Choice of law

A choice of law is possible, but in terms that are adapted to the fact that there are several persons involved.

Given that the agreement concerns the succession of more than one person, they may opt for the national law of one of them. Once again, the choice of law applies only to the agreement, in principle. And once again, whether the choice of law is made before or after the agreement, it requires the agreement of all the parties to that agreement and cannot be made in a unilateral instrument.

The advantage of such a choice is that the specified law will apply to both the admissibility and validity of the agreement. This increases the chances of the agreement being considered valid.

Example : Two spouses, one of whom is French and the other German, reside in France. They conclude an agreement.

If no choice of law has been made (Article 25(2)^[1]) :The French law of their place of residence on the day of the agreement is applicable to the admissibility of the agreement. The agreement cannot be considered as having been concluded in a valid manner.
When a choice of law in matters of succession has been made at the time when the agreement was concluded (Article 25(2)^[1]): The French law of the nationality of one of the parties to the agreement and the German law of the nationality of the other party must be consulted to examine the admissibility of the agreement. The agreement cannot be concluded in a valid manner.
When a choice of law has been made in matters of the agreement in favour of the German law of the nationality of one of the parties to the agreement: German law is applicable to the admissibility and substantive validity of the agreement. The agreement may be considered as having been concluded in a valid manner if it meets the requirements of German law.

In this way, the choice of law also avoids the uncertainty arising from application of the principle of proximity.

Note :

The choice of law in matters of agreements as to succession may also be valid as choice of law in matters of succession, but only for one of the spouses if they have different nationalities.

Example :

An Austrian and a German conclude a joint mutual will. They decide to make the will subject to German Law. At the same time, only the deceased of German nationality may decide to have his succession governed by German law. Unity of jurisdiction is therefore possible only for one of the parties to the agreement.

If the spouses reside in different States that allow agreements as to succession but have the nationality of a State whose legislation prohibits agreements as to succession, it is not possible to remedy the unpredictability linked to the regime set out in Article 25(2)^[1] and the application of the principle of proximity, as the only law that might be chosen is the national law of the persons concerned, which prohibits such agreements!

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.