1. Applicable Law Article 22 – Choice of Law
Bucharest, September 2013
Family Law and Successions in Light of the EU Law
Europe for notaries, notaries for Europe
Regulation EU No. 650/2012
Applicable Law Article 22 – Choice of Law
Speaker: Tsertsigianni Elena – Greek Notariat

2. Can he choose which countries’ law will govern his succession?
Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Case Study:
A client asks for your help when drafting his Will
He has dual nationality
He owns real estate properties in different counties than the country of his habitual residence
Narrate the example case Sicily
Can he choose which countries’ law will govern his succession?

3. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
EU regulation 650/2012 about succession addresses, among various matters of succession, such cases, which are more and more common due to the increasing mobility of citizens inside and outside the E.U. and gives to the person the possibility to organize
his succession in advance by choosing the law applicable, under the relevant provisions.

4. According to the transitional provisions of Article 83:
Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
According to the transitional provisions of Article 83:
1.This Regulation shall apply to the succession of persons who die on or after 17 August 2015.
2. 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.

5. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Applicable law
The Regulation has universal application, any law specified by the Regulation shall be applied whether or not it is the law of a Member State (Article 20). So a person can choose as the applicable law for his succession the law of a third State.
The general rule set by article 21 is that the law of the State in which the deceased had his habitual residence at the time of death is the law applicable to the succession as a whole.

6. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Applicable law
As an exception, article 21, paragraph 2 provides that if it is evident from all the circumstances of a specific case that, at the time of death the deceased was manifestly more closely connected with a State other than the State where he had his habitual residence at the time of death, the law applicable to the succession shall be the law of that other State.

7. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Article 22 -Choice of law
1. A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.
A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death.

8. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
2. The choice shall 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.
3. The substantive validity of the act whereby the choice of law was made shall be governed by the chosen law.

9. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
4. Any modification or revocation of the choice of law shall meet the requirements as to form for the modification or revocation of a disposition of property upon death.

10. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 1
A person can choose as the law to rule his succession as a whole the law of the State whose nationality he possesses either at the time of making the choice or at the time of death.
If someone possesses multiple nationalities, he can choose the law of any of the States whose nationality he possesses either at the time of making the choice or at the time of death.

11. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 1
So, instead of the general rule of article 21 where the habitual residence at the time of death defines the law applicable to the succession, by article 22 the person can choose as applicable to his succession as a whole the law of the State whose nationality he possesses. The choice is limited by the Regulation though to the law of a State of (one of) his nationality (-ies) in order to ensure a connection between the deceased and the law chosen and to avoid a law being chosen with the intention of depriving the legitimate rights from persons entitled to a reserved share.

12. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 2
In order for the choice of the person to be applied, there is a specific form to be followed. It has to be made expressly and not in any kind of document, even authentic, but in a declaration in the form of a disposition of property upon death or it has to be demonstrated by the terms of such a disposition and not in any other form or manner.

13. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 2
The choice of law could be regarded as demonstrated by a disposition of property upon death where, for instance, the deceased had referred in his disposition to specific provisions of the law of the State of his nationality or where he had otherwise mentioned that law.

14. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 3
The choice of law also defines the substantive validity of the act of choice. All matters that have to do with the substantive validity of the act with which the choice of law was made, shall be ruled by the chosen law.

15. Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Paragraph 4
In order to proceed to any modifications or revocations of the choice of law, this cannot be done in an informal manner but again a specific form must be used. Modifications or revocations must meet all the requirements in form for the modification or revocation of a disposition of property upon death.

16. Yes, the romanian law will be applicable to her succession as a whole.
Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Case studies for the application of article 22 (death on or after 17/8/2015)
Mrs. Sergiu of romanian nationality, habitual resident of Athens Greece, dies having real estate property in Romania, Bulgaria, Hungary and Greece.
She leaves a will choosing the romanian law to be applied to her property. Is this valid?
Yes, the romanian law will be applicable to her succession as a whole.

17. Yes, english law will be applicable to his succession as a whole.
Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Mr. Brown, of english and belgian nationality, habitual resident of Bath England, dies leaving movable and immovable property in England, Spain and Italy. In his will he chooses english law to be applied to his succession. Is this valid?
Yes, english law will be applicable to his succession as a whole.

18. Yes, mexican law will be applicable to his succession as a whole.
Bucharest, September Family Law and Successions in Light of the EU Law - Regulation EU No. 650/2012
Mr. Garcia, of mexican and french nationality, habitual resident of Barcelona Spain, dies leaving movable and immovable property in France, Mexico and Portugal. In his will he chooses mexican law to be applied to his succession. Is this valid?
Yes, mexican law will be applicable to his succession as a whole.

19. Applicable Law Article 22 – Choice of Law
Bucharest, September 2013
Family Law and Successions in Light of the EU Law
Europe for notaries, notaries for Europe
Regulation EU No. 650/2012
Applicable Law Article 22 – Choice of Law
Thank you for your attention!