Binding effects of agreements as to succession [European Regulation in matters of international successions]

Binding effects of agreements as to succession

Article 26^[1] makes the binding effects between the parties to agreements as to succession subject to the anticipated succession law, “including the conditions for its dissolution.”

As the question of the revocability or irrevocability of the agreement is of the essence to it, the jurisdiction of the succession law on the day of the agreement is necessary.

Likewise, and contrary to wills, a change of residence will have no effect on the law applicable to the dissolution of the agreement. The law to which it is connected is fixed once and for all. The law applicable to the agreement will have jurisdiction to define the conditions for rescinding or terminating the agreement, which are perceived as nuancing the irrevocability of the agreement.

Warning :

The law applicable to the agreement will have to fit in which the law governing the succession. This law must not neutralise the agreement. This implies that succession law (and its binding rules) will be set aside to some extent.

Example :

A French national obtains a waiver of any proceedings relating to a reserved share (Article 929 et seq. Civil Code) from one of his children. He then dies in Italy. The Italian law that is applicable to the succession awards a reserved share to the children, which share may not be waived. However, given that the agreement as to succession was concluded in compliance with the French law of residence on the day of the agreement, it must be effective and the author of the waiver will not be entitled to claim his reserved share.

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.