Provisional text
OPINION OF ADVOCATE GENERAL
M. CAMPOS SÁNCHEZ-BORDONA
delivered on 29 January 2026 (1)
Case C‑98/24 [Koda] (i)
interveners:
A.K.,
R.K.,
R.F. von K.-K,
L.P.
(Request for a preliminary ruling submitted by a notary as court commissioner of the Obvodní soud pro Prahu 1 (District Court, Prague 1, Czech Republic))
( Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 650/2012 – Concept of disposition of property upon death – Agreement as to succession – Binding effects of an agreement as to succession – Declaration of disinheritance – Capacity of the person making a disposition – Applicable law – Change of the applicable law – Transitional provisions )
1.        This request for a preliminary ruling concerns the interpretation of Regulation (EU) No 650/2012. (2) It deals with the question of who the heirs are of a person who made a disposition of property upon death on a number of occasions, before and after the date on which that regulation became fully applicable.
2.        The request for a preliminary ruling has been submitted by a notary of the Czech Republic who, in his own words, (3) has made the reference as a court commissioner authorised by a court with jurisdiction in matters of succession.
I.      Legal framework
A.      European Union law. Regulation No 650/2012
3.        For the purposes of Article 3(1) (‘Definitions’):
…
‘b)      “agreement as to succession” means an agreement, including an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement;
c)      “joint will” means a will drawn up in one instrument by two or more persons;
d)      “disposition of property upon death” means a will, a joint will or an agreement as to succession.
…’
4.        Article 3(2) (‘Definitions’) states:
‘For the purposes of this Regulation, the term “court” means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate:
a)      may be made the subject of an appeal to or review by a judicial authority; and
b)      have a similar force and effect as a decision of a judicial authority on the same matter.
…’
5.        In accordance with Article 21(1) (‘General rule’):
‘Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.’
6.        Article 22(1) (‘Choice of law’) provides:
‘A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.
…’
7.        Under Article 25 (‘Agreements as to succession’):
‘…
2.      An agreement as to succession regarding the succession of several persons shall be admissible only if it is admissible under all the laws which, under this Regulation, would have governed the succession of all the persons involved if they had died on the day on which the agreement was concluded.
An agreement as to succession which is admissible pursuant to the first subparagraph shall be governed, as regards its substantive validity and its binding effects between the parties, including the conditions for its dissolution, by the law, from among those referred to in the first subparagraph, with which it has the closest connection.
3.      Notwithstanding paragraphs 1 and 2, the parties may choose as the law to govern their agreement as to succession, as regards its admissibility, its substantive validity and its binding effects between the parties, including the conditions for its dissolution, the law which the person or one of the persons whose estate is involved could have chosen in accordance with Article 22 on the conditions set out therein.’
8.        Article 26 (‘Substantive validity of dispositions of property upon death’) stipulates:
‘1.      For the purposes of Articles 24 and 25 the following elements shall pertain to substantive validity:
a)      the capacity of the person making the disposition of property upon death to make such a disposition;
b)      the particular causes which bar the person making the disposition from disposing in favour of certain persons or which bar a person from receiving succession property from the person making the disposition;
…
2.      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.’
9.        Article 83 (‘Transitional provisions’) is worded:
‘1.      This Regulation shall apply to the succession of persons who die on or after 17 August 2015.
…
3.      A disposition of property upon death made prior to 17 August 2015 shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it is admissible and valid in substantive terms and as regards form in application of the rules of private international law which were in force, at the time the disposition was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed or in the Member State of the authority dealing with the succession.
4.      If a disposition of property upon death was made prior to 17 August 2015 in accordance with the law which the deceased could have chosen in accordance with this Regulation, that law shall be deemed to have been chosen as the law applicable to the succession.’
10.      Article 84 (‘Entry into force’) provides:
‘This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply from 17 August 2015,
except for Articles 77 and 78, which shall apply from 16 January 2014, and Articles 79, 80 and 81, which shall apply from 5 July 2012.’
B.      Czech law
11.      The competence of notaries to act as court commissioners in succession proceedings is governed by the Zákon č. 292/2013 Sb., o zvláštních řízeních soudních. (4) Of particular relevance are paragraphs 100 to 105, 113, 123, 138, 168 to 170 and 185.
12.      In accordance with the Zákon č. 89/2012 Sb., občanský zákoník, (5) 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). Joint wills are explicitly prohibited (Paragraph 1496).
II.    The facts, the succession proceedings and the questions referred for a preliminary ruling
13.      L.K., the testator in the succession at issue, died on 24 August 2022 in the Czech Republic, where he was habitually resident.
14.      At the time of his death, L.K. had dual German and Czech nationality and was a widower. (6) He had two daughters (E.D. and N.K.) and three grandchildren (A.K., R.K. and R.F. von K.-K.), who are the children of N.K.
15.      According to the information in the case file, L.K. made the following dispositions for after his death:
–        On 2 November 1999, before a German notary, he made a ‘gemeinschaftliches Testament’ (7) with his wife in accordance with the German Civil Code (‘BGB’). (8) That type of will is known as a ‘Berlin will’. The will of 2 November 1999 was partially amended by a joint declaration of the spouses, made on 8 February 2001 before the same notary.
–        On 23 June 2015, L.K. formally executed a declaration of disinheritance (notarial act) before a notary of the Czech Republic. (9)
–        On 20 December 2017, L.K. formally executed a will in the form of an authentic instrument before another notary of the Czech Republic, in which he named L.P. as heir. That (new) will included a choice of the law applicable to the succession, in accordance with Article 22(1) of Regulation No 650/2012, in favour of Czech law.
16.      After the succession proceedings were opened, the lawyer for N.K. (one of L.K.’s daughters) and A.K., R.K. and R.F. von K.-K. (L.K.’s grandchildren) argued that the will drawn up on 2 November 1999 by the deceased and his wife was a valid expression of joint final wishes, made in accordance with German law. (10)
17.      By judgment 37 D 227/2022-118, the Obvodní soud pro Prahu 1 (District Court, Prague 1, Czech Republic) held that:
–        The Czech courts had jurisdiction to rule on the succession, pursuant to Article 4 of Regulation No 650/2012.
–        In accordance with Article 22(1) of Regulation No 650/2012, the law which should govern the succession as a whole was Czech law.
–        The succession proceedings would proceed only in respect of L.P., in her capacity as the deceased’s sole heir under the will of 20 December 2017.
18.      N.K. (the deceased’s daughter) and A.K., R.K. and R.F. von K.-K. (the deceased’s grandchildren) appealed against judgment 37 D 227/2022-118.
19.      On appeal, the Městský soud v Praze (City Court, Prague, Czech Republic) upheld the contested judgment in so far as it concerned the exclusion of N.K (the testator’s daughter) from the succession proceedings, but set aside the remainder of that judgment and remitted the matter to the court of first instance in the following terms:
–        Pursuant to Article 26(2) of Regulation No 650/2012, 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 of Regulation No 650/2012, a subsequent change of the applicable law will not affect his or her capacity to modify or revoke such a disposition.
–        It follows that the capacity (competence to be the holder of rights) of L.K. to modify or revoke the part of the ‘Berlin will’ in which he made his grandchildren his heirs, in the event that his wife predeceased him, is necessarily governed by German law, as the law applicable to the succession as a whole, ‘chosen’ in accordance with Article 83(4) of Regulation No 650/2012.
–        Since the testator had the capacity to conclude an agreement as to succession under German law, he also had the right to modify or revoke that agreement at any time under German law. That right may be exercised regardless of the provisions of the law applicable to the succession as a whole at the time of the modification or revocation, that is to say, regardless of Czech law as chosen subsequently by the testator.
–        The fact that, in addition to not preventing the testator from revoking the appointment of heirs in the ‘Berlin will’, Czech law also allowed him to do so without restriction has no impact on the applicability of German law (for the purposes of modification or revocation of that will).
–        Accordingly, after examining the content of German law, the court of first instance was required to determine whether, and, as the case may be, subject to what conditions, it is possible under German law to exclude the effects of the agreement as to succession between the spouses with regard to the appointment as heirs of the grandchildren A.K., R.K., and R.F. von K.-K.
–        Only after that issue has been resolved will it be possible to decide whether the testator’s subsequent dispositions (the declaration of disinheritance of 23 June 2015 and the will of 20 December 2017) make it possible to settle the dispute between the heir appointed in the will of 20 December 2017 and L.K.’s grandchildren.
20.      Against that background, the notary acting as court commissioner of the Obvodní soud pro Prahu 1 (District Court, Prague 1) has referred the following questions to the Court of Justice for a preliminary ruling:
‘(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 of a State 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?’
III. Procedure before the Court of Justice
21.      The request for a preliminary ruling was received at the Registry of the Court on 6 February 2024.
22.      Written observations were lodged by L.P. and, jointly, by A.K., R.K. and R.F. von K.-K., and also by the Czech and Polish governments and the Commission.
23.      The Court asked the Czech Government for clarification of certain aspects of the legal rules applicable to notaries acting as court commissioners in succession proceedings. The Czech Government’s reply was received on 10 October 2025.
24.      At the hearing, held on 20 November 2025, oral argument was presented by L.P. and, jointly, by A.K., R.K. and R.F. von K.-K., and also by the Czech and German governments and the Commission.
IV.    Analysis
A.      Admissibility of the reference for a preliminary ruling
25.      In the proceedings commenced in the Czech Republic in relation to the estate of L.K., it falls to the notary appointed as court commissioner to establish who the deceased’s heirs are.
26.      In principle, nothing precludes a notary who has been appointed by a court or is acting under its supervision from being regarded as a ‘court’ for the purposes of Article 3(2) of Regulation No 650/2012.
27.      However, fulfilment of the conditions laid down in Article 3(2) of Regulation No 650/2012 is not in itself sufficient for a notary to be entitled to submit a request for a preliminary ruling under Article 267 TFEU. (11)
28.      The concept of ‘court or tribunal’ in Article 267 TFEU requires a separate examination of a number of factors, such as whether the body concerned is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. (12)
29.      In the written stage of the proceedings before the Court of Justice no pleas of inadmissibility were formally raised against this reference for a preliminary ruling. (13) The notary who made the reference stated at the time that, in his opinion, he had locus standi to do so. (14)
30.      In the oral stage of the preliminary-ruling proceedings, however, there was a debate on this point, in the light of the Court’s case-law, on the one hand, and that of the Ústavní soud (Constitutional Court, Czech Republic; ‘the Constitutional Court’), on the other.
1.      The Court’s case-law
31.      In the judgment in Commission v Czech Republic, given in proceedings for failure to fulfil obligations relating to the infringement of Article 49 TFEU, (15) the Court examined the duties performed by notaries in the Czech Republic.
32.      In particular, it examined in detail the powers of notaries in succession proceedings and the reasons why those powers are exercised on a consensual basis. (16)
33.      As a result of that examination, the Court found that those powers could not be regarded as a direct and specific expression of the exercise of public authority. (17)
34.      I shall say now that that finding is sufficient, by itself, to resolve the debate regarding the admissibility of the reference: if the notary acting in these succession proceedings does not perform public duties, he can hardly be recognised as having the status of a court, which, by definition, participates in the exercise of public authority.
2.      The Constitutional Court’s position
35.      The Constitutional Court has rejected the legal standing of ‘quasi-judicial bodies’ (notaries acting as court commissioners in succession proceedings) to bring an action seeking a declaration of unconstitutionality under Paragraph 95(2) of the Constitution of the Czech Republic. (18)
36.      In its decision of 17 September 2025 (paragraph 9), the Czech Constitutional Court drew attention to the essential differences between the legal protection granted by ‘courts’ and that which corresponds to ‘other persons’, such as court commissioners.
37.      In the view of the Constitutional Court: ‘… notaries lack the essential qualities attributed to courts. In particular, notaries do not have such a high degree of independence as courts, their term of office may be revoked by the Ministry of Justice, and their role is not incompatible with other duties to the same extent as that of judges, in particular with respect to the other powers of the State’. (19)
38.      In the debate about admissibility at the hearing, all the participants apart from the Commission argued that the decision of the
Constitutional Court is not relevant to the assessment of whether the conditions which characterise a ‘court or tribunal’ for the purposes of Article 267 TFEU are met.
39.      However, I agree with the Commission that, although it was given in a different context, the decision of the Constitutional Court clarifies the legal rules applicable to notaries who act as court commissioners in succession proceedings.
3.      Assessment
40.      For the reasons which I shall set out below, I believe that not only the guarantees but also the decision-making powers which the Czech legal system confers on notaries who act as court commissioners differ substantially from those which characterise the ‘judicial role’ of judges.
(a)    Guarantees
41.      As regards the guarantees of independence and permanence provided by notaries, the Czech Government stated that the appointment of the court commissioner in charge of each succession case is made in line with a preestablished timetable and in accordance with predetermined criteria which ensure a fair and foreseeable distribution of cases. (20)
42.      In relation to the decision of the Constitutional Court, the Czech Government maintained at the hearing that, first, the guarantees of a court’s independence and permanence are interpreted more strictly for the purposes of national constitutional law than the interpretation required by Article 267 TFUE. Second, the Czech Government stressed that notaries enjoy guarantees of permanence that are substantially comparable to those of courts. The discussion focused, inter alia, on the powers conferred on the Ministry of Justice to revoke the term of office of judges and notaries, which are strictly limited to exceptional cases that are predetermined by law. (21)
43.      However, when the decision of the Constitutional Court points out that the minister may decide to revoke a notary’s term of office and that a notary does not have the level of independence of a court, it does so to contrast the rules applicable to notaries with those applicable to courts. (22)
44.      In addition to that, it is necessary to distinguish between the power of revocation (by the minister) of a notary’s term of office in general and cases of revocation (by the competent court) of the term of office of a notary appointed as a court commissioner in specific succession proceedings.
45.      In the latter respect, the Czech Government stated, in reply to a question from the Court, that a court with jurisdiction in matters of succession retains the power to revoke the term of office of a notary thus appointed ‘for a misdemeanour’ (23) committed in the performance of his or her duties. That misdemeanour ‘may occur, in particular, where there is a risk that the case will not be resolved in a reasonable period’. (24)
46.      That ground for revocation, laid down in Czech Law No 292/2013, (25) confirms that a notary, acting as a court commissioner, does not have the permanent status specific to a court.
47.      In those circumstances, notaries who act as court commissioners in succession proceedings in the Czech Republic do not enjoy guarantees of independence and permanence comparable to those normally associated with a court. Paragraph 104(1) of Law No 292/2013 confirms that court commissioners are under the direction and supervision of the competent court, which continues to be ‘primarily responsible’ for the proceedings.
(b)    Decision-making powers in respect of disputes
48.      As regards the decision-making powers granted to notaries in matters of succession, a distinction must be drawn between two situations:
–        Where the dispute relates only to the legal assessment (and the factual aspects are not in dispute), it falls to the notary to resolve that ‘question of law’.
–        Where the dispute includes facts in dispute between the parties, the notary does not have the power to make a decision and must ask the parties to address the matter to the competent court.
49.      The distinction between decision-making powers according to whether they concern questions of fact or of law is, in my opinion, an additional indication that a notary, acting as a court commissioner, has a more limited power of assessment and decision-making than that which generally corresponds to a real judge.
50.      That is why, notwithstanding the contrary opinion put forward by the Czech Government, I find it difficult to rule out the relevance of the Court’s findings in the judgment in Commission v Czech Republic: a notary’s powers are exercised solely on a consensual basis.
51.      Although it is true that, on that occasion, the aim of the examination carried out was to determine whether there was an infringement of Article 49 TFEU, the Court’s ruling is relevant in order to rule out the ‘exercise of a judicial function’ for the purposes of Article 267 TFEU.
52.      According to the Court, ‘when it is not required to decide a legal dispute, the referring body, even if it satisfies the other conditions laid down in the Court’s case-law, cannot be regarded as exercising a judicial function’. (26)
(c)    Interim conclusion
53.      In short, I believe that a notary who acts as a court commissioner in succession proceedings does not have the status of a ‘court or tribunal’ for the purposes of Article 267 TFEU.
54.      The solution which I propose does not undermine the effectiveness of the preliminary-ruling procedure laid down in Article 267 TFEU and the uniform interpretation of EU law which that article seeks to safeguard.
55.      The attainment of those objectives is ensured, in any event, by the right to bring court proceedings against a decision of a notary who, while he or she may have the status of a ‘court’ under Regulation No 650/2012, nevertheless
fails to fulfil the requirements to be regarded as a ‘court or tribunal’ for the purposes of Article 267 TFEU. (27) In the course of those proceedings, successive courts may ask the Court of Justice about the interpretation of EU law.
56.      In the light of those considerations, I believe that the reference for a preliminary ruling should be ruled inadmissible. However, in case the Court does not share my view, I shall propose a reply to the questions referred.
B.      Substantive analysis
57.      It is necessary to determine, at the outset, whether the testator, who concluded a succession agreement in 1999 in accordance with German law, was entitled, at a later date, to extricate himself from the terms of that agreement to the detriment of the persons (his grandchildren) who were named in it as heirs.
58.      The testator’s later actions, which were detrimental to those who he had named as heirs in 1999, were reflected in a declaration of disinheritance of those heirs (2015). Later, the testator made a new will (2017), appointing a person outside the family circle as sole heir.
59.      The first question requires clarification of whether Regulation No 650/2012 applies to a declaration expressing L.K.’s wish to exclude certain heirs from his succession.
60.      If that question is answered in the affirmative, the referring court also seeks to ascertain:
–        Which law is applicable to L.K.’s estate as a whole. The referring court is uncertain how to identify the applicable law where the successive dispositions of property upon death were made before the date on which Regulation No 650/2012  became fully applicable and are governed by different legal systems.
–        What the importance is to the outcome of the dispute of the rule pursuant to which, if a person has capacity to make a disposition of property upon death under the law applicable at the time of doing so, a subsequent change of the applicable law does not affect that person’s capacity to revoke or modify the disposition made.
1.      The legal regime
61.      Before I deal with those questions, I believe that it is helpful to point out some aspects of the legal regime laid down by Regulation No 650/2012 for successions having cross-border implications.
(a)    Identification of the law applicable to dispositions of property upon death
62.      In accordance with Regulation No 650/2012, different laws may apply: a) to a person’s estate, and b) to a disposition of property upon death (more correctly: to specific aspects of that disposition) made by the same person.
63.      Regulation No 650/2012 lays down the rule that a single law is to apply to a succession as a whole. It identifies that law as the law of the State in which the deceased had his or her habitual residence at the time of death. (28) As an alternative, the regulation permits the deceased to choose the law of the State whose nationality he or she possesses at the time of making the choice or at the time of death. (29)
64.      In order to ensure legal certainty for persons wishing to plan their succession in advance, (30) the law which will govern the admissibility and substantive validity (31) of the various dispositions will be:
–        In the case of a disposition of property upon death other than an agreement as to succession, the law which would be applicable to the succession if the deceased had died on the date on which that disposition was made (‘hypothetical law’) (32) or, if the deceased chose it, the law of the State whose nationality he or she had at the time of making the disposition. (33)
–        In the case of an agreement as to succession, the rules differ according to whether the agreement relates to the succession of one person (34) or several persons. (35)
(b)    The temporal application of Regulation No 650/2012
65.      In accordance with Article 83(1) of Regulation No 650/2012, the decisive date for the purposes of its application is the deceased’s date of death.
66.      It follows from that provision, together with Article 84, that Regulation No 650/2012 applies in its entirety to the estates of persons who died on or after 17 August 2015.
67.      However, Article 83(3) of Regulation No 650/2012 lays down transitional rules for successions where a disposition of property upon death was made prior to 17 August 2015.
68.      In accordance with Article 83(4) of Regulation No 650/2012, if a disposition of property upon death was made before 17 August 2015 under the law which the deceased could have chosen pursuant to the regulation, that law will be deemed to have been chosen as the law applicable to the succession as a whole.
2.      Question 1
69.      The referring court asks whether Article 83(3) and (4) of Regulation No 650/2012, together with Article 3(1)(d) thereof, may be interpreted as meaning that ‘the term disposition of property upon death includes a declaration of disinheritance’.
70.      The question makes sense in this case for the purpose of establishing whether the declaration of 23 June 2015, whereby L.K. disinherited his grandchildren, was a disposition of property upon death.
71.      An affirmative answer would mean that that declaration falls within the substantive scope of Regulation No 650/2012. If that is the case, under Article 83(3), such a disposition upon death must be deemed to be admissible and valid in so far as it meets the (formal and substantive) conditions laid down by the conflict-of-laws rules:
–        in Chapter III of Regulation No 650/2012, or
–        in force in the State where the deceased was resident at the time he made the declaration of disinheritance, or
–        in force in any of the States whose nationality the deceased held at the time he made the declaration.
72.      An affirmative answer would also lead to the fiction (36) of the choice of law applicable to the succession as a whole (and not only to the disinheritance), which is laid down, as a transitional provision, in Article 83(4) of Regulation No 650/2012. That second aspect is what appears to interest the referring court: depending on which is the applicable law, L.K. may or may not have been able to revoke the terms of the succession agreement of 2 November 1999 (and, therefore, disinherit his grandchildren).
73.      For the reasons that I shall explain in the context of Question 2, I believe that, in the circumstances at issue, there is no need to have recourse to the transitional provisions in Article 83 of Regulation No 650/2012 in order to determine which law governs the succession as a whole, since the deceased expressly opted to make that choice of law in the will of 20 December 2017. That being so, nor is it necessary to examine the scope of the term ‘disposition of property upon death’ (and whether or not it includes a declaration of disinheritance) in that transitional provision.
74.      Nevertheless, I shall conduct that examination in case the Court takes a different view.
75.      In the interests of consistency, the term ‘disposition of property upon death’ must be given the same interpretation in all the places
where it is used in Regulation No 650/2012. To ensure that consistency, and in the interests of a uniform interpretation of the text, Article 3 of Regulation No 650/2012 contains a series of definitions.
76.      Article 3(1)(d) of Regulation No 650/2012 specifically defines ‘dispositions of property upon death’ as ‘a will, a joint will or an agreement as to succession’. It does not explicitly refer to a declaration of disinheritance.
77.      It is necessary to determine whether, notwithstanding that silence, a declaration of disinheritance is covered by the term ‘disposition of property upon death’, which requires an interpretation of that term. Since no express reference is made to the legal systems of the Member States, that interpretation will be autonomous. (37)
78.      In principle, Article 3(1) of Regulation No 650/2012 provides an exhaustive list. An analysis of its content, however, supports the argument that the term defined in subparagraph d) relates to the formal, and not substantive, nature of the disposition of property upon death concerned (be it a will, a joint will or an agreement as to succession).
79.      Whilst, admittedly, Article 3(1) of Regulation No 650/2012 does not refer to a declaration of disinheritance, nor does it include – to name some of the dispositions of property upon death which are typical on account of their content – the concept of heir or legatee.
80.      I believe that, from that substantive point of view, the term ‘disposition of property upon death’ should be interpreted broadly to reflect the intended broad scope of Regulation No 650/2012, as reflected in Article 3(1)(a) and recital 9 thereof, (38) and in accordance with its own objectives. (39)
81.      In that connection, I, like the Commission, am of the opinion that the term ‘will’ (as a separate category from ‘joint will’ and ‘agreement as to succession’), although not defined as such by Regulation No 650/2012, (40) encompasses all unilateral declarations whereby a person organises what should happen to his or her estate after death so that his or her succession is not (or is not totally) intestate.
82.      Disinheritance falls within that definition. The fact that it is not an act transferring the assets of the estate but rather an act depriving certain persons of an inheritance does not preclude its classification as a disposition of property upon death. Whether the wishes of the deceased with regard to what is to happen to his or her estate are expressed in positive or negative terms does not seem to me to be decisive; what is decisive is that the expression of wishes concerns the succession to his or her estate upon death.
83.      That is what occurs with disinheritance: the exclusion of certain persons who, in principle, were supposed to inherit from the deceased has the effect (if it is valid) of depriving those persons of an inheritance from the estate and opening a new line of succession.
84.      That being so, a declaration of disinheritance made on or after 17 August 2015 will be subject to the conflict rules laid down in Chapter III of Regulation No 650/2012. Article 83(3) and (4) will apply to the declaration if it was made prior to 17 August 2015 and the person making it dies on or after that date.
3.      Question 2
85.      If (as I propose) Question 1 is answered in the affirmative, the referring court asks about the law applicable to the succession, for which purpose it seeks the interpretation of Article 83(4) of Regulation No 650/2012.
86.      The referring court is concerned with the situation of a testator who, prior to 17 August 2015, 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’. The referring court wishes to know whether, in that situation, ‘the law deemed to have been chosen as the law applicable to the succession [is] that law under which the testator last made a disposition upon death before 17 August 2015’.
87.      Underlying that question are two assumptions which I believe to be incorrect:
–        First, and for the reasons I shall set out below, I do not believe that the law applicable to the succession as a whole should be relied on to determine whether L.K. was entitled to disinherit his grandchildren (or to make a will in favour of a person outside the family circle), by revoking or unilaterally modifying the prior agreement as to succession concluded with his wife.
–        Second, even if the law applicable to the succession as a whole must be relied on, I believe that, in the circumstances at issue, that law does not have to be determined in the terms proposed by the referring court. In my view, the determination of the applicable law is not governed in this case by Article 83(4) of Regulation No 650/2012, as the referring court states.
88.      The order for reference states that the deceased formally executed a will before a notary on 20 December 2017 and included in that will a choice of law in accordance with Article 22 of Regulation No 650/2012: (41) that is, a law to govern the succession as a whole. (42)
89.      On that basis, I believe that, since the testator exercised the right to choose the applicable law (a right provided for in Regulation No 650/2012) once that regulation was, ratione temporis, fully appliable, it is not possible to have recourse to the fiction in Article 83(4) thereof. The law applicable to the succession will, quite simply, be that which the testator stipulated in his will after the date on which Regulation No 650/2012 became applicable.
90.      That interim conclusion is supported by the other provisions of Regulation No 650/2012.
91.      In accordance with Article 83(1) thereof, Regulation No 650/2012 applies to the succession of persons who die on or after 17 August 2015. In order to determine the law which governs dispositions of property upon death made by such persons at any time before 17 August 2015, (43) recourse must be had to Chapter III of Regulation No 650/2012.
92.      That application of Regulation No 650/2012 is, however, accompanied by a number of adjustments set out in Article 83 of the regulation. That article lays down transitional rules for assessing the validity of any choice of law (paragraph 2) made prior to 17 August 2015, or the admissibility and validity of dispositions or property upon death (paragraph 3) made before 17 August 2015.
93.      As I stated elsewhere, (44) the purpose of that transitional regime is to safeguard those provisions from any legislative amendments introduced after the point at which the deceased organised what should happen to his or her estate after his or her death, which occurred after the date on which Regulation No 650/2012 became fully applicable. This is aimed at protecting the testator’s wishes and fulfilling the legitimate expectations created by his or her estate planning.
94.      Pursuant to Article 83(4) of Regulation No 650/2012, if a disposition of property upon death prior to 17 August 2015 was made ‘in accordance with the law which the deceased could have chosen in accordance with [the] Regulation, that law shall be deemed to have been chosen as the law applicable to the succession.’
95.      That fiction produces the same effect as a choice of law under Regulation No 650/2012, which is, in short, to indicate the law applicable to the succession as a whole. (45) The fiction assumes that a person who died on or after 17 August 2015 previously made a disposition of property upon death in accordance with the law of his or her nationality (46) and makes that law applicable to the succession as a whole.
96.      In my opinion, two arguments explain the introduction of the fiction:
–        First, the fiction excludes the application of the law of the deceased’s
last place of habitual residence (47) to matters in respect of which the deceased did not make a disposition. In practice, that helps to prevent multiple laws from governing a succession, (48) thereby facilitating the succession process.
–        Second, a systematic interpretation of Article 83(4), together with Article 83(2) and (3) of Regulation No 650/2012, suggests that that provision was drafted in the light of the legislative landscape in matters of cross-border succession in the Member States before the adoption of the regulation.
97.      Prior to the adoption of Regulation No 650/2012, most of the Member States’ legal systems used the deceased’s nationality as a connecting factor for the conflict of laws rules in matters of succession. (49) There was, therefore, a high likelihood that a person who made a disposition of his or her property upon death would do so under the law of his or her nationality in the belief that that law governed all aspects of his or her succession.
98.      By contrast, the default connecting factor in Regulation No 650/2012 is the deceased’s last place of habitual residence. (50) Without the rule laid down in Article 83(4), a significant number of successions would run the risk of being subject to a law other than that which the deceased (and those with an interest in his or her estate) presumably expected.
99.      In the light of the foregoing, I believe that the fiction established by Article 83(4) of Regulation No 650/2012 is not necessary where, as occurs in this case, a choice of law, made after 17 August 2015, exists, which is expressly included in the will of 2017, (51) to govern the succession as a whole.
100. After 17 August 2015, it is assumed that the deceased was aware, (52) or should have been aware, of the conflict-of-laws rule laid down in Regulation No 650/2012. Where, after that date, the testator chose, as the law applicable to his succession as a whole, the law corresponding to his nationality (Czech law), he consciously exercised the right granted to him by Article 22 of Regulation No 650/2012.
4.      Question 3
101. Question 3 seeks the interpretation of Article 26(2) of Regulation No 650/2012. (53)
102. That provision governs the situation in which: a) a person has the capacity to make a disposition of property upon death under the law applicable pursuant to Article 24 or Article 25 of Regulation No 650/2012, and
b) there is a subsequent change of the law applicable.
103. Where both those conditions are met, Article 26(2) of Regulation No 650/2012 states that the subsequent change of the law applicable will not affect that person’s capacity to modify or revoke a disposition of property upon death which that person had already made.
104. The referring court describes the situation in the following terms:
–        ‘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
–        ‘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’.
105. In the light of that situation, the referring court asks whether ‘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’.
106. The referring court addresses the issue of whether or not the agreement as to succession may be revoked in terms of ‘capacity’. In my opinion, that approach is incorrect.
107. The term ‘capacity’ as used in Article 26(1)(a) of Regulation No 650/2012 does not refer to restrictions on making a disposition which, as in this case, result from an agreement as to succession. Those restrictions reflect the ‘binding effects [of the agreement] between the parties, including the conditions for its dissolution [of the agreement]’, which is governed by Article 25 of the regulation. (54)
108. The term ‘capacity’ within the meaning of Article 26(1)(a) of Regulation No 650/2012 does not include any aspect associated with a person’s right to make a disposition concerning what should happen to his or her own property after death. That is established, at the outset, by the fact that Article 26(1) refers separately to the ‘capacity’ to make a disposition of property upon death (point a)) and to the particular causes which bar the person making the disposition from disposing in favour of certain persons (point b)):
–        Within the scope of Article 26(1)(a) are the specific conditions for making a disposition of property upon death, which are required in order to ensure that the testator has the faculties to understand what he or she is doing. Typically, these are rules which impose requirements as to age (55) or which require that the testator be of sound mind at the time of making the disposition concerned.
–        On the other hand, Article 26(1)(b) of Regulation No 650/2012 refers to other restrictions which, rather than concerning the capacity of the person making the disposition, concern the particular causes which bar that person from disposing in favour of certain persons. (56) Those are causes which, by reason of their functional relationship to the deceased, do not concern that person’s capacity in the strict sense and instead imply the limitation on the freedom of the person making the disposition to make such disposition.
109. The capacity to make a disposition, for the purposes of Article 26(1)(a) of Regulation No 650/2012, is unaffected where the deceased has limited, by means of a valid agreement, his or her freedom to revoke or modify in the future a disposition of property upon death (made prior to 17 August 2015).
110. The reference which Article 26(1)(a) of Regulation No 650/2012 makes to the capacity of the person making a disposition comes under the heading ‘substantive validity of dispositions of property upon death’, as the title of that article indicates.
111. In the list of aspects governed by Article 25 of Regulation No 650/2012, the substantive validity of an agreement as to succession is placed next to the binding effects which such an agreement creates between the parties (including the conditions for its dissolution): it is not confused with these.
112. In other words, the restriction or, as the case may be, the total loss of the right to revoke or modify unilaterally the clauses of a succession agreement (57) are not the same as the capacity to make a disposition. A person who had capacity to conclude an agreement as to succession will also have capacity (unless his or her personal conditions change) (58) to modify or revoke that agreement.
113. Where the person concerned exercises his or her capacity to make a disposition of property upon death which changes the prior agreement as to succession, it may be that the national law governing that type of agreement does not allow the person making the disposition to modify the agreement. If that is the case, the restriction of the freedom (not the capacity) to dispose is not, I repeat, derived from impairment of that person’s capacity but rather from certain specific causes which prevent the person making the disposition from modifying the agreement as to succession.
114. It is therefore my view that the restrictions of the freedom to dispose which are inherent in an agreement as to succession should not be categorised as a question of ‘capacity’, within the meaning of Article 26(1)(a) of Regulation No 650/2012 and, accordingly, for the purposes of paragraph 2 of that article. (59)
115. In Regulation No 650/2012, the rules governing the effects of an agreement as to succession appear elsewhere and are dependent on an applicable law which is determined by other provisions. In particular:
–        for agreements as to succession concluded on or after 17 August 2015, Article 25 of Regulation No 650/2012 stipulates as the law applicable to the binding effects of the agreement the law applicable when the agreement was concluded;
–        for agreements as to succession concluded prior to 17 August 2015 (as in the instant case) between persons whose succession is opened later, which rule will apply depends on the interpretation of Article 83(3) of Regulation No 650/2012. (60)
V.      Conclusion
116. In the light of the foregoing considerations, I propose that the request for a preliminary ruling should be ruled inadmissible.
117. In the alternative, if the request for a preliminary ruling is found to be admissible, I suggest that the following answer be given to the notary appointed as court commissioner by the Obvodní soud pro Prahu 1 (District Court, Prague 1, Czech Republic):
Article 3(1)(d), Article 22(1), Article 25, Article 26(1) and (2), and Article 83(3) and (4) 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
must be interpreted as meaning that
–        The definition of “disposition of property upon death” in Article 3(1)(d) of Regulation No 650/2012 includes a declaration of disinheritance, to which Article 83(3) and (4) of that regulation therefore applies.
–        The choice-of-law fiction laid down in Article 83(4) of Regulation No 650/2012 cannot be applied where the deceased made a choice of law applicable to his or her succession after the date on which that regulation became fully applicable, in accordance with Article 22(1) thereof.
–        Article 26(1)(a) and (2) of Regulation No 650/2012, on the capacity of a person making a disposition of property upon death to make such a disposition, is not intended to govern whether, and, as the case may be, under what conditions, a person who enters into an agreement as to the succession of more than one person may subsequently modify or revoke that agreement. The binding effects of an agreement as to succession are governed by Article 25 of Regulation No 650/2012.
1      Original language: Spanish.
i      The name of this case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      Regulation 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 (OJ 2012 L 201, p. 107; corrigendum at OJ 2012 L 344, p. 3).
3      Written submission of 26 February 2025, lodged in response to a question from the Court of 28 January 2025.
4      Law on special judicial procedures; ‘Law No 292/2013’.
5      Law No 89/2012 Sb., the Civil Code.
6      His wife, E.K., died on 9 January 2007.
7      The order for reference uses the terms ‘joint will’ and ‘agreement as to succession’ interchangeably to refer to the will made on 2 November 1999 (and amended in 2001). In paragraph 36, the order for reference explains that a joint will can be regarded as an ‘agreement as to succession’ within the meaning of Article 3(1)(b) of Regulation No 650/2012. However, a ‘joint will’ has its own place in that provision: see Article 3(1)(c). Moreover, the same article presents the two concepts separately when defining the term ‘disposition of property upon death’ in point (d). In my opinion, a ‘joint will’, within the meaning of Regulation No 650/2012, is characterised by the fact that it is a single document (in other words, a formal element). An agreement as to succession, on the other hand, is defined by the interdependence of the substantive dispositions that it contains. At the hearing, a number of participants (including the European Commission and the German Government) adopted the same approach and stated that the terms ‘joint will’ and ‘agreement as to succession’ are not mutually exclusive: since, under a ‘Berlin will’, interdependent and reciprocal substantive dispositions are made in a single document, it is not wrong to classify it as both an ‘agreement as to succession’ and a ‘joint will’ (although it is preferable not do to so in order to avoid confusion). Subject always to the examination which is the responsibility of the court required to decide on the dispute, everything points to the existence of a genuine ‘agreement as to succession’; I will therefore refer to L.K.’s first will as ‘the will of 2 November 1999’, ‘the Berlin will’, or the ‘agreement as to succession’.
8      The order for reference does not clearly state which persons were named as heirs in the will of 2 November 1999. At the hearing, the lawyers for both parties agreed that the heirs were the testators’ grandchildren (there was disagreement as to whether the surviving spouse was also named as an heir).
9      The order for reference does not state who was disinherited either. At the hearing, it was stated that L.K. disinherited his daughters and his grandchildren.
10      In a submission of 30 November 2022, the lawyer set out in detail the legal rules of the BGB and the contents of that will. He argued that the deceased and his wife had explicitly restricted their freedom to dispose of property (in German Testierfreiheit) upon the death of one of them. The surviving spouse could only change the circle of his or her heirs by limiting his or her choice to persons referred to in the joint will of the spouses.
11      See the order of 1 September 2021, OKR (Reference for a preliminary ruling submitted by a notary acting as a deputy for another notary) (C‑387/20, EU:C:2021:751, ‘order in OKR’, paragraph 31).
12      The order in OKR, paragraph 22, and the case-law cited.
13      The written observations of the Czech Republic and of the Commission included remarks in support of admissibility. At the hearing, the Commission qualified its stance, stating that admissibility was uncertain.
14      Under the heading ‘Concerning the locus standi of the authorised court commissioner to make a preliminary reference on behalf of the [Obvodní soud pro Prahu 1] District Court, Prague 1’, the notary states that, in accordance with Paragraph 103(4) of Law No 292/2013, when acting as a court commissioner in succession proceedings, a notary has ‘all of the rights vested in a court as a public authority in the exercise of judicial power’ (italics added). However, that assertion is not compatible with the Court’s finding in the judgment of 15 March 2018, Commission v Czech Republic (C‑575/16, EU:C:2018:186; ‘the judgment in Commission v Czech Republic’).
15      The infringement of Article 49 TFEU was caused by the imposition of a nationality requirement for access to the profession of notary. That requirement was abolished subsequently as a result of the judgment in Commission v Czech Republic.
16      Paragraphs 117 to 127 of the judgment in Commission v Czech Republic. Contrary to the Czech Government’s argument at the hearing, that judgment did not merely examine the general powers of notaries but also took particular account of their specific role in succession proceedings such as those in this case.
17      Paragraph 126 of the judgment in Commission v Czech Republic.
18      Decision Pl. ÚS 29/25 of 17 September 2025.
19      Ibid., paragraph 10.
20      Paragraphs 3 to 5 of the Czech Government’s written reply of 10 October 2025 to the question from the Court.
21      The legislation governing the revocation of the term of office and dismissal of Czech notaries may bear certain similarities to the rules applicable to the members of the referring body in the case which led to the judgment of 7 May 2024, NADA and Others (C‑115/22, EU:C:2024:384). That case concerned the Unabhängige Schiedskommission Wien (Independent Arbitration Committee, Vienna, Austria), whose members’ term of office ‘may be revoked early “on serious grounds”’, by a decision which was a matter ‘solely for the Federal Minister …, namely a member of the executive, without precise criteria or precise guarantees having been established in advance’ (paragraphs 49 and 52). At the hearing, the Czech Government maintained that the minister has no discretion in that regard and may only revoke a notary’s term of office where one of the predetermined statutory grounds has been satisfied.
22      At the hearing, the Czech Government acknowledged that the Constitutional Court described correctly in its decision the legal rules applicable to Czech notaries.
23      Paragraph 6 of the Czech Government’s written reply, of 10 October 2025, to the Court’s question.
24      Paragraph 7 of the Czech Government’s written reply, of 10 October 2025, to the Court’s question. Italics added.
25      Paragraph 104(1) of Law No 292/2013: ‘The court shall revoke the term of office of the notary, including where no request has been made, if there is a risk that the case will not be resolved in a reasonable period and if the notary has been notified in writing of the possibility that the court may revoke his or her term of office.’
26      The order in OKR, paragraphs 23 and 24. Emphasis added. In the present case, it is not completely clear whether the dispute concerns only a matter of law or whether it also concerns the facts. When asked about this at the hearing, the parties’ legal representatives confirmed that there is a factual dispute regarding the reasons leading to the disinheritance of the grandchildren.
27      The order in OKR, paragraph 33.
28      Article 21(1) of Regulation No 650/2012.
29      Article 22(1) of Regulation No 650/2012.
30      Recital 48 of Regulation No 650/2012.
31      On the concept of ‘substantive validity’ for the purposes of Articles 24 and 25 of Regulation No 650/2012, see Article 26(1).
32      Article 24(1). That law is determined in accordance with Article 21 of Regulation No 650/2012.
33      Article 24(2) of Regulation No 650/2012. The choice must meet the conditions laid down in Article 22. Pursuant to recital 51, that may only be the law of the nationality which the deceased held on the day on which he or she made the disposition.
34      As regards agreements as to succession, and with the exception of the choice of law, admissibility, substantive validity and the binding effects as between the parties of an agreement concerning the succession of one person are governed by the law which, under Regulation No 650/2012, would have been applicable to the succession if the person concerned had died on the day on which the agreement was concluded. See Article 25(3), with reference to the conditions laid down in Article 22, and recital 51 of Regulation No 650/2012.
35      The admissibility of such agreements as to succession is dependent on the cumulative application of the laws governing the succession of all the persons involved if they had died on the day on which the agreement was concluded. Of those laws, the law which has the closest connection to the agreement will govern its substantive validity and its binding effects between the parties. See Article 25(1), (2) and (3) of Regulation No 650/2012. In the light of Article 22, combined with recital 51, only the law of the nationality of the parties, or of one of the parties, at the time of the agreement, may be chosen.
36      I use that term in my Opinion in E.E. (Jurisdiction and law applicable to inheritance) (C‑80/19, EU:C:2020:230), points 104, 107, 112. The Court describes the mechanism as a ‘presumption’: judgment of 9 September 2021, RK (Declining of jurisdiction) (C‑422/20, EU:C:2021:718, paragraph 53).
37      By analogy, judgment of 9 September 2021, UM (Contract transferring ownership mortis  causa) (C‑277/20, EU:C:2021:708, paragraph 29).
38      Recital 9 treats the succession to the estate of a deceased person as equivalent to ‘all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession.’
39      See, as regards the interpretation of Article 3(1)(b) of Regulation No 650/2012, judgment of 9 September 2021, UM (Contract transferring ownership mortis causa) (C‑277/20, EU:C:2021:708, paragraph 33): ‘That interpretation is supported by the objective pursued by that regulation, which is to avoid the fragmentation of the succession, in accordance with the principle of a single estate, and to establish a uniform regime applicable to all civil-law aspects of a succession to the estate of a deceased person with cross-border implications and, in particular, to “all forms of transfer of assets … by reason of death”, as can be seen from recital 9 of the regulation’. In addition to those objectives are the objectives set out in recital 7, in particular, that of enabling citizens to organise their succession in advance.
40      Which does provide a definition for the other two: see Article 3(1)(b) and (c).
41      It also states that the court which gave judgment 37 D 227/2022-118 (which was later challenged) held that Czech law was applicable to the succession as a whole, taking specific account of that choice by L.K.
42      Judgment of 9 September 2021, UM (Contract transferring ownership mortis causa) (C‑277/20, EU:C:2021:708, paragraph 39). The divergence between the language versions of Regulation No 650/2012 in that regard, in the sense that only some versions state that it relates to the succession as a whole, was noted by Advocate General Richard de la Tour in his Opinion in that case (C‑277/20, EU:C:2021:531, point 53 and footnote 42), and still exists.
43      It is immaterial whether the disposition of property upon death was made prior to the entry into force of Regulation No 650/2012 (16 August 2012) or between that date and 17 August 2015.
44      Opinion in E. E. (Jurisdiction and law applicable to inheritance) (C‑80/19, EU:C:2020:230, points 101 and 102).
45      Judgment of 9 September 2021, RK (Declining of jurisdiction) (C‑422/20, EU:C:2021:718, paragraph 53).
46      That is the only option which Regulation No 650/2012 affords to a deceased person; see Article 22(1) thereof.
47      Pursuant to Article 21(1) of Regulation No 650/2012, that will generally be the law applicable in the absence of a choice.
48      In accordance with Article 83(2) of Regulation No 650/2012, laws other than that of the deceased’s nationality may be applicable in order to determine the admissibility and formal and substantive validity of a disposition of property upon death made prior to 17 August 2015. In any event, paragraph 4 is based on the assumption that such a disposition was made in accordance with the deceased’s national law.
49      Of the 19 Member States which laid down uniform rules governing successions having cross-border implications, 16 preferred that connecting factor.
50      The choice of law constitutes a derogation: judgment of 12 October 2023, OP (Choice of the law of a third state for succession) (C‑21/22, EU:C:2023:766, paragraph 31).
51      Which would not be necessary either if there was a choice of law made prior to that point, which was valid under Article 84(2) of Regulation No 650/2012. See judgment of 16 July 2020, E. E. (Jurisdiction and the law applicable to inheritance) (C‑80/19, EU:C:2020:569, paragraph 92).
52      It is to be assumed that that was the situation in L.K.’s case, even if it was merely through the involvement of a notary in the will made in 2017.
53      Article 26(2) of Regulation No 650/2012 was introduced into the debate by the appeal court. When it quashed the judgment under appeal, that court requested the court of first instance to determine, in the light of German (and not Czech) law, whether the deceased was entitled to revoke or amend the ‘Berlin will’ after his wife’s death. The order for reference does not examine whether the fact that the ‘Berlin will’ was made after 17 August 2015 affects the applicability of Article 26(2) of Regulation No 650/2012.
54      For agreements concluded after 17 August 2015. See point 115 below, in relation to agreements concluded before that date.
55      That is the view put forward by the Commission in paragraph 62 of its written observations, giving the example of the requirement that a person must be over the age of 18 as a condition relating to testamentary capacity.
56      Or particular causes which bar a person from receiving succession property from the person making the disposition.
57      Which is the same thing: whether and how to regain the freedom to make a fresh disposition upon death of property which was covered by the agreement as to succession.
58      Or the law governing those personal conditions changes, as a result of an amendment of the definition of the connecting factor: thus, if the deceased’s habitual residence at the time when he or she made the disposition of property upon death is not the same as his or her residence at the time when modification or revocation of that disposition is sought. A function of Article 26(2) of Regulation No 650/2012 is specifically to nullify the effects of that change, where those effects prevent the deceased from making the intended modification or revocation.
59      In my opinion, Article 26(2) of Regulation No 650/2012 is primarily a derogation from Article 24(3), governing the modification or revocation of dispositions of property upon death other than agreements as to succession. Under that provision, the law governing such acts is not the law applicable on the date on which the disposition concerned was made but rather the law applicable at the time of the revocation or modification. In order to prevent a person making a disposition from being unexpectedly ‘bound’, under that law, by the terms of the disposition, Article 26(2) excludes capacity from its scope. Substantively, the rule implements the generally accepted principle that (unilateral) acts making a disposition by reason of death are fundamentally revocable.
60      The wording of that paragraph refers only to the law governing the admissibility and the formal and substantive validity of dispositions of property upon death, but not the law applicable to their effects.