Introduction [European Regulation in matters of international successions]

Introduction

For both wills and agreements as to succession, the Regulation establishes a specific rule of conflict. Such a rule is justified by the wish to “ensure legal certainty for persons wishing to plan their succession in advance” (Recital 48 of the Regulation^[1]). The validity of the instrument must therefore be certain from the moment when it is concluded. The Regulation therefore seeks to provide predictable solutions by fixing the applicable law on the day the instrument is established.

This is all the more important in light of the wide divergences between legal systems. States such as Germany and Austria, for example, generally validate agreements as to successions, contrary to France and Italy.

To allow this predictability of the solutions, the rules of conflict set out in Articles 24^[2] and 25^[3] of the Regulation are therefore based on specifying the law to which the succession should be connected in advance, while leaving the people concerned the possibility of making a choice of law.

Identification of the law applicable to substantive validity of wills (Article 24^[2]).

To identify the law applicable to the will, Article 24^[2] invites us to make a distinction according to whether the testator specified the law applicable to the will, or not. If he did not specify the applicable law, Article 24^[2] orders that we anticipate the system to which the succession should be connected. If he has specified the applicable law, this choice should be complied with.

Notes

Point 48 of the recital of the Regulation
- In order to ensure legal certainty for persons wishing to plan their succession in advance, this Regulation should lay down a specific conflict-of-laws rule concerning the admissibility and substantive validity of dispositions of property upon death. To ensure the uniform application of that rule, this Regulation should list which elements should be considered as elements pertaining to substantive validity. The examination of the substantive validity of a disposition of property upon death may lead to the conclusion that that disposition is without legal existence.
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.