INTRODUCTION

In this contribution the focus will be placed on rules which determine the law which is applicable to a cross-border succession. Currently, these rules are not unified because of the lack of binding international and European instruments in this area. As a result, every state has its own national rules on the law which is applicable to succession. This situation can result in different outcomes to the question of which law is applicable to a cross-border succession. The following example may serve as an illustration:

It goes without saying that the different approaches could have important consequences for the persons involved.

In a cross-border succession, when the deceased has made no choice as to the applicable law in a testamentary disposition, the applicable law is determined objectively at the moment of death. As the moment of one's death is uncertain, it can be difficult to plan one's estate during one's lifetime. A way to remove this uncertainty is to allow a testator to choose which law shall be applied. The chosen law, the subjective applicable law, replaces the objective applicable law including its mandatory provisions. This kind of choice is called a conflict of law designation, a ‘kollisionsrechtliche Verweisung’. A choice of law designation gives a testator the freedom to testate: the testator knows which law shall apply to his succession and, therefore, he can plan his estate during his lifetime.

Not only does the principle of freedom of testation play a role in private international law, the principle of family protection also gives rise to several important questions in this context. What if substantive inheritance rules which protect the family of a deceased are considered by a State to be overriding mandatory rules?