Exceptions: the exception clause
Like other Regulation, Article 21(2) [1] introduces an exception clause by the terms of which "where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the "
State of habitual residence, " the law applicable to the succession is that of this other State"
.
This exception clause, which may not be used when the deceased has made a choice of law, offers the advantage of being able to apply another law when that connected to the habitual residence will clearly produce an inadequate result.
Example :
We will take once again the example of a German national who has lived for many years in Portugal, who had just decided to return to Germany,a State with which he had always kept many close ties, after selling all his assets in Portugal, but who died before he had time to fulfil his project.
Provided that he had expressed the intention of transferring his habitual residence to Germany,a country with which he was clearly closely connected, the exception clause and German law may be applied.
However, this clause is a source of insecurity and may run contrary to the succession plans that had been put in place. Likewise, it is contrary to the objective of predictability which largely inspired the Regulation.
It is for this reason that the Regulation provides that this should only be applied “exceptionally” when the deceased is “manifestly more closely connected” with this State other than that of his habitual residence.
Advice :
In all cases, people with expatriation projects, among others, should be advised to make a choice of law, if only to make things more predictable and avoid an inappropriate law being applied.