THE CHOICE OF THE LAW APPLICABLE TO THE SUCCESSION UNDER REGULATION 650/2012 – AN OUTLINE
THE CHOICE OF THE LAW APPLICABLE TO THE SUCCESSION UNDER REGULATION 650/2012 – AN OUTLINE

Summary/Abstract: Art. 22 para 1 of Regulation 650/2012 grants to the testator the right to choose his/her national law instead of the law of his/her last habitual residence as the law applicable to his/her succession (lex hereditatis). It states that “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”. This provision reflects the freedom of the testator to dispose of his/her property at will in the field of conflict of laws. The main pros and cons of the professio juris successoria, as the choice of the testator regarding the law governing the succession to the estate is called, are the following: The right to choosethe lex hereditatis enables the testator to submit all questions related to his/her inheritance to the law he/she considers as more appropriate to be applied, either because it is more closely linked to the succession or because it may result in securing the best way to solve the questions concerning the succession on the level of substantive law. The main drawback the choice of the law applicable to the succession may entail lies in the likelihood of the testator’s choice being on purpose prejudicial to some persons who could expect to be the heirs. This is in particular the case when the law chosen by the testator downsizes to a bigger or lesser extent the protection granted to those persons who are entitled to a reserved share, i.e. the heirs (presumable family members) who cannot be totally disinherited.

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