# How to choose?

## Express choice or tacit choice

Article 22 §2 of the Regulation states that the choice must 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"". The Regulation therefore accepts a tacit choice resulting from the terms of a disposition of property upon death, in addition to an express choice made in a testamentary disposition.

## Advice

However, as tacit choices are open to interpretation, the legal professional should advise their client to opt for an express choice to avoid any discussion or challenges.

## Formal validity

As regards the form required of a disposition of property upon death (which may therefore contain an explicit or tacit choice of law), article 27 dof the Regulation sets down highly favourable rules on such validity. This article 27, which applies to determine the formal validity of a choice of law contained in a written disposition of property upon death, makes provision for a number of alternatives.

## Fundamental

A disposition of property upon death shall be formally valid if its form complies with the law of the State in which the instrument containing the disposition was made, with the national law of the testator or of one of the persons concerned by the agreement as to succession, with the law of the domicile or habitual residence of the testator or of one of the persons concerned by the agreement as to succession, or, for immovable property, with the law of the State where that property is located.

## Warning !

If the law that is chosen is the law of a Member State that is not bound by the Regulation or of a third State, it should be verified whenever possible that the law of that State accepts choices of law in matters of succession, if the substantive validity of the instrument is governed by the chosen law (article 22 §3).