7.64 The 1968 Brussels Convention had excluded ‘wills or inheritances’ from its operation.99 The Jenard Report explained that, in excluding matters relating to succession, the drafting committee had concurred in an opinion prepared by the International Union of Latin Notaries (‘UNIL’). When consulted, UNIL considered it necessary (and would become increasingly so as the Community developed) to facilitate the recognition and enforcement of judgments in matters relating to succession. Therefore, it was desirable for Member States to conclude a convention on that subject. However, UNIL also considered that first it was essential to unify conflict-of-laws rules. A Memorandum of the Permanent Bureau of the Hague Conference on private international law, showed there were fairly marked differences between the then Six Member States on matters of succession.100
7.65 The Jenard Report noted that, unlike the preliminary draft of the Brussels Convention, the final version of the 1968 Convention did not expressly exclude gifts from its scope, though gifts would ‘of course be excluded in so far as they relate to succession’.101
7.66 The 1972 Draft Convention proposed that its applicable law rules should not apply to ‘wills, testate or intestate succession or gifts’.102 The Rome Convention adopted the more laconic terminology of revisions made by the 1978 Accession Convention to the 1968 Brussels (p. 219) Convention,103 and excluded from its scope, ‘contractual obligations relating to…wills and succession’.104
7.67 There was a desire not to interfere with the work of the Hague Conference, which would eventually produce the 1989 Law Applicable to the Successions to the Estates of Deceased Persons (‘1989 Succession Convention’).105 The 1989 Succession Convention was not a success.106 It has been signed by Argentina, Luxembourg, Switzerland, and the Netherlands, but only ratified by the latter.
7.68 The Schlosser Report noted that the expression ‘wills and succession’ in the revised Brussels Regime covered all claims to testate or intestate succession to an estate.107 It included disputes as to the validity or interpretation of the term of a will setting up a trust, even where the trust takes effect on a date subsequent to the death of a testator. The same applied to proceedings in respect of the application and interpretation of statutory provisions establishing trusts in favour of persons or institutions as a result of a person dying intestate. The 1968 Brussels Convention did not, therefore, apply to any disputes concerning the creation, interpretation and administration of trusts arising under the law of succession, including wills.
7.69 It was noted that ‘disputes concerning the relations of the trustee with persons other than beneficiaries’, in other words ‘the external relations’ of the trust, came within the Brussels Convention.108
7.70 The Giuliano–Lagarde Report indicated that contractual obligations relating to wills and succession, like the other exclusions in Article 1(a) and (b) of the Rome Convention,109 were seen as matters of family law, and that the Rome Convention’s Working Group ‘intended this enumeration to exclude from the scope of the Convention all matters of family law’.110
7.71 The even more laconic term ‘successions’111 was used in the Commission’s Rome II Proposal, with draft article 1(2)(b) excluding from the draft Rome II Regulation, ‘non-contractual obligations arising out of matrimonial property regimes and successions’. These were to be excluded for the same reasons as familial relationships under Article 1(2)(a).112