The law governing the succession is one of the key point in ESR, and this should be only one. It means that we shoud apply the principle of unity of the law and of legal universality, the same law for the entire succession. Which law will be the one to apply will be depending on two cascading connectin factors.
LIST OF CONNECTION FACTORS: ARTICLE 21 AND 22 ESR:
•LAW OF THE NATIONALITY OF THE DECEASED CHOSEN BY HIM/HER IN ACCORDANCE WITH ARTICLE 22. PROFESSIO IURIS
•IN ABSENCE OF PROFESSIO IURIS, LAW OF THE STATE WHERE THE DECEASED HAD HIS LAST HABITUAL RESIDENCE, ARTICLE 21.1
•Exception clause, ARTICLE 21.2, closely connection of the deceased with another State
•ESR stipulates that testator´s intention shall be the primary factor to be considered, and if a professio iuris does not exist, applicable law will be the one of the habitual residence, with the exception of a closely connection with another State.
PROFFESSIO IURIS: NATIONAL LAW OF THE DECEASED (ARTICLE 22 ESR)
The deceased will be able to choice only one law, so it is not permitted a cumulatively choice; and,of course, it is prohibited to choose a law only to a part of the same succession (depacage).
The law chosen could be the one of a third State
The choice is between the law of any of the nationalities who holds the deceased at the time of making the choice, or at the time of death, even if he lost it before the date of this death
The choice could be made either expressly or implicitly, which is very common if for example the decesaed mentioned the forced heirship share as a Member States regulates it.
The substantive validity of choice is governed by the law chosen, and it applies even to legal capacity of the deceased.
The form of choice should be made in a disposition of property upon death (mortis causa disposition): will or succession agreement. And is applies also to modification or revocation of the choice of law.
*ECJ 9th September 2021, C-277/10, ZL. The law chosen by the deceased must cover all his succession, all his assets, so it is not valid if only refers to a particular asset.
* ECJ 12 October 2023, C-21/22, OP. The succession may be subject to a particular bilateral international convention, and in cases governed by ESR, a deceased who is national of a third State may choose that law to govern his succession (Ukranian law) pursuant to article 22 ESR
LAW OF THE STATE OF THE DECEASED´S LAST RESIDENCE (ARTICLE 21.1 ESR)
Where is the deceased´s last residence?, Recital 23 and 24 say: last residence refers to the circumstances of the life, and relevant and regulatory presence in the State concerned, revealing close and stable connection. It means the centre of interests of his family and his social life was located.
Concept of habitual residence is autonomous of any national law, and a factual issue. Two elements make up the concept:
– corpus, real and effective presence
– animus, intention to confer that presence continuity (settle purpose, animus manendi).
* ECJ 22 December 2010, C-497/10 Mercredi (student has no permanent resident in the member state where is only studying)
* ECJ 8 June 2017, C-111/17 PPU, the sole intention to come back a State doesn´t matter
* ECJ 2 April 2009, C-523/07 A, the mere physical presence in a country is not sufficient to assert that a person has his or her habitual residence in that country
EXCEPTION CLAUSE. ARTICLE 21.2: Closest connection rule
Just in the case deceased didn´t choose his national law through a professio iuris, and the one of the State where he had his habitual residence is not the State more closely connected with the deceased, then the law of the State more closely connected should be applied.
An example of this clause is the situation of a person who moved abruptly his residence, but all the interests of his life remain in the State where he used to live, and is national of that State.
The exception clause should not be used in cases where the establishment of the habitual residence of the deceased at the time of his death is particularly complex, or if he chose the law governing his succession in accordance with article 21.
This is a exception of the general rule, and it operates when the deceased wanted to evade the rights of forced heirs.
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