Special incapacity to make or receive dispositions [European Regulation in matters of international successions]

Special incapacity to make or receive dispositions

Certain legislations place limits on the capacity to make or receive dispositions on account of links between the persons making and receiving the gift. Such is the case in France (Article 907 of the Civil Code) or in Italy (Article 596 of the Italian Civil Code). Once again, the anticipated law applicable to the succession will apply.

Example :

In France, it is not possible to make a disposition in favour of a doctor who cared for the testator during the illness from which he died. A will containing a disposition in favour of such a physician will therefore be null and void whenever French law is anticipated to govern the succession and whatever the actual law applied to the succession.

Complement :

Is the list in Article 26^[1] restrictive, thereby preventing any questions that are not referred to in the disposition- within the scope of application of Article 26^[1]?

Two points in the text argue in favour of it being a closed list:

One the one hand, Article 26^[1], unlike Article 23^[2], is not introduced by the the expression “in particular” indicating that a list is not restrictive.

On the other, Point 48 in the Preamble^[3] states that “To ensure the uniform application of that rule, this Regulation should list which elements should be considered as elements pertaining to substantive validity”.

Despite the elements in the text, however, some authorised sources consider that the list is not restrictive: any question relating to the substantive validity of dispositions of property upon death should be subject to the anticipated law applicable to the succession, even if not referred to in Article 26^[1].

Notes

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 23
The scope of the applicable law
1. The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole.
2. That law shall govern in particular:
  - a) the causes, time and place of the opening of the succession;
  - b) the determination of the beneficiaries, of their respective shares and of the obligations which may be imposed on them by the deceased, and the determination of other succession rights, including the succession rights of the surviving spouse or partner;
  - c) the capacity to inherit;
  - d) disinheritance and disqualification by conduct
  - e) the transfer to the heirs and, as the case may be, to the legatees of the assets, rights and obligations forming part of the estate, including the conditions and effects of the acceptance or waiver of the succession or of a legacy;
  - f) the powers of the heirs, the executors of the wills and other administrators of the estate, in particular as regards the sale of property and the payment of creditors, without prejudice to the powers referred to in Article 29(2) and (3);
  - g) liability for the debts under the succession;
  - h) the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death as well as claims which persons close to the deceased may have against the estate or the heirs;
  - i) any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries; and
  - j) the sharing-out of the estate.
Point 48 of the recital of the Regulation
- In order to ensure legal certainty for persons wishing to plan their succession in advance, this Regulation should lay down a specific conflict-of-laws rule concerning the admissibility and substantive validity of dispositions of property upon death. To ensure the uniform application of that rule, this Regulation should list which elements should be considered as elements pertaining to substantive validity. The examination of the substantive validity of a disposition of property upon death may lead to the conclusion that that disposition is without legal existence.