The Notion of Habitual Residence in the EU Succession Regulation : An Analysis of its Content and Whether it Ensures Predictability in Cross-Border Inheritance

Habitual residence is a key concept in the EU Succession Regulation (650/2012) and is the main connecting factor for both jurisdiction and applicable law. However, the Succession Regulation does not contain a legal definition of the concept. This thesis examines which factors should be considered decisive in determining the habitual residence of the deceased, based on the guidelines provided in recitals 23 and 24 of the preamble to the Succession Regulation. For this purpose, a teleological method of interpretation is applied. Furthermore, the study critically examines whether the notion of habitual residence in the Succession Regulation ensures sufficient predictability in cross-border successions. As to the first question, it is concluded that recitals 23 and 24 allow for multiple interpretations of what should be decisive when the deceased had links to several countries. However, the interpretation most consistent with the objectives of the Succession Regulation is that the concept of habitual residence should be considered to correspond to the place where the deceased had his or her main family and social life. For the determination of that place, circumstances such as the length of stay and the testator's intention to live there permanently or not are relevant indications but are not decisive in themselves. Regarding the second question, a review of the literature reveals considerable disagreement on key aspects of the notion of habitual residence, such as whether it should be considered to contain a subjective element (animus manendi), whether it should be interpreted in the same way as in the Brussels II Regulation and whether there may be situations where the deceased was not habitually resident in either a Member State or a third country. By analyzing the concept in five common ‘hard cases’, it has been concluded that the disputed issues have a direct impact on the outcome of the habitual residence test. As a result, the objective of the Succession Regulation to ensure predictability in cross-border inheritance is currently not being achieved to a sufficient extent. Against this background, the question is raised whether the objectives of the Succession Regulation would be better served by applying nationality or domicile as a general connecting factor. The conclusion in this respect is that while nationality would probably ensure more predictability, the overall objectives of the Succession Regulation are best served by applying habitual residence. The uniform application of the Succession Regulation would, however, benefit from defining the concept of habitual residence. The thesis concludes by suggesting how such a definition could be formulated as well as other measures that could be implemented de lege ferenda to contribute to greater predictability in cross-border successions.