# Qualification problems yet to come...

## Reminder

While Article 27 of the Regulation will apply to the formal validity of wills and agreements as to succession in certain Member States, in others that are bound by the Hague Convention of 5 October 1961, Article 27 will apply only to agreements as to succession.

## Focus on joint wills

There is no clear response in the Regulation to the question of whether the legality of a joint will is governed by the law applicable to the substance of the matter (and therefore by Article 24) or the law applicable to the form (and so Article 27 or the Hague Convention).

This is a problem of qualification. The Member States do not all adopt the same approach to this.

In France and Luxembourg, the prohibition of joint wills is analysed in case law as a formal rule.

In Belgium, Austria and Spain, the substantive qualification prevails.

The only certainty to date is that the question of whether, for example, the joint will must be established in notarial form or may also be in holograph form, is a question of form (Article 75) and therefore subject to the law applicable to the form of wills.

## Suggestion

The question of the prohibition of joint wills will perhaps be linked in, in the future, with that of the admissibility of wills and therefore become subject to the anticipated law applicable to the succession.

## Focus on formal requirements in matters of advance waivers of proceedings

Any advance waiver of proceedings relating to reserved shares is surrounded by very strict formal requirements in France (presence of two notaries, the second of whom is appointed by the Chamber of Notaries .

in order to ensure the the consent of the heir making the waiver is entirely free and properly informed.

Some experts consider that these formal requirements rule out any possibility of such a waiver being established abroad.

For others, although these formal requirements are guided by substantive considerations, these are nonetheless formal rules that should benefit from the liberal system set out in Article 27 of the Regulation. In this view, an advance waiver of any such proceedings could be valid if established abroad without the presence of two notaries.