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?
Succession to movable property is governed by the law of the state in which the deceased had a habitual residence upon death, while the succession to immovable property is governed by the law of the state in which the said property is situated.
The deceased may have designated the law of the state of which he or she was a national at the time of the designation to govern the succession and the validity of such choice will be subject to the designated law. However the choice of law must not affect the reserved share of the heirs determined under the law applicable based on the type of assets.
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 EU Regulation on Succession Law 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 EU Regulation on Succession Law. 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 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.
Before the EU Succession law entered into force (in 17 August 2015, see §14), France applied its law of succession to persons having his/her 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 domiciled 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 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.
The Israeli courts have jurisdiction to deal with an estate when the deceased was an Israeli resident or if he left assets in Israel. Israeli law applies the law of the place of residence of the deceased on the estate. If the residency law refers to another law other than the Israeli law, then such reference will not be accepted and Israeli law will apply. Reference to the Israeli law will be accepted.
The critical factor -when it comes to applying succession law- is the nationality of the deceased.
However, according to the EU Succession Regulation 650/2012 [also known as Brussels IV] which entered into force in August 17th 2015 [Ireland, Denmark and the UK are not signatories], succession law of the jurisdiction that the deceased had their habitual residence might override the relevant Greek law.
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.
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.
British Virgin Islands
See answer to question 12 above.
Shari’a law will always prevail unless a valid Will (implemented by a non-Muslim) is recognised.
A New Zealand Will may be created by a non-resident, and it may apply to property situated in New Zealand or overseas. New Zealand will also recognise foreign Wills that deal with New Zealand property. There is provision for the resealing of a foreign Will in the New Zealand.
If a non-resident has property in New Zealand and dies without a Will which deals with that property, that property will fall to be regulated by the Public Trustee according to New Zealand's intestacy rules.
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.
The Swiss conflict of law rules are set out in the Swiss Private International Law Act (SPILA). With regard to inheritance, the SPILA is based upon the principle of the unity of the succession. Hence, it states that Swiss authorities have jurisdiction over movable and immovable property unless exclusive jurisdiction over real estate located abroad is claimed by foreign state.
Wills are generally subject to the laws applicable to the estate. Based on the principle of favour testament, the capacity of the testator to make a will is, however, determined separately and it is sufficient that capacity existed pursuant to one of several possible applicable laws enumerated by the SPILA. The formal validity of a will or a testamentary contract is determined in accordance with the Hague Convention to the Form of Testamentary Dispositions.
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.