Agreements as to Succession

On the 31st. October the Spanish magazine La Ley-Unión Europea published a paper on Article 18 (Agreements as to succession) of the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession. Authors, Professor Santiago Álvarez-González and Isabel Rodríguez-Uría-Suárez (University of Santiago de Compostela) highlight that the mere existence of a special rule for agreements as to successions is to be welcome. Nevertheless, they propose some amendments to the current text and the need of rethinking some general options. Some of these proposals are similar to ones made by others scholars or Institutions (actually, authors agree on a wide extent with the Max Planck Comments); some others reflect the need to explore new solutions.

Authors propose the express inclusion of joint wills in the text of Article 18. They also consider that the substantive scope of the rules on applicable law to the agreements as to successions must be clarified, especially in its relationship with the lex succesionis. They disagree with the rule of Article 18 (4) of the Proposal. It is a rule that introduces a vast amount of uncertainty in the parties’ expectations; this is the reason why they claim it must be suppressed. Furthermore, they consider than the place given to the possibility to make a choice of law to the whole agreement by the Article 18 (3) of the Proposal should be enlarged, allowing the parties involved in a such agreement to choose the law of the habitual residence of each of them and not only the law that they could have chosen in accordance with Article 17; that is, the law of each of their nationalities at the moment of choice.

The “rule of validation” of Article 18 (1) is analysed to conclude that, although it introduces an instrument to provide the favor validitatis, well acknowledged in comparative law, it could sometimes  bring uncertainty as to the extent of the testamentary freedom (ie, parties are aware that the agreement they made is null and void according to the applicable law and the person whose succession is involved makes a new will). In the same sense, authors agree with the alternative solution (habitual residence of any of the persons whose succession is involved) provided by Article 18(2) for agreements concerning the succession of several persons, but they wonder whether such a conflict-rule-substantive approach is legitimate in the European Law context.