Case study - 8 Law applicable to the succession

8 Law applicable to the succession

8.1

No particular difficulties

8.2 The law applicable was determined on the basis of the following elements:

8.2.1. The deceased had his habitual residence in that State at the time of his death (Article 21^[1](1) of the Regulation). On the notion of habitual residence, reference should be made above to the explanations provided for Point 4.1 of this document

8.2.2 The deceased chose the law of that State of which he was a national (see Article 22(1) of the Regulation^[2]) (see also the explanation for Point 7.2)

Complement :

The authority issuing the ECS must check whether the choice of law that has been made seems to comply with Article 22 of the Regulation ^[2]and notably whether the choice was made expressly in a declaration in the form of a disposition of property upon death or is the result of such a disposition.

More specifically, pursuant to Article 27 of the Regulation^[3], a check should be conducted of whether the conditions of validity of the form are fulfilled, meaning that the declaration in the form of a disposition of property upon death satisfies 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.

8.2.3

Article 21(2) of the Regulation ^[1]states that 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.

Warning :

This provision must only be applied very exceptionally by the notary who must provide very precise justification of the elements that led him to opt for the application of a law other than that of the habitual residence of the deceased.

One possible hypothesis is that the deceased made a choice of law in favour of his national law, that this choice is not valid, but that it is clear from all the circumstances of the case that the deceased was manifestly very closely connected with the State of which he is a national.

8.2.4 to 8.4

No particular difficulties

Notes

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.
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.
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.