The Court of Namur ruled on July 12, 2023 on the interpretation of the concept of habitual residence under the Inheritance Ordinance.
The situation concerned a testator of Belgian nationality who moved to Spain with his (second) wife in 2014. That same year, he also made a will under Spanish law.
He was registered in Spain on the foreigners’ register. He had received a certificate from the Spanish tax authorities that he was a Spanish national resident under Double Taxation Treaty between Spain and Belgium.
By 2020, the testator had nevertheless re-registered in Belgium, where he also died.
The question arose as to where the testator had his habitual residence in light of the European Inheritance Regulation.
The (second) wife believed that the Belgian courts had jurisdiction under Article 4 of the Inheritance Regulation. After all, he had his habitual residence in Belgium, where he was registered and also received medical care.
The testator’s 3 daughters argued that their father’s habitual residence was in Spain. This was also confirmed by the Court of Namur.
Habitual residence is not defined in the Regulation on Inheritance. In the recitals, however, we do find a number of principles that allow us to examine which elements are given importance. These are recitals 23 and 24, to which the Court also refers. “In order to determine habitual residence, the requested authority should make an assessment of all aspects that characterized the life of the testator in the years preceding his death and at the time of his death, taking into account all relevant factual elements, in particular the duration and regularity of the testator’s presence in the State in question and the circumstances of and reasons for his stay. The habitual residence so established must, from the point of view of the specific objectives of this Regulation, indicate a close and permanent link with the State concerned (Recital 23).”
Recital 24 specifies more leads for more complex fact constellations: “This may be the case if the testator went to live and work in another Member State for professional or economic reasons, and sometimes for an extended period of time, but maintained a close and lasting link with his country of origin. In such a case, depending on all the circumstances, it could be considered that the testator still had his habitual residence in his country of origin, where the center of his interests for his family and social life was located. Other complex cases may arise when the testator has lived alternately in different member states or has traveled from state to state without settling in one for an extended period of time. If the testator was a national of one of these states or had all his principal property in one of these states, his nationality or the location of such property could be given special weight in the overall assessment of all the factual circumstances”.
The Court also refers to a Court of Justice ruling, although in a different Regulation, where habitual residence is also central to applicable law: “la notion de résidence habituelle doit être interprétée de manière autonome et uniforme. Elle se caractérise non seulement par la volonté de la personne concernée de fixer le centre habituel de sa vie dans un lieu déterminé, mais aussi par une présence revêtant un degré suffisant de stabilité sur le territoire de l’État membre concerné. Le fait que les parties jouissent du statut diplomatique n’est pas de nature à influer sur l’interprétation de la résidence habituelle par les juridictions de fond au sens des règlements européens à l’œuvre en l’espèce. Le fait que le séjour dans un état tiers a un lien direct avec les fonctions des parties n’est de nature ni à empêcher de considérer que ce séjour présente un degré de stabilité, ni à permettre de considérer que l’absence des parties du territoire de l’État membre saisi serait purement temporaire ou occasionnelle”.
Thus, habitual residence is the country with which one has a close and lasting connection (material element), and where the intention is to make that connection permanent (intentional element).
Both are missing here. The testator did not have a close and lasting relationship with Belgium. He had lived in Spain continuously for six years. Nor was there any intention to stay permanently in Belgium. The testator resided in Belgium for medical care and registered in a Belgian municipal registry purely for those purposes.
In other words, the fact that a person temporarily resides in a particular country is not sufficient to also have habitual residence there within the meaning of the Inheritance Regulation. Thus, the Belgian courts had no jurisdiction.
