral agreements signed by Latvia. In this way, the objective of The Hague Convention to avoid, as much as possible, a will being declared invalid on a technical point is achieved on the whole. The conflict the form of certain wills creates in relation to the public order or mandatory rules of the host country is difficult to assess. In effect, if in principle, in several States, 8 Article 1: A testamentary disposition shall be valid as regards form if its form complies with the internal law: a) of the place where the testator made it, or b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or c) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or e) so far as immovables are concerned, of the place where they are situated. 8

11 judges have the possibility to declare the form of a will contrary to public order 9, in practice, the courts tend rather to largely recognise the validity of the the forms of wills when they comply with the legislation of the country of origin 10. Lastly, on principle, the wills drawn up by a foreign public authority are recognised in the other States with the same effects as wills having the same form or an equivalent form. However, the requirements for such recognition vary according to each State For further details, it is advisable to refer to the inventory that sets out the judicial situation of each State that answered the questionnaire. 10 It is important to also note that with regard to wills, it is not easy to distinguish between the form and the substance of wills. 11 For further details, it is advisable to refer to the inventory that sets out the judicial situation of each State that answered the questionnaire. 9

12 A. Existence of a register Interim report 10 March 2010 III. European registers of wills The implementation of a register of wills makes it possible to ensure compliance with the deceased s last wishes. In actual fact, a will not found is equivalent to a non existent will. The creation of a register of wills thus makes it possible to trace any testator s last will and testament. The Council of Europe, aware of the advantage of a system for registering wills and convinced that such a system would facilitate in particular the finding of wills made abroad, thus adopted the Basle Convention on the establishment of a scheme of registration of wills on 16 May That convention was signed by 13 Member States of the EU and ratified by 10 of them: Belgium, Cyprus, Estonia, France, Italy, Lithuania, Luxembourg, the Netherlands, Portugal and Spain. The States that signed it without having ratified it are Germany, Denmark and the United Kingdom. A register of wills was established in all the countries that had ratified the Basle Convention apart from Cyprus where a decentralised will depositing system was organised. However, 9 European States have set up a register of wills without having signed the Basle Convention. These are Austria, Bulgaria, Croatia, Hungary, Malta, the Czech Republic, Romania, Slovenia and Slovakia. Moreover, Denmark, which signed but did not ratify the Basle Convention, created its register of wills. The United Kingdom, which also signed but did not ratify the Basle Convention, organized a centralized system for filing wills in Northern Ireland, England and in Wales. At the same time, private registers 12 the operating rules of which are variable For an example, cf For further information, cf. Status report on schemes of wills registration and search in Europe. 10

13 Only the functional rules of the registers of Northern Ireland, England and Wales shall be examined hereafter. The result is that a centralised file of wills exists in 20 States of the 28 that are the subject of the report, i.e. in Austria, Belgium, Bulgaria, Czech Republic, Croatia, Denmark, Estonia, France, Hungary, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, United Kingdom, Slovakia, Slovenia and Spain. However, the systems which have been implemented by Northern Ireland, by England and by Wales are registers which enable wills to be filed. Furthermore, Cyprus has set up a decentralised register making it possible to deposit wills. Among the States not yet having any centralised register of wills, it is frequent for the State or legal professionals to express themselves in favour of the creation of such a register. That is the case in Germany, Finland, Greece, Latvia and in Poland. In Sweden, the Tax authority has proposed the creation of an optional official registers of wills. This proposal is handed at the ministry of Justice. Only Ireland do not wish to create a register of wills. B. Management of the register Registers of wills are either managed by the State in the broadest meaning of the word (Ministry of Justice, Registration of Mortgages, Registration office, etc.), or by the Notariat owing to the special role played by civil law notaries in the establishment and the registration of wills in civil law systems. It emerges from all the answers obtained that 10 registers are managed by the State (Cyprus, Denmark, Estonia, Italy, Lithunania, Luxembourg, Malta, Portugal, Spain and United Kingdom) and 11 registers are managed by the Notariat (Austria, Belgium, Bulgaria, Croatia, Czech Republic, Hungary, the Netherlands, Romania, Slovakia and Slovenia). 11

14 C. Computerisation of the register Interim report 10 March 2010 In the States having a file of wills, 15 of them make it possible to register and search for wills electronically. These are Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, France, Hungary, Italy, Lithuania, the Netherlands, Slovakia, Slovenia and Spain 14. The Romanian register has already been computerized and it should shortly be accessible (summer of 2010) via Internet, so making it possible to perform searches and registration electronically. Mid 2010, 16 registers of wills will therefore be computerised. D. The presence of the wills of European citizens in the register and the response to inquiries from other European registers Nineteen (19) of the 21 registers of wills contain the last wills and testaments of citizens who do not have the nationality of the country in which the register is situated (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, France, Hungary, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, United Kingdom, Slovakia and Spain). The testator s nationality is therefore not generally a condition for entering the will in the register. Furthermore, these registers generally answer inquiries from foreign registers or consult foreign registers themselves, with the exception of Austria and Slovakia. Consequently, the interconnection of all the European registers through the intermediary of the European Network of Registers of Wills (ENRW) would simplify searches for wills, by standardising the relations between the registers. The use of the ENRW actually implies the acceptance of a Charter of use, which has the advantage of applying similar conditions to all European searches. The applicable principles, especially those derived from the Basel Convention and the rules of responsibility would be harmonised in this way. 14 The English register, which does not permit electronic searches, is added to this list. 12

15 E. Rules governing the way the register is run Interim report 10 March 2010 The States having a register of wills have not usually created a centralised database, grouping the actual wills; they have organised a will referencing system, making it possible to know, generally after the testator s death, the place where the will is kept. Such a system makes it possible to ensure the confidentiality of the existence and the content of the will. Only Cyprus and the United Kingdom provide for the actual depositing of the will itself, but it is carried out in a sealed envelope, so making it possible to safeguard the secrecy of the content of the will. The detailed examination of the 21 registers of wills 15 makes it possible to derive a number of common operating principles Obligation to enter wills in the register. First and foremost, it is compulsory to enter wills in the registers of 17 States (Austria, Belgium, Bulgaria, Denmark, Estonia, France, Hungary, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovakia, Slovenia and Spain). This obligation should be relativised. First of all, it usually concerns only the wills known to the civil law notary or a public authority. Now, the holographic will is a very widespread form of will in Europe 17 and, in many countries, the testator may validly choose to leave his or her last wishes on any type of document provided that it is written, dated and signed by his or her hand. There is a risk, however, with this type of will that it may not be found unless the testator has entered it in a register which most States allow. 15 Since the operating rules of the future Bulgarian register are known, that register is included in the report. 16 For further details, cf table No. 3. The way the registers of wills are run. 17 Cf. Supra p.4 13

16 In some States, moreover, for example in France and in Belgium, where the principle is the registration obligation, the testator may always object to the registration of his or her will, even if it is an authentic document, in the register. Lastly, it is important to emphasise that in accordance with the principle laid down by Article 10 of the Basle Convention 18, registration in the register does not determine the validity of a will. The registration obligation only makes it possible to trace the will more easily. The testator thus makes sure that his or her last wishes will be known at the time of the settlement of his or her succession and not belatedly. 2. Information held by the register The registers do not generally contain the actual wills but the information that makes it possible to find the wills. That information includes the information required by the Basle Convention together with the additional data varying according to the States 19. Article 7 of the Basle Convention requires that the request for registration shall contain the following information at least. That information includes family name and first name(s) of testator or author of deed (and maiden name, where applicable); date and place (or, if this is not known, country) of birth; address or domicile, as declared; nature and date of the deed of which registration is requested and name and address of the notary, public authority or person who received the deed or with whom it is deposited. The examination of the information that is communicated to the register makes it possible to state that most States that ratified the Basle Convention comply with the provisions of Article 7. Those States are Belgium, Estonia, France, Italy, Lithuania, Luxembourg, the Netherlands, Portugal and Spain. Austria, Bulgaria, Romania and Slovenia, even though they are not signatories of the Convention, also comply with its Article Article 10: This Convention shall not affect provisions which, in each Contracting State, relate to the validity of wills and other deeds referred to in this Convention. 19 For further details, cf. table No. 4. Information to be communicated to the registers of wills. 14

17 By contrast, the British and Cypriot are the two registers which do not communicate all the information required by the Convention. However, there are more systems of deposit of wills than systems of registration. The principles laid down by the Basle Convention are applied in 13 Member States of the European Union 20. Thirteen (13) States, moreover, use an official number making it possible to identify the testator (Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Lithuania, Luxembourg, Malta, Romania, Slovakia, Slovenia and Spain). 11 registers indicate the date of the testator s death in the register (Belgium, Bulgaria, Estonia, France, Italy, Luxembourg, the Netherlands, Portugal, Romania, Slovakia and Slovenia). Lastly, the information held by the register may be required to be modified according to the testator s wish. That is why it is important that it should be possible to modify, cancel or revoke the provisions of wills in the registers. This is the case for 18 registers (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, France, Hungary, Italy, Lithuania, Luxembourg, Portugal, Romania, United Kingdom, Slovakia, Slovenia and Spain). Amendments, withdrawals or revocations are generally carried out by registering or depositing a new act in which the testator indicates his or her wish to amend, withdraw or revoke the previous one. 3. Consultation of the register at the time of the settlement of the inheritance Depending on the States, various legal professionals are involved in the settlement of inheritances. 20 Cf. table No. 4. Information to be communicated to the registers of wills. 15

18 In Nordic judicial systems, the settlement of inheritances is frequently carried out by the actual heirs. Recourse to the court or to a public authority ( liquidator or executor, etc.) will only occur if difficulties arise. In Common law countries, the settlement of inheritances is carried out by a personal representative a legal person separate from the heirs. The court will only intervene in the event of conflict. In countries belonging to the civil law family of laws, the civil law notary and/or the court are the two main players. A specificity does sometimes exist in some States. At the time of the settlement of the inheritance, the civil law notary may act as a judicial commissioner, i.e. he carries out the judicial tasks as delegatee of public authority.. That is the case for Austria, Czech Republic, Slovakia and Croatia. In these countries, only the civil law notary designated as judicial commissioner shall be authorized to consult the registers of wills. This is why the Austiran, Croatian and Slovakian registers do not reply to requests from other member States. In Hungary, estates are governed by an extrajudicial procedure: the civil law notary takes a decision which has the same value as a court of first instance ruling. In this context, he must consult the register of wills in order to know if the deceased has left a will and if so, to find it. If any heir wishes to contest the notary s decision, he must file an appeal. In all these States (Austria, Czech Repblic, Hongarie, Slovakia and Croatia), the heirs do not freely choose the civil law notary entrusted with settling the inheritance: they have to go to the one who was appointed by law or by the court (genrally determined according to the deceased s date or place of death and/or domicile). At the time of the settlement of inheritances, the register of wills is required to be consulted in 14 States: Belgium, Croatia, Czech Republic, Denmark, Estonia, France, Hungary, Lithuania, Luxembourg, Malta, Romania, Slovakia, Slovenia and Spain. Compulsory consultation of the 16

19 register at the time of the settlement of inheritances makes it possible to know of the existence of the will(s) left by the deceased. 4. Confidentiality of the existence of the will Article 8 of the Basle Convention provides for the confidentiality of the existence of the will during the lifetime of the testator. That is why neither the content of the will not its existence must be revealed before the testator s death. That confidentiality is ensured by the first two paragraphs of Article 8 of the Basle Convention which lay down that: Registration shall be secret during the lifetime of the testator. On the death of the testator, any person may obtain the information mentioned in Article 7 on presentation of an extract of the death certificate or of any other satisfactory proof of death. Almost all the registers of wills comply with the first of these principles even if the State in which the register is located might not have signed and/or ratified the Basle Convention. Only the Maltese register does not guarantee the secrecy of the existence of the will at the present time but a legislative amendment should be introduced in the course of 2010 concerning this matter. 18 registers require that a death certificate be presented in order to be able to consult the register. However, the examination of the way in which some registers operate, which do not require a death certificate, does reveal that such registers will not be consulted before death. The very organisation of the inheritance settlement procedure generally making the 17

20 courts intervene makes it possible to make sure that the testator is really deceased before a search is actually made in the register. For instance, in the Austrian register, only the civil law notary acting as a judicial commissioner 21 may consult the register. In that context, a death certificate is not necessary since the testator s death has been ascertained by the judge. The principles laid down by the Basle Convention are therefore applied by most European registers of wills. 21 Cf. supra p

21 IV. Obstacles to the interconnection to the European Network of Registers of Wills (ENRW) There are two sorts of obstacles to the interconnection to the ENRW, listed by the experts who answered the questionnaire and those obstacles are technical and legislative. The first set of obstacles is technical. In Cyprus, registrations and searches can only be done electronically. In a quite similar connection, the Italian expert mentions the lack of complete automation of his register. The expert from the Czech Republic emphasises language difficulties and especially problems connected with the transcription of accents. The cost of interconnection is also mentioned together with the issue of the security of the system. In Hungary, lack of knowledge of the technical specifications is the problem raised. It is clear that the necessary means are not always available and some countries are unable to computerise their register. Communication by the ENRWA should also be strengthened so as to inform each register of the technical specifications necessary for interconnection. In order for this communication to be efficient, a meeting should be organized with the representatives of each managing body of the registers of wills. In that way, the means to overcome the technical and language difficulties could be explained on a case by case basis. The difficulty arising from the lack of computerisation of the register has been resolved by the launching of the RERT Light (secure internet site) which enables registers to consult and to be consulted when it is not computerized. It operates via a correspondent designated by the managing body of the register, which transmits and receives requests from and to other countries. 19

22 The second set of obstacles is legislative. Several experts pointed out that a change in legislation in their countries would be necessary in order to be able to interconnect with the ENRW. That is the case for Austria, Cyprus, Croatia and Slovakia. The Hungarian expert also emphasised the lack of Community regulations in this area and the Czech expert brought up the subject of the failure to sign and/or to ratify the Basle Convention. However, certain States are not ready to modify their legislation in order to enable interconnection with the RERT. These are mainly States in which the notary governs the estate in his capacity as judicial commissioner. In effect, the access to the information contained in their registers is highly regulated. Lastly, some of the obstacles mentioned can be easily overcome. The Lithuanian register is not administered by the Notariat but by the Registration of Mortgages. Now, the aim of the ENRWA is not to be composed solely of Notariats. Article 5 of the Articles of Association therefore stipulates that the administrators of registers of wills may be admitted as fellow members. As for the Slovenian expert, he stresses the fact that the existence of the will shall be secret during the lifetime of the testator and, on the testator s death, only the court or the persons having a legitimate interest (the heirs) may consult the will. Now, the principle of the secrecy of the existence of the will during the lifetime of the testator is laid down by Article 8 of the Basle Convention just as the principle requiring the presentation of a death certificate in order to consult the register. These principles are widely accepted by the Member States of the European Union Cf. supra p.14 20

23 More generally, membership of the ENRWA implies approval of a Charter of use complying with the principles laid down by the Basle Convention. 21

24 Conclusion The examination of all the answers made to the to the questionnaire makes it possible to state that most Member States of the European Union (with Croatia) have created registers of wills or are favourable to their development. Most existing registers do not restrict the registration of wills to their nationals. The current registers therefore contain information about last wills and testaments that are likely to interest heirs located in a Member State other than the one in which the will is registered. Furthermore, the free circulation of persons within the European Union is certainly going to increase this phenomenon. Many registers already communicate with one another and answer requests for consultation made by other registers. However, those exchanges are regulated according to bilateral agreements and do not allow simultaneous searches in several registers. The interconnection of all the registers of wills through the ENRW would make it possible to conduct a search of wills in several registers at the same time, while being assured that similar rules would apply to all the searches (in particular regarding, compliance with the principle of the secrecy of the existence of the will during the lifetime of the testator, etc.). For the registers that are technically ready to be interconnected, the ENRWA has developed the RERT Light making it possible for the members of the ENRWA to consult the registers of other members which are not yet interconnected if they so wish. The RERT Light (secure website) was launched in September 2009 and it operates through a correspondent appointed by the administrator of the register of wills. These two tools (ENRW and RERT Light) will make it possible in the short term to achieve the actual connection of the registers of wills. 22

25 ANNEXES Summary tables 1. Overview 2. The circulation of wills within Europe 3. The way the registers of wills are run 4. Information to be communicated to the registers of wills 23

26 1. Overview Country Basle Convention (system for registration of wills) The Hague Convention (conflicts of laws relating to the forms of testamentary dispositions) Washington Convention (form of an international will) Existence of a register of wills? Register in an electronic form? Management of the register? S 1 R 2 S R S R Notariat State Registration of the wills of citizens of other States? Replies to inquiries from and to other States? Favourable to the creation of a register? Austria Belgium X X X Bulgaria Croatia Cyprus X X Czech Republic Denmark X Estonia X X X X X X X X X X X X X X X X X X X X X X X X * 3 X X X X Decentralised X X X system for depositing wills X X X X X X X X X X X X X X X X X 1 S= Signature 2 R= Ratification 3 The provisions of the Washington Convention have been inserted into Croatian law. 24

27 1. Overview Country Basle Convention (system for registration of wills) The Hague Convention (conflicts of laws relating to the forms of testamentary dispositions) Washington Convention (form of an international will) Existence of a register of wills? Register in an electronic form? Management of the register? S 1 R 2 S R S R Notariat State Registration of the wills of citizens of other States? Replies to inquiries from and to other States? Favourable to the creation of a register? Finland X X X France X X X X X X X X X X X Germany X X X X Greece X X X Hungary X X X X X Ireland Italy X X X * 4 X * 5 X X X X X Latvia X Lithuania X X Luxembourg X X X X X X X X X X X X X 4 Ireland adhered to the Hague Convention. 5 Italy did not ratify but adhered to the Washington Convention. The latter therefore came fully into force. 25

28 1. Overview Country Basle Convention (system for registration of wills) The Hague Convention (conflicts of laws relating to the forms of testamentary dispositions) Washington Convention (form of an international will) Existence of a register of wills? Register in an electronic form? Management of the register? S 1 R 2 S R S R Notariat State Registration of the wills of citizens of other States? Replies to inquiries from and to other States? Favourable to the creation of a register? Malta X X X X The Netherlands X X X X X X X X X Poland X X X Portugal X X X X X X X X Romania Slovakia * 6 X Summer X X X 2010 X X X X Slovenia X X X X X X Spain X X X X X X X X X Sweden X X Under discussion 6 Some of the provisions of The Hague Convention have been included in Romanian international private law. 26

29 1. Overview Country Basle Convention (system for registration of wills) The Hague Convention (conflicts of laws relating to the forms of testamentary dispositions) Washington Convention (form of an international will) Existence of a register of wills? Register in an electronic form? Management of the register? S 1 R 2 S R S R Notariat State Registration of the wills of citizens of other States? Replies to inquiries from and to other States? Favourable to the creation of a register? United Kingdom X X 7 X 6. Centralised system for depositing wills in Northern Ireland, in England & Wales For the research only X X X 7 The United Kingdom neither ratified the Hague Convention nor the Washington Convention. Those Conventions can however come into force without ratification being necessary. 27

30 2. The circulation of wills within Europe Country Law governing the form of testamentary dispositions Law of the place where Law of nationality Law of Law of habitual residence Law of place where the the will was made domicile immovables are situated Austria X X X X X Belgium X X X X X Bulgaria X X X X Croatia X X X X X Cyprus Law of the domicile at the time of death Czech X X Republic Denmark X X X X X Estonia X Finland X X X X X France X X X X X Germany X X X X X Greece X X X X X Hungary X X X X X 28

31 2. The circulation of wills within Europe Country Law governing the form of testamentary dispositions Law of the place where Law of nationality Law of Law of habitual residence Law of place where the the will was made domicile immovables are situated Ireland X X X X X Italy X X X X Latvia According to bilateral agreements Lithuania X X X X X Luxembourg X X X X X Malta X Netherlands X X X X X Poland X X X X X Portugal X X Romania X X X X Slovakia X Law of nationality at the time of the deed only Slovenia X X X X X Spain X X X X X 29

32 2. The circulation of wills within Europe Country Law governing the form of testamentary dispositions Law of the place where Law of nationality Law of Law of habitual residence Law of place where the the will was made domicile immovables are situated Sweden X X X X X United Kingdom X X X X X 30

33 3. The way the registers of wills are run Country Obligation to register wills? Austria X Identification of the testator by an official number? Date of death in the register? Possible modifications in the register? X Consultation of the register compulsory at the time of settlement of the inheritance? Secrecy of the existence of the will during the lifetime of the testator? X Presentation of a death certificate to consult the register? Belgium X X X X X X X Bulgaria X X X X X X Croatia Cyprus X X X X X X X Czech Republic X X X X X Denmark X X X X X Estonia X X X X X X France X X X X X X Hungary X Italy X * 1 X X X X X X X X Lithuania X X X X X X Luxembourg X X X X X X X Malta X X X X 1 The register indicates the date of publication of the will, carried out when the inheritance proceedings begin. 31

34 3. The way the registers of wills are run Country Obligation to register wills? Netherlands X Portugal X Identification of the testator by an official number? Date of death in the register? Possible modifications in the register? Consultation of the register compulsory at the time of settlement of the inheritance? Secrecy of the existence of the will during the lifetime of the testator? Presentation of a death certificate to consult the register? X X X X X X X Czech X X X X X Republic Romania X X X X X X X Slovakia X X X X X X X Slovenia X X X X X X X Spain X X X X X X United Kingdom X X X 32

35 Country Family name and first name(s) of the testator 1 4. Information to be communicated to the registers of wills Date of birth Place of birth Testator s address Type of will Date of the will Date of registration of the will Name and address of the public authority with which the will is deposited Austria X 2 X X X X X X X social security number Belgium X X X X X X Bulgaria X X X X X X X X X Other name of the last spouse Croatia X X X X place where the will is kept 1 Article 7 of the Basle Convention of 16 May 1972 on the establishment of a scheme of registration of wills requires that request for registration shall contain the following information at least: a. Family name and first name(s) of the testator or author of deed (and maiden name, where applicable); b. date and place (or, if this is not known, country) of birth; c. address or domicile, as declared; d. nature and date of deed of which registration is requested; e. name and address of the notary, public authority or person who received the deed or with whom it is deposited. This information has been put in italics in the table so as to identify precisely which are the registers that comply with this provision. 2 Family name only 33

36 4. Information to be communicated to the registers of wills Country Family name and first name(s) of the testator 1 Date of birth Place of birth Testator s address Type of will Date of the will Date of registration of the will Name and address of the public authority with which the will is deposited Cyprus 3 X X * 4 X X * 5 Other Czech Republic Denmark X X X X X identification number issued at birth, where appropriate X 6 X X civil identification number of the testator 7 Estonia X X X X X X X X France X X X X X X X X family name of the spouse 3 For Cyprus, the information is the information appearing on the envelope containing the will. 4 In Cyprus, there is only one type of wills, witnessed wills. 5 Inapplicable because the will is deposit at the registration office. 6 Under Danish law, a single type of will may be entered in the register, the public will. 7 The Notary public that registers the will communicates the testator s identification number to the register. That number makes it possible to obtain information about the testator as to whether or not a will certified by a Notary public has been drawn. 34

37 Country Family name and first name(s) of the testator 1 4. Information to be communicated to the registers of wills Date of birth Place of birth Testator s address Type of will Date of the will Date of registration of the will Name and address of the public authority with which the will is deposited Hungary X X X X X X X family name and first name(s) of birth of the testator reference number of the will for the person depositing the will Italy X X X X X X X X Lithuania X X X X X X X X number of the notary who register the will Luxembourg X X X X X X X X Other Malta X X X X X X 8 testator s profession testator identification number family name(s) of the testator s parents Netherlands X X X X X X X X 8 Only the family name. 35

38 Country Family name and first name(s) of the testator 1 4. Information to be communicated to the registers of wills Date of birth Place of birth Testator s address Type of will Date of the will Date of registration of the will Name and address of the public authority with which the will is deposited Portugal X X X X X X X X family name and first name(s) of the testator s parents Romania X X X X X X X X name(s) of the testator s parents testator s gender authentication number of registration of the will Other optional :testator s date of death Slovakia X X X X X X testator s permanent place of residence Slovenia X X X X X X X X Spain X X X X X X X civil status of the testator identity document of the testator first name(s) of the testator s parents family name and first name(s) of the spouse of the testator 36

39 4. Information to be communicated to the registers of wills Country Family name and first name(s) of the testator 1 Date of birth Place of birth Testator s address Type of will United X X X * 10 Kingdom 9 Date of the will Date of registration of the will Name and address of the public authority with which the will is deposited Other X X * 11 Names of executors Names of witnesses 9 For United Kingdom, the information is the information appearing on the envelope containing the will. 10 In United Kingdom, there is only one type of wills, witnessed wills. 11 Inapplicable because the will is deposit at the registration office. 37