Legal certainty and predictability in international succession law

Abstract

The paper examines legal certainty and predictability in the context of the youngest field of EU private international law–succession law. The author looks at the extent to which the provisions of the EU Succession Regulation provide for legal certainty and predictability in enabling EU citizens to plan their international estates in advance. The paper critically examines selected concepts of the EU Regulation from the perspective of legal certainty: (a) the current state of the concept of habitual residence of the deceased that is the key connecting factor in the Succession Regulation, (b) party autonomy for the testator, (c) escape clauses, (d) the conflict of laws treatment of incidental questions and (e) lifetime gifts and clawback. The conclusion of the paper is that although the Succession Regulation is designed to offer legal certainty, it does not achieve it in all cases, unless the testator actively exercises the party autonomy that it offers.