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

Choice of law

In accordance with Article 25(3)^[1] it should be possible for the choice of law to be made in favour of the national law of the person making the disposition on the day of the instrument or on the day of their death.

This choice of law may be expressed in the agreement. It remains to be seen whether it can be contained in an instrument at an earlier or later date. In our opinion, it all depends on the form that is used. Admittedly, Article 22^[2] requires the choice to be indicated in a disposition of property upon death, which encompasses both wills and agreements as to succession.

But, given that an agreement as to succession is an agreement, any choice of law that might be made after the conclusion of the agreement should also take the form of an agreement, failing which the choice of law might serve as a way for the parties to go back on their commitments unilaterally and would be likely to disregard the legitimate expectations of the parties at the time when the agreement was concluded.

As for a choice of law made at an earlier date, once again the choice of law cannot result from a unilateral instrument, unless it is confirmed in the agreement.

Example :

An Italian residing in Germany obtains an agreement from one of his children to waive all his rights to the succession. Pursuant to Article 25^[1], the agreement is subject to German law and must therefore be considered valid. If the deceased made a choice of law at a later date by a will, pursuant toArticle 25(3)^[1], opting for his national law, the agreement would be null and void! This solution is unacceptable.

Apart from this, the choice of law when there an agreement has been established as to the succession of a person, calls for the same remarks as those that apply to wills.

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.
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.