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

Spatial scope of application

Warning :

It is essential to draw the attention of practitioners to the following point. The special conflict rules in matters of validity of gifts do have consequences for the spatial scope of application of the Regulation. In the future, the practitioner may have to apply the Regulation at least partially, even if there is no longer any international element at the time of death. It is enough that there should have been an international element at the time when the agreement as to succession was established for the rules of conflict in matters of dispositions of property upon death to apply to this instrument. As we will see, we must place ourselves on the day when the instrument was established to determine validity.

Example :

A French couple residing in Germany establishes a joint mutual will in accordance with German legislation. They then return to France, where one of them dies. The absence of any international element on the day of the death is unquestionable: the deceased is French and resides in France. We might therefore be tempted to stick to the provisions of French substantive law. However, as the will was established at a time when there was an international element, there are grounds to apply Article 25^[1] of the Regulation.

Notes

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.