Regulation (EU) No 650/2012 on succession: what effects for Monaco?

Note: This article was written before the entry into force on 8 July 2017 of the Monegasque Code of Private International Law (Code DIP), which, like the EU Regulation, adopts the unitary treatment of international successions.

This article presents the former rules of conflict of jurisdiction and applicable law derived from case law. These case law rules, which predate the Code DIP, are still of interest as they remain applicable, in part (Court of Revision, judgment of 18 March 2024, Appeal no. 2023-42), to successions opened before the Code DIP came into force.

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Presentation

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 04/07/2012 (which entered into force on 16/08/2012) is "on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession".

Apart from a few specific provisions, the Regulation is applicable to international successions "mortis causa" opened since 17/08/2015 (Articles 83, § 1 and 84), attached to one or more Member States of the European Union (excluding Denmark, Ireland and the United Kingdom). As a third country, the Principality is not bound by Regulation (EU) No 650/2012. However, due to some of its universal rules, the Regulation is likely to have an influence on planning in the context of successions with links both to one or more European States and to Monaco (residence, presence of assets, nationality).

Outline of the article :

Introduction

1. The treatment of international successions in the European Union and Monaco

1.1. The main thrust of Regulation (EU) No 650/2012

1.2. Monaco's approach to conflict resolution

2. The effects of the European Regulation from the Principality's point of view

2.1. European conflict resolution rules

2.2 Examples of interference with Monegasque rules

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Introduction

Regulation (EU) No 650/2012 applies to the civil law aspects of international successions "mortis causa" (excluding tax, customs and administrative aspects)[1], i.e. "any mode of transfer of property, rights and obligations", whether testamentary (voluntary) or intestate (legal)[2]. This applies to

• the successions of third-country nationals whose habitual residence at the time of death was in an EU Member State bound by the Regulation;
  
• estates of EU nationals or third-country nationals living in a third country and owning property in one or more Member States.
  

The aim of the Regulation is twofold: to enable citizens of the European area of justice "to organise their succession in advance"; and to "effectively" guarantee the rights of heirs, legatees and creditors of the succession[3].

In this sense, the Regulation aims to provide a comprehensive solution to the problems of private international law of succession within the EU. In addition to an important Preamble (83 recitals) and general and final provisions (articles 1 to 3, 74 to 84), the Regulation contains conflict-of-jurisdiction rules[4] (articles 4 to 19), conflict-of-law rules[5] (articles 20 to 38), provisions relating to the international recognition of decisions (articles 39 to 61), and rules relating to the European Certificate of Succession[6] (articles 62 to 73).

After a presentation of the European and Monegasque conceptions of the resolution of conflicts of jurisdiction and law in succession matters, an analysis of the possible effects of the Regulation from the Principality's point of view will be proposed, illustrating in this way the interest of carrying out estate planning, or re-examining the provisions previously adopted.

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1. The treatment of international successions in the European Union and Monaco

Private international law applies to situations with foreign elements. It operates on the basis of connecting factors that determine the competent jurisdiction and the law applicable to the legal relationships of private individuals governed by several states. Contrary to what its name might suggest, it is not uniform, with each country adopting its own rules[7]. Efforts to unify conflict of laws rules in matters of succession have certainly already been made at international level, but it is difficult to see how this can be achieved.

The main thrust of the European Regulation is to coordinate the national systems of the Member States involved[9] (and not to unify their substantive rules of succession, which remain unchanged). It is intended to apply as widely as possible, even when the succession involves non-EU countries such as Monaco, whose own rules on dispute resolution are in competition with one another.

1.1. The main thrust of Regulation (EU) No 650/2012

The aim of the Regulation is to remove the difficulties in dealing with cross-border successions resulting from the coexistence of two conceptions of succession law, in favour of succession planning.

Some States adopt a so-called unitary approach[10]: all succession assets (movable[11] and immovable[12]) are attached to the person of the deceased[13](mobilia sequuntur personam), i.e. to his/her personal law (lex personalis) - the law of his/her last domicile (lex domicilii) or habitual residence, or national law (lex patriae).

Other States adopt what is known as a split or dualist approach[14]: movable property is governed by the personal law of the deceased (lex personalis), while immovable property is governed by the law of the place where it is located (lex rei sitae).

The unitary system is simple to apply and avoids legal contradictions in the distribution of movable and immovable property located in several countries, with the disadvantage that in the case of an immovable succession, the decision may not be recognised and enforced in the country where the property is located.

The scission system is effective in that the decision will be more easily recognised and enforced in the country where the assets are located, with the disadvantage that when the deceased leaves movable and immovable property in several countries, the determination of the applicable laws is complex.

Because of these differences in approach, the handling of an international succession may give rise to conflicts as to the competent jurisdiction and the applicable law, since several legal systems are likely to govern it.

In order to prevent conflicts (as well as simplify legal formalities, speed up the handling of the succession and reduce costs), the EU Regulation favours unitary handling of the succession, tending to make jurisdiction and applicable law coincide (Recital 27). In practical terms, it favours the application by the designated court (judicial authority or other competent authority in matters of succession[15]) of a Member State of its domestic law (with which it is most familiar) for all assets, regardless of their nature (movable or immovable) and their location (in another Member State or in a third country). NOTE: The Monegasque Code of Private International Law (Code DIP), which came into force on 8 July 2017, retains the unitary treatment of international successions, as does the EU Regulation.

The rules relating to the recognition and enforcement of foreign decisions or acts, lis pendens[16] (article 17) and connexity[17] (article 18), and the European Certificate of Succession only apply to relations between EU Member States bound by the Regulation (scope inter partes).

The rules for resolving conflicts of jurisdiction and determining the applicable law in the EU Regulation, on the other hand, are intended to apply universally ( erga omnes scope) and therefore also in situations where an estate has points of connection with third States, such as Monaco.

1.2. The Monegasque concept of conflict resolution (before the entry into force of the Monegasque Code of Private International Law, which, like the EU Regulation, adopts the unitary treatment of international successions)

The Principality did not (until the adoption of the PIL Code which came into force on 8 July 2017) have a specific private international law law [18]. The rules for resolving conflicts of jurisdiction and conflicts of law found their source in the Civil Code and the Code of Civil Procedure, with case law making up for the ambiguities and silence of the texts.

NOTE: The following conflict rules based on the scissionist system, excluding the mechanism of reference to the private international law rules of the designated foreign law, still apply to successions opened before the Code DIP came into force on 8 July 2017. See Court of Revision, judgment of 18 March 2024, Appeal no. 2023-42.

According to the Monegasque rule of conflict resulting from case law (prior to the adoption of the PIL Code), the jurisdiction of the Monegasque courts to hear actions relating to an international succession may be based on the domicile[19] of the dece ased in the territory of the Principality "on the day of his death"[20] (combined application of Article 3, 2° or 3° of the Code of Civil Procedure[21] and article 83 of the Civil Code), or on the presence of real estate on the territory of the Principality (article 3, 1° of the Code of Civil Procedure):

• the Monegasque court has jurisdiction to hear actions relating to movables in their entirety (wherever they may be found) if the succession is opened in the Principality because the deceased had his last domicile there (regardless of the place of his death);
  
• the Monegasque court has reserved jurisdiction to hear actions relating to " immovable property situated exclusively in Monaco "[22], whether or not the succession is opened in the Principality.

According to the Monegasque rule of conflict resulting from case law (prior to the adoption of the Code DIP), the jurisdiction of the Monegasque courts to hear actions relating to an international succession may be based on the domicile[19] of the dece ased in the territory of the Principality "on the day of his death"[20] (combined application of Article 3, 2° or 3° of the Code of Civil Procedure[21] and article 83 of the Civil Code), or on the presence of real estate on the territory of the Principality (article 3, 1° of the Code of Civil Procedure):

• the Monegasque court has jurisdiction to hear actions relating to movables in their entirety (wherever they may be found) if the succession is opened in the Principality because the deceased had his last domicile there (regardless of the place of his death);
  
• the Monegasque court has reserved jurisdiction to hear actions relating to " immovable property situated exclusively in Monaco "[22], whether or not the succession is opened in the Principality.

The Principality applies (before the adoption of the Code DIP) a split system, distinguishing between the law applicable (including both succession rules[25] and conflict rules) to immovable property and that applicable to movable property:

• In Monegasque private international law, "successions in immovable property are governed by the law of the location of the immovable property"[26] (lex rei sitae);
  

Monegasque inheritance law therefore applies to real estate located in Monaco, "even those owned by foreigners" (article 3, paragraph 2 of the Civil Code).

• with regard to successions involving movable property, the "Monegasque conflict of laws rule gives jurisdiction to the national law of the deceased"[27] (lex patriae).

Monegasque inheritance law is therefore applicable when the deceased is of Monegasque nationality, but may also be applicable when the deceased is of foreign nationality through renvoi ("the foreign law made competent by Monegasque law declines such attribution and leaves it to the law of the domicile of the deceased to settle the movable estate"[28]). NOTE: the referral mechanism is no longer accepted and is no longer applicable to successions opened before the entry into force of the Code DIP to which article 24 of the Code DIP is applicable: the designated foreign law refers exclusively to its substantive rules of succession(Court of Revision, judgment of 18 March 2024, Appeal no. 2023-42).

(Before the adoption of the DIP Code) No provision of Monegasque law "formally authorises the choice by a foreigner of the substantive law of the country of which he is a national to govern his own succession"(professio juris). Although the case law leaves room for autonomy of will, this is limited in scope in practice.

• recourse to professio juris "does not appear to be prohibited by Monegasque legal provisions as regards movable succession property" (the national law of the de cujus corresponding in fact to the objective connecting rules), but "does not currently appear to be authorised" for immovable property situated in the Principality (pursuant to article 3, paragraph 2 of the Civil Code)[29] ;
  
• professio juris does not exclude reference to Monegasque law[30] (according to the case law, the choice of law refers not only to the rules of succession but also to the rules of private international law of the country of nationality of the deceased);
  
• professio juris does not entail professio fori, i.e. attribution of jurisdiction to the courts of the designated national law[31].

The court also retains the power to set aside the foreign law that has been made competent, in favour of Monegasque law, on the grounds that its application would be contrary to Monegasque public policy (national principles considered to be fundamental, such as reserved inheritance[32]). This public policy exception applies in full to situations constituted in Monaco, where it is a question of applying directly on Monegasque territory a law that runs counter to the essential concepts of its legal system. It applies to a lesser extent where it is merely a question of "allowing the effects of rights duly acquired abroad to take place in Monaco, in accordance with the law applicable under the Monegasque rule of conflict", where any conflict with public policy may be tolerated by the Monegasque court[33], after an assessment in concreto.

Finally, the rules of Monegasque private international law cannot have any effect on the question of whether or not a foreign authority has jurisdiction (according to its own conflict rules) to hear the succession. The fact that a foreign court would also have retained jurisdiction in a similar case has no effect on the jurisdiction of the Monegasque court, since 'it is settled case-law that lis pendens in international matters is not permitted'[34] in the Principality. Nor does the court have to consider whether or not its decisions will be recognised abroad[35].

A more detailed examination of Regulation (EU) No 650/2012 will provide an overview of the possible interference with Monegasque private international law rules derived from case law (prior to the adoption of the Code DIP).

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2. The effects of the European Regulation from the point of view of the Principality

The place of habitual residence of the deceased at the time of his death is the main connecting factor retained by the European Regulation[36]. A linked Member State will therefore be able to assert its jurisdiction over the entire succession and apply its national law to it. Where the deceased had his habitual residence in a non-Member State, other grounds of jurisdiction nevertheless allow a Member State to have jurisdiction over the succession as a whole, or at least in part. Although the law of the deceased's last habitual residence (which may be that of a non-Member State) is applicable as a matter of principle, room is left for the national law of the deceased: the admission of professio juris is, for the majority of Member States, one of the most significant innovations of the Regulation.

In the context of relations with the Principality, which has a scissionist tradition (by virtue of the old rules of case law still applicable in part to successions opened before the entry into force of the DIP Code), the dissociation between forum and applicable law as well as conflicts of jurisdiction are to be expected, although the Regulation takes account of the jurisdiction of third States over property situated on their territory. As for the recognition of Monegasque decisions, an application for exequatur in a European State will continue to be governed by the internal rules of that State or the international conventions applicable in that State.

2.1. European conflict resolution rules

The jurisdiction of a State bound by the Regulation over the succession as a whole may be based on the habitual residence of the deceased on its territory at the time of his death (Article 4), on special rules in the event of a choice of law made by the deceased (Articles 5 to 7), on the presence of succession assets on its territory (Article 10), or on necessity (Article 11), notwithstanding the possible jurisdiction of a third State:

• the courts of a State bound by the Regulation have general jurisdiction to deal with the succession as a whole, provided that the deceased had his/her habitual residence there at the time of death (Article 4), including therefore property (whatever its nature) situated in third States;
  
• where a deceased person who is a national of a Member State has chosen the law of his nationality to govern his entire succession[38], the courts of that State may declare themselves competent(forum legis) in the following cases : - the parties to the proceedings have chosen the jurisdiction of the Member State of nationality by means of a choice of court agreement (Article 7(b))[39] or have expressly accepted it on referral (Article 7(c)); - the court of the Member State of the habitual residence or of the location of part of the assets has declined jurisdiction (Article 7(a)) at the request of one of the parties to the proceedings (Article 6(a))[40];
• where the deceased had his habitual residence in a non-Member State and leaves estate assets in a Member State, the latter may : - either rule on the succession as a whole, if the deceased was its national (Article 10(1)(a)), or if he formerly habitually resided there in the five years preceding the referral to the court (Article 10(1)(b)); - or rule on a residual basis only on the assets located on its territory, if the preceding conditions are not met and no other Member State has jurisdiction (Article 10(2)) ;
• by way of exception, in the event that proceedings could not reasonably be brought or conducted, or would be impossible in a third State[41], a Member State may rule on the succession(forum necessitatis) if, on the one hand, no other Member State has jurisdiction under other provisions of the Regulation and, on the other hand, it has a sufficient connection with the case (Article 11).

The Regulation makes it possible to limit the procedure in respect of property located in a third country (Article 12), in order to take account of that country's own rules of private international law. The court of the Member State seised to rule on the succession has the option of declining jurisdiction over one or more of these assets, on two conditions: - an application to that effect must be made by one of the parties; - and there is a risk that the judgment given by the court of the Member State with jurisdiction over these assets will not be recognised or declared enforceable in the third State[42]. This situation could apply in the case of immovable property situated in Monaco, which claims exclusive jurisdiction over such property.

As regards the conflict-of-law rules, the Regulation establishes the principle of their universal application by stating that any law it designates applies, even if that law is the law of a third State (Article 20), and "governs the whole of the succession" (Article 23). These rules are based on the habitual residence of the deceased, on manifestly closer links with another State (Article 21), and on the nationality of the deceased (Article 22):

• according to the general rule, the law of the State (Member State or third country) in which the deceased had his habitual residence at the time of death applies (Article 21(1))[43] ;
  

In the event that the law of a third State is designated by the Regulation, this must be understood to mean "the rules of law in force in that State, including its rules of private international law" (Article 34(1))[44], provided that the latter refer: - either to the law of a Member State; - or to the law of another third State which would apply its own substantive law of succession (in other words, whose rules of private international law do not refer to another law).

• exceptionally, the substantive rules[45] applicable to the succession may be those of a State other than that of the deceased's last habitual residence: to do so, it must be apparent from all the circumstances that the deceased was manifestly more closely connected with that State (Article 21(2))[46] ;
  
• lastly, the deceased may choose the substantive law of succession[47] of the State (or of any State) of which he is a national (Member State or third State)[48] to govern his entire succession (Article 22)[49].
  

The professio juris is valid if the deceased has the nationality of the State he designates at the time he makes this choice, or at the time of his death. From a formal point of view, the choice is "expressly formulated in a declaration in the form of a disposition mortis causa or results from the terms of such a disposition"[50] (Article 22, § 2).

As for the effects of professio juris, uncertainty remains in the event that the State of habitual residence, which is competent to deal with the succession, protects certain persons (such as heirs with right of retention) under its law, whereas the law of the State of nationality, which is liberal, does not provide for such protection. Since no limitation in this respect arises from the provisions on professio juris, the question of a limitation that might result from the application by the State of the forum of the public policy reservation (Article 35)[51] is discussed[52].

2.2 Examples of interference with Monegasque rules derived from case law (prior to the adoption of the Code DIP)

In the context of successions connected to Monaco and to a State bound by the Regulation, apart from immovable property not situated in Monaco (which does not fall within the jurisdiction of the Monegasque court), the other assets of the succession could be the subject of parallel proceedings, as illustrated for example by the following situations.

¤ De cujus domiciled/usually resident in Monaco at the time of his/her death and leaving property in a State bound by the Regulation

From the Monegasque point of view, its judges have jurisdiction over the immovable estate situated exclusively in Monaco (Monegasque rules), and over the movable estate as a whole (substantive and conflict of law rules of the State of nationality of the deceased), whatever the nationality of the deceased. If the deceased is a national of a related European State, the Monegasque court should apply the European conflict rules to the movable succession.

From the point of view of the Regulation, if the deceased has the nationality of the Member State on whose territory the succession assets are located, or if the deceased (of the nationality of another State, whether a Member State or a third country) had previously habitually resided in that State in the five years preceding the referral to its authority, the latter retains the possibility of establishing its jurisdiction over the whole of the succession (first hypothesis). The use of Article 12 of the Regulation would make it possible to mitigate the conflict: at the request of one of the parties, the court of the Member State could decide to decline jurisdiction over the assets located in Monaco, on the grounds that it is foreseeable that its decision will not be enforced there. In the absence of such nationality or residence, the Regulation confers residual jurisdiction on the Member State over the succession assets located on its territory (second hypothesis). As the Monegasque court cannot hear estates situated abroad, the main point of friction would concern movable property situated on the territory of the Member State.

If the court of a Member State has declared itself competent, notwithstanding the last habitual residence of the deceased in Monaco, it could exclude the application of Monegasque law. For example, if the deceased had only recently moved his habitual residence to the Principality and had not established close ties with it prior to his death, the Member State could consider that all the circumstances showed that the deceased had manifestly closer ties with it, and apply its own law of succession. Such an application can be avoided by the deceased by designating the substantive law of his State (or one of his States) of nationality as applicable to his entire succession (professio juris).

¤ De cujus domiciled/usually resident in a State bound by the Regulations at the time of death and leaving property in Monaco

From the Monegasque point of view, the Monegasque court has exclusive jurisdiction to rule on inheritance property located in Monaco, to which Monegasque inheritance law is applicable.

From the point of view of the Regulation, the Member State in which the deceased had his last habitual residence is in principle competent to rule on the whole of the succession, whatever the nationality of the deceased. If the deceased is a national of another State bound by the Regulation and has chosen the law of his nationality to govern his entire succession, his State of nationality may nevertheless establish its jurisdiction under the conditions provided for by the Regulation (forum legis).

As it is foreseeable that a decision by the State bound by the Regulation on real estate located in Monaco cannot be enforced there, the use of Article 12 of the Regulation at the request of one of the parties would enable it to decline jurisdiction over this property.

In the absence of professio juris (inheritance law of the State of nationality of the deceased), or of a closer and clearer connection with a State other than that of the last habitual residence (inheritance law of that State), the inheritance law of the Member State of last habitual residence is in principle applicable.

In the situations chosen, the concepts of domicile in the Monegasque sense and habitual residence in the European sense have been assimilated. Although closely related[53], they may be accepted differently. It is not out of the question that a person could, for example, be considered to be domiciled in Monaco at the time of his death, while having his habitual residence in a State bound by the Regulation. As the authorities of the Member State consider themselves to have jurisdiction over the entire estate, there would be a positive conflict of jurisdiction with the Monegasque court over the real estate estate estate situated in Monaco, as well as over the movable property estate. As in previous situations, recourse to Article 12 of the Regulation would make it possible to resolve the conflict relating to property located in the Principality.

The former Monegasque case law conflict rules based on the scission regime are still partly applicable (except for the mechanism of reference to foreign conflict rules, see Court of Revision, judgment of 18 March 2024, Appeal no. 2023-42) to successions opened before the entry into force of the DIP Code on 8 July 2017.

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Footnotes

[1] Article 1, § 1 of the Regulation. The Regulation applies to successions "mortis causa" (absence and disappearance may constitute two other grounds for the opening of a succession). 2 lists the matters excluded from its scope (in particular matrimonial property regimes, gifts, maintenance obligations). See also recitals 10 to 19. It should be noted that trusts are not generally excluded.

[2] Recital 9 of the Regulation. A testamentary succession is not governed entirely by law. In the absence of a will, or in order to complete it, the assets are divided according to the legally established order (in Monaco, by articles 614 to 619 of the Civil Code).

[3] Recital 7 of the Regulation.

[4] Method for solving the problem of choosing the court with jurisdiction to hear a dispute involving several States.

[5] Method for solving the problem of choosing the court with jurisdiction to hear a dispute with links to several States.

[6] Standardised document intended to be used by heirs or legatees, executors or administrators of the succession to prove their status and/or their rights in another Member State (Article 63). It is of a subsidiary nature (optional, it "does not replace internal documents used for similar purposes in the Member States", article 62, §§ 2 and 3). Its period of validity is limited to 6 months (Article 70(3)).

[7] See e.g. CFI, PO v WY, 16/01/2014 and SB v Vve AB, EB, 11/06/2015 (reminder of the principle of sovereign elaboration of the rules of international jurisdiction).

[8] The Hague Convention of 05/10/1961 on the conflicts of laws relating to the form of testamentary dispositions is binding on 42 States (not Monaco). The Convention of 02/10/1973 on the international administration of successions has entered into force between 3 States (Portugal, Czech Republic and Slovakia). The Convention of 01/08/1989 on the Law Applicable to Succession to the Estates of Deceased Persons has only been ratified by the Netherlands.

[9] The United Kingdom, Ireland and Denmark are not bound by the Regulation (Recitals 82 and 83) in accordance with their position in relation to the area of freedom, security and justice (Articles 1 and 2 of Protocols 21 and 22 annexed to the EU Treaty and the Treaty on the Functioning of the EU). These are third countries within the meaning of the Regulation.

[10] Germany, Austria, Spain, Baltic States, Finland, Greece, Hungary, Italy, Netherlands, Poland, Portugal, Slovakia, Slovenia, Sweden, Czech Republic (also Denmark, Switzerland, Japan, Egypt, Argentina, Peru, Paraguay, etc.).

[11] E.g. bank accounts, works of art, jewellery.

[12] E.g. flat, villa, garage, cellar, land, forest.

[13] Deceased person whose estate is open.

[14] Belgium, Bulgaria, Cyprus, France, Luxembourg, Malta, Romania (also Ireland, the United Kingdom and other Anglo-Saxon countries, Russia, Romania, China, Turkey, etc.).

[15] Notaries or civil status departments may be required to perform "judicial functions" or act "by virtue of a delegation of powers from a judicial authority or under judicial supervision" (Article 3, § 2), such as drawing up a certificate of inheritance or other deed of notoriety.

[16] A dispute pending before a court that has jurisdiction to hear it is brought before another court that also has jurisdiction.

[17] There is a close link between two distinct claims.

[18] Certain other European States have chosen to systematise the rules of private international law (Swiss Law of 18/12/1987, Italian Law of 31/05/1995, German laws of 25/07/1986 and 21/05/1999, Belgian Code of 16/07/2004). For analyses of the specific features of Monegasque private international law, see : Catherine Mabrut, "Particularismes des contentieux monégasques", Les Annonces de la Seine, No. 56, 10/10/2011; Renaud de Bottini, "Regards sur le droit monégasque des conflits", Revue de Droit Monégasque, No. 5, 2003; Géraldine Gazo, Le statut personnel en droit international privé monégasque, Thèse dact.., Université Panthéon-Assas Paris II, 2001; Robin Svara, Le nouveau droit international privé monégasque, Master's thesis, Université Panthéon-Assas Paris II, 2013.

[19] Domicile is fixed at the place of the principal establishment (article 78 of the Civil Code). Examples of criteria that may be taken into account by judges: seniority and continuity of the establishment, fixing of interests (CA, Administrateur des Domaines et Trésorier Général des Finances c/ Dame R. ès-qualités et Dame de J., 17/04/1972), centre of business (CFI, Dame M.-C. c/ Cts M., 23/07/1976), place of conservation of interests and intention to establish its principal place of business (CFI, C.M. c/ Dame S. Vve M., 03/05/ 1984), centre of interests and activities (CFI, V. et C. c/ hoirs C., 21/02/1991), place of work and life (CA, B. c/ S.B., S., G., K., G., 17/02/1998). Distinct from domicile for tax purposes (CFI, Sieur K. c/ Dame B., Dame C., Cts H., 28/03/1985).

[20] CA, B. v/ S.B., S., G., K., G., 17/02/1998.

[21] Claims between co-heirs (CA, K. v/ Dame M., 20/03/1990) or third parties against an heir or executor (Article 3, 3° of the Code of Civil Procedure); actions based on obligations arising in Monaco (CFI, PO v/ WY, 16/01/2014 - action by an heir against the executor) or to be performed there (Article 3, 2°). The place where the succession is opened also determines the jurisdiction of notaries.

[22] CFI, Cts M. v/ M., 10/06/1999.

[23] CFI, C.M. v. Dame S. Vve M., 03/05/1984 (application for exequatur of a partition - Italian judgment).

[24] CA, B. v/ B., 05/10/1993 (incompetent to hear the action in respect of a gift - on the other hand, the price paid by a co-heir, as consideration for a property situated abroad sold during his lifetime by the deceased, constitutes a replacement security which may be the subject of an action before the Monegasque court); TPI, M. v/ M. Vve J., J.-E.M, 09/07/1992 (incompetent to rule on the application for partition.

[25] E.g., sphere of persons called to inherit and their order of appeal, representation in succession, determination of shares of inheritance, reserved portion, available portion, rights of the surviving spouse, conditions of validity (form and substance) of a will.
[26] CFI, L. v/ H., 23/02/1995; CFI, Cts M. v/ M., 10/06/1999.

[27] Monegasque law refers to the national law of the deceased. CFI, M. v/ M. Vve J., J.-E.M, 09/07/1992; CFI, Prime Minister of the Turkish Republic v/ Dame M.-K., Hoirs R., A., 07/05/1992; CFI, L. v/ H., 23/02/1995; CA, M. D.V. v/ G.M., 30/05/2000.

[28] CA, 17/04/1972, Administrateur des Domaines et Trésorier Général des Finances c/ Dame R. ès-qualités et Dame de J. (first application of renvoi in case law: the concept of applicable law - Belgian in this case - incorporates not only the conflict rules arising from the legislation in force, but also those developed by case law); CFI, Prime Minister of the Turkish Republic c/ Dame M.- K., Hoirs R., A., 07/05/1992 (partial referral from Turkish law to Monegasque, Swiss, German and French law); CA, M. DV. v G.M., 30/05/2000 (referral from Belgian law to Monegasque law).

[29] CA, p. HA. veuve SO c/ Mme f. SO. and Mrs n. SO. Spouse RA, 17/06/2014; CFI, L. v/ H., 23/02/1995.

[30] CA, p. HA. veuve SO c/ Mme f. SO. and Mrs n. SO. Wife RA, 17/06/2014. Designation of South African law by authentic will - Monegasque law considered applicable via referral).

[31] CFI, PO v/ WY, 16/01/2014 (deceased's choice of Swiss law and jurisdiction - referral excluded in jurisdictional matters).

[32] Minimum share of inheritance accruing by right to the heirs known as "reservataires". CA, p. HA. widow SO v/ Mrs f. SO. and Mrs n. SO. Spouse RA, 17/06/2014 (recalling that the reserved portion of the estate is a matter of public policy - the deceased, of Belgian and South African nationality, had designated South African law, which ignores the reserved portion of the estate, unlike Belgian law - fraudulent intent not proven).

[33] CFI, L. v. H., 23/02/1995 (with regard only to property situated in Germany, the court did not invalidate the pacts on future succession prohibited by article 985 of the Civil Code, but permitted by German law, and held that the real and movable estates opened in Germany "had devolved definitively to their rightful beneficiaries").

[34] CFI, Sieur K. c/ Dame B., Dame C., onsorts H., 28/03/1985.

[35] CFI, PO v WY, 16/01/2014.

[36] Like the other European regulations on private international law (except Brussels I). But instead of defining the concept of habitual residence, a new approach has been adopted. The Preamble proposes indicators capable of "revealing a close and stable link with the State concerned, having regard to the specific objectives of the Regulation": the "circumstances of the deceased's life in the years preceding his death and at the time of his death"; "the duration and regularity of the deceased's presence in the State concerned and the conditions and reasons for that presence" (Recital 23). A deceased person "who has gone to live in another State in order to work there, sometimes for a long period [...] could be considered as still having his habitual residence in his State of origin, where the centre of interests of his family and social life was located". In the case of alternating residence in several States or travel from one State to another without permanent establishment, nationality or the location of the main assets may be assessment criteria (Recital 24).

[37] For example, the Franco-Monegasque Convention of 21/09/1959 on mutual legal assistance.

[38] In accordance with Article 22 of the Regulation. See infra, p. 7 (professio juris).

[39] In accordance with Article 5, the choice of court is possible only if the deceased has chosen his national law, and only in favour of the Member State of nationality. The court of the Member State of the habitual residence seised must in that case decline jurisdiction (Article 6(b)).

[40] The court of the deceased's habitual residence (Article 4) or of the place where part of the property is located (Article 10) is not obliged in this case to decline jurisdiction (Article 6(a)) in favour of the Member State of nationality.

[41] A remedy for a situation of denial of justice, "for example as a result of civil war or where a beneficiary cannot reasonably be expected to institute or conduct proceedings" in the third State (Recital 31).

[42] The Regulation does not require the third State concerned to reserve exclusive jurisdiction over the property in question.

[43] For example, a deceased person of German nationality who had established his habitual residence in France died in Spain while on holiday, leaving a bank account in Monaco and property in France and Germany. In principle, French inheritance law applies to all his assets.

[44] Referral is impossible between Member States of the Regulation, since the Regulation unifies the conflict rules.

[45] Referral is inapplicable in this case (Article 34(2)).

[46] For example, the case "where, for example, the deceased had established himself in the State of his habitual residence relatively shortly before his death" (recital 25). Or again, the case of a deceased person seconded by his/her employer to the State of his/her habitual residence, who had to return to his State of origin at the time of his death. The law of the habitual residence may thus have only an incidental connection with the succession. For example, a Frenchman who had his habitual residence in Belgium for professional reasons dies in France, where his wife and children live and where he owns a building and his bank accounts. The closer ties maintained by the deceased with France would justify the application of French succession law rather than Belgian succession law.

[47] The choice of the law of nationality excludes the rules of private international law. The renvoi is not applicable in this case (Article 34(2)).

[48] If he has several nationalities, the deceased is free to choose, the concept of effective nationality being irrelevant.

[49] The Regulation does not provide for the possibility of subjecting the succession to different laws, depending on the movable or immovable nature of the property, by recourse to professio juris.

[50] The implicit choice may be permissible in the case of a "reference to specific provisions of the law of the State of his nationality" or if the latter is mentioned "in some other way" (Recital 39), e.g., by reference to a characteristic institution of his national law. The language in which the text is drafted could also be a clue.

[51] The Member State of the forum may exceptionally not apply the law designated by the Regulation if, after assessment in concreto, the result would be manifestly incompatible with its public policy (e.g. the effects of discriminatory provisions based on sex, religion, legitimacy of parentage, primogeniture, etc.).

[52] See, for example, the analysis of Article 22 by Andrea Bonomi, in Andrea Bonomi, Patrick Wautelet, Le droit européen des successions, Bruylant, Brussels, 2013. The question of the right of the deceased to disinherit his children has been the subject of much comment.

[53] See supra notes 19 (examples of criteria for assessing "domicile" used by the Monegasque courts) and 36 (criteria for assessing "habitual residence" set out in the Preamble to Regulation (EU) No 650/2012).