Residual application of Article 21 [European Regulation in matters of international successions]

Residual application of Article 21 of the Regulation

According to Article 23^[1] of the Regulation, a certain number of questions pertaining to the treatment of gifts in matters of succession is subject to the law governing the succession. Point 50 of the Preamble^[2] also suggests this.

The law governing the succession therefore keeps its jurisdiction for:

Obligations imposed by the deceased.

Note :

By reserving the application of the law of the succession for the appreciation of the obligation, does this not suggest that the possibility of imposing an obligation upon the recipient to keep or to return the property to a third party falls under the jurisdiction of the law governing the succession?

This would considerably restrict the scope of application of the law governing the succession.

This therefore remains to be confirmed. It may be that only the consequences of the obligations in succession matters that are subject to the law governing the succession.

Example :

When there is an inalienability clause attached to a legacy: the law applicable to the will would determine the extent to which this clause is valid, while the law applicable to the succession would determine the extent to which such a clause can be imposed upon an heir it considers entitled to a reserved share.

Acceptance or waiver of a legacy, delivery of legacies
- In the event of a universal legacy, the law applicable to the succession will determine whether it is necessary to follow any judicial procedure to take possession of the bequeathed property, or not.

Warning :

As in matters of succession, Article 28^[3] authorises the legatee to follow the acceptance (or waiver) formalities not of the law applicable to the succession, but of that of his place of residence.

Example :

In the event of a universal legacy, the law applicable to the succession will determine whether it is necessary to follow any judicial procedure to take possession of the bequeathed property, or not.

The powers of the executor appointed in the will.
Restrictions on the freedom to make a disposition

Example :

It is the law applicable to the succession that determines the extent to which the deceased may make a disposition in favour of any third parties when there are heirs entitled to a reserved share.

Restoring or accounting for gifts

Advice :

In the event of gifts of property upon death, the practitioner will therefore have to apply several rules of conflict in succession.

He must first ensure that the gift is valid by applying Articles 24^[4] and following of the Regulation, and then assess whether the gift can produce its full effects pursuant to Articles 21^[5] and 23^[1] of the Regulation. It may happen that the successive application of these rules of conflict ends up specifying one and the same law. It may also result in different laws being applied.

We must be particularly vigilant: the partial application of several legislative systems must not result in denaturing those legislative systems.

Notes

Article 23
The scope of the applicable law
1. The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole.
2. That law shall govern in particular:
  - a) the causes, time and place of the opening of the succession;
  - b) the determination of the beneficiaries, of their respective shares and of the obligations which may be imposed on them by the deceased, and the determination of other succession rights, including the succession rights of the surviving spouse or partner;
  - c) the capacity to inherit;
  - d) disinheritance and disqualification by conduct
  - e) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and obligations forming part of the estate, including the conditions and effects of the acceptance or waiver of the succession or of a legacy;
  - f) the powers of the heirs, the executors of the wills and other administrators of the estate, in particular as regards the sale of property and the payment of creditors, without prejudice to the powers referred to in Article 29(2) and (3);
  - g) liability for the debts under the succession;
  - h) the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death as well as claims which persons close to the deceased may have against the estate or the heirs;
  - i) any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries; and
  - j) the sharing-out of the estate.
Point 50 of the recital of the Regulation
- The law which, under this Regulation, will govern the admissibility and substantive validity of a disposition of property upon death and, as regards agreements as to succession, the binding effects of such an agreement as between the parties, should be without prejudice to the rights of any person who, under the law applicable to the succession, has a right to a reserved share or another right of which he cannot be deprived by the person whose estate is involved.
Article 28
Validity as to form of a declaration concerning acceptance or waiver
A declaration concerning the acceptance or waiver of the succession, of a legacy or of a reserved share, or a declaration designed to limit the liability of the person making the declaration, shall be valid as to form where it meets the requirements of:
- a) the law applicable to the succession pursuant to Article 21 or Article 22; or
- b) the law of the State in which the person making the declaration has his habitual residence.
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 21
General rule
1. Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.
2. 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 whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State.