Choice of court agreement: Article 5 [European Regulation in matters of international successions]

Choice of court agreement: Article 5

When the deceased has chosen to have their succession governed by the law of their nationality (Article 22^[1]), their heirs may conclude a choice-of-court agreement pursuant to Article 5^[2] of the Regulation. This agreement must be in writing, dated and signed by all the parties concerned. It gives exclusive jurisdiction to the courts of the State whose law is applicable to the succession.

Example : Example (cont’d):

On 20 August 2015, Charlotte had established a will in which she stated that she wished her succession to be subject to Austrian law, as that was her nationality.

Her three children who are Austrian residents do not agree on how to share out their mother’s estate but they manage to conclude an agreement on 2 November 2015 to submit the dispute to the Austrian courts, in order to reduce the costs of the proceedings.

Warning :

Choice-of-court agreements only became possible from 17 August 2015 and only between States participating in the Regulation.

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 5
Choice-of-court agreement
1. Where the law chosen by the deceased to govern his succession pursuant to Article 22 is the law of a Member State, the parties concerned may agree that a court or the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter.
2. Such a choice-of-court agreement shall be expressed in writing, dated and signed by the parties concerned. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.