The exercise of the freedom of choice in the context of legal succession and the rules mortis causa | 2016

Author(s) Ana Rita Maia Areia Ferreira
Advisor(s) Anabela Susana Sousa Gonçalves
Year 2016

Synopsis This dissertation aims to analyse the applicability of the principle of freedom of choice in the context of legal succession and the rules mortis causa under the European Regulation No 650/2012 of 4 July on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. One of the consequences arising out of the increasing mobility of citizens within the European Union is the exponential growth in successions with a cross-border dimension. This principle has gradually taken a central position in the context of Private International Law of the European Union whose relevance in the context of cross-border successions will be shown throughout this dissertation. The difficulties arising out of the differences under substantive law, procedural law and rules of conflict of laws across Member States led to the establishment of a common legal framework in terms of conflict of laws and procedural law which would guarantee, on one hand, that all the entities within the European Union applied the same law, followed the same criteria on jurisdiction and mutually recognised all the decisions, without prejudice to the possibility of the individuals to determine prior to their death the legal framework applicable to their succession, within the professio iuris. Concerning the freedom of choice, it is possible to determine that this possibility is only practicable due to the codification of the professio juris in the cited european legal instrument. We can conclude that the Regulation sets forth a limited autonomy, allowing the author of the succession to choose whether the law applicable to their succession should be that of the nationality at the time of the choice or the time of death. In case of silence of the author of the succession, the subsidiary regime shall be applicable, which is the national law of the habitual residence of the former at the time of the death. Considering the caracteristics of the principle of the unitary succession and the principle of the plurality of successory statuses, we conclude that the solution set forth in the Regulation, that is the principle of monism or unitary succession, seems to be the one posing less problems, garhering more consensus ans allowing the grouping of goods in a pool of assets. Also worthy of our analysis was the existing dicotomy between the criteria of nationality and of habitual residence as connecting factors, as well as the rules on international jurisdiction contained in the Regulation.

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2018-07-18T10:32:21+00:00