Which choice of law?
Article 22[1] of the Regulation strictly limits the choice a person may make.
Choice of the law of the State of which the person holds the nationality at the moment of his choice
The first possibility in favour of the national law of the person at the moment when they made their choice poses no particular difficulties, except in the event of dual or multiple nationalities. In such cases, the choice may be made in favour of any one of the national laws of the person.
If the deceased had several nationalities, they must be treated on an equal footing in principle, meaning that there is no reason to give preference to one of those nationalities, notably the nationality of the forum[2], as expressed by Article 22(1)[1] of the Regulation. The deceased may therefore opt for the national law of one of the States of which he is a national.
Choice of the law of the State of which the person thinks he will hold the nationality at the moment of his death
Concerning the possibility of choosing the national law "at the time of death"
, this may be considered surprising as it is a potential source of legal insecurity. For example, if the person fails to obtain the nationality he thought he would have at the time of death, the choice of law will no longer be effective and the applicable law will be that of the habitual residence.
Advice :
If the law professional is asked for advice about such a choice of law, he should therefore draw the attention of the person to the risks of such an option. He should not hesitate to make a record of the advice he delivered. More generally, any person should be advised against choosing the law of a nationality they hope to hold at the time of their death, unless there is little real doubt as to that nationality being granted to them.