Inheritance law

The Succession Regulation allows the testator of the disposition of property upon death (DoPuD) to make a choice of law. Article 22 provides that the testator can elect the law of their nationality (or the laws of one of their nationalities in case of multiple nationalities) at the time of choice or at the time of death (it will be important to clarify this point, because the choice will remain valid even if the testator loses or changes nationality).

The choice of law can be made expressly in a declaration in the form of a DoPuD or can be implied (i.e. demonstrated by the terms of such a disposition).

It is worth noting that article 83 the Succession Regulation extends the range of valid choice of law that can be made during the transitional period: ‘where the deceased had chosen the law applicable to his succession prior to 17 August 2015, that choice shall be valid if it meets the conditions laid down in Chapter III or if it is valid in application of the rules of private international law which were in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed.’

As already mentioned above, renvoi shall be applicable only if the law of habitual residence is the law of a third state. In the case of a choice of law made in a DoPuD all states bound by the Succession Regulation shall apply only the substantial applicable law (i.e. PIL rules are excluded) and no renvoi shall be admissible.

The above rule applies in any case of choice of law (whatever the chosen law is i.e. the law of a member state or the law of a third state). In fact Recital No. 57 expressly provides that ‘Renvoi should, however, be excluded in situations where the deceased had made a choice of law in favour of the law of a third State’.

Now, the question to be solved is: would the third state (whose law has been chosen. e.g. UK) respect such a choice or would it apply any possible renvoi to another law provided by its PIL rules? An answer to this question should be given on a case-by-case basis, depending on the law chosen. In our opinion conflict of laws cannot be avoided in principle.

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