Head 11: IPL

Question 1

What are the general IPL rules about moveable and immovable property?

Answer 1

The general rule is that:
⁃ moveable property is governed by the lex domicili at time of death (according to the rules of jurisdiction in which the deceased was domiciled at the time of death)
⁃ immoveable property is governed by the lex situs (where the property is located at the time of death)

Question 2

Davies, UK citizen, dies domiciled in Italy. By Italian law, moveables devolve by UK law. By Scots law, devolve by Italian law.

Answer 2

Problem: the Italian IPL rules state that all property devolves on basis of the nationality of the deceased; Scots law says lex domicilii for moveables.

Question 3

Verdi, Italian national, dies domiciled in Scotland. By Italian law, moveables devolve by Italian law. By Scots law, devolution is by Scots law

Answer 3

Problem again: Italian IPL law says all property devolves by nationality; Scots law says moveables governed by lex domicilii.

Question 4

Wills Act 1963 s 1

Answer 4

Concerns validity of a non-Scottish will:

⁃ “A will shall be treated as properly executed if its execution conformed to the internal law if:
in force in the territory where it was executed,
or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or
had his habitual residence, or
in a state of which, at either of those times, he was a national.”
If immovable property the territory where the property was situated [s2(1)(b)]

Question 5

What happens if there is a Scottish executor and non-UK assets?

Answer 5

⁃ You must go to the country and be confirmed as an executor under the rules of the foreign state (even if the property falls under the law of domicile and that is Scots law).

⁃ There in an exception relating to the UK under the Administration of Estates Act 1971 - if you’ve been confirmed as an executor in England, Wales, NI or Scotland you are entitled to administer assets in any one of those jurisdictions without having to receive a separate confirmation in each.

Question 6

What reforms are being made?

Answer 6

EU dimension: EU Regulation 650/2012 creating a European Certificate of Succession. Not applicable anywhere until 17 August 2015 (see art 84) and, crucially, the United Kingdom has not (yet, at least) opted in to the Regulation: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:201:0107:0134: EN:PDF