Revocation and modification of wills [European Regulation in matters of international successions]

Revocation and modification of wills

The Regulation as regards the question of specifying the law applicable to the modification or revocation of a will.

The question is as follows:

Should we apply the law governing the succession anticipated on the day the will was established?
Should we apply the law governing the succession anticipated on the day of its revocation?

Example :

A French national establishes a will while a resident in the Netherlands. He then returns to France and intends to revoke the will: is the law applicable to the revocation the Dutch law of the place of residence on the day the will was established or the French law of the place of residence on the day of its revocation?

Article 24(3) makes a distinction as to whether the testator made a choice of law or not in testamentary matters:

If the deceased did not make a choice of law, we must apply Paragraph 1 and therefore the anticipated law on the succession. But the article does not state whether we must place ourselves on the day the initial will was established or on the day of its revocation. In principle, it would seem that we should place ourselves on the day of the revocation. Point 51 of the Preamble^[1] suggests this. Some authors, however, believe that the possibility of revocation should remain governed by the law applicable to the will.

If the deceased has made a choice of law, modifications or revocations will be governed by the law he has chosen.

Complement :

We will take the causes of the revocation:

revocation of the will by subsequent marriage (United Kingdom),
revocation of the will on grounds of divorce (Germany),
Revocation of the will on grounds of the arrival of children...

Are such causes of revocation governed by the succession law that would have applied on the day the will was established or by the succession law anticipated on the day when the event in question occurred.

The text does not clearly answer this question.

Complement :

The effects of dispositions of property upon death are not referred to by Article 24^[2] of the Regulation. It must therefore be deduced that the question is subject to Article 23^[3] of the Regulation and therefore to the anticipated law on the succession.

Likewise, the content of the will - obligations attached to legacies, appointment of a testamentary executor - are subject to the law governing the succession.

Adjustments are no doubt to be expected in the future between the jurisdiction of the anticipated law governing the succession and the effective law.

Notes

Point 51 of the recital of the Regulation
- Where reference is made in this Regulation to the law which would have been applicable to the succession of the person making a disposition of property upon death if he had died on the day on which the disposition was, as the case may be, made, modified or revoked, such reference should be understood as a reference to either the law of the State of the habitual residence of the person concerned on that day or, if he had made a choice of law under this Regulation, the law of the State of his nationality on that day.
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 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.