Conflict of succession laws

Conflict of laws
Preliminiaries
Characterisation Incidental question Renvoi · Choice of law Conflict of laws in the United States Public policy Hague Conference
Definitional elements
Jurisdiction Procedure Forum non conveniens Lex causae Lex fori · Forum shopping Lis alibi pendens
Connecting factors
Domicile · Lex domicilii Habitual residence Nationality · Lex patriae Lex loci arbitri · Lex situs Lex loci contractus Lex loci delicti commissi Lex loci actus Lex loci solutionis Proper law Lex loci celebrationis Choice of law clause Dépeçage Forum selection clause
Substantive legal areas
Status · Capacity · Contract Tort · Marriage · Nullity Divorce (Get · Talaq) Property · Succession Trusts
Enforcement
Enforcement of foreign judgments Mareva injunctions Anti-suit injunctions
v · d · e

In the conflict of laws, the subject of succession deals with all procedural matters relevant to estates containing a "foreign element" whether that element consists of the identity of the deceased, those who may inherit or the location of property. The relevant choice of law rules often distinguish both between the administration of the estate and the succession to it, and between the succession to movable and immovable property.

Definitions

In civil law systems, there are two types of property. Out of comity, the conflict of laws has adopted the terminology of civil law:

• Immovables is the equivalent of "real property" in common law systems, i.e. it is land or any permanent feature or structure above or below the surface.
• All other property is considered movables, the equivalent of personal property or personalty in common law systems. This property is either tangible or intangible, in that it is either physical property that can be touched like a computer. Alternatively, it is an enforceable right like a patent, other types of intellectual property, or a chose in action such as shares and bank accounts.

Connecting factors

Domicile

In common law jurisdictions, every person acquires a domicile of origin which, if the individual is legitimate, is that of their father. During their minority, children have a domicile of dependency which follows the domicile of the controlling parent.

After reaching the age of majority, a young adult can choose a new domicile, but establishing a legal domicile requires long-term residence accompanied by an intention to remain in the new state indefinitely. As such, changing a domicile of origin is not easy.

Hence, the lex domicilii is favored as the connecting factor for all aspects of status and capacity for parties who are involved in resolving disputes over the distribution of the property in the estate.

Nationality

Civil law states use either the concept of nationality or habitual residence as the connecting factor, i.e. the principles are the same as for domicile but the way in which they are applied is less rigorous so it a nationality can be changed by naturalization and a new habitual residence established with fewer delays and technical difficulties. As above, the lex patriae determines status and capacity.

Lex successionis

As with a choice of law clause or forum selection clause in contract, a testator may nominate a law or laws by which both to interpret and test the validity of the will, and to govern administration and succession, but there must be a real connection between the choice(s) and the location of assets or beneficiaries, and the choices must invoke provisions of law that are consistent with any mandatory provisions either in the lex fori or the lex situs. If a choice of law is made in respect of part of an estate, it is assumed that the deceased wishes that law to apply to the whole of the estate unless there is clear evidence to the contrary or mandatory principles of law are relevant to cover the residual assets and their inheritance.

Lex situs

The general rule is that the lex situs applies to determine all issues relating to title to immovable property and some issues relating to movables, that is, the law of the jurisdiction where the property is applied.

Lex fori

The courts in which lawsuits are initiated will tend to prefer the application of the lex fori, applying the laws at the court jurisdiction, because the fact of the litigation suggests that some aspect of the administration is to be effected within the jurisdiction. There may also be some claims arising from public policy if the forum court considers the application of the lex causae is going to produce a significantly unjust result.

Administration

In most states, the lex fori regulates the administration by Personal Representatives appointed to act within the jurisdiction of forum irrespective of the deceased's lex domicilii but the rights of beneficiaries is a matter for the lex successionis.

Testamentary capacity

Laws differ in their treatment of the ability of youths to own property and to dispose of that property by a will. It is now generally agreed that it is not rational to set the age at which full capacity is achieved. Hence, if one is old enough to get married, he should be old enough to provide for spouse and children. Many states also permit writing a will by a mouth or a foot, or by a tool that enables the disabled to write down a testamentary intent.

It is still being debated whether videotape, digital, and electronic wills should be admissible to probate. Testators may not have the physical ability to write, for example, because they are hospitalised and close to death, but there is concern that digital and electronic forms may be manipulated and altered. Hence, unless there is adequate evidence to exclude forgery, the courts are reluctant to admit such wills to probate.

Succession

In some states, there is complete freedom for testators to leave their assets to whomever or whatever purpose they wish to promote. But the majority of states allow surviving spouses, children and dependents of a locally-based deceased to claim against the estate if the will fails to make adequate provision for them. Some proactively limit the testator's capacity by imposing minimum provisions for surviving dependents.

Although these rules are relatively clear in their operation during the subsistence of the marriage, determining the effect of either a divorce or nullity decree is more problematic if, by its existence or the terms of any order made, it purports to adjust the property entitlements of the other spouse. For example, suppose that a husband obtains a nullity decree in a state declaring the marriage to have been void Ab initio. If that decree is recognized across state boundaries, the effect would be to remove any claim that the supposed "wife" would otherwise have had.

As to the testator, all questions of status and capacity should be determined by the personal law at the time the decree is granted. Thus, if the decree is recognized, either the status will be modified so that the testator was never married and this will retrospectively validate or invalidate previous dispositions, or the testator is now single and able to dispose of his assets in any way permitted by his personal law.

But as to the putative wife, any entitlement she will have will be determined by whether the lex situs of any "matrimonial" assets recognizes the decree. If the decree is not recognized, she will remain a wife for the purposes of succession protected by the local system of mandatory heirship or community property laws.

Immovables

Generally, the lex situs governs the succession to immovables regardless of the deceased's personal law, lex domicilii, lex patriae, or habitual residence. For example, land in France belonging to an English domiciliary will pass according to the French law on forced heirship, but complications may arise because some states apply renvoi to succession cases. Hence, English law would apply the lex situs to immovables located outside the jurisdiction but if that foreign law (say. as in Spain) applies the deceased's lex patriae and rejects any renvoi, English law would be applied if, under Spanish law, the deceased had an English nationality.

Movables

Generally, the deceased's personal law will determine succession to movables no matter where they are located unless a lex situs provides otherwise. Thus, for example, succession to the estate of a French testator leaving movables situated in England would be governed by French law and the French rules of forced heirship would apply given that English law does not limit the application of the lex domicilii on this point.

Formal validity

A will is generally considered valid if properly executed according to the law of the place where:

• it was executed;
• the testator was domiciled either when the will was executed or at the time of death (since the policy in most laws is to uphold the validity of wills to respect the demonstrated intention of the testator, if validity is established under either law, it will be deemed valid);
• the testator was a national either at the time of execution or death; or
• the testator was habitually resident either at the time of execution or death.

Essential validity

Even though a will may be formally valid, it may not be essentially valid as above, the succession to movables will be governed by the deceased's personal law, and if there is a limitation on testamentary capacity, the terms of a will breaching that law will be invalid even if validly executed.

Similarly, a will validly executed in one state cannot override mandatory provisions in the lex situs. The doctrine of evasion applies because otherwise a husband who wishes to evade laws imposing community property can defeat the claims of a wife by the simple expedient of executing a formally valid will in a state that does not have such law.

Intestacy

If there is no will, the appointment and duties of personal representatives will be determined by the deceased's personal law. Succession to an intestate's estate will also be governed by his or her personal law and the lex situs of the assets.

Harmonization

The Hague Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons [1], if it ever comes into force, would apply to: a) the form of dispositions of property upon death; b) capacity to dispose of property upon death; c) issues relating to matrimonial property; d) property rights, interests or assets created or transferred otherwise than by succession, such as in joint ownership with right of survival, pension plans, insurance contracts, or arrangements of a similar nature. It nominates as the lex causae for succession the law of habitual resident if that was also the deceased's nationality. If the deceased had been resident in a state for at least five years and no other state has a better claim, the law of residence applies. In all other cases, the personal law with the best claim applies. See also the "European Commission's Green Paper Consulting on Succession with an International Dimension" by David Hayton [2]

Australia

It is noted that the rules in South Australia differ from those applying in the other federated states, but it is proposed that a uniform system should be developed. See Issues Paper 21 (2002) - "Uniform Succession Laws: Recognition of interstate and foreign grants of probate and letters of administration." [3]