Opinion of the Advocate General — ECLI:EU:C:2026:54
Date: 2026-01-29
Language of the case: Czech

Translation C-98/24 – 1 
Case C-98/24 
Request for a preliminary ruling 
Date lodged: 
6 February 2024 
Referring court: 
Obvodní soud pro Prahu 1 (Czech Republic) 
Date of decision to refer: 
29 January 2024 
Parties to the proceedings: 
L.P. 
A. K. 
R. K. 
R. F. von K.-K. 
 
EN 
REQUEST FOR A PRELIMINARY RULING OF 29. 1. 2024 – CASE C-98/24 
 
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Request for a preliminary ruling addressed to the Court of Justice of the 
European Union 
Referring court: 
Obvodní soud pro Prahu 1 (District Court, Prague 1, Czech Republic), […], 
represented by authorised court commissioner […], notary in Prague, […], Czech 
Republic, 
Subject of the original succession proceedings: 
1. The testator L. K., resident at the time of his death in P., Czech 
Republic, died on 24 August 2022. The court found from the 
testimonies of the parties to the proceedings and from documentary 
evidence (excerpts from a German registry) that the testator was a 
widower and had two children, his daughters E. D. and N. K., and 
grandchildren A. K., R. K., and R. F. von K.-K., who are N.K.’s 
children. 
2. An examination in the Register of Legal Actions in case of Death 
maintained by the Chamber of Notaries of the Czech Republic 
revealed that the testator had left two dispositions of property upon 
death: 
• a declaration of disinheritance, drawn up in the form of an authentic 
instrument (notarial record) by … I. S., notary in P., on 23 June 2015, 
under ref. no. NZ 149/2015; from the point of view of Czech law, this 
was (in the broad sense of the word) a type of disposition of property 
upon death (see Fiala, Drápal, et al. p. 62) that was drawn up before 
Regulation No. 650/2012 came into force (Regulation No. 650/2012 
has been applicable since 17 August 2015); 
• a will, drawn up in the form of an authentic instrument (notarial 
record) by … R. N., a notary in P., on 20 December 2017, under ref. 
no. NZ 563/2017; the aforementioned authentic instrument included a 
choice of law governing succession, within the meaning of 
Article 22(1) of Regulation No. 650/2012. 
3. In his submission of 30 November 2022, the legal counsel of the 
daughter N. K. and the grandchildren A. K., R. K., and R. F. von K.-K. 
stated that the testator and his wife, E. K., date of birth 20 December 
1927, deceased on 9 January 2007, had made a joint will on 
2 November 1999 before … J. F., a notary in H. in the Federal 
Republic of Germany (‘gemeineschaftliches Testament’ in the original) 
E. D. AND OTHERS 
 
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pursuant to the German Civil Code, also known as a ‘Berlin 
testament’. Subsequently, that joint will was changed in part by a joint 
declaration of the spouses, made on 8 February 2001 before … J. F., a 
notary in H. in the Federal Republic of Germany. That joint will, as 
amended by the subsequent declaration, hereinafter referred to as the 
‘joint will of the spouses’, was and is, in the opinion of the legal 
counsel of the daughter and grandchildren, a valid expression of the 
joint last will of the testator and his wife, E. K., which had been drawn 
up in line with the applicable provisions of German law. In his 
submission of 30 November 2022, the legal counsel of the daughter 
N. K. and the grandchildren A. K., R. K., and R. F. von K.-K., also 
detailed the contents of the joint will of the spouses and the legal rules 
of the BGB (the German Civil Code), inferring that the testator and his 
wife had explicitly restricted the freedom of disposition of property (in 
German Testierfreiheit) upon the death of one of them. He argued that, 
subsequent to the death of one of the testators, the other testator was 
able to change the circle of his or her heirs by designating as heirs only 
some of the persons referred to in the joint will of the spouses, and was 
therefore able to choose only between their daughters, namely N. K. 
and E. D., and their children. The legal counsel of N. K. and the 
grandchildren, A. K., R. K., and R. F. von K.-K., thus justified the so-
called binding effect that results in fixing the legal relations of testators 
making a joint will, which cannot be changed subsequent to the death 
of one of the spouses, other than as envisaged in the joint will of the 
spouses. 
4. In its decision ref. no. 37 D 227/2022-118, which was subsequently 
challenged on appeal, the referring court concluded that, pursuant to 
Article 4 of Regulation No. 650/2012, the courts of the Czech 
Republic have international jurisdiction to deliberate on the succession 
property, while local jurisdiction was based on Paragraph 98(1)(a) of 
[the Zákon č. 292/2013 Sb., o zvláštních řízeních soudních (Law 
292/2013 on special judicial procedures; ‘the Law on special judicial 
procedures’)]. Furthermore, it found that the law governing the 
succession as a whole was Czech law, pursuant to Article 22(1) of 
Regulation No. 650/2012. 
5. The referring court terminated the involvement of the daughter N. K. 
in the proceedings concerning succession property left by the testator, 
having decided that it would continue to deal exclusively with Ms. 
L. P. as the sole heir to the testator under the will of 20 December 
2017. 
6. On appeal by the daughter N. K. and the grandchildren A. K., R. K., 
and R. F. von K.-K., the court of appeal upheld in part the decision of 
the referring court (in respect of the operative part of the decision 
whereby the involvement of the daughter N. K. was terminated), and 
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set aside the rest of the decision, returning it to the court of first 
instance for further consideration. 
7. The court of appeal cited Article 26(2) of the regulation on succession 
(‘Where a person has the capacity to make a disposition of property 
upon death under the law applicable pursuant to Article 24 or 
Article 25, a subsequent change of the law applicable shall not affect 
his capacity to modify or revoke such a disposition’). The court of 
appeal thus inferred the following: the capacity (legal possibility) of 
the testator to modify or revoke that part of the joint will in which the 
testator made his grandchildren his heirs (in the event that his wife 
predeceased him) is necessarily governed by German law and not by 
Czech law … according to the court of appeal, that conclusion is not 
contradicted by the assertions of [legal academic] Magdalena Pffeifer 
(Pffeifer, 173). According to the court of appeal, the opinion cited 
leads to no other finding for the facts of the present case than that if the 
testator had capacity pursuant to the ‘chosen’ German law (see 
Article 83(4) of the regulation on succession) to make a joint will, then 
he has capacity to modify or revoke that disposition at any time 
pursuant to German law, regardless of the provisions of any other law 
that is the applicable law (note: meaning the law applicable to the 
succession as a whole) at the time of modification or revocation, that 
is, regardless of the provisions of Czech law as chosen by the testator 
at a later point. The court of appeal maintains that the fact that the 
provisions of Czech law not only did not prevent the testator from 
revoking the appointment of his heirs in the joint will, but also 
permitted him to make the revocation without restriction (in contrast to 
German law) has no impact on the applicability of German law to a 
modification or revocation of the joint will. 
8. The court of appeal directed the court of first instance to ascertain 
(after examining the content of German law) whether (and, as the case 
may be, subject to what conditions), it is possible under German law to 
exclude the effects of the decisive part of the joint will – appointing 
the heirs of the testator as the grandchildren A. K., R. K., and R. F. von 
K.-K. – as the testator had done in the document of disinheritance of 
23 June 2015 and in the will of 20 December 2017. Only then will it be 
possible to resolve the dispute concerning the right of succession 
between L. P., the heir as based on the will of 20 December 2017, and 
the testator’s aforementioned grandchildren … It is necessary, 
according to German law, to examine the effects of the appointment of 
L. P. as the testator’s heir in the will of 20 December 2017, and the 
effects of the disinheritance of the grandchildren A. K., R. K., and 
R. F. von K.-K. in the document of 23 June 2015. 
E. D. AND OTHERS 
 
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Subject matter and legal basis of the questions in the preliminary reference: 
The referring court submits the following three questions. The first question 
concerns the definition of the term ‘disposition of property upon death’. It asks 
whether Article 3(1)(d) of Regulation No. 650/2012, or Article 83(3) and (4) in 
conjunction with Article 3(1)(d) of Regulation No. 650/2012, should be 
interpreted such that the expression ‘disposition of property upon death’ includes 
a declaration of disinheritance. If the first question is answered in the affirmative, 
the second question pertains to the interpretation of the question as to which law 
becomes the law applicable to the succession if the testator made several 
dispositions of property upon death before 17 August 2015 and the person had 
multiple nationalities. The third question relates to the interpretation of 
Article 26(2) of Regulation No. 650/2012, namely to what extent that provision 
excludes the impact of a subsequent change of the law applicable on a person’s 
capacity to modify or revoke a particular disposition of property upon death. 
The questions referred: 
1. Must the provisions of Article 83(3) and (4) of Regulation No. 
650/2012, in conjunction with Article 3(1)(d) of Regulation No. 
650/2012, be interpreted as meaning that the term disposition of 
property upon death includes a declaration of disinheritance[?] 
2. If the first question is answered in the affirmative, must Article 83(4) 
of Regulation No. 650/2012 be interpreted as meaning that if, before 
17 August 2015, the testator made several dispositions of property 
upon death that were in accordance with the law that the testator could 
have chosen in accordance with Regulation No. 650/2012, is the law 
deemed to have been chosen as the law applicable to the succession 
that law under which the testator last made a disposition upon death 
before 17 August 2015[?] 
3. Must Article 26(2) of Regulation No. 650/2012 be interpreted as 
meaning that, if the testator’s capacity to make a disposition was 
restricted due to the making of a disposition of property upon death 
before 17 August 2015 under the law that governed his or her 
succession as a whole, and if a subsequent change of that law has 
resulted in changes to the conditions for the exercise of his or her 
capacity to make a disposition, the testator’s capacity to make a 
disposition continues to be restricted in accordance with the law that 
would have been applicable to that testator’s succession if he or she 
had died on the day on which the agreement as to succession was 
concluded, regardless of the fact that, according to the law governing 
his or her succession as a whole at the time of death, the testator was 
entitled to terminate (revoke or modify) that agreement as to 
succession [?] 
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Applicable provisions of European Union legislation: 
Article 19(3)(b) TEU, 
Article 267, paragraph 1(b), TFEU, 
Article 3(1)(d) of Regulation (EU) No 650/2012 of the European Parliament and 
of the Council of 4 July 2012 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 (‘Regulation No. 650/2012’), 
Article 26(2) of Regulation No. 650/2012, 
Article 83(3) and (4) of Regulation No. 650/2012. 
Applicable provisions of national law: 
Zákon č. 91/2012 Sb., o mezinárodním právu soukromém (Law 91/2012 on 
international private law), Paragraphs 2 and 73a; 
Zákon č. 89/2012 Sb., občanský zákoník (ObčZ) (Law 89/2012, the Civil Code 
(CC)), Paragraphs 1476, 1491–1497, 1537 and 1538, and 
Paragraphs 1576, 1642, 1643, and 1646; 
Zákon č. 292/2013 Sb., o zvláštních řízeních soudních (ZŘS) (Law 292/2013 on 
special judicial procedures), Paragraphs 1, 2(f), 3(1), 98(1)(a), 100, 101, 
103, 110, 113, 138, and 169; 
Zákon č. 358/1992 Sb., o notářích a jejich činnosti (notářský řád) (Law 358/1992 
on notaries and their activities (the Notarial Code), Paragraphs 4, 7, 8, 13, 
and 35b; 
Vyhláška č. 37/1992 Sb., o jednacím řádu pro okresní a krajské soudy (Decree 
37/1992 on the rules of procedure for district and regional courts), Paragraph 90. 
Legal literature referred to: 
Pffeifer, M., Dědický statut – právo rozhodné pro přeshraniční dědické poměry, 
Praha, Wolters Kluwer ČR, a.s., 2017; 
Fiala, R., Drápal, L. et al., Občanský zákoník IV. Dědické právo (§ 1475–1720). 
Komentář, 2. Vydání, Praha, C. H. Beck, 2022. 
E. D. AND OTHERS 
 
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A brief statement of the grounds for the preliminary reference: 
The referring court hereby submits questions for a preliminary ruling after 
concluding that a decision as to the interpretation or applicability of EU law is 
necessary to enable it to render its decision. According to the referring court, the 
matters concerned are not acte clair or acte éclairé in terms of the judgment of the 
Court of Justice in Case C-283, ECLI:EU:C:1982:335. 
First question referred: 
1. According to the Czech Civil Code (‘the CC’), dispositions of property 
upon death include, in the strict sense of the term, an agreement as to 
succession, a will or a codicil (Paragraph 1491 CC), while joint wills 
are explicitly ruled out (Paragraph 1496 CC). A joint will could be 
deemed to be an ‘agreement as to succession’ within the meaning of 
Article 3(1)(b) Regulation No. 650/2012, the same conclusions having 
been reached by the Supreme Court of Austria (see Beschluss Oberste 
Gerichtshof, ref. no. 2 Ob 123/19f of 29 June 2020). However, Czech 
legal literature also includes, among dispositions of property upon 
death in the broad sense, other legal actions of the testator that are not 
enumerated in Paragraph 1491 CC, whereby the testator makes 
arrangements for his or affairs following his or her death. In addition 
to wills, agreements as to succession, and codicils, those include, inter 
alia, declarations of disinheritance (see Fiala, Drápal, et al., p. 62). 
2. The referring court deems it meaningful, just, and in line with the 
generally understood principle of the disposition of property upon 
death – whereby a testator either makes a positive disposition of 
property upon death by appointing his or her heirs, or acts negatively, 
by depriving his or her reserved heirs (children or more remote 
descendants) of their right to their mandatory share and claim on the 
succession – for Article 83(4) in conjunction with Article 3(1)(d) of 
Regulation No. 650/2012 to be interpreted as meaning that dispositions 
of property upon death, within the meaning of the article cited, include 
declarations of disinheritance, and not only wills, joint wills or 
agreements as to succession (the same could also apply to 
Article 83(3)). According to the referring court, a declaration of 
disinheritance is a form of negative will, whereby the testator 
explicitly expresses his or her wish that certain persons, who would 
otherwise inherit by operation of law, should not do so. That situation 
is similar to when the testator designates certain persons as his or heirs 
in his or her will (a joint will or an agreement as to succession). A 
testator, be it in a will (a joint will or an agreement as to succession) or 
in a negative will (that is, including in a declaration of disinheritance), 
regulates his or her legal succession, in other words, he or she makes 
(legal) arrangements for his or her affairs following his or her 
death. 
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3. In agreement with the CC, Czech legal literature views the concept of 
disinheritance as depriving a reserved heir of his or her right of 
succession (complete disinheritance) or as a reduction in his or her 
right to a mandatory share (partial disinheritance). Pursuant to 
Paragraph 1643(1) CC, reserved heirs are the children of the testator 
or, if they do not inherit, then their descendants. From the testator’s 
point of view, disinheritance can be understood as a type of (extreme) 
measure (ultima ratio) whereby the testator penalises his or her (errant) 
descendant who has committed an action that qualifies as at least one 
of the legal grounds for disinheritance (in that regard see Fiala, Drápal, 
et al., p. 388). 
4. However, Article 3(1)(d) of Regulation No. 650/2012 states explicitly 
that a disposition of property upon death means a will, a joint will, or 
an agreement as to succession; that list does not include, for example, 
a codicil or a declaration of disinheritance. Article 83(3) and (4) of 
Regulation No. 650/2012 uses the term ‘disposition of property upon 
death’. The question therefore arises whether the term ‘disposition of 
property upon death’ in the article cited must indeed be understood as 
including solely and exclusively the three kinds (types) of disposition 
of property upon death listed in Article 3(1)(d) of Regulation No. 
650/2012, and that no other legal action of the testator whereby he or 
she arranges his or her affairs after his or her death may constitute a 
disposition of property upon death. The referring court deems it 
somewhat illogical for the term ‘disposition of property upon death’ to 
include a will (whereby a testator designates his or her heirs and 
beneficiaries of a bequest, as the case may be) and, at the same time, 
not to include a declaration of disinheritance (as a form of a negative 
will) whereby the testator removes the right of succession and the right 
to a mandatory part from a reserved heir, even though the testator is 
also thereby making a disposition of property upon his or her 
death. 
Second question referred: 
1. If the first question is answered in the affirmative, the referring court 
considers that a hitherto unresolved question is that of which law will 
become the law applicable to the succession if a testator made several 
dispositions of property upon death prior to 17 August 2015 and the 
person possessed multiple nationalities. 
2. A testator may have made several dispositions of property upon death 
before 17 August 2015, and if, during that time, he or she was a person 
with multiple nationalities, he or she was able to make dispositions 
under the laws of those multiple countries of which he or she was then 
a citizen. The question thus naturally arises as to which of those laws 
will become the law applicable to the succession, within the meaning 
E. D. AND OTHERS 
 
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of Article 83(4) of Regulation No. 650/2012, upon his or her death. 
The referring court operates on the assumption that the law applicable 
to the succession should be the law of the state under which the 
testator made his or her last disposition of property upon death before 
17 August 2015. Accordingly, if the testator L. K. and his wife E. K. 
made a joint will on 2 November 1999 pursuant to German law (before 
a German notary), and on 23 June 2015 he made a declaration of 
disinheritance before a Czech notary, pursuant to Czech law, then 
Czech law is to be deemed to have been chosen as the law applicable 
to the succession, within the meaning of Article 83(4) of Regulation 
No. 650/2012. 
Third question referred: 
1. On the one hand, the article cited has been interpreted in the legal 
literature, in particular in the Federal Republic of Germany, to the 
effect that the provision aims to ensure legal certainty, and, in view of 
that purpose, the provision must also be applied to cases where the 
testator has not lost his or her capacity to make a disposition by a 
change of the law applicable to succession, but there has (only) been a 
change in the conditions for its exercise. According to that 
interpretation, in the event of a revocation or modification of a 
disposition of property upon death, the applicable law at the time of 
the original disposition of property upon death (namely, at the time the 
joint will was drawn up) should apply in that case too. On the other 
hand, the referring court operates on the assumption that testamentary 
capacity for the purposes of Article 26(2) of Regulation No. 650/2012 
must be interpreted as excluding the impact of a subsequent change of 
the applicable law on a person’s capacity to modify or revoke a 
disposition of property upon death. Accordingly, if the testator had the 
capacity to make a disposition, he or she will always have the capacity 
to revoke or modify such a disposition at any later time. 
2. In particular, the referring court states that Article 26(2) of Regulation 
No. 650/2012 primarily envisaged the reverse scenario to that which 
has arisen in the present succession case. It was intended to apply to 
situations where a testator who had capacity to make a disposition of 
property upon death, pursuant to the applicable law at the time of 
making that disposition, lost his or her capacity to make the disposition 
owing to a change of the law applicable to legal succession and thus 
could not revoke or modify his or her disposition. It is only in 
accordance with German legal literature (as referred to by the legal 
counsel of the surviving grandchildren) that legal certainty may (also) 
be a purpose of the provision, and, in view of that purpose, the 
provision should also be applied to cases when the testator has not lost 
his or her capacity to make a disposition owing to a change of law 
applying to succession, but there has (only) been a change in the 
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conditions for its exercise. According to German legal literature, the 
applicable law at the time of the original disposition of property upon 
death (namely when the joint will was made) should continue to apply, 
even in such cases, to a revocation or modification of the disposition 
upon death. Nevertheless, that view is not held universally. After all, 
even Pffeifer operates on the assumption that if a person had the 
capacity to make a disposition of property upon death under the law 
applicable at the time when he or she made the disposition, he or she 
can modify or revoke that disposition at any later time, regardless of 
the applicable provisions of the governing law at the time of 
modification or revocation. If the testator had capacity to make a 
disposition, he or she will always have capacity to revoke or change 
that disposition at any later time (Pffeifer, p. 173). 
3. According to the referring court, Article 26(2) of Regulation No. 
650/2012 does not indicate that restriction of the testator’s capacity to 
make a disposition is to be ‘preserved forever’ under the law that 
would have applied to that testator’s succession if he or she had died at 
the date of conclusion of the agreement as to succession, regardless of 
the fact that, according to the law that governs his or her succession as 
a whole at the time of death, the testator was entitled to terminate 
(revoke or modify) the agreement as to succession. 
4. The referring court operates on the assumption that the capacity to 
make a disposition under Article 26(2) of Regulation No. 650/2012 
must be interpreted as excluding the impact of a subsequent change of 
the applicable law on the capacity of the person to modify or revoke a 
disposition of property upon death made by that person. 
Concerning the locus standi of the authorised court commissioner to make a 
preliminary reference on behalf of the District Court, Prague 1: 
1. Paragraph 1(1) of the Law on special judicial procedures states: 
‘Pursuant to this law, courts deliberate and rule on matters set out in 
this law.’ Pursuant to Paragraph 100(1) of that law: ‘Unless otherwise 
stated below, the actions of a court of first instance in succession 
proceedings shall be carried out by a notary authorised by the court, 
acting as a court commissioner.’ Paragraph 100(2) of the Law on 
special judicial procedures lists the exceptions to which 
Paragraph 100(1) thereof does not apply; the list does not include the 
submission of a request for a preliminary ruling to the Court of Justice 
of the European Union, consequently, an authorised court 
commissioner is entitled to take that step. Paragraph 101(2) of the Law 
on special judicial procedures provides that, having commenced 
proceedings, a court is to rule on authorisation of a notary by an order 
that need not be served. 
E. D. AND OTHERS 
 
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2. Pursuant to Paragraph 103(4) of the SJP: ‘A notary, a notarial 
candidate, a notary in training, and the employee of a notary who has 
passed a qualification examination pursuant to another legal regulation 
shall have, in succession proceedings, in acting as a court 
commissioner, all of the rights vested in a court as a public 
authority in the exercise of judicial power.’ 
3. Paragraph 90(1) of Decree 37/1992 states: ‘A decision on succession 
shall include the name and surname of the court commissioner, the 
address of his or her notarial office, and the information that he or she 
has been authorised by a court to act in the succession proceedings as a 
court commissioner. The statement of appeal shall set out, as the place 
for submission of the appeal, the address of the seat of the succession 
court and the address of the notarial office of the court commissioner. 
The written version of the decision on succession shall be signed by 
the court commissioner, a representative of the notary appointed 
pursuant to Paragraph 24(1) of the Notarial Code, the notary’s partner 
or notarial candidate who was appointed by the Notarial Association to 
act on the notary’s behalf in carrying out his or her activities.’ 
[…]