1. On 17th August 2020, it had been five years since the European Regulation on Succession 650/2012 (Succession Regulation) became applicable in all Member States of the European Union, with the exception of Ireland, the United Kingdom and Denmark. This Regulation contains rules on international jurisdiction, applicable law, recognition and enforcement of decisions and acceptance of authentic instruments in matters of succession. Furthermore, the regulation introduces the European Certificate of Succession. In the context of this regulation, the Netherlands has denounced the Hague Succession Convention as of 1st April 2015 and Article 10:145 of the Civil Code has been amended. Given the transitional law included in the Regulation (article 83), the Hague Succession Convention will remain relevant for some time.
2. This lustrum has been the reason for Prof. P. Vlas and M. Zilinsky to give an overview of the PIL succession law with regard to case law in WPNR 7291 (2020), in which both Dutch judgments and judgments of the European Court of Justice are discussed in Dutch. One of the themes in this overview is choice of law. Both the Succession Regulation and the Succession Convention contain the possibility of a choice of law, given that the choice of law according to the Succession Regulation concerns both inheritance and settlement, whereas the choice of law according to the Convention concerns only inheritance (Article 22 Succession Regulation and Article 5 Succession Convention respectively).
3. In this context, the judgment of the Rotterdam District Court of 8th April 2015 (upheld by The Hague Court of Appeal 20th September 2016) is mentioned, among others. In essence, it concerned the meaning of a clause in a will drawn up in Portugal by a Dutch testator: can a choice of law for Dutch law be inferred from that clause?
4. In our practice, we are often asked whether there is a (valid) choice of law, for instance in the context of inheritance law and matrimonial property law. Does the note in the Italian, Tunisian, or Mexican marriage certificate that the spouses choose for a separation of assets mean that they have (also) chosen for Italian, Tunisian, or Mexican law as the applicable law to their matrimonial property regime? What about the Moroccan marriage certificate which contains a passage stating that the marriage has come about in accordance with Islamic precepts (the Koran and the Sunna): has Moroccan matrimonial property law been chosen? Or does this refer to the marriage as such and not to the legal consequences of the marriage, including the matrimonial property right?
5. In inheritance law, we sometimes see a clause in a foreign will (Portuguese, Spanish) in which the Dutch testator declares that the last will has been drafted in accordance with his personal law. This was also true in the case brought before the Rotterdam District Court. This case concerned a Dutch testator who had died in Portugal on 27th June 2010 and who disposed of his estate by means of a will drawn up in Portugal on 23rd April 2010. This case was still covered by the Succession Convention (the testator had died before 17th August 2015). The Portuguese will contains the following clause (Rb Rotterdam, 4.2.2):
‘And he concludes his will, declaring that his personal law, which is the Dutch law, gives him the capacity to dispose of his goods.’
Does this indicate Dutch law as the choice of law? In the overview it is noted that the district court rightfully concluded – also according to the advice of the IJI – that there was no question of a choice of Dutch law based on article 5 of the Succession Convention. According to general opinion, it should be clear that the testator intended to make a choice of law; in other words, he intended to designate the applicable law. A choice of law under the Succession Convention must be made expressly, an implicit choice of law is not valid. The court concluded that no choice of law had been made. The relevant passage contains nothing more than the observation that the testator had testamentary jurisdiction under his national law (subsection 4.2.3).
6. What if the testator had died on 27th June 2017? The Succession Regulation would be applicable pursuant to Article 83 (1): the testator died after 17th August 2015. A choice of law made before 17th August 2015 is valid pursuant to article 83 paragraph 2 Succession Regulation, inter alia, if it is in accordance with article 22 Succession Regulation (even if it would not be valid before that date according to the PIL rules in force before 17th August 2015). It is plausible that an implicit, but clear, choice of law is allowed under the Succession Regulation. Indeed, Article 22(2) provides that a choice of law must be made expressly in a declaration in the form of a disposition of property upon death or must be demonstrated by the terms of such a disposition. Recital 39 of the preamble to the Succession Regulation clarifies that the demonstration of a choice of law may be inferred from the testator’s reference to “certain rules of the law of the State of his nationality or otherwise specified”. Under Succession Regulation, the testator can only choose the law of his nationality. Whether the quoted clause from the Portuguese will is sufficient to assume an implicit choice of law for Dutch law is highly doubtful.
7. To make things even more complicated, article 83 paragraph 4 of the Succession Regulation contains a ‘fictitious choice of law’. This provision indicates that if a will was made before 17th August 2015 in accordance with the law that the testator could have chosen according to the Regulation (i.e. his national law), that law will be considered to be the law applicable to the succession. In other words, if the testator, in a will drafted before 17th August 2015, had not made an explicit or tacit choice of law, but had drafted the will in accordance with the law he could have chosen under the Regulation, this may be interpreted as a notional choice of law for that law. How this provision is applied in practice is currently unclear. Is it sufficient for the acceptance of a fictitious choice of law that the will is valid according to its contents under the national law of the testator or is more required, for instance a reference to a certain institution (legal figure) of that law?
Two approaches follow from literature research. In the first approach (the ‘narrow’ one), it is assumed that a reasonable interpretation of this provision would be that the testator started from the idea that the will could be executed according to his national law. This means that the testator must have had some awareness that his national law would be applicable. In principle, one looks for a reference to a concept or institution that can be used to support the fictitious choice of law.
In the other approach (the ‘broad’ approach), a broader interpretation is given to this provision by assuming that it is not necessary to look for the testator’s will on this point. After all, the rationale of this provision would be to preserve wills made before the Succession Regulation became applicable as fully as possible. In this approach, the provision could even lead to a “repair”, by which a clause in a will that would be invalid under the “old” law but would be valid under the law that could be chosen under the Regulation, could be accepted as valid after all. How Article 83(4) may be applied has not yet been decided under current law and is ultimately for the Court of Justice of the EU to decide.
8. The purpose of a choice of law is to enhance legal certainty by providing clarity on the applicable law. This pleads in favour of a choice of law worded as clearly as possible.
For more information on the choice of law in inheritance law and matrimonial property law, contact the IJI. Our specialist for international family law is Lisette Frohn, who regularly publishes on this subject.