Temporal scope of application [European Regulation in matters of international successions]

Temporal scope of application

The Regulation applies only to successions opened from 17 August 2015. It must therefore apply to dispositions of property upon death established after 17 August 2015 and falling within its substantive scope of application.

However, its scope of application may also be extended to dispositions of property upon death made prior to 17 August 2015.

In this respect, Article 83(3)^[1] of the Regulation establishes an alternative conflict rule for dispositions of property upon death. For the disposition to be valid, it must comply with:

Either the provisions set out in the Regulation concerning the formal and substantive validity of dispositions of property upon death
Or the rules of conflict in force on the day when the disposition was made in the State in which the deceased had his habitual residence or in the State whose nationality he possessed or in the State of the authority dealing with the succession.

It is a conflict rule of a substantive type. The possibilities are alternatives without any order of priority. It is necessary and sufficient that the disposition be valid pursuant to one of the specified laws. This therefore increases the chances that the disposition of property upon death will produce its effects and that the wishes of the deceased will be respected.

Example :

A French couple established an agreement as to succession while residing in Germany in 2013. One of them died in France, where he lived, in September 2015. Pursuant to the Regulation, the instrument will be valid if it was drawn up in accordance with the German law of the residence of the couple on the day the instrument was established. It would have been invalid, however, if application had been made of the conflict rules in force in France on the day of the instrument, as that would have resulted in giving preference to succession law in the case at hand, which is to say French law.

Complement :

While there is no doubt that the Regulation may be applied to instruments concluded between the Regulation coming into force and its actual implementation, can it also apply to instruments established prior to 16 August 2012 when the Regulation came into effect?

No text expressly prohibits it. In accordance with the saying “ubi lex non distinguit”, the application of Article 83(3)^[1] of the Regulation to instruments prior to 16 August 2012 could be defended. However, although the adoption of Article 83^[2] was dictated by a wish to give effect to the legitimate expectations of the parties, there would be no grounds to apply the Regulation to instruments established prior to its entry into force. In such a situation, the parties to the instrument cannot have based their behaviour on a text that did not exist on the date the instrument was established.

Notes

Article 83 § 3
- "A disposition of property upon death made prior to 17 August 2015 shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive terms and as regards form in application of the rules of private international law which were in force, at the time the disposition was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed or in the Member State of the authority dealing with the succession."
Article 83
Transitional provisions
1. This Regulation shall apply to the succession of persons who die on or after 17 August 2015.
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.
3. A disposition of property upon death made prior to 17 August 2015 shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive terms and as regards form in application of the rules of private international law which were in force, at the time the disposition was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed or in the Member State of the authority dealing with the succession.
4. If a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession.