The questions to be asked prior to applying succession law. [European Regulation in matters of international successions]

The questions to be asked prior to applying succession law.

Certain questions will arise concurrently with the application of the law of the succession. Such is the case of the questions referred to in Article 1(2) f,g,h,i,j,k.^[1]

The formal validity of dispositions of property upon death made orally is excluded from the Regulation^[1].
Gifts made inter vivos are excluded from the Regulation.
The list proposed in this article is not exhaustive. It includes gifts, accretion clauses, pension plans and insurance policies. This exclusion is only partial, since the effectiveness of these parallel gifts is subject to the law on succession^[2].
Questions pertaining to company law are excluded from the Regulation.
When a partner dies, the transmission of his shares is subject to the law determined by the rules of conflict applicable in matters of company law.
Trusts are also excluded from the scope of application of the Regulation. Once again, this exclusion is only partial, as it concerns the creation, administration and dissolution of the trust. Therefore, if the trust creates a gift, the law applicable to the succession will limit its effectiveness.

Example :

If we imagine a trust established pursuant to English law, if the law applicable to the succession is French law, the trust may end up being subject to the latter’s provisions on restoring or accounting for gifts.

The nature of rights in rem. In this matter, the law of the succession will be set aside in favour of the law of the location of the assets. The idea behind this exclusion is that a right in rem that is unknown in the location of the assets cannot be imposed. It should be noted, however, that Article 31 of the Regulation^[3] invites us, to the extent possible, to adapt the unknown right in rem by seeking to identify the closest equivalent right in rem in the location of the asset.

Notes

article 1 § 2 f,g,h,i,j,k
The following shall be excluded from the scope of this Regulation:
- f) the formal validity of dispositions of property upon death made orally;
- g) property rights, interests and assets created or transferred otherwise than by succession, for instance by way of gifts, joint ownership with a right of survivorship, pension plans, insurance contracts and arrangements of a similar nature, without prejudice to point (i) of Article 23(2);
- h) questions governed by the law of companies and other bodies, corporate or unincorporated, such as clauses in the memoranda of association and articles of association of companies and other bodies, corporate or unincorporated, which determine what will happen to the shares upon the death of the members;
- i) the dissolution, extinction and merger of companies and other bodies, corporate or unincorporated;
- (j) the creation, administration and dissolution of trusts;
- k) the nature of rights in rem; and
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.
Article 31
Adaptation of rights in rem
Where a person invokes a right in rem to which he is entitled under the law applicable to the succession and the law of the Member State in which the right is invoked does not know the right in rem in question, that right shall, if necessary and to the extent possible, be adapted to the closest equivalent right in rem under the law of that State, taking into account the aims and the interests pursued by the specific right in rem and the effects attached to it.