# When should a renvoi be admitted?

A renvoi must be ruled out if the law specified to apply to the succession was specified pursuant to the exception clause set out in Article 21(2).

## Example

If we imagine an elderly American national living in Belgium in a retirement home. If the bulk of their family and assets are in the United States, the judge might be tempted to give preference to American law over Belgian law.

It is of little importance here that American law rules that it is the law of the residence of the deceased that applies.

The refusal can be explained as follows: the exception clause expresses an imperative of proximity that the application of the renvoi would be likely to reduce to nothing.

## Not in the event of a choice of law

A renvoi may not be made in the event of a choice of law (Article 22).

## Example

We will imagine an Englishman who died when domiciled in Italy and had opted for English law in a disposition of property upon death. In this case, it is of little importance that English law specifies that the Italian law of his domicile should apply.

We will stick to the choice of the deceased, as to do otherwise would be contrary to his legitimate wishes and to the aim of the Regulation which is to provide security.

## Warning!

We must weigh the full importance of the refusal of a renvoi:

Different laws will be applied according to whether it is the courts of the Member State of the habitual residence of the deceased (Italy) that are seised or those of the third State of the nationality of the deceased (United Kingdom). This might tend to encourage forum shopping.

It should also be added that the choice of law in question here is not only that serving to determine the law applicable to the succession.

It can also concern the law applicable to a disposition of property upon death: the deceased may indeed decide to make his will subject to the law of his nationality.

Finally, the parties to an agreement as to succession may opt for the law of the nationality of one of them. In all these hypotheses, the renvoi must be ruled out.

## Formal validity of an instrument?

A renvoi is excluded in matters of the formal validity of an instrument.

This means that when the question arises of the formal validity of a will, it matters little that the law specified pursuant to the Regulation declines the offer of jurisdiction made to it (Article 27).

The same applies to the formal validity of a declaration accepting the succession or not (Article 28 b).

## Excluded in the presence of special overriding rules

A renvoi is excluded in the presence of overriding mandatory provisions within the meaning of Article 30 of the Regulation.

It is obvious here that the renvoi must be refused. The law of the location of the assets should be applied in light of the interests it protects.

By definition, there is therefore no place for a renvoi.

## Hypotheses not referred to by Article 34

In all the other hypotheses not referred to by Article 34, 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 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) 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.