Provisions that are common to Article 27 and to the Hague Convention [European Regulation in matters of international successions]

Provisions that are common to Article 27 and to the Hague Convention of 5 October 1961

Article 2 of the Hague Convention and Article 27(2) of the Regulation

The formal validity of the revocation or modification of a disposition of property upon death is subject to a very liberal conflict of laws regime. The range of laws that may end up being applied will therefore be considerably extended. The criteria of Article 27^[1] of the Regulation may be implemented not only on the day of the modifying instrument but also on the day of the initial instrument.

In other words, the following may apply, among others:

The law of the nationality on the day of the initial will, on the day of its revocation, on the day of death.
The law of the domicile on the day of the initial will, on the day of its revocation, on the day of death.
The law of the residence on the day of the initial will, on the day of its revocation, on the day of death.

Example :

A Portuguese national established a holograph will while a resident in France. A few years later, he decides to revoke it while a resident in Portugal. He is entitled to respect the formal requirements of French law (Article 27^[1]) and to revoke it in holograph form, despite the fact that under Portuguese law, it is not possible to make a will in holograph form.

NB: The new dispositions contained in the will shall be formally valid only if they comply with the criteria of the law applicable on the day when the new will is established.

Article 5 of the Hague Convention and Article 27(3) of the Regulation

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 shall be deemed to pertain to matters of form.

The same rule shall apply to the qualifications to be possessed by any witnesses.

Example :

The German rule requiring the will of a minor to be established in notarial form (§2233 BGB) is subject to Article 27^[1] of the Regulation. See also Point 51 of the Preamble^[2].

Dépeçage in matter of conflict of laws may result in a situation being considered valid when it would not have been considered valid if the laws applied to the disputed matter had been applied to it in full.

Example :

A German national residing in Germany established a will during a stay in Italy. The will is valid because:

The substantive validity of the will is subject to German law which allows a minor to make a will.
The formal validity of the will is subject to Italian law which does not impose any restrictions relating to age.

If only German law had been applied, however, the will would have been invalid because it was not established in notarial form. If Italian had applied to the whole of the will, it would have been invalid because established by a minor.

Warning :

In certain States, prior to the entry into force of the Regulation, there were rules prohibiting the nationals of such States from making wills in forms that were not known to their national laws. Such was the case in particular of Portuguese law (Article 65 and 2223 of the Civil Code). In the future, such rules may not be qualified as being substantive rules or special overriding rules (restrictive definition of special rules in Article 30). They are rules pertaining to matters of form.

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.
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.