Succession (conflict)
Encyclopedia
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.
systems, there are two types of property. Out of comity
, the conflict of laws has adopted the terminology of civil law:
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.
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.
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.
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.
s 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.
, 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.
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.
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.
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.
estate will also be governed by his or her personal law and the lex situs of the assets.
Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons http://www.hcch.net/index_en.php?act=conventions.pdf&cid=62, 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 http://ec.europa.eu/justice_home/news/consulting_public/successions/contributions/contribution_ls_appb_en.pdf
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." http://www.lawlink.nsw.gov.au/lrc.nsf/pages/ip21iss
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
, 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
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
. The relevant choice of law
Choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
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 lawCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
systems, there are two types of property. Out of comity
Comity
In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations , particularly by recognizing the validity and effect of their executive, legislative, and judicial acts...
, the conflict of laws has adopted the terminology of civil law:
- Immovables is the equivalent of "real property" in common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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 patentPatentA patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
, other types of intellectual property, or a chose in actionChose (English law)Chose , is a term used in common law tradition in different senses. Chose local is a thing annexed to a place, such as a mill. A chose transitory is something movable, that can be carried from place to place...
such as shares and bank accounts.
Domicile
In common law jurisdictions, every person acquires a domicileDomicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
of origin which, if the individual is legitimate
Legitimacy (law)
At common law, legitimacy is the status of a child who is born to parents who are legally married to one another; and of a child who is born shortly after the parents' divorce. In canon and in civil law, the offspring of putative marriages have been considered legitimate children...
, is that of their father. During their minority
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
, 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
Lex domicilii
The lex domicilii is the Latin term for "law of the domicile" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied....
is favored as the connecting factor for all aspects of status
Status (law)
A person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that...
and capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
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 nationalityNationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
or habitual residence
Habitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
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
Naturalization
Naturalization is the acquisition of citizenship and nationality by somebody who was not a citizen of that country at the time of birth....
and a new habitual residence established with fewer delays and technical difficulties. As above, the lex patriae
Lex patriae
The term lex patriae is Latin for the law of nationality in the conflict of laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which law is...
determines status and capacity.
Lex successionis
As with a choice of law clauseChoice of law clause
A choice of law clause or proper law clause is a term of a contract in which the parties specify that any dispute arising under the contract shall be determined in accordance with the law of a particular jurisdiction.-Explanation:...
or forum selection clause
Forum selection clause
A forum selection clause in a contract with a conflict of laws element allows the parties to agree that any litigation resulting from that contract will be initiated in a specific forum...
in contract
Contract (conflict)
In the conflict of laws, the validity of a contract with one or more foreign law elements will be decided by reference to the so-called "proper law" of the contract.-History:...
, 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 situsLex situs
The term lex situs refers to the law of the place in which property is situated for the purposes of the conflict of laws. For example, property may subject to tax pursuant to the law of the place of the property or by virtue of the domicile of its owner...
applies to determine all issues relating to title to immovable property and some issues relating to movables, that is, the law of the jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
where the property is applied.
Lex fori
The courts in which lawsuitLawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
s are initiated will tend to prefer the application of the lex fori
Lex fori
Lex fori is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought...
, 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
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
if the forum court considers the application of the lex causae
Lex causae
In the conflict of laws, lex causae is the law or laws chosen by the forum court from among the relevant legal systems to arrive at its judgement of an international or interjurisdictional case....
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 marriedMarriage (conflict)
In conflict of laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural and multi-national relationships...
, 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
Forgery
Forgery is the process of making, adapting, or imitating objects, statistics, or documents with the intent to deceive. Copies, studio replicas, and reproductions are not considered forgeries, though they may later become forgeries through knowing and willful misrepresentations. Forging money or...
, 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 willWill (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
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
Divorce (conflict)
In modern society, the role of marriage and its termination through divorce have become political issues. As people live increasingly mobile lives, the conflict of laws and its choice of law rules are highly relevant to determine:...
or nullity
Nullity (conflict)
In conflict of laws, the issue of nullity in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null...
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
Ab initio
ab initio is a Latin term used in English, meaning from the beginning.ab initio may also refer to:* Ab Initio , a leading ETL Tool Software Company in the field of Data Warehousing.* ab initio quantum chemistry methods...
. 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
Community property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions...
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 FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
belonging to an English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
domiciliary will pass according to the French law on forced heirship, but complications may arise because some states apply renvoi
Renvoi
In conflict of laws, renvoi is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state.-The procedure for conflict cases:...
to succession cases. Hence, English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
would apply the lex situs to immovables located outside the jurisdiction but if that foreign law (say. as in Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
) 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
Evasion (law)
In law, the Doctrine of Evasion is a fundamental public policy. Whereas a person may legitimately plan his or her affairs so as to avoid the incidence of obligations or liabilities imposed by the law, no-one is allowed to evade the operation of otherwise mandatory provisions once duties and...
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'sIntestacy
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...
estate will also be governed by his or her personal law and the lex situs of the assets.
Harmonization
The HagueHague Conference on Private International Law
The Hague Conference on Private International Law is the preeminent organisation in the area of private international law....
Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons http://www.hcch.net/index_en.php?act=conventions.pdf&cid=62, 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 http://ec.europa.eu/justice_home/news/consulting_public/successions/contributions/contribution_ls_appb_en.pdf
Australia
It is noted that the rules in South AustraliaSouth Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
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." http://www.lawlink.nsw.gov.au/lrc.nsf/pages/ip21iss