convention of the law applicable to succession to the estates of deceased person (paper)

7/28/2019 Convention of the Law Applicable to Succession to the Estates of Deceased Person (Paper)

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International Private Law

Davidson Samosir, S.H., M.H.

Odd Semester/3/2010

CONVENTION ON THE LAW APPLICABLE TO SUCCESSION TO THE ESTATES

OF DECEASED PERSONS

Overview

The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons

(will further be known as The Convention) is a convention signed at The Hague on August

1, 19891. The Convention was established to create common provisions concerning the law

applicable to succession to the estates of the deceased persons2.

Purposes

The purpose of The Convention is to create uniformity upon settling issues about succession

to the estate of the deceased under which there is a foreign element in it 3, thus making it an

International Private Law issue. It derives from several issues in succession, for example4:

Variety of rules on conflict of succession over different legal systems Different domestic conceptions on inheritance (esp. the administration) Different views of International Private Law, e.g. whether to apply different

rules for movable and immovable objects; nationality and domicile principle

etc.

It is further explained that there are several backgrounds (origins) on how The

Convention was made5:

Increasing mobility between jurisdictions Airline tickets at economic prices create temporary habitual living places time

to time

1

Article 31 of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons2

Preamble of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons3

Hague Academy of International Law. Association of Attenders and Alumni. (2005).Hague yearbook of

international law, Volume 18. The Hague, The Netherlands: Martinus Nijhoff Publishers.4Ibid.

5

Waters, D. W. (1990). Convention on the law applicable to succession to the estates of deceased persons:Explanatory Report. (P. B. Conference, Ed.) The Hague, The Netherlands: The Hague Conference on Private

International Law.


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The creation of the European Common Market which made higher mobility ofprofessional workers

The commonality of professional workers, men and women, to die leavingmany properties in more than one country

Differences of acts between the notary (civil law system) and the solicitor(common law system) in facing the conflict among the properties

Differences between the connecting factors used to solve the conflict Different responses to the immediate family upon the death of a certain person

on different jurisdictions

Definitions and Applicability

The applicability of The Convention is mentioned in Article 1 of The Convention:

Determines the law applicable to succession to the estates of the deceasedpersons

6.

Applies even if the law is that of a non-Contracting State7 (i.e. to emphasizethe universality of The Convention)8.

However, it has several limitations upon which The Convention is not applicable9:

The form of disposition of the property10; The capacity to dispose the property11; Issues pertaining to matrimonial property12; Property rights, interests or assets created or transferred otherwise by

succession.

There are also several definitions that are rather scattered throughout The Convention, among

them:

Law: the law in force in a State other than its choice of law rules 13.6

Article 1(1) of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons7


Waters, op. cit.9


See: Hague Conference on Private International Law. (n.d.). Convention of 5 October 1961 on the Conflicts of

Laws Relating to the Form of Testamentary Dispositions . Retrieved November 7, 2010, from Hague Conference

on Private International Law: http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=4011

It is excluded because the capacity is to be determined when the will is made. Waters, op. cit.12

See: Hague Conference on Private International Law. (n.d.). Convention of 14 March 1978 on the Law

Applicable to Matrimonial Property Regimes. Retrieved November 7, 2010, from Hague Conference on PrivateInternational Law: http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=8713

Article 17 of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons


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The law of the State of closest connection: the law of that unit of the Statewith which the deceased was most closely connected

14.

Agreement as to succession: agreement created in writing or resulting frommutual wills which, with or without consideration, creates, varies or terminates

rights in the future estate or estates of one or more persons parties to such

agreement15.

To further enrich the definition, we would like to add some definitions that are commonly

accepted Academically fromBlacks Law Dictionary16:

Disposition: The act of transfer ring something to another's care or possession,esp. by deed or will; the relinquishing of property .

Estate: The amount, degree, nature, and quality of a person's interest in land orother property; esp., a real-estate interest that may become possessory, the

ownership being measured in terms of duration.

Succession: The acquisition of rights or property by inheritance under the lawsof descent and distribution17.

Substantives

The Convention itself is divided into five sections, orChapters18. They are:

Chapter One: The scope of The Convention, description on the universality ofThe Convention.

Chapter Two: The applicable law, what law may be selected, intestacy, choiceof law, applicability of law of a non-Contracting State, inclusion of provisions

of a law other than the applicable law, submission to the applicable law.

Chapter Three:Pactes successoraux or agreements as to succession. Chapter Four: General or immediate support provisions of the Convention. Chapter Five: Diplomatic requirements and facilities in connection with the

signing, ratification, acceptance or approval of the Convention.

14



Garner, B. A. (Ed.). (2009).Black's Law Dictionary Deluxe (9th Edition ed.). West.17

While The Convention does not define the word Succession, Article 7(2) gives the impression on the scope

of the succession being discussed throughout The Convention. See Article 7(2) of The Convention on the LawApplicable to Succession to the Estates of the Deceased Persons, and Waters, op. cit.18

Waters, op. cit.


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Chapter One (Article 1-2)

This Chapter mainly talks about the purpose of The Convention, which mainly talks about the

devolution, i.e. the act or an instance of transferring one's rights, duties, or powers to

another; the passing of such rights, duties, or powers by transfer or succession19, and to

determine the law applicable20

.

Chapter Two (Article 3-7)

Some of the parts of Chapter Two can be analyzed as follow:

The factual circumstances which are used as considerations are always thoseat the time of the deceaseds death, and not at any other time 21.

Article 3 states the three connecting factors, which are: [1] The law of thenationality; [2] The law of the habitual residence; and [3] The law of more

close connection.

On nationality, it is up to the forum to decide the nationality of the deceased,or whether the deceased has no nationality (and upon which a nationality

should be deemed to be the deceaseds).

Habitual residence is the term used in equal to domicile. A person may onlyhave one habitual residence, because it is a place of living being central and

associated the most to the person.

The law of more close connection is established upon the strong affinity of aperson to a habitual place more than another place.

If the nationality and the habitual place is the same, the law of that Stateapplies.

If the person dies in the place of habitual residence andthe person has beenliving there for at least five years, the law of that State applies (the law of the

Nationality will be overruled22).

If the person dies in the place of habitual residence but the person has beenliving there forless than five years, the law of Nationality applies.Howeverif

it is proven that there is the closer connection to the habitual residence, the

law of more close connection applies.

19

Garner, op. cit.20

Waters, op. cit.21

Under Article 3 of The Convention on the Law Applicable to Succession to the Estates of the DeceasedPersons22

Waters, op. cit.,p. 37.


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Article 5 is about the creation ofprofessio juris to make the choice of law. Article 5(1): The estate owners power to designate the law. Possibilities of

designation: the law of nationality at the time of designation or of the death;

the law of habitual residence at the time of designation or of the death.

Article 5(2): The necessity of the creation of a statement made in accordancewith the formal requirements for dispositions of property upon death, i.e. in

form of testamentary act.

Article 5(3): Revocation of a designation must be made by the maker of thedesignation, and be in a form that is approved by the law referred to by the

conflict rules of the forum for the revocation of a disposition of property upon

death.

Article 7 is practically concerned with the meaning of succession.

Chapter 3(Article 8-12)

This chapter namely discusses about thepactes successoraux, which may come in two forms:

[1] unilateral contract, on leaving a certain property after death to a certain person; or [2]

reciprocal contract, on leaving a certain property after death to the certain person.

Chapter 4 (Article 13-24)

It discusses the general provisions of the Convention

Article 13 is a general unifying substantive law for commorientes (simultaneousdeaths). It was viewed that the matter was better left for each jurisdiction to deal with

the issue since many States have provisions to meet the problem23

. The provision

aims to prevent either or any one of the simultaneously dying persons from inheriting

from the other.

Article 15 provides that where the lex situs, with its distinct economic, family, orsocial policies in mind, imposes a special order of inheritance upon particular assets

or operations located on its soil, the applicable law, when it is other than the lex situs,

is to give way to the lex situs on that specific area of inheritance.

Article 16 concerns the issue of the right of the State to take itself those assets in theestate of the deceased to which there is no testate or intestate heir. If the State of the

applicable law under the Convention differs from the State of the situs, and the situs

23

Waters, op. cit., p. 73


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State regards itself as the appropriate party to take the assets on its soil, the situs State

is permitted to do so.24

Article 18 gives permissions to the forum to apply its own public policyconsiderations in preference to the applicable law in the event that there is conflict

between the two

Article 19 provides for the situation in where one national State includes two or moreterritorial units, each of which has its own legal system for the subject area in

question.25 Article 19(1) points out its aims. Article 19(2) recognizes that the State in

question may have its own rules for identifying which unit is to be taken as the unit of

reference. Article 19(6) provides that the choice of the law of a certain State to govern

particular assets of the estate in the will or in the succession agreement is presumed to

be a reference to the unit of the State in which the assets in question are situated.

Article 20 aims to distinguish between international and internal conflicts. Article 22 provides that the Convention applies in a Contracting State to the

succession of any person whose death occurs after its entry into force for their State.

Article 24 sets out the permitted reservations of the Convention

Chapter 5 (Article 25-31)

The last Chapter contains the final clauses of the Convention, which are familiar with the

international community.

Article 25 mentions that the Convention is open for ratification, acceptance orapproval by Members of the Hague Conference only who were Member of the

Sixteenth Session.

Article 26 provides that any State that is not a Member may accede once theConvention has come into force as a consequence of ratification, acceptance or

approval by three Members of the Hague Conference and the passage of three months

thereafter.

Article 27 made provisions for the State with two or more territorial units havingdifferent systems of law, and where adoption of the Convention is made by one or

more of those units, but not by other units.

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Article 28 asserts that the Convention shall come into force after the deposit of thethird instrument of ratification, acceptance or approval.

Article 29 deals with the circumstance in which a State becomes a party to theConvention after the Convention has been revised.

Article 30 concerns with the denunciation of the Convention by State Parties. Anotice in writing addressed to the depository must be made and it states that

denunciation after the expiration of three months from notification.26

Article 31 asserts that the depository, the Ministry of Foreign Affairs of the Kingdomof Netherlands, is required to notify all Member of the Hague Conference on Private

International Law of all acts which have been done further to the authorization of the

Convention.

Sanctions

No sanctions whatsoever are mentioned in the Convention.

Conclusion

While great in the goals being pursued, the substance is still lacking many issues. Some of

the issues that are yet unseen, for example, the mechanism on how to settle the conflict

instead the Convention mainly talks about the choice of law or which law to apply, rather

than the real mechanism/procedures to settle issues.

The Convention is yet to be put into force, since there are only four states who have

signed the Convention, and only one State (The Netherlands) that has already ratified the

Convention27

. The lack of sanctions (or at least problem-solving method in the case of

abortion of the Convention in solving cases) is also yet to be seen.

At the end, we can only wait the implementation of the Convention after the

Convention is put into force. By that time, at least superficially one problem of

international private law the succession of estates has been partially unified.

Bibliography

Garner, B. A. (Ed.). (2009).Black's Law Dictionary Deluxe (9th Edition ed.). West.

26


Hague Conference on Private International Law. (n.d.). Status Table. Retrieved November 8, 2010, fromConvention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons:

http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=62


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Hague Academy of International Law. Association of Attenders and Alumni. (2005).Hague

yearbook of international law, Volume 18. The Hague, The Netherlands:

Martinus Nijhoff Publishers.

Hague Conference on Private International Law. (n.d.). Convention of 14 March 1978 on the

Law Applicable to Matrimonial Property Regimes. Retrieved November 7, 2010,

from Hague Conference on Private International Law: http://hcch.e-

vision.nl/index_en.php?act=conventions.text&cid=87

Hague Conference on Private International Law. (n.d.). Convention of 5 October 1961 on the

Conflicts of Laws Relating to the Form of Testamentary Dispositions. Retrieved

November 7, 2010, from Hague Conference on Private International Law:

http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=40

Hague Conference on Private International Law. (n.d.). Status Table. Retrieved November 8,

2010, from Convention of 1 August 1989 on the Law Applicable to Succession to

the Estates of Deceased Persons: http://hcch.e-

vision.nl/index_en.php?act=conventions.status&cid=62

Waters, D. W. (1990). Convention on the law applicable to succession to the estates of

deceased persons: Explanatory Report. (P. B. Conference, Ed.) The Hague, The

Netherlands: The Hague Conference on Private International Law.

convention of the law applicable to succession to the estates of deceased person (paper)

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