1. In your legal system, are there acts which fall within the notion of an authentic instrument as defined in the European Union regulations?
[‘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?
In accordance with Paragraphs (1) and (2) of Article 323 of Act No. CXXX of 2016 on the Code of Civil Procedures, any paper-based or electronic document which has been issued in accordance with the relevant statutory provisions by a court, a notary or another authority, or an administrative body within its sphere of authority shall be construed an authentic instrument.
An authentic instrument shall be treated genuine until proven to the contrary; the court, however, may call upon the issuer of the document of its own motion to provide a statement as to the authenticity of the document.
Therefore, besides the acts of the Hungarian notaries, the acts (decisions) of the courts, bailiffs, administrative bodies (e.g. municipalities), etc. are also considered as authentic instruments.
2. In your legal system, does the authentic instrument have enhanced probative value? What are the rules that provide that?
3. Do all authentic instruments have the same enhanced probative value?
4. Enhanced probative value concerns:
- The date on which the authentic instrument was drawn up
- The place where the authentic instrument was drawn up
- The signature by the parties of the authentic instrument
- The parties’ declarations
- Any observation made by the authority within the limits of its competence
- The measures the authority declares to have taken
- Appearance, identification and consent of the parties
- Other: the authenticity of the attested data and facts, the date and method of the parties’ declarations
5. Enhanced probative value can be contested:
Before which authority: The court.
According to which procedure (state the applicable rules): According to Article 323 of the Code on Civil Procedures.
Within what timeframe: Until the authenticity of the document is established by a judgment which acquires the authority of res judicata.
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?
In order to determine in Hungary who, according to which legal title (e.g. intestate or testate successions) and to what extent inherits the assets of the deceased, a formal legal procedure – the successions proceedings – was introduced by the legislator. The competent authority to proceed is the notary.
In Hungarian successions proceedings, the legal acts of the notary are made in the form of a decision in accordance with Article 3 (1) g). The so-called grant of probate is one example of that. However, these notarial decisions cannot be qualified as “authentic instruments” in accordance with Article 3 (1) i) of Regulation 650/2012. Therefore, the decisions taken by Hungarian notaries can have legal effects in other Member States not according to Chapter V of the Regulation, but in accordance with Chapter IV concerning the recognition of decisions.
In short: in order to attest the status of heir (or other inheritance status, e.g. the status of the legatee or the executor of wills), in Hungarian law not the legal institution of the “authentic act” according to Art. 3. (1) i), but the decision of the notary in the successions proceedings (in accordance with Article 3 (1) g) of the Regulation) is used.
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?
Hungarian notaries have competence to draw up various authentic instruments related to successions relationships. These are among others as follows:
- Dispositions of property upon death, i.e.
- Authentic wills drawn up by a notary either because this form is required by law (e.g. blind persons) or because the testator has freely opted for an authentic will. (Revocation of an authentic will: revocation is governed by the same rules that apply to the making of the will. If the testator wants to withdraw his/her authentic will, he/she has to contact a notary for the revocation. If the old will is to be replaced by a new authentic will, the fact of revocation will be contained in the new authentic will. The new will is an authentic instrument.)
- A succession agreement but only if: the parties are required by the Civil Code to create such an agreement in the form of an authentic instrument or because the parties opted to create the succession agreement in the form of an authentic instrument.
- Testamentary gift (donation upon death) in the case it is drawn up in a notarial authentic act.
- Refusal of a succession (always after the death of the testator);
- Agreement on expected inheritance (the descendants of a testator shall be entitled to conclude an agreement among themselves regarding their expected inheritance even during the lifetime of the testator.)
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?
- Matrimonial and partnership contracts (only if they are made by a notary, Hungarian notaries do not have exclusive competence in this field, lawyers can also draw up this kind of contract but these are always private deeds).
- The decision of the notary on the separation of the registered partners (always persons of same sex) by mutual agreement.
- Marriage certificate, certificate of registered partnership
- Court decision on divorce (by mutual agreement or not), court decision on the separation of registered partners (if there is no agreement by the partners).