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 (3rd edition)

Colombia Small Flag Colombia

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 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.

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.

Cyprus Small Flag Cyprus

As per the above, the criterion of domicile will define the applicable law in relation to the succession to the movable property of a person (lex domicillii), whereas in cases of immovable property the law of the country in which the immovable property is situated (lex situs) shall govern the question of succession. Therefore, in cases where the deceased leaves immovable property situated in various jurisdictions, the succession to each property will be governed by the law of the jurisdiction in question. However, on worldwide movable assets, the applicable law is that of his country of domicile at the time of his death.

Nonetheless, in practice, in cases of cross-border succession where the succession has elements of different countries or where it is difficult to determine the country of domicile at the time of death, the applicable law can be determined by the country with which the deceased had closer ties and/or more stable connection. In each particular case, this country will be decided by the authority dealing with the succession and can be a complex matter to determine in practice.

The Succession Regulation 650/2012 (‘Brussels IV’) which was introduced by the European Parliament and was implemented in Cyprus on 17/08/2015, applies to persons who have deceased on or after the 17/08/2015. As per the provisions of this Regulation expatriates living in an EU country can choose the law of their country of nationality as the applicable law to their succession, instead of the law of the habitual residence at the time of death. This choice must be expressly declared through the person’s will.

If an individual makes no express election, the default position is that the law of the state in which the deceased was habitually resident at death is the governing law for the distribution of the deceased’s estate unless the individual was manifestly more closely connected with another state, in which case the law of that other state would apply. Whether an individual is habitually resident in or manifestly more closely connected to a specific state will be a question to be determined each time based on the facts of the case

Hong Kong Small Flag Hong Kong

a. Please refer to the answer to Question 12 above for details in relation to the treatments of movable and immovable assets with reference to Hong Kong and foreign succession laws.

Mexico Small Flag Mexico

According to the Mexican Federal Civil Code, Mexican Law governs everyone who is located in Mexican territory, as well as the acts or events occurred inside it and those that 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.

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.

Furthermore, 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.

Finally, 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.

India Small Flag India

Please see our response to Question 14 above.

Liechtenstein Small Flag Liechtenstein

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.

Whether Liechtenstein courts are competent in probate matters for movable assets located in Liechtenstein or abroad depends on the nationality of the deceased and his or her last habitual residence. Furthermore, the Liechtenstein courts may be competent as a "last resort" if it is impossible to enforce rights provided for by the succession law abroad.

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.

Monaco Small Flag Monaco

The new Code of international private law (Law n°1448 of June 28, 2017) sets out specific rules regarding international successions.

Under this new Code, the law applicable to the succession is the law of the country in which the deceased had his domicile at the time of death.

Individuals can choose the law applicable to their successions but the choice is limited to the law of the country of their nationality or Monaco law.

When a person has two or more nationalities, the applicable law is the law of the country with which the person has the closest links.

However, the applicable law under the aforementioned Code of international private law cannot prevent the application of forced heirship rules provided by the law of the deceased’s nationality at the time of death. Nor can it lead to the application of forced heirship rules when the law of the deceased’s nationality at the time of death does not provide for it.

The applicable law is the substantive law of the country designated. Hence, there is no ‘renvoi’ and Monegasque courts will not apply the conflict of laws rules of the said country.

Poland Small Flag Poland

With reference to point 14 above, according to Polish law and the EU Succession Regulation (No. 650/2012), where Polish inheritance law applies to succession matters, Polish courts are deemed competent in all the cases that may arise with respect to such succession proceedings.

Possible exceptions may arise in cases where the deceased owned a real property in another jurisdiction and such jurisdiction provides for separate regulations in that matter. However, that must be reviewed in each particular case, independently.

Portugal Small Flag Portugal

Under the referred Regulation 650/2012, renvoi either to the law of a Member State or to the law of a third State which would apply its own law to the succession should be accepted. Renvoi should, however, be excluded in situations where the deceased had made a choice of law in favour of the law of a third State.

Russia Small Flag Russia

According to Art. 1224 of the Civil Code, the applicable law to the rules of succession is generally determined by the last residence of an individual. At the same time, (i) the capacity to create or revoke the will, inter alia, in relation to the immovable property; and (ii) the form of such creation or revocation shall be governed by the law of the country where the testator had a place of residence as of the time of creation or revocation of such will. However, a will or revocation of a will shall not be declared void because of the invalidity of the form, provided that the form satisfies the requirements of the law of the place of its creation / revocation or of the Russian law.

According to Art. 1190 of the Civil Code the doctrine of renvoi is recognized only in relation to the provisions of foreign law governing the personal legal status (e.g., lex personum, legal capacity, capacity to enter into a marriage or to engage in entrepreneurial activity) of an individual. In all other cases (including the rules of succession) the Russian law when referring to the law of the foreign states refers only to the substantive law and ignores their conflict of laws provisions (including those referring back to Russian law or to the law of a third country (renvoi)).

In terms of public international law regard shall be had to Vienna Convention on the Law of Treaties of 1969. Moreover, Russia, as a successor of Soviet Union has around 40 bilateral treaties with foreign countries regarding mutual legal assistance in civil, family and criminal matters. The most known regional convention is the Minsk Convention on Legal Assistance and Legal Relationships in Civil, Family and Criminal Matters of 1992. These treaties provide for unification of domestic provisions relating to conflict of laws and substantive laws.

Serbia Small Flag Serbia

Under the International Private Law (Conflict of Laws) rules, in case succession laws of another jurisdiction make reference to Serbian law, such reference is accepted by Serbian courts and Serbian substantive law applies, without having regard to the Serbian international conflict of laws rules.

Switzerland Small Flag Switzerland

A deceased's last place of domicile triggers the law applicable to the estate. In case of a foreign last domicile, Swiss law only applies if the conflict of law rules of the foreign state of last domicile refer to the laws of Switzerland. This might be the case if the deceased was a Swiss national or if estate assets are located in Switzerland.

Switzerland has entered into few bilateral inheritance treaties (USA, Greece, Italy and Iran) that contain special rules. The EU Succession Regulation may have an impact on Swiss estates of persons with connections to the EU.

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 in the answer to question 5, 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.

Singapore Small Flag Singapore

See question 14 above. Singapore private international law rules will apply the lex situs to real estate wheresoever situated. Whether and how the doctrine of renvoi applies in Singapore succession laws has yet to be tested in the Singapore courts.

Israel Small Flag Israel

Israeli courts are authorized to judge in matters of inheritance of every person who (a) resided in Israel at the time of death, or (b) left property in Israel.

While the basic rule is that courts will apply the succession laws of the deceased’s residence at the time of death, the following exceptions apply:

(a) in case the lex situs expressly excludes the application of any foreign law, the Israeli courts will apply the lex situs laws;

(b) in case the validity of the Will is contested in an Israeli court arguing that the Will is not valid because (i) the person was incapacitated to bequeath at the first place – the courts shall apply the laws of his or her country of residence at the time the Will was made; or (ii) certain forms and formal features are not met – the courts shall recognize the Will as valid if the formal requirements of either Israel, the country where the Will was made, or the country of residence or usual abode or citizenship of the deceased either upon his or her death or when the Will was made, and, when real estate is involved - the country where the real estate is situated – are met.

However, Israeli courts shall not apply the applicable foreign law (although required to), if the foreign law refers to a different foreign jurisdiction’s laws (in which case the referral is then ignored, and the court will apply the internal law of the first country; unless the referral is to the Israeli succession law), or if the foreign law discriminates by race, religion, gender or nationality or where it contradicts the Israeli public policy.

France Small Flag France

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.

Germany Small Flag Germany

According to the EU succession regulation, if it is obvious that the deceased had a closer relationship to another state, that state’s law will apply under certain circumstances. There is, however, the opportunity to opt for the succession law of an individual’s nationality by a Will, a joint Will or by an agreement as to succession. In addition, provisions on legal jurisdiction, recognition and enforcement of decisions and authentic instruments and on the European certificate of succession are part of the Regulation. As a general rule, the legal jurisdiction shall be determined by the habitual residence at the time the individual dies. The EU Succession Regulation is not applicable to trusts, hence the respective national conflict of law regime applies.

Even if the EU Succession Regulation does not apply directly vis-à-vis third states, from the German point of view its provisions with regard to the determination of the applicable law apply accordingly.

United Kingdom Small Flag United Kingdom

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.

Updated: January 17, 2020