The European Succession Regulation and the law applicable to testamentary dispositions: the reserved shares and the possibility to pass over a forced heir

Abstract

This paper deals with the law applicable to testamentary dispositions in the European Succession Regulation. It begins with an analysis of the separation between the law of succession and the lex testamentii that shows the consequences on the free disposition of the deceased that it can cause. The location of the reserved share under the scope of succession law located at the time his death is interpreted in his practical application as an option to protect the rights of certain heirs over the will of the deceased that it separates from predictability and legal certainty of succession. Moreover, the “depeçage” between the succession law and the anticipated succession law can also produce problems of delimitation and characterization in figures that the Regulation does not contain, such as “preterition” or to pass over a forced heir. All this shows that the choices made by the European Succession Regulation to determine the conflict rules to testamentary dispositions may have problems in their practical accommodation.