Hypotheses not referred to by Article 34 [European Regulation in matters of international successions]

Hypotheses not referred to by Article 34

Fundamental :

In all the other hypotheses not referred to by Article 34^[1], the working of the renvoi must be accepted.

Hypothesis 1 – Article 21.1

If a Spanish national dies while a resident in Marrakesh. Article 21^[2] of the Regulation requires the application of the Moroccan law of his habitual residence.

The rule of conflict under Moroccan law stipulates that Spanish law should be applied as the nationality of the deceased. The renvoi must be accepted if the conditions of Article 34(1)^[1] are fulfilled.

Hypothesis 2 – Articles 24 and 25

In the presence of a disposition of property upon death, the Regulation invites us to bring forward the date of determination of the law applicable to the succession and to apply the law of the residence on the date of the instrument.

If the specified law is that of a third State whose rule of conflict specifies the law of the place of residence on the date of the death, a renvoi is possible.

Warning :

Some may query the adequacy of this literal application of the Regulation which may result in a solution that is contrary to the spirit of the Regulation.

By defining the applicable law on the date of the instrument, the aim of the authors of the Regulation was to secure any projects to prepare for the succession, and the renvoi may go against this objective.

Notes

Article 35
Renvoi
1. The application of the law of any third State specified by this Regulation shall mean the application of the rules of law in force in that State, including its rules of private international law in so far as those rules make a renvoi:
  a) to the law of a Member State; or
  b) to the law of another third State which would apply its own law
2. No renvoi shall apply with respect to the laws referred to in Article 21(2), Article 22, Article 27, point (b) of Article 28 and Article 30.
Article 21
General rule
1. Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.
2. Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State.