Qualification problems yet to come... [European Regulation in matters of international successions]

Qualification problems yet to come...

Reminder:

While Article 27^[1] of the Regulation will apply to the formal validity of wills and agreements as to succession in certain Member States, in others that are bound by the Hague Convention of 5 October 1961, Article 27^[1] will apply only to agreements as to succession.

Focus on joint wills

There is no clear response in the Regulation to the question of whether the legality of a joint will is governed by the law applicable to the substance of the matter (and therefore by Article 24) or the law applicable to the form (and so Article 27^[1] or the Hague Convention).

This is a problem of qualification. The Member States do not all adopt the same approach to this.

In France and Luxembourg, the prohibition of joint wills is analysed in case law as a formal rule.

In Belgium, Austria and Spain, the substantive qualification prevails.

The only certainty to date is that the question of whether, for example, the joint will must be established in notarial form or may also be in holograph form, is a question of form (Article 75^[2]) and therefore subject to the law applicable to the form of wills.

Suggestion

The question of the prohibition of joint wills will perhaps be linked in, in the future, with that of the admissibility of wills and therefore become subject to the anticipated law applicable to the succession.

Focus on formal requirements in matters of advance waivers of proceedings

Any advance waiver of proceedings relating to reserved shares is surrounded by very strict formal requirements in France (presence of two notaries, the second of whom is appointed by the Chamber of Notaries – article 930 Code civil), in order to ensure the the consent of the heir making the waiver is entirely free and properly informed.

Some experts consider that these formal requirements rule out any possibility of such a waiver being established abroad.

For others, although these formal requirements are guided by substantive considerations, these are nonetheless formal rules that should benefit from the liberal system set out in Article 27^[1] of the Regulation. In this view, an advance waiver of any such proceedings could be valid if established abroad without the presence of two notaries.

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.