The notion of “dispositions of property upon death” [European Regulation in matters of international successions]

The notion of “dispositions of property upon death” within the meaning of the Regulation

What are we talking about here?

The notion of dispositions of property upon death is explained in Article 3(1) d^[1]). Dispositions of property upon death mean “"a will, a joint will or an agreement as to succession"”.

While the notion of will is not defined by the text, this is not the case of the two other terms.

The absence of any definition of a will is admittedly regrettable. However, it is a notion that is defined fairly uniformly in the different States, which should limit any interpretation difficulties.
A joint will, meanwhile, is defined as being a will drawn up in one instrument by two or more people (Article 3(1)c^[1]).
Finally, an agreement as to succession means “means an agreement, including an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement”

These definitions raise a certain number of qualification questions.

What is the difference between a mutual will and a joint will?
Before answering the question, we must assess the importance of it. While the joint will is subject to the system of wills (Article 24^[2]), mutual wills are subject to the system specific to agreements as to succession (Article 25^[3]). While both texts follow the same logic, there are still differences between them.
To resolve this problem of prior qualification, the Regulation does not provide any response. The doctrine provides the following qualification guidelines:
- the joint will is characterised by the fact there is a single document (formal element)
- the specific feature of the mutual will, on the other hand, is that it is based on an agreement.
The two notions can therefore be combined in some cases (but not always). A will may be both joint and mutual. This is the case notably in Germany: the “gemeinschaftliches Testament” is based on an agreement between testators; its provisions are interdependent and irrevocable.
What are the boundaries of the “agreement as to succession” category?
According to Article 3(1)b^[1] the common denominator between all agreements as to succession is the existence of an agreement on a succession that has not yet been opened:
- The agreement may concern the succession of more than one person.
- The agreement may be with or without consideration.
- The agreement may constitute an attribution or a waiver. If it is a waiver agreement, it may contain a simple waiver or a waiver in favour of a given person.

Questions

Article 3(1) b^[1] requires the existence of an agreement. Should it therefore be concluded that agreements as to succession taking the form of unilateral instruments escape from the scope of application of the Regulation?

Complement : Concerning French law more particularly

The question could be asked as to whether an inter vivos distribution falls within the definition of agreements as to succession contained in the Regulation. It is not easy to answer when it does not concern a future succession.

When it is an advance distribution of the future succession While in the former case, the beneficiaries acquire only potential rights to future goods, in the other they acquire final rights in present goods. Despite these differences, the doctrine considers that there are grounds to include inter vivos distributions within the scope of application of Article 25^[3] of the Regulation.

It will be up to the CJEU^[4] to decide (uniform interpretation). This being the case and as food for thought, it may be useful to stress that the Hague Convention of 1st August 1989 on the law applicable to contractual obligations which served as a template for drafting the Regulation excluded inter vivos distributions from its scope of application.

Notes

Article 3
Definitions
1. For the purposes of this Regulation:
  - a) ‘succession' means succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession;
  - b) ‘agreement as to succession' means an agreement, including an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement;
  - c) ‘joint will' means a will drawn up in one instrument by two or more persons;
  - d) ‘disposition of property upon death' means a will, a joint will or an agreement as to succession;
  - e) ‘Member State of origin' means the Member State in which the decision has been given, the court settlement approved or concluded, the authentic instrument established or the European Certificate of Succession issued;
  - f) ‘Member State of enforcement' means the Member State in which the declaration of enforceability or the enforcement of the decision, court settlement or authentic instrument is sought;
  - g) ‘decision' means any decision in a matter of succession given by a court of a Member State, whatever the decision may be called, including a decision on the determination of costs or expenses by an officer of the court;
  - h) ‘court settlement' means a settlement in a matter of succession which has been approved by a court or concluded before a court in the course of proceedings;
  - (i) | ‘authentic instrument' means a document in a matter of succession which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
    (i) relates to the signature and the content of the authentic instrument; and
    (ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.
2. For the purposes of this Regulation, the term ‘court' means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate:
  - a) may be made the subject of an appeal to or review by a judicial authority; and
  - b) have a similar force and effect as a decision of a judicial authority on the same matter.
The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 79.
Article 24
Dispositions of property upon death other than agreements as to succession
1. A disposition of property upon death other than an agreement as to succession shall be governed, as regards its admissibility and substantive validity, by the law which, under this Regulation, would have been applicable to the succession of the person who made the disposition if he had died on the day on which the disposition was made.
2. Notwithstanding paragraph 1, a person may choose as the law to govern his disposition of property upon death, as regards its admissibility and substantive validity, the law which that person could have chosen in accordance with Article 22 on the conditions set out therein.
3. Paragraph 1 shall apply, as appropriate, to the modification or revocation of a disposition of property upon death other than an agreement as to succession. In the event of a choice of law in accordance with paragraph 2, the modification or revocation shall be governed by the chosen law.
Article 25
Agreements as to succession
1. An agreement as to succession regarding the succession of one person shall be governed, as regards its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, by the law which, under this Regulation, would have been applicable to the succession of that person if he had died on the day on which the agreement was concluded.
2. An agreement as to succession regarding the succession of several persons shall be admissible only if it is admissible under all the laws which, under this Regulation, would have governed the succession of all the persons involved if they had died on the day on which the agreement was concluded.
  An agreement as to succession which is admissible pursuant to the first subparagraph shall be governed, as regards its substantive validity and its binding effects between the parties, including the conditions for its dissolution, by the law, from among those referred to in the first subparagraph, with which it has the closest connection.
3. Notwithstanding paragraphs 1 and 2, the parties may choose as the law to govern their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, the law which the person or one of the persons whose estate is involved could have chosen in accordance with Article 22 on the conditions set out therein.
CJEU: Court of Justice of the European Union