General capacity to make a disposition of property upon death [European Regulation in matters of international successions]

General capacity to make a disposition of property upon death

Although Article 1-2 b^[1] excludes the legal capacity of natural persons from the scope of the Regulation, it is subject to Article 26^[2] on the capacity to make dispositions relating to successions. In other words, the capacity to make a will and to make dispositions of property upon death are subject to the expected law on the succession. Therefore, to answer the question of whether a minor may make a will or not, the expected law governing the succession must be consulted.

Example :

To find out whether an Italian minor aged 17 who resides in France may make a will, we must consult the French law of his habitual residence and it is of no matter if Italian law does not allow him that right. Nor does it matter if he is an Italian resident at the time of his death.

This therefore means that a person who is a resident in a State that does not allow them to make a will can opt for their national law whenever that law does allow them to make a will. The Regulation therefore allows the testator the possibility of choosing the law applicable to their capacity.

Example :

A German minor residing in Italy may not make a will under the Italian law of his habitual residence. By opting for his national law, however, as authorised by Article 24^[3], he may make a valid will pursuant to German law.

Warning : On the scope of application of the law specified in this way

The anticipated law governing the succession does not apply to restrictions in matters of form related to the testator’s age such as, for example, the obligation or otherwise for a minor to comply with certain forms when establishing the will. This falls within the jurisdiction of the law applicable to the form of testamentary dispositions (Article 27^[4]; The Hague Convention).

The anticipated law applicable to the succession applies only to the capacity of the person making the disposition and not to the capacity of the other people participating in the agreement as to succession.

The capacity to modify or revoke a will as assessed pursuant to the law applicable to the succession anticipated not on the day of the revocation but on the date the will was established (Article 26(2)^[2]).

Example :

A 16-year-old Italian established a will while he was a resident in France. He will keep the right to revoke his will even though the right to make a will is closed to minors in Italy. However, he may not make certain testamentary disposition as the question will be subject to the Italian law of his new residence.

Notes

Article 1 § 1
"This Regulation shall apply to succession to the estates of deceased persons. It shall not apply to revenue, customs or administrative matters."
Article 26
Substantive validity of dispositions of property upon death
1. For the purposes of Articles 24 and 25 the following elements shall pertain to substantive validity:
  - a) the capacity of the person making the disposition of property upon death to make such a disposition;
  - b) the particular causes which bar the person making the disposition from disposing in favour of certain persons or which bar a person from receiving succession property from the person making the disposition;
  - c) the admissibility of representation for the purposes of making a disposition of property upon death;
  - d) the interpretation of the disposition;
  - e) fraud, duress, mistake and any other questions relating to the consent or intention of the person making the disposition.
2. Where a person has the capacity to make a disposition of property upon death under the law applicable pursuant to Article 24 or Article 25, a subsequent change of the law applicable shall not affect his capacity to modify or revoke such a disposition.
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 27
Formal validity of dispositions of property upon death made in writing
1. A disposition of property upon death made in writing shall be valid as regards form if its form complies with the law:
  - a) of the State in which the disposition was made or the agreement as to succession concluded;
  - b) of a State whose nationality the testator or at least one of the persons whose succession is concerned by an agreement as to succession possessed, either at the time when the disposition was made or the agreement concluded, or at the time of death;
  - c) of a State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his domicile, either at the time when the disposition was made or the agreement concluded, or at the time of death;
  - d) of the State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his habitual residence, either at the time when the disposition was made or the agreement concluded, or at the time of death; or
  - e) in so far as immovable property is concerned, of the State in which that property is located.
  The determination of the question whether or not the testator or any person whose succession is concerned by the agreement as to succession had his domicile in a particular State shall be governed by the law of that State.
2. Paragraph 1 shall also apply to dispositions of property upon death modifying or revoking an earlier disposition. The modification or revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under paragraph 1, the disposition of property upon death which has been modified or revoked was valid.
3. For the purposes of this Article, any provision of law which limits the permitted forms of dispositions of property upon death by reference to the age, nationality or other personal conditions of the testator or of the persons whose succession is concerned by an agreement as to succession shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications to be possessed by any witnesses required for the validity of a disposition of property upon death.