Explicit choice of law [European Regulation in matters of international successions]

Explicit choice of law

This part refers to Article 83(2)^[1] of the Regulation.

A choice of law made prior to 17 August 2015 will be valid

if it complies with the provisions of Article 22^[2] of the Regulation

Example :

A choice of law made in 2013 by a French national residing in the United Kingdom in favour of his national law for a gift he was making to his children is not valid because Article 22 of the Regulation^[2] requires that choice to be contained in an instrument on dispositions of property upon death.

A choice of law made by a French national residing in the United Kingdom in favour of English law is not valid because the choice of law may only be made in favour of the national law of the deceased.

If it complies with the rules of conflict in force at the moment the choice was made,
- either in the State in which the deceased had his habitual residence
- or in another State of which he held the nationality

Example :

A French national residing in Belgium (2013) opted for Belgian law. He died in September 2015 in France. The choice in favour of Belgian law will be valid because on the day when he made that choice, he was residing in Belgium which allows such a choice of law (Article 78 of the Belgian law of 16 July 2014^[3] establishing a Private International Law Code).

Notes

Article 83 § 2
- "Where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed."
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 78 de la loi belge du 16 juillet 2014
1. La succession est régie par le droit de l’État sur le territoire duquel le défunt avait sa résidence habituelle au moment de son décès.
2. La succession immobilière est régie par le droit de l’État sur le territoire duquel l'immeuble est situé.
Toutefois, si le droit étranger conduit à l'application du droit de l’État sur le territoire duquel le défunt avait sa résidence habituelle au moment de son décès, le droit de cet État est applicable.