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)

Israel Small Flag Israel

A foreign will is recognised as valid if it meets the requirements under any of the following:

  1. Israeli Inheritance Law 1965.
  2. The law of the jurisdiction in which it was made.
  3. The law of the jurisdiction of residency of the testator.
  4. The law of the jurisdiction of the usual place of residency of the testator.
  5. 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).

Ireland Small Flag Ireland

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.

Belgium Small Flag Belgium

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.

United States Small Flag United States

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.

Cyprus Small Flag Cyprus

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.

Austria Small Flag Austria

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.

Bulgaria Small Flag Bulgaria

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.

Argentina Small Flag Argentina

N/A

Monaco Small Flag Monaco

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.

Italy Small Flag Italy

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.

Bermuda Small Flag Bermuda

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:

  1. the law of another jurisdiction prohibits or does not recognise the concept of a trust;
  2. the trust or disposition avoids or defeats rights, claims or interests of another jurisdictions laws concerning heirship and personal relationships; or
  3. 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.

Updated: January 3, 2019