Which is the applicable law to grant a will or succession agreement in the scope of the EU?
1.- The Hague Convention of 5th October 1961
This convention applies to the validity of testamentary dispositions made in writing, and it is in forced in many of the Member States.
2.- Article 27 ESR deals with the validity of dispositions of property upon death made in writing, and it is an imitation of the Convention, establishing different connections factors:
a) a will be valid as regards form if its form complies with the law of a State in which the disposition was made or the agreement as to succession concluded.
b) a will be valid as regards form if its form complies with the law of a State whose nationality the testator or at least one of the persons whose succession is concerned by an agreement as to the succession possessed ante time when the disposition was made, or at the time or death.
c) a will be valid as regards form if its form complies with the law of a State in which the testator or at least one of the persons whose successions is concerned by an agreement as to succession had his domicile, either at the time when disposition was made, or at the time of his death.
d) a will be valid as regards form if its form complies with the law of a State in which the testator or at least one of the persons whose successions is concerned by an agreement as to succession had his habitual residence, either at the time when disposition was made, or at the time of his death
e) in so far as immovable property is concerned, the law of the State in which that property is located.
These rules shall also apply to dispositions of property upon death modifying or revoking an earlier disposition
According to article 28 ESR, the validity as to form of a declaration concerning acceptance or waiver the succession, legacy or of a reserved share, or a declaration designed to limit the liability of the person making the declaration, shall be valid as to form where it meets the requirements of the law applicable to succession pursuant to article 21 or 22; or the law of the State in which the person making the declaration has his habitual residence.
* ECJ 2 June 2022, C-617/20, T.N.. The waiver of inheritance made in The Netherlands and not before the German authorities and not translated in to German in time implied the nephews has accepted the inheritance.
Article 75 ESR establishes that Member States which are contracting parties to the Hague Convention shall continue to apply the provisions set forth in that Convention. Including joint wills; however, succession agreements are governed by the Regulation.
* 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