Anticipation of the system to which the succession should be connected [European Regulation in matters of international successions]

Anticipation of the system to which the succession should be connected

This means making the will subject to the law that would have applied to the succession if the testator had died on the day when he established the will. It therefore implies applying the criteria for determining the applicable law in Articles 21^[1] and 22^[2] not on the day of the death, but on the date of the will.

We must therefore proceed in three steps.

1er temps

In principle, the law of the habitual residence of the testator on the day of the instrument has jurisdiction

Example :

A French national residing in Germany established a joint will with his spouse. He died a few years later while residing in France. Although the succession is subject to French law (Article 21^[1]), German law is applicable to the validity of the will (Article 24^[3]).

2ème temps

As an exception and pursuant to the terms of Article 21^[1], the law of the habitual residence on the day of the instrument will be disregarded if it is established that the testator was clearly more closely connected with a State other than that of his habitual residence.

Advice :

The exception clause is a mechanism that is intended only for exceptional use as it is a source of unpredictability and is likely to run contrary to the objectives of the Regulation (and of the testator). Great care is required in implementing this clause, especially as the closeness of those connections must be assessed on the day the will was established and not on the day of death. Nor must it be an indirect way of restoring the jurisdiction of the law applicable to the succession (residence on the date of death).

Warning :

By advancing that moment at which the applicable law is determined, the Regulation may oblige practitioners settling a succession to apply two laws, one for the will and one for the succession, whenever the deceased has changes their residence between the day when the will was established and the day of their death. This dual legislative jurisdiction will:

Increase the number of situations in which practitioners will be required to apply foreign laws, at least in States which hitherto made the question of the validity of will subject to the law governing the succession.
Oblige practitioners to identify the habitual residence of the testator retrospectively.
Oblige practitioners to make a careful distinction between the questions falling within the scope of application of the law applicable to the will and those subject to the law governing the succession.
Generate adaptation problems whenever the two laws involved are based on different logics.

3rd step

Finally, as the anticipation required by Article 24^[3] is absolute, we must make a reserve for the hypothesis whereby on the date of the will, the deceased had already opted for the application of his national law to the succession. In this situation, the national law applicable to the succession will also be applicable to the will. It should therefore be noted that this is a way of ensuring the application of one and the same law to the succession and the will.

Warning :

To fully understand the importance of this rule, a distinction should be made between three situations:

In his will, the testator made a choice of law for his succession in accordance with Article 22.^[2] This choice of law will also apply to determine the validity of the will pursuant to Article 24^[3].
A first will was established containing a choice-of-law clause in matters of succession. A second will was established thereafter and did not contradict the first one. The validity of the second will shall be assessed pursuant to the national law chosen by the testator in the first will.
A first will was established and did not contain a choice-of-law clause. A second will was established containing a choice of law in matters of succession. The national law chosen here will not be applicable to the validity of the first will. The text does not allow retroactive application of a choice of law.

Complement :

If a first will containing a choice of law is revoked by a second will, does that revocation also concern the choice of law?

The Regulation does not provide an answer to this question. That is a matter for interpretation, no doubt. It is therefore under the law applicable to the revocation of the first will that the extent of the revocation will have to be assessed.

If the choice-of-law clause is contained in a will and the clause is then revoked at a later date, does that revocation apply to the succession and the will or only to the succession that has not yet been opened?

The Regulation does not provide an answer to this question.

Notes

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.
Article 22
Choice of law
1. A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.
  A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death.
2. The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition.
3. The substantive validity of the act whereby the choice of law was made shall be governed by the chosen law.
4. Any modification or revocation of the choice of law shall meet the requirements as to form for the modification or revocation of a disposition of property upon death.
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.