Specific provisions of the Hague Convention of 5 October 1961 (solely for wills and for those States that are parties to the Convention) [European Regulation in matters of international successions]

Specific provisions of the Hague Convention of 5 October 1961 (solely for wills and for those States that are parties to the Convention)

The questions of dispositions made orally

The formal validity of dispositions made orally is excluded from the scope of application of the Regulation (Article 1(2) f^[1]). The conflict rules of the Member States will therefore apply.

Regarding the States bound by the Hague Convention of 5 October 1961: Article 10 of the Convention stipulates that “Each Contracting State may reserve the right not to recognise testamentary dispositions made orally, save in exceptional circumstances, by one of its nationals possessing no other nationality.”

In other terms, if the oral disposition was established by a national of a State that had made that reserve and outside of extraordinary circumstances, then that State may choose not to recognise dispositions made orally. On the other hand, if the disposition was made in extraordinary circumstances, then the State that made that reserve must apply the Hague Convention to it.

The following countries have made the reserve in Article 10^[2]: Belgium, Estonia, France, Luxembourg and the Netherlands

The question of testamentary clauses which do not relate to successions

The formal validity of dispositions contained in the will which do not relate to successions are not subject to Article 27^[3] of the Regulation.

Article 12 of the Hague Convention reserves the rights for States that are parties to the Convention to exclude the application of the Convention to testamentary clauses which, under their law, do not relate to matters of succession.

Luxembourg and Austria have made the reserve mentioned in Article 12.

The formal validity of the recognition of a child or of the appointment of a tutor contained in a will may - if the State that is a party to the Hague Convention has not made the reserve in Article 12 - benefit from the alternatives set out in Article 1.

Notes

Article 1 §2
The following shall be excluded from the scope of this Regulation:
- a) the status of natural persons, as well as family relationships and relationships deemed by the law applicable to such relationships to have comparable effects;
- b) the legal capacity of natural persons, without prejudice to point (c) of Article 23(2) and to Article 26;
- c) questions relating to the disappearance, absence or presumed death of a natural person;
- d) questions relating to matrimonial property regimes and property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage;
- e) maintenance obligations other than those arising by reason of death;
- 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
- l) any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of recording or failing to record such rights in a register.
Article 10
Subsidiary jurisdiction
1. Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as:
  - a) the deceased had the nationality of that Member State at the time of death; or, failing that,
  - b) | the deceased had his previous habitual residence in that Member State, provided that, at the time the court is seised, a period of not more than five years has elapsed since that habitual residence changed.
2. Where no court in a Member State has jurisdiction pursuant to paragraph 1, the courts of the Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on those assets.
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.