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 it3, 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

Article 31 of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons Preamble of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons 3 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. 4 Ibid. 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 of professional workers The commonality of professional workers, men and women, to die leaving many 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 deceased persons6. Applies even if the law is that of a non-Contracting State7 (i.e. to emphasize the 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 rules13.

Article 1(1) of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons Article 2 of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons 8 Waters, op. cit. 9 Article 1(2) of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons 10 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=40 11 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 Private International Law: http://hcch.e-vision.nl/index_en.php?act=conventions.text&cid=87 13 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 State with which the deceased was most closely connected14. Agreement as to succession: agreement created in writing or resulting from mutual 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 from Blacks Law Dictionary16: Disposition: The act of transfer ring something to another's care or possession, esp. by deed or will; the relinquishing of property <a testamentary disposition of all the assets>. Estate: The amount, degree, nature, and quality of a person's interest in land or other 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 laws of descent and distribution17. Substantives The Convention itself is divided into five sections, or Chapters18. They are: Chapter One: The scope of The Convention, description on the universality of The Convention. Chapter Two: The applicable law, what law may be selected, intestacy, choice of 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.
Article 19(4) of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons Article 8 of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons 16 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 Law Applicable 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 those at the time of the deceaseds death, and not at any other time21. Article 3 states the three connecting factors, which are: [1] The law of the nationality; [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 only have 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 a person to a habitual place more than another place. If the nationality and the habitual place is the same, the law of that State applies. If the person dies in the place of habitual residence and the person has been living 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 been living there for less than five years, the law of Nationality applies. However if it is proven that there is the closer connection to the habitual residence, the law of more close connection applies.
Garner, op. cit. Waters, op. cit. 21 Under Article 3 of The Convention on the Law Applicable to Succession to the Estates of the Deceased Persons 22 Waters, op. cit., p. 37.
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Article 5 is about the creation of professio 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 accordance with 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 the designation, 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 the pactes 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 (simultaneous deaths). 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, or social 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 the estate 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
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Waters, op. cit., p. 73

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 policy considerations 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 more territorial 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 or approval 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 the Convention 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 having different 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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Waters, op. cit., p. 79 Waters, op. cit., p. 83

Article 28 asserts that the Convention shall come into force after the deposit of the third instrument of ratification, acceptance or approval. Article 29 deals with the circumstance in which a State becomes a party to the Convention after the Convention has been revised. Article 30 concerns with the denunciation of the Convention by State Parties. A notice 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 Kingdom of 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.
Waters, op. cit., p. 105 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
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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.evision.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.evision.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.