Testamentary Freedom, Wills And Succession

Testamentary freedom has been in the legal press again recently, this time as a consequence of the introduction of the EU Succession Regulation (No.650/2012) in Europe and the debate as to whether the U.K. would opt in, or opt out, of it.

The regulation binds EU member states that have opted in and in summary, provides that the law applicable to succession to a deceased's worldwide estate will be that of the deceased's 'habitual residence', which is to be established by reference to all the circumstances of the deceased's life in the years up to the time of his death. It expressly excludes questions relating to trusts, tax and matrimonial property. The aim is to create a more uniform approach to succession in contrast to the position previously, where some member states would determine the applicable law by reference to the location and nature of the assets of the estate, or by the domicile of the deceased. This gave rise to conflicts of laws issues which would hold