What is the scope?

Article 20[1] of the Regulation provides for the universal application of the conflict rule set out in the Regulation.

In the event of a choice of law, that law will therefore apply to the whole of the succession, even if it is the law of a European Union Member State that is not bound by the Regulation.

If the choice of law has been made in favour of a Member State that is not bound by the Regulation or of a Third State, however, a check should be conducted that the law of that State will accept that choice. Although the Regulation does expressly state that the choice "should be valid even if the chosen law does not provide for a choice of law in matters of succession" (extract from recital 40 of the Regulation)[2]

in such cases the authority that will have to settle the succession must be that of a Member State or State that recognises the validity of such a choice. Failing this, and particularly when the competent authority would be that of another State that does not recognise such a choice of law, the said choice of law may prove to be without effect.

Advice

In any case, when the law that is chosen is that of a Member State that is not bound by the Regulation or of a third State that does not recognise the choice of law, the legal professional should warn the client of the risk of the choice of law not being recognised.

Advice

To guarantee the effectiveness and knowledge of the choice of law that is made, the legal professional may be wise to list the choice of law in a register, if possible.

  • In France, the notary should register a choice of law in the form of a disposition of property upon death in the central file of last wills and testaments.

  • In Germany, the choice is recorded in a will and registered in the file of wills or in a separate authentic instrument.

  • In Austria, such disposition are not listed in the register as such, with only their establishment and the place where they are deposited being indicated in the register. The register therefore contains no information on the choice of law made in any such dispositions.

  • In Belgium, Spain and Hungary, there are no precise provisions in this respect.

  • In the Netherlands, registration of testamentary provisions and of a choice is possible, although the choice of applicable law cannot be listed in the register as such.

  • In Romania, declarations of the choice of law applicable to the succession are made in authentic form. The testamentary provisions are registered by the notary in a special register for gifts and dispositions of property upon death. This electronic register administered by CNARRN-INFONOT is interconnected with the other ENRWA countries by the RERT LIGHT option.

The choice of law will cover the whole estate. Only one law can be chosen, even if the person has several nationalities. It is not possible to make several choices and only one law must apply to the whole.