Identification of the applicable law

Article 27^[1] of the Regulation concerns the law applicable to the formal validity of dispositions of property upon death. This article applies both to agreements as to succession and to testamentary dispositions.

However, in a certain number of Member States bound by the Regulation, Article 27^[1] will give way to the Hague Convention of 5 October 1961 on the conflicts of laws relating to testamentary dispositions, for which a reserve is set out in Article 75(1)^[2] of the Regulation.

Warning :

The limits of the application of the Hague Convention of 5 October 1961 should be clearly identified. In those Member States that have ratified the Convention, it will apply only to the formal validity of the dispositions. The Regulation applies, however, to the formal validity of agreements as to succession

The Member States bound by the Regulation and that have ratified the Hague Convention of 5 October 1961 are:

Germany, Austria, Belgium, Spain, Estonia, Finland, France, Greece, Luxembourg, the Netherlands, Poland, Slovenia and Switzerland.

In these countries, the formal validity of wills will be assessed pursuant to the Hague Convention of 5 October 1961.

Example :

In Belgium, the Hague Convention of 5 October 1961 will apply to the formal validity of wills and Article 27^[1] of the Regulation will apply to the formal validity of agreements as to succession.

In Italy, Article 27^[1] of the Regulation will apply to the formal validity of wills and agreements as to succession.

The rule of conflict set out in Article 27^[1] of the Regulation, largely inspired by Article 1 of The Hague Convention of 5 October 1961 is a rule of conflict of a substantive nature. It is a cascading rule of conflict based on alternative criteria for determining the law.

The disposition of property upon death will be formally valid if it complies with one of the laws mentioned below. It is therefore the responsibility of the practitioner to consult the relevant laws to check the validity of the will.

The system is all the more open when there is an agreement as to succession, the possible applicable laws are alternatives, which tends to broaden the range of laws likely to be applied whenever the agreement concerns the succession of more than one person.

Applicable law criteria in Article 27 of the Regulation and in Article 1 of the Convention are as follows:

Law of the State of the place of the instrument (place of establishment of the will, place of conclusion of the agreement): while defining this place should pose no difficulties for notarial instruments, the same cannot be said of private agreements.

This may give rise to problems of evidence. The place indicated in a holograph will is only authentic until proven otherwise. In a notarial will, however, the evidentiary effects attached to the designation of the place where the instrument was established in the State of origin of the will shall be recognised in the other Member States (Article 59^[3]).

Example :

A holograph will established in France by a Portuguese national must be recognised in Portugal.

Law of the State of the nationality of (one of) the person(s) making the disposition at the time when the disposition was made or at the time of death. If the person making the disposition has several nationalities, the range of laws that may apply widens.

Law of the State of the domicile of (one of) the person(s) making the disposition at the time when the disposition was made or at the time of death. NB: this is the only provision in the Regulation that takes the domicile as the criterion for choosing the applicable law.

To determine whether the testator or any other person whose succession is concerned by the agreement as to succession has their domicile in a State, it is the law of that State that should be applied (Article 27(1)^[1] – as in the Hague Convention, Article 1). Such a rule may result in a person having their domicile in several States or even in no State at all. This also increases the chances of the will being formally valid.

Example :

A testator of Portuguese origin lived for many years in France. When he reached retirement age, he returned to Portugal. Back in Portugal, he established a holograph will. Such a will shall be valid if, and only if, he can be considered as having kept his domicile in France.

To this effect, we must consult French law and the criteria as set out in Article 102 of the Civil Code..

Law of the State of habitual residence of (one of) the person(s) making the disposition at the time when the disposition was made or at the time of death.

We see that while foe the substantive validity of dispositions of property upon death only the law of the habitual residence on the day the instrument was established may be applied, in matters of formal validity we have an alternative between the day of the instrument and the date of death.

Warning :

The notion of habitual residence comes up repeatedly in the Regulation. It is essential that it should be interpreted uniformly for all the provisions making reference to it.

For immovable property, the law of the State where it is located. Insofar as this criterion applies only to immovable property, it will lead us to address testamentary dispositions differently according to whether they concern movable or immovable property. This could result in the balance sought by the deceased being brought into question.

Complement :

According to which law will the qualification of property as being movable or immovable be conducted? Should preference be given to the law of the forum? Or should we apply the law of the location of the property for reasons of effectiveness?

Currently, this question is not addressed in the same way in the different member States of the European Union. In France, for example, this qualification will be conducted according to the law of the forum. In Belgium and Austria, meanwhile, it will be according to the law of the place where the property^[4] is located.

If the will is formally valid only for immovable property but the testamentary disposition concerning movable and immovable property is non-severable, the question will be whether the will can still produce its effects for the immovable property only. The Regulation does not provide an answer to this question.

Registration of wills (Parallel information - Useful for settling a succession)

Basel Convention of 16 May 1972 on the establishment of a scheme of registration of wills. System in operation in the States that are parties to the Convention.
Existence of an international liaison body in State that is a party to the Convention: In France, it is the Notarial High Council, and in Belgium the Royal Federation of Belgian Notaries.
ENRWA^[5]: To foster interconnection between European registries. The ENRWA has 19 Member States (Austria, Belgium, Bulgaria, Croatia, Spain, Estonia, France, Hungary, Italy, Latvia, Lithuania, Netherlands, Poland, Portugal, Romania, Slovenia, Switzerland and the Region of Saint Petersburg).

Notes

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.
Article 75
Relationship with existing international conventions
1. This Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation.
  In particular, Member States which are Contracting Parties to the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions shall continue to apply the provisions of that Convention instead of Article 27 of this Regulation with regard to the formal validity of wills and joint wills.
2. Notwithstanding paragraph 1, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation.
3. This Regulation shall not preclude the application of the Convention of 19 November 1934 between Denmark, Finland, Iceland, Norway and Sweden comprising private international law provisions on succession, wills and estate administration, as revised by the intergovernmental agreement between those States of 1 June 2012, by the Member States which are parties thereto, in so far as it provides for:
  - a) rules on the procedural aspects of estate administration as defined by the Convention and assistance in that regard by the authorities of the States Contracting Parties to the Convention; and
  - b) simplified and more expeditious procedures for the recognition and enforcement of decisions in matters of succession.
Article 59
Acceptance of authentic instruments
1. An authentic instrument established in a Member State shall have the same evidentiary effects in another Member State as it has in the Member State of origin, or the most comparable effects, provided that this is not manifestly contrary to public policy (ordre public) in the Member State concerned.
  A person wishing to use an authentic instrument in another Member State may ask the authority establishing the authentic instrument in the Member State of origin to fill in the form established in accordance with the advisory procedure referred to in Article 81(2) describing the evidentiary effects which the authentic instrument produces in the Member State of origin.
2. Any challenge relating to the authenticity of an authentic instrument shall be made before the courts of the Member State of origin and shall be decided upon under the law of that State. The authentic instrument challenged shall not produce any evidentiary effect in another Member State as long as the challenge is pending before the competent court.
3. Any challenge relating to the legal acts or legal relationships recorded in an authentic instrument shall be made before the courts having jurisdiction under this Regulation and shall be decided upon under the law applicable pursuant to Chapter III. The authentic instrument challenged shall not produce any evidentiary effect in a Member State other than the Member State of origin as regards the matter being challenged as long as the challenge is pending before the competent court.
4. If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question relating to the legal acts or legal relationships recorded in an authentic instrument in matters of succession, that court shall have jurisdiction over that question.
Qualification of property as moveable or immovable
“La qualification des biens en meubles ou immeubles dans le droit international privé du patrimoine familial”, in “Mélanges en l'honneur de M. Revillard" Defrénois, 2007, p. 209 by P. Lagarde
enrwa: European Network of Registers of Wills