How does the jurisdiction deal with conflict between its succession laws and those of another jurisdiction with which the deceased was connected or in which the deceased owned property?
Private Client (2nd edition)
A foreign will is recognised as valid if it meets the requirements under any of the following:
- Israeli Inheritance Law 1965.
- The law of the jurisdiction in which it was made.
- The law of the jurisdiction of residency of the testator.
- The law of the jurisdiction of the usual place of residency of the testator.
- The law of the jurisdiction of residency of the testator at the time of the making of the will or at the time of their death.
If the will refers to real estate properties, the jurisdiction in which they are situated must be taken into account as well.
When filing a will which was made in a foreign jurisdiction with the Israeli Registrar of Inheritance, it should be accompanied with, inter alia, a legal opinion as to the law of the jurisdiction of residency of the testator by the time of their death. The purpose of this request is to identify potential conflicts between Israeli and foreign law as to their rules of succession.
The Israeli courts must apply the doctrine of renvoi (Israeli Inheritance Law, 1965) (that is, if a foreign law refers to another foreign law, the Israeli courts must ignore the referral, and the internal law of the first foreign state must apply, unless the foreign law refers to Israeli law).
A conflict between the succession laws of Ireland and another jurisdiction will be determined by the principles of private international law. Ireland is not a signatory to the Brussels IV - Regulation (EU) No 650/2012 which came into force on 17 August 2015. However, to the extent that an Irish national owns property in an EU Member State other than Ireland, they can elect for Irish succession law to apply to the succession of such property. This will address the previous inconsistencies between the Irish private international law rules on succession and those of the contracting Member States to the Brussels IV - Regulation (EU) No 650/2012. Where an individual is habitually resident in Ireland, Ireland can still renvoi the matter of succession law to the Member State in which the deceased was domiciled and, pursuant to the said Regulation, the Member State can accept the renvoi. Renvoi is expressly excluded in the case of a validly elected law of nationality.
The succession law that applies according to the European Succession Regulation can either be the law of an EU-country or a non-EU country (including the UK, Ireland and Denmark that do not participate in the Regulation). If the law of a non-EU country is applicable, its rules of private international law have to be followed. If those rules provide for renvoi, this should in principle be accepted, except e.g. if the deceased has made a valid choice of law.
The doctrine of renvoi is a legal doctrine which applies when a court is faced with a conflict of law and must consider the law of another jurisdiction. The doctrine of renvoi is the process by which the court adopts the rules of a foreign jurisdiction with respect to any conflict of law that arises.
The US does not accept the doctrine of renvoi. The US deals with the choice of law in matters of inheritance based upon location and domicile as discussed above. For real property, the law of the location of real property governs. For intangible and tangible property, the law of the decedent’s domicile applies.
Some states have a comprehensive choice of law statute that considers issues such as revocation and interpretation of testamentary dispositions and the exercise of powers of appointment. Principles of conflict of laws provide guidelines to determine whether a court of the forum jurisdiction will apply its own laws or the laws of another jurisdiction to a dispute. The choice of law question is different from the question of whether a court has jurisdiction and requires a determination of what law to apply to a given issue.
States without choice of law statutes apply a reasonableness or fundamental fairness analysis by analysing contacts, such as length of residence, physical location of assets, domicile and intention. The traditional conflict of law approach turns to the law of the domicile to determine succession to immoveable property and tangible personal property and the law of the situs of real property. A choice of law analysis requires the court to weigh and balance the policies of the competing jurisdictions and the interests that those jurisdictions have in the application of their respective laws at issue.
Another issue that arises when a decedent dies owning foreign property is the risk of double taxation. As noted above, when a US citizen dies owning property in a foreign country, the property in the foreign country will be subject to US estate taxes. Estate tax treaties entered into between the US and 16 other – primarily developed – nations can ameliorate the effect of any such taxes.
As regards the formalities required for a will to be valid, the critical factor is the place where the will was made. A will made in Cyprus must comply with the requirements of the Wills and Succession Law. A will made abroad must comply with the requirements of the law of the place where it was made. As regards the interpretation and implementation of the will, and the law to be applied, the critical factor for immovable property is the location of the property, whereas for movable property the nationality of the deceased at the time of death determines which law applies. In complex cases it will be necessary to go back to the conflict of laws rules of the jurisdictions involved.
For deaths after 17 August 2015, the EU Succession Regulation applies, and a valid choice of law in favour of another EU member state under article 22 of the regulation will prevail.
EU Regulation No. 650/2012 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 (Succession Regulation) is binding for all EU member states except the UK, Ireland and Denmark. Therefore, the applicable law to the succession is the law of the state in which the deceased had his/her habitual residence at the time of his/her death. If it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a state other than the state whose law would be applicable, the law applicable to the succession is the law of that other state. A person may choose the law of a state whose nationality he/she possesses at the time of making the choice or at the time of death. The choice has to be made expressly in a declaration in the form of a disposition of property upon death according to the chosen law.
In case of a conflict of laws regard must be had to Regulation Brussels IV (EU/650/2012) which is applicable in Bulgaria and according to which, as a general rule, the law applicable to the succession as a whole shall be the law of the country where the deceased had his/her habitual residence at the time of death.
According to the Monegasque rules of private international law set out in the Code on Private International Law (which entered into force on 8 July 2017), the succession is governed by the law of the State in which the deceased was domiciled at the time of his/her death.
A person may designate, for the settlement of his/her succession, the law of a State of which he/she is a national when the choice is made. The law applicable to the succession governs the succession as a whole, from its opening to the final transfer of the estate to the beneficiaries. This law governs the distribution of both the moveable and the immoveable estate.
The law applicable to the succession may not deprive an heir of the reserved share granted to him/her by the law of the State of which the deceased was a national at the time of the death, nor apply the reserved share to the succession of a person who, at the time of the death, was a national of a State whose law does not recognise forced heirship rights.
The Monegasque law no longer accepts the renvoi. Within the meaning of the Code on Private International Law, the law of a State means the rules of substantive law of that State, excluding its rules of private international law.
If habitual residence is situated in a State not bound by the EU Succession Regulation, then Italian succession law may still be applicable to the extent that the private international law rules of such a State makes a renvoi to Italian succession law.
Firewall provisions will protect assets in a Bermudian trust from being attacked based on orders of a foreign court under foreign law. Bermuda trusts will be held valid when subject to a challenge based on foreign forced heirship laws, mandatory community property matrimonial laws and, in certain cases, under foreign bankruptcy laws.
Under section 11 of the Trusts (Special Provisions) Act 1989 where a trust is validly created under Bermuda law, a Bermuda court will not:
- vary it or set it aside;
- treat a disposition of property to be held upon trust as void, voidable, liable to be set aside or defective, for any reason;
- question the capacity of any settlor; or
- treat any trustee, beneficiary or any other person as subjected to an liability or deprived of any rights;
by reason that:
- the law of another jurisdiction prohibits or does not recognise the concept of a trust;
- the trust or disposition avoids or defeats rights, claims or interests of another jurisdictions laws concerning heirship and personal relationships; or
- the trust avoids or defeats rights, claims or interest of another jurisdictions laws concerning creditors’ rights.
A foreign judgment shall not be recognised, enforced, or give rise to any estoppel if it is inconsistent with this section.
15.1 Where there is conflict between English succession laws and succession laws of another jurisdiction, English law generally applies the doctrine of total renvoi. This means that, where an English court refers the succession to the laws of a foreign country, the English court will generally apply the domestic and private international laws of that country (i.e. including its conflict of laws rules) and so will seek to decide the matter as the foreign court would decide it.
15.2 Although the UK has not adopted the European Succession Regulation (Regulation (EU) No. 650/2012), that Regulation may be relevant where the deceased was connected with both the UK and a state which has adopted the Regulation. Suppose a British national who is most closely connected with England dies owning land in France. English law will refer succession to the French land to French law (§14.3), and will take French law to include those provisions of the Regulation that permit an individual to choose (as the law governing succession to his whole estate) the law of a state of which he is a national at the time of making the choice or at death. Therefore, if the individual has made a Will choosing English law to govern succession to his whole estate, an English court should accept that English law governs the succession to his French land. This should continue to be the position after the UK has ceased to be a member state of the European Union.
Colombian rules on forced heirship are mandatory and apply to the estates of all individuals (nationals and foreigners) who die with their last residence in Colombia. However, Colombian courts will recognize the succession rights of Colombian heirs under forced heirship rules without considering the decedents last place of domicile. Furthermore, Colombian courts have also applied Colombian local law in respect of real personal property located in Colombian territory.
Colombia is also a member of the treaty on International Civil Law promoted in Montevideo in 1889 which is currently enforceable in Colombia. The treaty seeks to provide uniformity to the solution of conflicts of law concerning successions. The treaty provides the following rules:
- The validity of a will disposing of property is governed by the jurisdiction where the property is situated at the time of death. However, an executed will under the laws of any of the member states must be admitted in the other member jurisdiction.
- The law of the situs of the property is applicable for any rules of inheritance, heirship rules and validity of the wills and generally any matter concerning the succession and wills.
- In the event of conflict on succession laws, the treaty shall prevail.
Please see the answers to questions 12 and 14 above.
A renvoi to German inheritance law by the conflict of law rules of another jurisdiction is accepted according to the EU Succession Regulation.
In respect to Turkey, Iran and the Russian Federation and other successor states of the Soviet Union bilateral conventions with individual conflict of laws rules apply.
As set out at Question 14, generally, succession of movable assets (such as bank accounts) is determined by the law of the testator’s domicile at the time of demise, while succession of immovable assets is governed by the law of the jurisdiction where the immovable assets are located. Regarding the formal validity of Wills, Singapore law would regard a Will as valid so long as its execution complies with the internal law of the system it follows.
Singapore courts have not had the opportunity to examine at length the application of renvoi in the context of succession laws. Based on English case law, it is generally thought that the doctrine would apply to succession issues.
Please see answer to question above.
Before the EU Succession law entered into force (in 17 August 2015, see §14), France applied its law of succession to persons having their last habitual residence in France and to immovable properties located in France owned by non-French domiciled persons. Movables were governed by the law of the deceased’s place of domiciled. French courts accepted a renvoi back if, for example, immovable properties were located in another jurisdiction than France.
From 17 August 2015, French courts should only accept the renvoi back when either:
- The law of succession is that of the deceased’s habitual domicile at the time of his/her death and that no election for another law was made,
- The law of succession is that of a third state (including Denmark, Ireland and the UK) where the EU Succession regulation does not apply,
- The applicable law of succession refers:
- to another law of a State where the EU succession Regulation either applies or
- to a third state which would apply its domestic law.
If the law of the jurisdiction which would be applicable according to the Liechtenstein Act on International Private Law refers back to Liechtenstein succession law, Liechtenstein succession law is applicable (Art. 5 (1) Act on International Private Law).
Liechtenstein courts are always competent in probate matters regarding real estate located in Liechtenstein, but never regarding foreign real estate.
If there are no assets in Liechtenstein, the court will not grant an order of probate or succession.
In any case, the scope of Liechtenstein probate proceedings is confined to those parts of the estate over which the courts can exercise control. In so far as such parts are located outside Liechtenstein, this rule refers to whether the outcome of Liechtenstein probate proceedings will be recognized by a foreign court as a matter of law or practice. It is fair to say that such recognition will be granted more often in a case where the deceased is a Liechtenstein national.
Most foreign decisions are not recognised in Liechtenstein. Apart from conventions on the maintenance and custody of children, Liechtenstein concluded only two treaties regarding the recognition of foreign court decisions, one with Switzerland and another one with Austria, whereby the treaty with Austria does not apply to succession matters.
Liechtenstein has not concluded treaties or conventions with respect to succession law: neither with respect to the applicable law nor with respect to jurisdiction.
According to article 12 of the Mexican Federal Civil Code, Mexican Laws govern all persons who are in Mexican territory, as well as the acts or events occurred inside the territory or jurisdiction and to those who are subject to Mexican laws, except when said laws provide for the application of a foreign law and except as provided in international treaties to which Mexico is party.
Section II of article 14 of the Mexican Federal Civil Code states that, when applying foreign law, substantive foreign law shall be applied, without considering conflict provisions that would make Mexican law applicable. Exceptionally, attending to the special circumstances of the case, such conflict law provisions may be applied.
In accordance with Article 15 of the Federal Civil Code, foreign law shall not be applicable in cases of fraud of law and when the foreign laws are contrary to Mexican public interest institutions and principles.
At last but not least, it is important to mention that as of the date Mexico has not concluded any international treaties to avoid conflict of succession laws with other countries.
As a general rule, the Brazilian jurisdiction respect the law of the deceased's last domicile.
However, it is important to note a single material rule of Brazilian succession law that seeks to protect Brazilian nationals in case of international succession. The rule, now with a constitutional status, states that “the succession of non-residents with assets located in Brazil will be governed by Brazilian law for the benefit of the Brazilian spouse or children, whenever the law governing the probate of the deceased is not more favourable to them" (free translation).
In Brazil, there is also the legal determination of exclusive jurisdiction of the Brazilian jurisdiction in matters of property situated in Brazil. Thus, no foreign sentence will be recognized and executed in Brazil, if it decides on the inventory and sharing of Brazilian assets.