The Choice of the Law Applicable to the Succession under Regulation 650/2012 – An Outline

Abstract

The option left by Art. 22 of the Regulation 650/2012 to the testator as to choosing the law applicable to the succession (lex hereditatis) strikes the balance between the law of the habitual residence and the law of nationality and has to be assessed as a positive development. Interpretation issues arise out of the provisions related to the choice of the law applicable to the succession, in particular when the choice is made by a mutual or a joint will or regarding the substantive validity or the form of the choice.

In principle, the choice of the national law as applicable to the succession has an impact on international jurisdiction as it leads to the dissociation of forum and jus, because the court of the last habitual residence of the deceased seized upon the basis of Art 4 shall apply the law of the nationality of the deceased. However the dissociation can be dissipated and the correlation (or coincidence) of forum and jus reestablished (Art. 5-7), provided that the law chosen by the testator is the law of a Member State.

As to the crucial point of the protection of the persons entitled to a reserved share, the conclusion to be drawn is that these persons are in danger of being deprived of their rights through the choice of the lex hereditatis. They may resort to the general mechanisms of PIL (public policy- fraude à la loi) in view of successfully avoiding the consequences of a choice of the applicable law done at their expense.

Keywords: Conflict of Laws, Fraude à La Loi, Habitual Residence, International Jurisdiction, Joint Will, Mutual Will, Public Policy, Successions, Regulation 650/2012, Reserved Share

JEL Classification: K10, K11, K30, K36