1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union legislation?
[‘authentic instrument’ means a document which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(i) relates to the signature and the content of the authentic instrument; and
(ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.]
If so, what are they? Are these only notarial acts or also acts of other authorities?
Notarial acts such as wills, agreements as to succession as well as the acceptance or waiver of the succession fall within the definition of Article 3(1)(i) of Regulation No. 650/2012. In addition, the acceptance or waiver of the succession can be also declared before the probate court.
2. Do all authentic instruments have the same enhanced probative value?
3. If answer 2 is “no”, what are the differences and which rules provide for these differences
4. Enhanced probative value concerns
- The date on which the authentic instrument was drawn up;
- The location where the authentic instrument was drawn up;
- The signature of the parties to the authentic instrument;
- The parties' declarations;
- The fact that the parties have appeared and how they were identified (according to the prevailing view of the jurisprudence and doctrine).
5. Enhanced probative value can be contested:
Before which authority:
Before the local court (Amtsgericht) or the regional court (Landgericht), depending on the value of the dispute.
According to which procedure (state the applicable rules):
There is no special remedy against the probative value of an authentic instrument: on the one hand, one of the parties can challenge the probative value of an instrument in any proceedings in which the instrument is presented as evidence. However, it is also possible to challenge an authentic instrument in proceedings intended solely for this purpose by way of a remedy seeking declaratory relief (« Feststellungsklage » provided for in Art. 256 of the German Code of Civil Procedure).
Within what timeframe:
As there is no special remedy (see above), no particular time limit must be respected, other than the time limits for proceedings.
1. In your legal system, which authorities or delegates of public authority can issue authentic instruments in accordance with Article 3 (1) (i) of Regulation 650/2012?
- consular agents (who are entitled to draw up authentic instruments abroad).
2. Can you indicate which are the most common authentic instruments in the case of a succession to the estates of deceased persons and which authorities issue them?
- Wills1 and agreements as to succession (only within the competence of notaries);
- Waivers of a succession (within the competence of notaries and court registries);
- Divisions of a succession (within the competence of notaries);
- Inventory (within the competence of notaries and judges);
- Request for a certificate of succession (within the competence of notaries).
In cases where notaries are competent, consular agents are also competent with respect to instruments drawn up abroad – except in the case of wills or agreements as to succession (Erbverträge), in which case they are only authorised to draw up statements as to the last will of German citizens (Art. 10 et seq. of the Consular Law, KonsG).
1 A private will is not an authentic instrument and its probative value is very limited.
3. Probative value of certain specific acts, for example the “acte de notoriété” in France and Italy
1. What types of family law instruments exist?
- Marriage contracts (community of property or separation of property; rules as to alimony entitlements of spouses; etc.) ;
- Acknowledgment of paternity ;
- Adoption request (simple or full of an adult or a minor) ;
- Consent, for example, of the spouse of the adopter or adoptee with a view to adoption.