Not in the event of a choice of law [European Regulation in matters of international successions]

Not in the event of a choice of law

Fundamental :

A renvoi may not be made in the event of a choice of law (Article 22^[1]).

Example :

We will imagine an Englishman who died when domiciled in Italy and had opted for English law in a disposition of property upon death. In this case, it is of little importance that English law specifies that the Italian law of his domicile should apply.

We will stick to the choice of the deceased, as to do otherwise would be contrary to his legitimate wishes and to the aim of the Regulation which is to provide security.

Warning :

We must weigh the full importance of the refusal of a renvoi:

Different laws will be applied according to whether it is the courts of the Member State of the habitual residence of the deceased (Italy) that are seised or those of the third State of the nationality of the deceased (United Kingdom). This might tend to encourage forum shopping.

It should also be added that the choice of law in question here is not only that serving to determine the law applicable to the succession.

It can also concern the law applicable to a disposition of property upon death: the deceased may indeed decide to make his will subject to the law of his nationality.

Finally, the parties to an agreement as to succession may opt for the law of the nationality of one of them.

In all these hypotheses, the renvoi must be ruled out.

Notes

Article 22
Choice of law
1. A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.
  A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death.
2. The choice shall be made expressly in a declaration in the form of a disposition of property upon death or shall be demonstrated by the terms of such a disposition.
3. The substantive validity of the act whereby the choice of law was made shall be governed by the chosen law.
4. Any modification or revocation of the choice of law shall meet the requirements as to form for the modification or revocation of a disposition of property upon death.