The courts of a Member State whose law had been chosen by the deceased pursuant to Article 22 shall have jurisdiction to rule on the succession if:
(a) a court previously seised has declined jurisdiction in the same case pursuant to Article 6;
(b) the parties to the proceedings have agreed, in accordance with Article 5, to confer jurisdiction on a court or the courts of that Member State; or
(c) the parties to the proceedings have expressly accepted the jurisdiction of the court seised.
This ground of competence will only be of marginal concern to notaries: a French notary will therefore be competent when French law had been chosen by the deceased as the law applicable to his succession and the heirs have agreed that the French courts had sole competence by a choice-of-court agreement
A choice-of-court agreement (cf. Article 5 of the Regulation[1]) must be expressed in writing, dated and signed by the parties.
The choice-of-court agreement requires the approval of all the heirs: if one of the heirs does not give their consent, competence cannot be determined on such grounds.
A choice-of-court agreement may only be made to the benefit of courts in Member States in which the Regulation is applicable. This is not the case of Denmark, the United Kingdom or Ireland. In those cases, a choice of court is not admissible and Article 7 may not apply. In that case, only the notary in the State of the last habitual residence of the deceased is competent to establish the ECS.
A choice-of-court agreement does not exclude the possibility of competence being disputed or challenged.
Choice-of-court agreement
Where the law chosen by the deceased to govern his succession pursuant to Article 22 is the law of a Member State, the parties concerned may agree that a court or the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter.
Such a choice-of-court agreement shall be expressed in writing, dated and signed by the parties concerned. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing.