Succession (L23)

Question 1

Which law governs the ADMINISTRATION of succession?

Answer 1

Governed by lex fori.
Procedural.

Question 2

Which law governs the DISTRIBUTION of succession?

Answer 2

Governed by lex causae.
Substantive.

Question 3

Which cases show the importance of the distinction between procedural and substantive matters of succession?

Answer 3

In re Goenaga [1929].
In re Wilks [1935].
In re Kloebe [1884].

Question 4

What are the rules for the law governing the administration of succession?

Answer 4

The principal administration (substantive distribution in the forum successionis); and ancillary administration (supplementary procedure in the forum rei sitae).

The appointment and confirmation of executors.
Who is entitled?
The law of the deceased’s last domicile determines who is eligible.
But you can’t deal with a person’s property in Scotland if you don’t have authority by the Scots courts.

Administration of Estates Act 1971, ss 1 – 3.
Reciprocal recognition. If you get recognition from the court of one UK legal system, the rest will also recognise it, so you don’t need to go to each court.

Question 5

What are the rules for the law governing the distribution of succession?

Answer 5

Governed by lex successionis.

The scission principle (the lex successionis is split depending on the nature of the property):
Succession to moveable property: lex ultimi domicilii (last domicile of the deceased) applies.
Succession to immoveable property: lex situs applies.

NOTE: the characterisation is done by the lex situs, so this is EXTRA important here.

Question 6

How does Kerr v Mangan 2014 demonstrate the scission principle?

Answer 6

Couple lived together for a long time. Mangan died without leaving a will. He was domiciled at death in Scotland. All he left was land and property in Ireland.

Concerned a domestic Scots law (FL(S)A2006) for the right of a cohabitant to make a claim for their deceased partner. This claim is only permissible when the deceased person died domiciled in Scotland.

Could she rely on that provision to claim for his estate? Although this was a new statutory provision, it had to be read along the background of this very long standing scission principle.

Reading the domestic law against the scission principle, she could only claim in relation to immoveables insofar as they were situated in Scotland.
Since it was not, she could not claim anything.

Question 7

How can the scission principle be compared to the rules in other legal systems?

Answer 7

….as against a unitary principle (favoured in Europe, and now enshrined in EU Succession Regulation (‘Rome IV’)).
Rome IV, art 21.

Compulsory family provision/forced heirship > freedom of testation.
E.g in domestic Scots law ‘legal rights’ of ius relictae/ius relicti and legitim, enforceable against the deceased’s moveable estate.

Question 8

What do Wills Act 1963, ss1 and 2 tell us about the formal validity of testate succession?

Answer 8

Law of place of execution (s1(1)).
Law of testator’s domicile at date of execution of will or at date of death (s1(1)).
Law of testator’s HR at date of execution of will or at date of death (s1(1)).
Law of testator’s nationality at date of execution of will or at date of death (s1(1)).
On board vessel/aircraft – territory with which the ship/aircraft was most closely connected (place of registration) (s2(1)(a)).
Lex situs (re will of immoveables) (s2(1)(b)).

A LAW WILL BE FORMALLY VALID IF IT CONFORMS WITH ANY OF THESE LAWS.

Question 9

What does Re Wynn [1983] tell us about the formal validity of a will?

Answer 9

Female made a will when she had been staying in France. Transient lifestyle. Was going to return to England. Wrote the will in her own handwriting. Formally valid under French law.

Question 10

What does In re Kanani [1978] tell us about the formal validity of a will?

Answer 10

Man decided to make a will in a hotel in Switzerland. Signed, dated, not witnessed. Went to England, he later died there.
The will was not valid by English law. The will that he had written was not valid by Swiss law.
For a holographic will to be valid under Swiss law, it must be entirely holographic, but it had a printed address because it was on hotel paper.

Question 11

What law governs the essential validity of a will?

Answer 11

Essential validity is governed by the lex successionis.
Lex situs for immoveables.
Lex ultimi domicilii for moveables.

Question 12

What does In re Groos [1915] tell us about the essential validity of a will?

Answer 12

Dutch lady made a will. In Dutch form, in advance of her marriage to a man in the Netherlands. No provisions for in the event they have children. They in fact had 5. They moved to England, acquired an English domicile of choice. She died first, English domiciled.

Could the will be challenged by the 5 children?
By Dutch law, the rules of compulsory family provision mean they would have gotten 3/4 of her estate.

In terms of moveables, it is down to her domicile at the date of death. English domicile. Estate went to her husband.
Her change of domicile affected the provision of her estate.

Question 13

Which law governs the proprietary capacity of the testator?

Answer 13

Governed by the lex successionis.

Lex ultimi domicilii (i.e domicile at the date of death) (moveables).
Lex situs (immoveables).

Question 14

How does In re Groos [1915] show the lex successionis’s effect on the proprietary capacity of the testator?

Answer 14

By acquiring English domicile of choice, she unwittingly had increased her proprietary capacity. English law put no restrictions i.e. no compulsory family provisions. If she had retained her Dutch domicile, her children would have been protected.

Question 15

Which law governs the legal capacity of the testator?

Answer 15

Governed by the law of the testator’s domicile at the date of the will (moveables) and by the lex situs (immoveables).
Might include whether there was undue influence. These are said to relate to essential validity.
If the testator did not have full capacity because they were subject to duress.

Question 16

How does In re Fuld [1968] demonstrate the rules for legal capacity of the testator?

Answer 16

He died prematurely, had amassed a huge fortune. He left a will and four codicils. He had been married but left no children.

Each document had to be tested for their validity. Allegations of undue influence. Behind each instrument stood a different beneficiary hoping to inherit from it.

What was the choice of law rule? Scarman J held these are essential validity matters and so should be governed by his domicile at the time he wrote the will. In different people’s interests to argue he had different domiciles.

His German domicile of origin controlled it. No rules in German law for undue influence. Just that the testator has to be free to write it. Only will and codicil 1 were held to be valid.

Question 17

What are the other matters pertaining to essential validity?

Answer 17

The validity of conditions attached to bequests.
Eligibility of an ‘unworthy heir’.
Collation inter liberos (ensures equality of provision among beneficiaries).
Some legal systems have this, some don’t.
Determined by the lex successionis.

Question 18

How does Cohn 1945 show the rules for the order of death in a common calamity (commorientes)?

Answer 18

Death of mother and her adult daughter. German nationals/domiciliaries. Killed in an air raid blitz. Could not be proved which woman died first. If the daughter had survived the mother, she would have been entitled to a share of moveable property alongside her two sisters.

By what law was the succession of Cohn’s estate to be determined?

In English law, the younger person is assumed to have survived the older person (would have been the case if treated as a procedural matter).
German law assumption that both parties died at the same time. This would mean she was unable to inherit (would have been the case if treated as a substantive matter).

Held to be a substantive matter. The other sisters got it, she was not entitled.

Question 19

Which law is used to interpret a will?

Answer 19

Governed by the law INTENDED by the testator.
Interpretation of a will is done according to the law by reference to which it was written, i.e according to the law intended by the testator, which may be gleaned from the legal language used, or by express clause in the will, or by the domicile of the testator at testing, or at death.

Question 20

What does Re Cunnington [1924] tell us about the law used to interpret a will?

Answer 20

British man, died domiciled in France. Will in English form. Stated his estate was to be divided by 10 beneficiaries and their issue. Two of the beneficiary died before he did. What was to happen to their shares?

Two possibilities:
In line with English law, the shares would be treated as being outside the will.
In line with French law, the shares they would have got would be divided by the surviving eight.

This is a point of interpretation of a will. They applied the law of the testator’s domicile at the point of the will.

Question 21

What does Wills Act 1963, s4 tell us about interpreting a will?

Answer 21

If a testator’s domicile changes after they’ve written the will, the interpretation of the will should not alter.

Question 22

What questions need to be asked when determining if a will has been revoked by a new will or codicil?

Answer 22

Is the later will itself valid as to form and essentials?
Is it comprehensive in its terms?

Question 23

What does Wills Act 1963 s2(1)(c)) provide for determining if a will has been revoked by a new will or codicil?

Answer 23

If you’re working out if a later writing is valid, you can also test it according to the law that governed the former will’s validity.

Question 24

How does In re Alberti [1955] demonstrate the rules for determining if a will has been revoked by a new will or codicil?

Answer 24

Existing English will. When in Switzerland, wrote a handwritten will that was valid as far as moveable property was concerned. Not valid for immoveables in England.
Prior English will governed the English land. Swiss will governed the moveable property.

Question 25

How does Perdoni v Curati [2011] demonstrate the rules for determining if a will has been revoked by a new will or codicil?

Answer 25

Courts are more open to the idea of two or more wills being operative at one time.
Italian national, domiciled in England. Made a will in England, made another in Italy. Curati wanted both wills to be found invalid.

Question 26

How does Velasco v Coney [1934] demonstrate the rules for determining if a will has been revoked by a physical act of destruction?

Answer 26

Italian woman. Died domiciled in Italy. She didn’t personally destroy her will, instructed her English solicitor to do it.
That revocation was valid by Italian, not by English law. By English law, the will still existed.
The question of whether it had been revoked should be determined by the law of her Italian domicile.

Question 27

What are the rules for determining if a will has been revoked by a subsequent marriage of the testator

Answer 27

What law governs the effect of the marriage on the will?

Moveables = the law of the domicile immediately after marriage.
Immoveables = the lex situs.

In re Martin [1900].
Westerman v Schwab [1905].

Question 28

What are the rules for intestate succession?

Answer 28

Scission principle.
Lex situs (immoveables).
Lex ultimi domicilii (i.e domicile at death) (moveables).
Lynch v Provisional Government of Paraguay (1871).

Re Collens, deceased [1986].

Question 29

What are the international rules for succession?

Answer 29

1989 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons.
Not in force (0 Contracting States!).

Rome IV: Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.

Question 30

When does Rome IV apply?

Answer 30

To people dying after 2015.

Question 31

What does Rome IV Art 21 provide?

Answer 31

Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.

Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State.

NOTE: No scission principle… normal in other states but not the UK.

Question 32

What does Rome IV Art 22 provide?

Answer 32

A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.

A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death.