Choice of law [European Regulation in matters of international successions]

Choice of law

Which law?

Article 24(2)^[1] therefore extends the provisions of 'Article 22^[2] to the will. In other words, the testator may have his law governed either by his national law on the day of the will of by his national law on the day of death.

Note :

It should be pointed out immediately that the transposition of Article 22^[2] may run contrary to the objective of Article 24^[1] which is to secure this anticipation by fixing the applicable law on the day of the instrument. If the deceased opts for his national law on the day of his death, there is a risk that this wish will not be fulfilled.

What form?

The choice of law will need to comply with the formal requirements set out in Article 22^[2]. It may be contained in a will or in a disposition of property upon death dating from before or after the establishment of the will.

Note :

The fact that the choice of law can be made after establishing the will is of no consequence insofar as the disputed instrument will only produce its effects on the death of the deceased.

Warning :

The scope of such a choice of law must be taken into full account: failing any wish to the contrary expressed by the testator, it will concern only the will: consequently, the succession will be governed by the law of the last habitual residence of the deceased on the date of their death (Article 21^[3]). Once again, practitioners will be required to apply two laws concurrently.

The same will apply in the presence of a person with dual nationality who opts for one of those nationalities for the will and the other for their succession.

Finally, the question of the scope of this choice (only for the will or also for the succession?) is certain to be a source of disputes in the future. Practitioners should therefore be invited to draft choice-of-law clauses in wills with great care and to circumscribe their scope.

Notes

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 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 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.