How to choose? [European Regulation in matters of international successions]

How to choose?

Express choice or tacit choice

Article 22(2)^[1] of the Regulation states that the choice must be made "expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition". The Regulation therefore accepts a tacit choice resulting from the terms of a disposition of property upon death, in addition to an express choice made in a testamentary disposition.

Such a tacit choice of French law will exist more particularly if the deceased had made reference in a testamentary disposition to any provisions of the French Civil Code or to French law in general. The same solution will apply in Belgium or Romania.
In Germany, it is strongly recommended that notaries should make an explicit choice of the applicable law.
In Austria, Austrian law does not have any special rules on a tacit choice of law.
In Spain, such a tacit choice will be the result of the terms of a disposition of property upon death. However, each individual case should be analysed and interpreted to establish whether there is a tacit choice of law. For example, if a Spaniard with the vecindad civil navarre residing in France establishes a will in France making reference to the foral reserved share, it must be deduced that there is a tacit choice of Spanish-Navarre law. Likewise, we can consider that an Englishman residing in Spain who establishes a trust in his will has made a tacit or implicit choice of English law.
In the Czech Republic, a tacit choice of the law applicable to a succession is neither admitted nor excluded by the national legislation and there is not yet any case law on this subject. The legal situation is therefore uncertain.

Advice :

However, as tacit choices are open to interpretation, the legal professional should advise their client to opt for an express choice to avoid any discussion or challenges.

Formal validity

As regards the form required of a disposition of property upon death (which may therefore contain an explicit or tacit choice of law), Article 27^[2] of the Regulation sets down highly favourable rules on such validity. This Article 27^[2], which applies to determine the formal validity of a choice of law contained in a written disposition of property upon death, makes provision for a number of alternatives.

Fundamental :

A disposition of property upon death shall be formally valid if its form complies with the law of the State in which the instrument containing the disposition was made, with the national law of the testator or of one of the persons concerned by the agreement as to succession, with the law of the domicile or habitual residence of the testator or of one of the persons concerned by the agreement as to succession, or, for immovable property, with the law of the State where that property is located.

Warning :

If the law that is chosen is the law of a Member State that is not bound by the Regulation or of a third State, it should be verified whenever possible that the law of that State accepts choices of law in matters of succession, if the substantive validity of the instrument is governed by the chosen law (Article 22(3)^[1]).

Notes

Article 22
Choice of law
1. A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.
  A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death.
2. The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition.
3. The substantive validity of the act whereby the choice of law was made shall be governed by the chosen law.
4. Any modification or revocation of the choice of law shall meet the requirements as to form for the modification or revocation of a disposition of property upon death.
Article 27
Formal validity of dispositions of property upon death made in writing
1. A disposition of property upon death made in writing shall be valid as regards form if its form complies with the law:
  - a) of the State in which the disposition was made or the agreement as to succession concluded;
  - b) of a State whose nationality the testator or at least one of the persons whose succession is concerned by an agreement as to succession possessed, either at the time when the disposition was made or the agreement concluded, or at the time of death;
  - c) of a State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his domicile, either at the time when the disposition was made or the agreement concluded, or at the time of death;
  - d) of the State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his habitual residence, either at the time when the disposition was made or the agreement concluded, or at the time of death; or
  - e) in so far as immovable property is concerned, of the State in which that property is located.
  The determination of the question whether or not the testator or any person whose succession is concerned by the agreement as to succession had his domicile in a particular State shall be governed by the law of that State.
2. Paragraph 1 shall also apply to dispositions of property upon death modifying or revoking an earlier disposition. The modification or revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under paragraph 1, the disposition of property upon death which has been modified or revoked was valid.
3. For the purposes of this Article, any provision of law which limits the permitted forms of dispositions of property upon death by reference to the age, nationality or other personal conditions of the testator or of the persons whose succession is concerned by an agreement as to succession shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications to be possessed by any witnesses required for the validity of a disposition of property upon death.