THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC 36–1991)

REPORT

ON

THE HAGUE CONVENTION

ON THE LAW APPLICABLE TO

SUCCESSION TO THE

ESTATES OF DECEASED PERSONS (1989)

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

©Copyright The Law Reform Commission 1991

First Published April 1991

THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

The Hon Mr. Justice Ronan Keane, Judge of the High Court, President;

John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Associate Professor of Law, University of Dublin;

Ms. Maureen Gaffney; B.A., M.A., (Univ. of Chicago), Senior Psychologist, Eastern Health Board; Research Associate, University of Dublin;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General thirty-five Reports containing proposals for the reform of the law. It has also published eleven Working Papers, three Consultation Papers and Annual Reports. Details will be found in Appendix 2.

William Binchy, Esq., B.A., B.C.L., LL.M., Barrister-at-Law, is Research Counsellor to the Commission.

Ms. Una O'Raifeartaigh, B.C.L., Ms. Elizabeth Heffernan, LL.B., LL.M., Mr. Anthony Whelan, LL.B., LL.M. and Mr. Brian Hutchinson, B.C.L., LL.M., Barrister-at-Law are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 715699

CHAPTER 1: INTRODUCTION

In this Report, we examine the question whether Ireland should ratify the 1988 Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons, and recommend that it should do so. The subject is one falling within the scope of the Commission's First Programme. In February of this year we circulated a Consultation Paper on the subject among interested persons and groups. We are most grateful to them for their helpful comments. In particular we wish to express our appreciation for their detailed observations to Mr Hans van Loon, First Secretary of the Hague Conference on Private International Law; Mr W Westbroek, Professor David Hayton, Mr GDM Collett and Mr Eamonn G Mongey, B.L. Needless to say, they are not responsible for the recommendations contained in this Report, which represents our final conclusions on the subject.

The law of succession involves a blend of individual, family and social values. The goals of freedom of testation, discharging responsibilities to family members, and serving the broader social interest in relation to property transmission and taxation¹ must all be served. What precisely these goals should be and how they should be harmonised are questions requiring moral and political resolution in every political community. Inevitably wide differences in policies have been recorded among different societies at different times.²

It is perhaps rash to speak of international socio-legal trends at a time such as today, when certain social and political orthodoxies are in the process of very rapid transformation³: nevertheless legislative developments in States of both the civil law and common law traditions are sufficiently consistent to warrant the statement that the movement is towards increasing the range of protection for the surviving spouse of the deceased at the time of his or her death:

Another characteristic of modern succession law internationally is the improvement in the position of children whose parents are not married:

To this list may be added Ireland, which equalised the rights of succession, regardless of the marital status of the parents, in the Status of Children Act 1987.⁶

The trend in relation to adopted children is somewhat more ambiguous: after a gradual extension of their succession rights over several decades,⁷ there is some indication of a desire in a number of jurisdictions to encourage adoption by making it a less permanent, and less final, transfer of rights and obligations, including succession rights.⁸

The removal of legal and economic barriers between many countries, and in particular the States of the European Communities, has resulted in an increasing international dimension to the law of succession. In 1986, the latest year for which statistics are available, there were in Ireland 8,991 residents who had been born abroad. The movement of workers between States is a feature of contemporary European life: over a million and a half Turkish nationals are now working in the Federal Republic of Germany.⁹ This migration leads to new issues in the private international law of succession.

At present, under Irish rules of private international law,¹⁰ succession to immovable property is determined by the lex situs; the lex domicilii generally governs succession to movable property. This approach is in harmony with other common law jurisdictions,¹¹ though it is fair to say that many scholars have made a potent case against an indiscriminate application of these black-letter rules.¹²

The Hague Convention favours an entirely novel approach. The applicable law which it prescribes is a combination of the connecting factors of nationality and habitual residence. It also provides for a professio juris, again limited by the elements of nationality and habitual residence. Its third innovation is to prescribe rules dealing with pactes successoraux, which are a feature of civil law States.

In Chapter 2, we summarise briefly the existing domestic law as to succession. In Chapter 3, we consider the existing Irish private international law rules. In Chapter 4, we examine the provisions of the Convention and what they seek to achieve. In Chapter 5, we address the questions whether Ireland should ratify the Convention and, if so, what reservations (if any) should be availed of under Article 24 of the Convention.

CHAPTER 2: THE PRESENT LAW OF SUCCESSION

In this chapter we set out briefly the present domestic law relating to succession. Our analysis concentrates on aspects of particular relevance to the Convention.

Our treatment of the subject law is necessarily of a summary nature: detailed accounts are available in a number of excellent treatises on the subject.¹

In Irish domestic law, the process of succession may be either testamentary (where the testator has made a valid will disposing of his or her property on death) or intestate (where either there is no will or the will is invalid or it fails to dispose of all the testator's property, in which latter case there is a partial intestacy).²

As regards testate succession, the testator must have reached the age of eighteen years or be or have been married and must be of sound disposing mind.³ The will must be in writing,⁴ and executed in accordance with the following rules:

Publication of the will is not necessary;⁶ nor does the incompetency of a witness render the will void.⁷ Gifts to an attesting witness or to the spouse

of the witness are void.⁸ Creditors attesting wills charging the estate with debts are admissible as witnesses;⁹ executors who attest wills are also admissible as witnesses.¹⁰

A will is revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage, whether so expressed in the will or not.¹¹ Otherwise, no will, or any part of a will, is revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.¹² A will that has been revoked will not be revived otherwise than by re-execution or by a codicil duly executed and showing an intention to revive it.¹³

Section 5 of the Succession Act 1965 preserves the common law presumption of simultaneous deaths in cases of uncertainty of survivorship.¹⁴ It provides that:

As regards construction of wills, “[t]he function of the court ... is to give effect to the testator's intention, as it is ascertained from the written terms of the will”.¹⁵ The will is to be read as a whole and thus a general intention overrides a particular one.¹⁶ The courts have drawn a distinction between rewriting a testator's will – a task they decline to undertake – and “making alterations in [it] which ... [they] may do to ensure that the written document is consistent with the testator's intention”.¹⁷

This “overriding principle”¹⁸ had led the courts to develop several rules of construction.¹⁹ Of particular importance is the common law rule that, as a general principle, subject to limited exceptions, only the words of the will should be considered in determining the testator's intention, and evidence

gathered from outside the will should not be admissible. This rule has been modified by section 90 of the Succession Act 1965, which provides that extrinsic evidence is admissible “to show the intention of the testator and to assist in the construction of, or to explain any contradiction in, a will”. In Rowe v Law,²⁰ the Supreme Court, by a majority,²¹ took the view that extrinsic evidence was admissible under section 90 only where it met the double requirement of (a) showing the intention of the testator and (b) assisting in the construction of, or explaining any contradiction in, a will.

Section 99 of the Succession Act 1965, provides that:

Professor Brady has commented that:

The principle of freedom of testation is significantly qualified by Part IX of the Succession Act 1965. This gives the surviving spouse a fixed share in the estate of the deceased and a surviving child a right to apply to the court for provision to be made out of the estate on the ground that the deceased failed in his or her moral duty to make proper provision for the child.

Rights of Surviving Spouse

If a testator leaves a spouse and no children, the surviving spouse has a right to a half of the estate.²⁴ If the testator leaves a spouse and children, the surviving spouse has a right to a third of the estate.²⁵ This legal right of the surviving spouse has priority over devises, bequests and shares on intestacy.²⁶ A spouse's legal right may be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage or may be renounced in writing by the spouse after marriage and during the lifetime of the testator.²⁷

The surviving spouse must elect between the legal right share and rights arising under a will; in default of election, the spouse is entitled to take under the will and not by way of legal right.²⁸ Where the deceased died partly testate and partly intestate, the surviving spouse may elect to take either (i) the legal right share or (ii) the share under the intestacy, together with any devise or bequest to the surviving spouse under the will, but no legal right share.²⁹

The position regarding provision made before the commencement of the Act (on 1 January 1967) is dealt with by section 116. Where a testator, during his lifetime, has made permanent provision for his spouse, whether under contract or otherwise, all property which is the subject of such provision (other than periodical payments made for her maintenance during her lifetime) are to be taken as given in or towards satisfaction of the share as a legal right of the surviving spouse.³⁰ The value of the property is reckoned as at the date of the making of the provision.³¹ If the value of the property is equal to or greater than the share of the spouse as a legal right, the spouse is not entitled to take any share as a legal right.³²

If the value of the property is less than the share of the spouse as a legal right, the spouse is entitled to receive in satisfaction of that share so much only of the estate as, when added to the value of the property, is sufficient, as nearly as can be estimated to make up the full amount of that share.³³

Section 116 is designed to avoid hardship where testators, many of them in innocence of the forthcoming changes brought about by Part IX of the Act, made permanent provision for their spouses. The section does not define what amounts to permanent provision other than to exclude periodical

maintenance payments³⁴: It has been suggested that “it would no doubt be intended to have substantially the same meaning as that given to 'advancement' in section 63(6)”,³⁵ in respect of children.³⁶

Section 117 of the Act, as has been indicated, enables a child of a testator to apply to the court for an order, for provision out of the testator's estate where the court is of opinion that the testator failed in his or her moral duty to make proper provision for the child in accordance with his or her means. It merits quotation in full:

Section 117 has given rise to a substantial volume of litigation,³⁸ which can only be touched on here. Until 1989 the locus classicus was Re GM; FM v TAM,³⁹ where Kenny J considered that:

In the Supreme Court decision of In the Estate of LAC deceased; C and F v WC and TC⁴⁰ in 1989, Finlay, CJ quoted this general statement of the applicable principles, but added further principles which, he admitted, might to an extent be considered a qualification of it. He was satisfied that the phrase “failed in his moral duty to make proper provision for the child in accordance with his means” placed a relatively high onus of proof on an applicant for relief under section 117:

Commenting on this decision, Professor Brady has observed that:

Part IV of the Succession Act 1965 prescribes the rules for intestate succession. All estate to which a deceased person was beneficially entitled or an estate or interest not ceasing on her death and as to which he dies intestate after the commencement of the Act is to be distributed in accordance with Part VI, after payment of all expenses, debts and liabilities and any legal right properly payable thereout.⁴²

If an intestate dies leaving a spouse and no issue,⁴³ the spouse takes the whole estate.⁴⁴ If there is a spouse and issue, the spouse takes two-thirds, the issue one-third.⁴⁵ If there are issue but no surviving spouse, the issue are entitled to the estate.⁴⁶ If an intestate leaves neither issue nor surviving spouse, his or her parents take equal shares⁴⁷; if only one parent survives, he or she takes all the estate.⁴⁸ If both parents are dead, the brothers and sisters and their children inherit.⁴⁹ Failing them, the estate is distributed in equal shares among the next-of-kin.⁵⁰

In default of any person taking the estate of an intestate, whether under Part VI or otherwise, the State takes as ultimate intestate successor.⁵¹ This change, which replaces the old law of escheat and bona vacantia,⁵² was made in part out of concern that foreign courts “might treat bona vacantia as being a matter of public law and so might not enforce a claim to it”.⁵³ As we shall see, the provision is of some relevance to the Convention.

Finally in relation to intestacy, it should be noted that, where the will of a testator effectively disposes of part only of his estate, the remainder is distributed as if he had died intestate and left no estate.⁵⁴ Mr Pearce notes that “[t]here is no express provision that the will shall prevail, although clearly dispositions by will take effect before the intestacy rules apply”.⁵⁵

Section 56 of the 1965 Act confers on a surviving spouse the right to require the personal representatives to appropriate the dwelling⁵⁶ and household chattels⁵⁷ in or towards satisfaction of any share of that spouse.⁵⁸ We need not here describe the full scope of the section, which contains fourteen subsections. Suffice it to note that this right to require appropriation may be exercised in relation to the share of an infant for whom the surviving spouse is a trustee if the share of the surviving spouse is insufficient to enable an appropriation to be made.⁵⁹

Moreover, the rights conferred by the section on the surviving spouse include a right to require appropriation partly in satisfaction of a share in the deceased's estate and partly in return for a payment of money by the surviving spouse on the own spouse's behalf and also on behalf of any infant for whom the spouse is a trustee.⁶⁰ In addition, in an application to the court by the surviving spouse,⁶¹ the court, if of opinion that, in the special circumstances of the case, hardship would be caused to the surviving spouse (or to the surviving spouse and any infant for whom the surviving spouse is a trustee), may order that an appropriation to the spouse be made without this payment of money or subject to the payment of such amount as the court considers reasonable.⁶²

The court may make such further order in relation to the administration of the deceased's estate as may appear to it just and equitable having regard to the provisions of the Act and to all the circumstances.⁶³

A limitation on the right to appropriation of the dwelling⁶⁴ should be noted. It arises in the following cases:

If, however, the court, on application by the personal representatives or the surviving spouse, is satisfied that the exercise of the right of appropriation of the dwelling is unlikely to diminish the value of the assets of the deceased, other than the dwelling, or to make it more difficult to dispose of them in due course of administration, it may authorise the exercise of this right of appropriation.⁶⁶

Part X of the Succession Act 1965 (as amended) deals with unworthiness to succeed⁶⁷ and disinheritance.⁶⁸

As regards the former, a sane person who has been guilty of the murder, attempted murder or manslaughter of the deceased is precluded from taking any share in his or her estate save such as arises under a will made after the act constituting the offence,⁶⁹ and is not entitled to make an application under section 117.⁷⁰

A spouse guilty of desertion which has continued up to the death for two years or more is also precluded from taking any share in the estate of the

deceased as a legal right or on intestacy.⁷¹ A spouse who has been found guilty of an offence against the deceased, or against the spouse or any child of the deceased (including an adopted child or a person to whom the deceased was in loco parentis at the time of the offence) is precluded from taking any share in the estate as a legal right or from making an application under section 117, where the offence was one punishable by a maximum period of at least two years' imprisonment or by a more severe penalty.⁷²

Section 121 deals with dispositions⁷³ made for the purpose of defeating or substantially diminishing the share of the disposer's spouse, whether as a legal right or on intestacy, or the intestate share of any of his children, or of leaving any of his children insufficiently provided for.⁷⁴ The section applies only where the disposition is one other than a testamentary disposition or a disposition to a purchaser; moreover the beneficial ownership of the property must vest in possession in the donee within three years before the death of the person who made it.⁷⁵

If the court is satisfied that the disposition was one for the purpose of disinheriting the spouse or children of the deceased, it is decreed for the purposes of Parts VI and IX of the Act, to be a devise or bequest made by the deceased's will and to have had no other effect.⁷⁶ To the extent that the court so orders, the disposition is deemed never to have had effect as such and the donee of the property (or other person deriving title under him) will be a debtor of the estate for such amount as the court may direct accordingly.⁷⁷ The court may make such further order in relation to the matter as may appear to it just and equitable having regard to the provisions and the spirit of the Act and to all the circumstances.⁷⁸

CHAPTER 3: IRISH PRIVATE INTERNATIONAL LAW ON SUCCESSION¹

As a general principle,² as we have mentioned, the lex situs governs succession to immovables and the lex domicilii at the time of death determines, succession to movables. These rules are subject to some fairly important qualifications, especially in relation to testate succession and powers of appointment.

Let us first consider intestate succession before going on to examine the position relating to testate succession.

Intestate Succession

(a) Movables

It is a long-established rule that succession to moveable property in the case of intestacy is determined by the lex domicilii of the testator at the time of

death.³ This rules applies only to succession “in the strict sense of that term”.⁴ It does not apply to the right of a State to take ownerless property as bona vacantia or jus regale.

The issue was analysed by the English Court of Appeal in In the Estate of Maldonado, Deceased, State of Spain v Treasury Solicitor,⁵ in 1953. There, the Court held that the Spanish State, as ultimus heres, should succeed to the estate of a woman domiciled in Spain. Against this view, it has been argued that the distinction between succession by a sovereign state as ultimus heres⁶ and the appropriation of bona vacantia by a foreign state was “a mere matter of words”.⁷ Jenkins, LJ responded:

(b) Immovables

It is well established that where a person with an interest in immovables dies intestate, the lex situs determines the question of descent or distribution. This is so, regardless of the domicile of the intestate person.⁹

This rule can present particular difficulties where legislation in more than one state confers on a surviving spouse or a member of the family of the deceased intestate person, a specific entitlement to a portion of the estate. This matter

is considered in detail below.¹⁰

Testamentary Succession

The general rule in Ireland¹¹ and other common law jurisdictions is that the lex domicilii of the testator at the time of his death exclusively determines testamentary succession to his movable property,¹² and that the lex situs governs testamentary succession to his immovable property. The fact that Irish assets must be administered in accordance with Irish law does not detract from this principle, since the duty of the Irish executor will be to distribute the moveable property to the persons entitled under the lex domicilii.

The Scope for Renvoi

The private international law of succession in a number of common law jurisdictions has generated a degree of interest in renvoi.¹³ Ireland is no exception, though it is fair to say that the subject has received only minimal attention by Irish courts. The essence of this doctrine is that, where the law of a particular foreign country is the lex causae, that law should be considered to embrace the private international law rules of the foreign country as well as its domestic law. Thus, if, under those rules, the succession to a deceased's estate should be determined by the law of another country, the renvoi doctrine would require the application of the latter law.

In Re Adams Deceased; Bank of Ireland Trustee Co v Adams,¹⁴ Budd J, applied the renvoi doctrine in holding that no conflict of laws arose because French law, the testator's lex domicilii under Irish private international law rules, referred the issue of formalities as to the succession to his estate to the law of the testator's domicile.

Capacity

(a) Movables

The capacity of a testator is determined by the law of his or her domicile.¹⁵ In the English decision of In the Estate of Fuld (No. 3); Hartley v Fuld,¹⁶ Scarman, J said that he knew of no distinction drawn between “lack of capacity due to immaturity or status and incapacity arising from ill health.”

There is no problem where the testator has the same domicile at the time of making the will and at his death; but a difficulty arises where the testator has changed his domicile between making the will and the time of his death. The commentators are divided on the question whether capacity should be tested by the testator's lex domicilii at the time of the making of the will or at the time of his death. In favour of referring to the time of the testator's death, it may be said that the will, confers no rights prior to his death.¹⁷ Moreover, other conflicts aspects of succession, such as the essential validity of wills of movables, and intestate succession to movables, take the time of death as their reference point.¹⁸

In favour of making the time of the will control the outcome, it has been pointed out that certain types of incapacity, such as unsoundness of mind or minority, may not be validated by subsequent events: “[n]o will can be valid unless it is valid when made. On principle it makes no difference that the subsequent event consists in a change of domicile to a new country where the law has a more favourable rule for capacity”.¹⁹ This point is a strong one, but should perhaps be restricted to cases of personal, rather than proprietary,²⁰ capacity,²¹ which should better be regarded as involving the question of essential validity.²²

Rather than making one of these two times the sole controlling factor in determining matters of capacity, it would, of course, be possible for our law to require that the testator have capacity at both²³ or, far more generously, either,²⁴ of these times.

This latter solution gains some support from a similarly “liberal”²⁵ approach prevailing in relation to the capacity of a legatee to receive a legacy of

movables: it will suffice if the legatee acquires capacity either by the law of his own domicile or by the law of the testator's domicile, whichever first occurs. Thus, if a testator, domiciled in England gives a legacy to his nephew, domiciled in Ireland, and the boy is aged sixteen, the boy may receive the legacy on reaching full age in Ireland by marrying under the age of eighteen,²⁶ even though in England eighteen is the age of majority in all cases.²⁷ The converse case arose in Donohue v Donohue²⁸ in 1887, where funds in Ireland, placed to the separate credit of a minor domiciled in Missouri, were paid out on her reaching the age of eighteen, the age of majority in Missouri though not in Ireland.

(b) Immovables

So far as capacity is concerned there is general agreement²⁹ that the lex situs should govern, though clear judicial authority is hard to come by.³⁰

Formal Requirements³¹

At common law, after some uncertainty,³² it was accepted in 1830³³ that the law of the domicile exclusively governed the formal validity of a will of movables.³⁴ This could lead to hardship where a person resident or domiciled abroad made his will in accordance with the formal requirements of the land of his birth. Such a will, if it failed to comply with his place of domicile was invalid, in spite of the testator's best efforts to ensure that the will would be formally valid.³⁵ As a result of the decision to this effect in Bremer v

Freeman³⁶ in 1857, the Wills Act 1861 was passed.

This Act (Lord Kingsdown's Act) improved the position somewhat. Section 1 of that Act provided that every will made outside the United Kingdom by a British subject (whatever his or her domicile at the time of making the will or at his or her death) should be admissible to probate, as regards personal estate, if made in accordance with the formal³⁷ requirements of the law of the place where it was made or of the law of the place where the person was domiciled when making the will or of the law of his or her domicile or origin if this was in “part of Her Majesty's Dominions.”

The Act was, however, “marred by indefensible distinctions”.³⁸ The limitations to British subjects was “embarrassing and insular”.³⁹ Moreover, the reference to personal, rather than movable, property was out of harmony with the general conflicts classification.⁴⁰ Finally, invoking the testator's domicile of origin in this context could result in a will being formally valid by reason of compliance with the law of a country with which the testator had no social links.⁴¹

So far as immovables were concerned, the position at common law was that the lex situs provided the exclusive test for formal validity.⁴² A decision involving the application of the lex situs is De Fogassieras v Duport,⁴³ in 1881. A French subject, domiciled and resident in France, made a will executed and attested as required by the Irish legislation but not in conformity with the formal requirements of French law. Warren, J held that the will was effective in relation to the testator's real estate and leaseholds in Ireland. The will, he said, was “unquestionably valid as a disposition of the testator's real estate in Ireland, for such testamentary dispositions are governed by the lex loci rei sitae ...”.⁴⁴ He held that the leaseholds should also be characterised as immovable property, and that thus the will was equally valid in regard to them.⁴⁵

The matter was the subject of a Hague Convention in 1961: The Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.⁴⁶

The philosophy of the Convention is very much in favour of upholding the formal validity of testamentary dispositions whenever it is reasonably possible to do so.

Giving effect to this Convention, Part VIII of the Succession Act 1965⁴⁷ provides (in section 102(1)) that a testamentary disposition is valid as regards form if its form complies with the internal law of any of a number of possible countries, that is, the internal law:

As a supplement to ground (a), section 103 provides that a testamentary disposition made on board a vessel or aircraft is also valid as regards form if its form complies with the internal law of the place with which, having regard to its registration (if any) and any other relevant circumstances, the vessel or aircraft may be taken to have had the most real connection.⁴⁸

Ground (b) brings our law into line with civil law jurisdictions,⁴⁹ where the lex patriae, even today, plays an important role. In countries whose national law consists of a non-unified system, ground (b) would present difficulties of interpretation. Section 102(3) accordingly provides that in such a case the law to be applied is to be interpreted by the rules in force in that system and, failing any such rules, by the most real connection which the testator had with

any one of the various laws within that system.

So far as ground (c) is concerned, there is an important change to the general rule⁵⁰ that the lex fori determines the meaning of domicile. Section 102(4) provides that the determination of whether or not the testator had his domicile in a particular place is to be governed by the law of that place.⁵¹ The possibility of a testator's being domiciled in more than one country by virtue of this provision should be noted.

Ground (d), which refers to the testator's habitual residence, contains no definition of that concept.⁵² The liberal policy of Part VIII of the Act towards upholding the formal validity of testamentary dispositions may well affect the judicial interpretation of the concept.⁵³

Ground (e), in referring to the lex situs, where immovables are concerned, preserves the common law rule. The important difference, of course, is that, at common law, the lex situs constituted the sole test for immovables whereas, under section 102(1), ground (e) offers merely one of five options for immovable property. Perhaps it would have been advisable to make this option available for movable, as well as immovable, property.⁵⁴

Some other provisions in the Act regarding formalities should be noted. Section 106(1) provides that, for the purposes of Part VIII, any provision of law which limits the permitted forms of testamentary dispositions by reference to the age, nationality or other personal conditions of the testator is to be deemed to pertain to matters of form.⁵⁵ What appears to be envisaged here is not the question of capacity in the general sense to make a will but rather merely particular formal requirements applying to the making of testamentary dispositions by persons of defined age, nationality or other personal condition.

Section 107(2) of the Act provides that, in determining whether or not a testamentary disposition complies with a particular law, regard is to be had to the requirements of that law at the time of making the disposition, but that this is not to prevent account being taken of an alteration of law affecting testamentary dispositions made at that time if the alteration enables the disposition to be treated as valid. Thus, retrospective legislation making

formal requirements easier than previously would be recognised, but retrospective legislation invalidating a testamentary disposition for non-compliance with formal requirements would not.

Essential Validity

The grant of probate “is conclusive evidence that the instrument proved was testamentary”⁵⁶ according to Irish law, but it is not conclusive as to the validity of the disposition to which the will is designed to give effect. This aspect – the essential validity of the will – is determined by the lex domicilii at death, so far as movables are concerned, and the lex situs, so far as immovables are concerned.⁵⁷ In In Re Adams Deceased; Bank of Ireland Trustee Co v Adams,⁵⁸ Budd, J said:

Accordingly, he applied French law,⁵⁹ as the lex domicilii, to determine this question. Since the testator's codicil contravened an imperative requirement of French law in that it did not take into account the reserve legale to which the testator's daughter was entitled under French law, Budd J held that the will and codicil applied only up to the quota which French law permitted the testator to dispose of, having regard to his daughter's claim.

An example of the reverse case arose in the English decision of Re Groos, Groos v Groos,⁶⁰ where a will made in the Netherlands by a woman domiciled in England was held to operate under English law, which permitted her to leave all her property to her husband, rather than the law of the Netherlands, which would have required three-quarters of her estate to be given to her children.

Statutory Entitlements⁶¹

This may be a useful point at which to examine in some detail the important question of compulsory statutory entitlements in the estates of deceased persons, since it is generally treated as a matter affecting essential validity.

In most countries, legislative provisions confer specific entitlements on intestacy as well as restricting the freedom of a testator to dispose of the whole of his estate as he wishes. Normally the members of his family will have the right to some specific or discretionary share in his estate. There is a wide divergence in the types of legislation in different countries. In Ireland, where a spouse dies intestate⁶² leaving a surviving spouse and no issue, the surviving spouse is entitled to the entire estate.⁶³ Where there are issue the surviving spouse is entitled to two-thirds and the issue to the remaining third of the estate.⁶⁴ Where a spouse dies leaving a will, the surviving spouse has a “legal right” to a half of the estate of the deceased spouse if there are no issue,⁶⁵ and to a third of the estate if there are issue.⁶⁶

The children have no right to any specific proportion of the estate but they may apply to the court, under section 117 of the Succession Act 1965, claiming that their parent has failed in his or her moral duty to make proper provision for them as a prudent and just parent would have done. The court may make an order for such provision out of the estate as it thinks just.

In other countries, the general trend is to permit applications at least to the

extent that the claimants may obtain maintenance out of the estate. Some countries go further and permit either specific proportions or discretionary entitlements extending beyond the entitlement to maintenance.⁶⁷

It is worthwhile to consider the policy goals served by this type of legislation. Where, as is often the case, the legislation limits the entitlements of the surviving members of the deceased's family to a maintenance claim, it can be argued that the purpose is to prevent destitute families from becoming a charge on the community.⁶⁸ Where, however, the legislation provides for a fixed share, as is the case in Ireland in relation to the surviving share, this factor fades in significance. Similarly, a discretionary entitlement not limited to maintenance enables the Court to make a substantial order in favour of an applicant,⁶⁹ which goes well beyond the protection of the State purse.

When we come to examine the legislation in most countries, including Ireland, we find a surprising lack of concern on the part of the legislators for the conflicts dimensions. The result is doubly unfortunate. Firstly, the legislation tends to treat the deceased person's estate as a unit, rather than making any distinction between movable and immovable property. Secondly, in the light of a wide divergence between the laws of different countries and in the absence of any significant international agreement harmonising practice between the legislation of different countries, there can often be a significant risk of surviving members of the deceased's family receiving undue or inadequate shares from two or more countries.

Having mentioned these difficulties, let us now consider how the conflicts principles have developed on this subject.

Firstly, as has already been mentioned,⁷⁰ it is agreed that a claim for a statutory share, where there is a will, relates to the essential validity of the will,⁷¹ rather than being a matter to be dealt with by the lex fori in the administration of the estate.⁷²

Secondly, there is widespread support among common law jurisdictions for the view that the domicile or residence of the claimants is irrelevant to a claim that is otherwise sustainable. Thus, a child of a testator will not be excluded from making a claim under section 117 of the Succession Act 1965 merely

because he was born in Australia and has lived there all of his life. Where, conversely, a testator has abandoned his family and dies domiciled in a foreign country which permits total, or virtually total, testamentary freedom, the fact that the lex domicilii of the abandoned family confers substantial rights on the surviving spouse and children is a matter which should surely be given weight.⁷³ When we are dealing with legislation designed primarily to perform the goal of protecting family members or other dependants of the deceased spouse, reference to their lex domicilii would be far from fanciful.⁷⁴

The approach generally favoured by the courts in this context is that the deceased's lex domicilii at the time of death governs movables⁷⁵ and the lex situs governs immovables.⁷⁶

Some important Irish decisions on this subject have been reported. In In bonis GM Deceased; FM v TAM,⁷⁷ a testator, domiciled in Ireland, left, among other property, a farm in England. An adopted child of the testator took proceedings under section 117 of the Succession Act 1965, claiming that the testator had not provided for him as a prudent and just parent should. A question arose as to whether the farm should be included in the testator's estate for the purpose of Part IX of the Succession Act 1965, and in particular section 109(2), which provides as follows:

By the time the issue had to be determined by Kenny, J. it had been conceded that the estate, for the purposes of Part IX of the Act, did not include the farm. Kenny, J. said:

Turning to the adopted child's claim under section 117, Kenny, J. said:

After a review of the evidence, Kenny, J. came to the conclusion that a prudent and just parent would have given one half of the estate, excluding the immovable property in England, to the adopted son.

The implications of this case are interesting. Kenny, J. took into account the immovable property in determining how much the testator should have given his adopted son. Kenny, J. came to this conclusion without regard to the content of the legislation in England or to the conflict rules of that country. If the Irish court chooses to be blind to those considerations in other cases there is a danger that the claimant may receive undue compensation. If we assume that the immovable property is in Ruritania, whose laws contain a provision exactly the same as section 117 of our Succession Act 1965, how is a court in Ruritania to determine a claim made there? If it adopts a similar approach to that of Kenny, J., and includes the movable property within the total estate against which the testator's duty is to be measured, and compensates the claimant accordingly, the claimant will finish up with unduly extensive compensation. Of course, if the court in Ruritania has regard to the earlier order made by the Irish court and to the basis on which that award was made, the problem of undue compensation may be mitigated or removed.

We must also consider the position where the court of the situs of the immovable property has already made an order in respect of the claimant under its equivalent legislation, before the claimant's application under section

117 is determined here. In bonis G.M. Deceased: F.M. v. T.A.M.⁷⁹ is itself authority for the view that, in determining the question of moral duty in applications under section 117, the court must consider the facts existing at the time of the testator's death rather than of the hearing. This might at first sight seem to foreclose the possibility of the court's taking into account the outcome of the foreign proceedings. In fact it does not do so. Having addressed the question of the testator's duty, the court is perfectly entitled (if not required) to have regard to present realities when making its order under section 117.

Next, it seems that Kenny, J.'s reference in the G.M.⁸⁰ case to the lex domicilii, so far as movables are concerned, suggests that he might not have countenanced a claim brought against a testator not domiciled within the State and having no immovable property here.⁸¹ If the testator had immovable property here but was not domiciled within the jurisdiction, it seems clear that the Irish court could make an order under section 117, so far as the immovable property is concerned, and, on Kenny, J.'s approach, in doing so, it would have regard to the value of the movable property elsewhere. What is not so clear is whether the Irish court could in this case go further and attempt to determine the statutory entitlements, akin to section 117, of claimants under the lex domicilii so far as the movables are concerned. The inhibition which affected Kenny, J. against trespassing on the jurisdiction of the lex situs, so far as immovables are concerned, would not arise in this case. Moreover, the general rule that the essential validity of a will of movables is determined by the lex domicilii would appear to permit our courts to attempt to determine statutory claims arising under that law.

If this approach is favoured, the risk of overcompensation by the laws of two separate countries would obviously be reduced. But it may be considered too much to ask of an Irish court to attempt to exercise discretion in the same manner as required of courts in the country of the domicile by the lex domicilii.⁸²

It may be argued that questions relating to moral duties to family members raise value judgments best resolved in the context of the culture in which they arise. This last observation brings to the surface yet again the inadequacy of a blind adherence to the lex situs in relation to immovables; for why should the contingent location of immovable property in a particular country result in the application of the mores of that country on an issue which is not its primary concern? If a German domiciled and resident in the Federal

Republic of Germany buys a site in County Cork for a holiday home, Irish law should have little interest in imposing on him the mores of our Succession Act 1965, so far as the compulsory entitlements of his wife and children are concerned. The doctrine of total renvoi could mitigate the dangers of a “culture clash” here.⁸³ Under this doctrine the Irish court would apply whatever law the German courts would apply if they were dealing with the case.

It would be unfortunate if the traditional deference afforded to the lex situs were allowed to get in the way of basic justice to surviving family members. In the F.A.M. case, no difficulty arose, since the assets within the reach of the Irish court were capable of satisfying the claim of the testator's adopted child. But it is possible to think of cases where all the testator's roots and life experiences were in Ireland but the large part of his property at the time of his death consisted of an immovable, perhaps recently purchased in a foreign country whose domestic law had no equivalent of section 117, and whose conflicts rules did not refer the question back to Irish law. In cases such as this, the risk of injustice would be high.

When we come to consider the “legal right” of the surviving spouse, more difficulties arise. If Ireland is the country of the testator's domicile, and the portion of the estate consisting of immovable property is situated abroad, it would appear from the F.A.M. case that the “legal right” would be measured against the whole of the estate, but that only that amount of the estate comprising movables would be available to satisfy this claim. The surviving spouse, regardless of whether the “legal right” claim had been fully satisfied against the movable property, would appear free to proceed independently under the lex situs of the immovable property for such further claim as that law might support.⁸⁴ It is hoped that the foreign court would have regard to the claim already made before the Irish court, but with the present lack of international harmony on this general question, there is no guarantee that this will be so.

Finally, it is worth noting a further complexity. In some countries, the law relating to matrimonial property may give substantial entitlements to a

surviving spouse which have accrued during the lifetime of the deceased spouse. It is possible to envisage cases where a surviving spouse may have a combination of rights under the rules governing succession and matrimonial property. If, for example, the surviving spouse has, by virtue of a family property regime, a joint share in the family home, over and above his or her entitlements under the law of succession, this can amount to a larger claim than in a case where the surviving spouse's entitlement to the family home rests exclusively on the law of succession.⁸⁵

The easiest response might seem to be that the testator “must be considered as disposing only of that which was properly his, and ... the disposition did not include what would be the wife's under the ... law of community of goods”,⁸⁶ but, where the surviving spouse, having thus (let us say) obtained half the deceased spouses's movable property, proceeds against both immovable and the remaining movable property in separate countries, under the “forced share” provisions of each, the possibility of overgenerous entitlements is a real one.

In In re Rea Deceased; Rea v. Rea,⁸⁷ in 1902, the facts were as follows. A domiciled Irishman died in Ireland, intestate without issue, leaving a widow surviving him. He had immovables and movables in Ireland, as well as lands in Victoria, Australia which by the law of Victoria were regarded and distributed as personal estate. Administration was taken out in Ireland by the widow, and in Victoria by an appointed person who sold the lands and sent the proceeds to the widow.

By Victoria's legislation a widow was entitled, in the circumstances of the case, to a charge of £1,000 on the estate, the residue to be divided between the widow and next of kin. The widow claimed £1,000 out of the proceeds of sale of the lands in Victoria, as well as £500 out of the real and personal estate in Ireland, under the Intestates' Estates Act 1890. She also claimed dower out of the Irish freeholds and a moiety of the residue of the proceeds of sale of the lands in Victoria and of the Irish personal estate.

The widow's claim was successful. The Master of the Rolls held that the land in Victoria “must in the present case descend in the mode prescribed by the law of that colony, and ... when in fact sold the net proceeds in our Court must be treated as pure personalty”.⁸⁸

The Master of the Rolls stated:

The widow thus was entitled to two statutory legacies, a result that might perhaps be defended on the principle of generosity to widows,⁹⁰ but which could not be so easily supported where the shares were higher and the interests of other competing claimants stronger. Morris has roundly criticised the case for its lack of understanding of how conflicts of law operates and, more fundamentally, for its blind application of traditional conflicts rules, so as to reach a result “which seems absurd, because it could not have been contemplated by either of the legislatures concerned.”⁹¹ In defence of Porter, M.R., it could be argued that he was rightly conscious of the fact that conflicts rules in relation to succession can operate effectively only where there is a close degree of international co-operation.

In Higgins v. Byrne,⁹² a married man, with no children, who was apparently domiciled in Ireland,⁹³ died intestate, possessed of immovable property in Kansas, having failed to exercise a power to dispose of the reversion of settled property in Ireland, subject to a life estate for his widow. The value of the reversion, after deducting the value of the life estate, was less than £500. Section 1 of the Intestates' Estates Act 1890, provided that, where the value of an estate did not exceed £500, it was to belong to the widow absolutely.

Meredith, M.R. considered himself bound by Rea v. Rea. He noted that “according to law”,⁹⁴ the land in Kansas passed to the widow, and that neither the land nor the proceeds of the land were assets for distribution. He went on to hold that the widow was entitled to the Irish estate. He said:

Clearly, Meredith, M.R. was not disturbed at the prospect of the widow receiving the statutory benefit in addition, not only to her life interest, but also to her entitlement to the land in Kansas.

Other Limitations on the Disposition of Property

We now enter a somewhat less certain area of the law. If we look at the laws of different countries, we find a wide range of limitations on how property

may be disposed of. Thus, we note that in Ireland our rule against perpetuities⁹⁷ is more stringent than in many other countries;⁹⁸ our rules as to charities⁹⁹ more liberal than some¹⁰⁰ but more restrictive than others.¹⁰¹

From one standpoint it could be argued that these various limitations are controls on the testator, but in at least some respects it is surely more realistic to view them as limitations on the intended recipients.¹⁰²

There may well be cases where Irish law as the lex domicilii of the testator regards a particular bequest as inconsistent with the rule against perpetuities or our law as to charitable trusts, but where the law of the intended recipient's domicile or the country where the trust is to be administered sees nothing wrong with the bequest. Whose law should prevail? There is now general agreement that in such a case, unless the public policy of our law would regard the limitation as so fundamental as to override the foreign entitlement, the foreign entitlement should prevail. There is, moreover, much support for the view that the rule against perpetuities does not have public policy implications.¹⁰³ Equally, charitable trusts are not generally seen as giving rise to public policy difficulties.¹⁰⁴

CONSTRUCTION

The purpose of construction is “to ascertain the expressed intentions of the testator, i.e. the meaning which the words of the will, when properly interpreted, convey”,¹⁰⁵ Sometimes, of course, the words are so abundantly plain in their meaning that no doubts as to construction arise; but often testators use ambiguous expressions which call for interpretation. In these latter cases, a question arises as to which system of law should be applied in interpreting the expressions.

(a) Movables

In Re Adams deceased; Bank of Ireland Trustee Co. Ltd. v. Adams,¹⁰⁶ Budd J., construing a codicil containing a bequest of moneys and securities, said:

This passage offers an excellent summary of the relevant legal principles regarding construction in relation to movables. The lex domicilii's claim is based on the fact that in many cases it represents the law with which the testator was most familiar;¹⁰⁸ but clearly there are instances where the testator has some other legal system in mind.

It should be noted that the time at which the lex domicilii (or other law, for that matter) applies will normally be when the testamentary disposition was

made rather than when the testator died.¹⁰⁹ Obviously, a testator when making a will or codicil can have no certain knowledge of where he is going to die. Common sense requires us to look to his position at the time of the making of the testamentary disposition, if construction is truly concerned with giving effect to the testator's intention.¹¹⁰ Statutory support for this approach is afforded by section 107(1) of the Succession Act 1965, which provides that the construction of a testamentary disposition is not to be altered by reason of any change in the testator's domicile after the making of the disposition.

In Re Adams Deceased; Bank of Ireland Trustee Co. Ltd v. Adams,¹¹¹ the testator's domicile at the time he made a codicil was French. Nonetheless, Budd, J. held that the codicil should be construed in accordance with Irish law. Budd, J. pointed to the fact that the codicil was in the English language and “in the form appropriate to an Irish will or codicil, in that executors [were] appointed and it [was] attested in the Irish form.”¹¹² Moreover, the executors were Irish companies, and the codicil was not in holograph form as required by French law. There were thus sufficient indications contained in the will itself for the Judge to come to the conclusion that the terms of the will should be construed in accordance with Irish law.

In In re Sillar; Hurley v. Wimbush,¹¹³ in 1955, a decision that has been discussed in detail in relation to domicile, Budd, J. was called on to determine whether the will of an English national domiciled and long resident in Ireland should be construed according to Irish or English Law. The testator made the will at the age of 92, and two codicils between then and his death a few years later. Budd, J., having stated the general rule somewhat differently than he

had in Adams,¹¹⁴ observed that:

Budd, J. held that the will should be construed in accordance with Irish law:

The testator had described himself in his will as “a British subject and domiciled in England” who was “at present residing at ... Dublin.” Accepting that this description was ineffective in establishing that the testator was in fact domiciled in England rather than Ireland, did it nonetheless have the effect of indicating a sufficient intent to have the will construed in accordance with English law? Budd, J. considered not. He accepted that the testators's description of himself was a feature that “should not be lightly disregarded.”¹¹⁷ But he regarded this statement as not involving “anything similar”¹¹⁸ to one in the English decision of In re Price, Tomlin v. Latter,¹¹⁹ where Stirling, J. had held that an expression in the will of a domiciled French subject that it should “be construed in England the same as in France” referred to English law the question whether the document operated as the execution of a power. Moreover (as Budd, J. pointed out), in In re Annesley, Davidson v. Annesley,¹²⁰ Russell J. had construed the will in accordance with French law although the

testatrix had “said in so many words that her domicil was English.”¹²¹ Budd, J. referred to two earlier English decisions, where wills had been construed according to the law of the domicile. In one¹²² the testator, an Englishman domiciled in France had described himself as a British subject, the will being in English form and containing benefactions mainly to English people; moreover, the property comprising the residue was in England. In the other decision,¹²³ the testatrix, who died domiciled in England, was a Scottish woman who had made a will in Scottish form in Scotland. It contained many expressions peculiar to Scots law. Budd, J. commented:

Budd, J. in coming to his conclusion that “the rule” had not been excluded, accepted that a large part of the testator's estate consisted of English assets, and that there were many English legatees. The will was in a form suitable in both Ireland and England. The central question was whether the testator's statement that he was domiciled in England indicated an intention that he wished the will to be construed according to the law of England, and Budd, J. confessed¹²⁵ to being unable in the circumstances to persuade himself that it did; he added¹²⁶ that the remaining facts relied on to establish this intention did not convince him in this either.

(b) Immovables

There is some degree of uncertainty as to the best approach to the question of construction of testamentary dispositions of immovable property. There is much to be said for generally applying the lex domicilii,¹²⁷ and indeed many courts have supported this approach, though, of course, if the testator's disposition evinces his intention that some other law, such as the lex situs,¹²⁸ should determine questions of construction, that law will be applied. But one difficulty results from the fact that, so far as such questions as capacity and material validity are concerned, the lex situs must prevail.¹²⁹ The courts “will endeavour to see that the dispositions will operate under the lex situs”¹³⁰ but if, in spite of these exertions, the dispositions cannot be upheld under the lex

situs, it will not be effective.

In In re Bonnet Deceased; Roche Johnston v. Langheld,¹³¹ O'Hanlon, J. addressed the general question of what law should be applied to the construction of provisions of a will relating to immovables. The testatrix, a German national who was at her death and “at all other material times”¹³² domiciled in Germany, made a will in the German language in which she purported to dispose of a farm in Ireland in favour of “der Evangelischen Kirche in Ireland”. Problems of interpretation arose as to which Church she meant to benefit, and as to what exact interest in the farm she intended to dispose of.

If the lex domicilii were to govern interpretation, German law would be applied; on the other hand, if the lex situs were to govern, Irish law would¹³³ be applied. After a brief review of some of the differing views on the question which had been expressed judicially and in the textbooks, O'Hanlon, J. came to the conclusion that he was not obliged to choose between German and Irish law on this issue since he was:

As to the first question of interpretation, all parties agreed that the testatrix had intended to benefit the Lutheran Church, of which she was a member and that the expression used by her “should not be construed as referring to Protestant Churches in general”.¹³⁵ The second question of interpretation was more complicated. The testatrix had not in fact been the owner, in her personal capacity, of a farm in Ireland, but she or her nominees held the entire shareholding in a limited company which owned three parcels of land in Co. Laois, comprising 175 acres, together with buildings, livestock and farm machinery. The company also had a small holding of bank stock and a small amount of cash in the bank.

O'Hanlon, J. considered that “[t]here was clearly an intention on the part of the testatrix to give her lands in Ireland to the beneficiary named in the

will,”¹³⁶ but the will had “all the appearance of having been prepared in haste”,¹³⁷ although the testatrix survived for some months after making it, during which period she added a codicil. In the Judge's view, the notary who drafted the will must not have discussed with the testatrix the nature of her beneficial interest in the lands in Ireland and thus remained unaware of the fact that the legal owner was a company.

He concluded:

On this construction, the gift of the farm in Ireland was regarded as capturing the entire shareholding of the testatrix in the company, with all its assets and liabilities.

The decision in an interesting one. We must consider the statement that under Irish law, “whether or not the case contains a foreign element, a will is to be construed in accordance with the intention of the testator to be gathered from the will”.¹³⁹ Of course, finding the testator's intention is the purpose of the exercise, but that represents the goal rather than the means; and we have seen that, where the means are involved, the question may arise as to which legal system's rules of construction are to be applied in determining that intention. Moreover, from the fact that, according to the German experts, German law also seeks to discern a testator's intention, it would not be proper to conclude that Irish and German law adopt the same principles of construction. Sharing the goal does not necessarily involve sharing the means.

REVOCATION

Just as conflicts questions may arise relating to the making of a will, so also conflicts questions may reflect revocation. Rules relating to revocation vary from country to country. Under Irish domestic law, as we have seen, a will may be revoked by the testator's making a new will or codicil,¹⁴⁰ by his¹⁴¹ destroying it animo revocandi,¹⁴² or by his subsequent marriage.¹⁴³

Let us take each of these aspects in turn.

Revocation by later will or codicil

A will may be revoked, expressly or impliedly,¹⁴⁴ by a later will or codicil.¹⁴⁵ Whether the revocation is effective depends on whether the later will or codicil is essentially valid, whether the testator had the requisite capacity and whether the formal requirements were satisfied. In this latter regard we must consider a special provision in the Succession Act 1965. Section 102, having set out in subsection (1) the five grounds for formal validity of testamentary dispositions, provides in subsection (2) as follows:

The effect of this provision is as follows. A new will, revoking a former will, is formally valid in either of two cases. First it will be formally valid if it complies with any of the five grounds for formal validity under subsection (1). Thus, for example, if an Irish woman, domiciled in France, makes her first will complying with the law there, that will is formally valid under ground (c) of the subsection. If that woman later becomes domiciled in Switzerland where she then makes a second will, revoking the first, and that will complies with the formal requirements of Swiss law, though not French law, then that will is also formally valid.

The second case covered by subsection (2) is where a person makes a new will revoking a former will and the new will is not formally valid under subsection (1). All is not necessarily lost: if the new will complies with the requirements of any one of the laws qualified to govern the formal validity of the former will, then the new will is formally valid.¹⁴⁶

Thus, to vary the example we have already given, if the woman who becomes domiciled in Switzerland makes a will which does not comply with the formal requirements of Swiss law but which does comply with the formal requirements of French law, the will is formally valid.

Revocation by Destruction of a Will

(a) Movables

A problem may arise when a testator possesses one domicile at the time of the act of destruction of a will and another domicile at the time of death. It is possible that the act of destruction may constitute an effective revocation by the law of the testator's domicile at the time of the act but may be ineffective by the law of his domicile at the time of his death.¹⁴⁷

The better view is surely that the putative revocation by so final an act should be given effect by the law, and that, in cases where the intended revocation was effective under the testator's lex domicilii at the time of the revocation, it should not be rendered ineffective merely because the testator, who believed that the will no longer was effective, changed his domicile to a country under whose laws the revocation would be effective. From the standpoint of the overwhelming majority of testators, the more sensible solution would be to give effect to their intention and uphold the revocation of the will.¹⁴⁸

The converse is more troublesome. Let us imagine a testator who destroyed his will in the mistaken belief that this revoked the will according to his lex domicilii at the time of the destruction. If that testator later dies domiciled in a country by whose law the destruction is efficacious as a revocation, should the will be regarded as having been revoked? Cheshire & North¹⁴⁹ think not: “A chance change of domicil could scarcely infuse life into an act that was legally abortive at birth.” Now admittedly it is a matter of chance that a particular rule of the testator's lex domicilii at death agrees with his misconceived view as to the rule of his lex domicilii at the time of the destruction of the will. But as against this, our conflicts rules should surely give effect as far as possible, to the reasonable expectations of testators. It

is not unreasonable for a testator to believe that setting fire to his will revokes it. If his lex domicilii at that time of his death provides otherwise, that is his misfortune but, if his lex domicilii at the time of his death coincides with his reasonable expectations, it seems unwise for the law to stand idly by and witness the frustration of the testator's understandable wishes on such an important matter.

(b) Immovables

There has been little discussion about the question of revocation by destruction of a will, so far as immovables are concerned. It has been suggested that “no doubt” the lex situs governs.¹⁵⁰

Revocation by Marriage

Under Irish law a will is revoked by the subsequent marriage of the testator, except where the will is made in contemplation of marriage.¹⁵¹ This is not the position in some other jurisdictions. The divergence of approach can give rise to difficulties, as, for example, where, in the case of a will disposing of immovable property, the testator's lex domicilii at the time of the marriage differs from the lex situs of the property at the time of his death.¹⁵²

A question of characterisation arises: are we dealing with a rule of testamentary, or of matrimonial, law? The commentators generally¹⁵³ favour the latter view, which has the support of some judicial authority.¹⁵⁴ Thus, the lex domicilii at the time of marriage would be determinative. But there is much to be said for the opposite view that the rule relates more to testamentary law.¹⁵⁵

POWERS OF APPOINTMENT EXERCISED BY WILL¹⁵⁶

Under Irish law, one person (the donor) may by will or inter vivos settlement give another (the appointor) the power of appointment – that is, power to select which persons are to be entitled to the donor's property. We are here concerned with cases where the appointor exercises the power of appointment by will. The power may be special, where the appointor must make his selection from a specified class of persons (objects of the power) or general, where he may select without any such limitation. This means, of course, that the appointor of a general power may, if he wishes, select himself as beneficiary.

Conflicts of law problems relating to a power of appointment in regard to movables may arise where the donor, the appointor and the donees of the power are not all domiciled in the same country. Which law should control? One approach would refer to the lex domicilii of the appointor on the basis that the validity of all wills of movables should be governed by a consistent rule.¹⁵⁷ But certainly in the case of a special power (where he is not an object of the power) and theoretically even in the case of a general power, the appointor is not bequeathing his own property but rather is acting as agent for the donor in disposing of the donor's property.¹⁵⁸ This would suggest that we should look instead to the law governing the instrument creating the power of appointment.

Let us consider the subject of powers of appointment under the same headings as we dealt with wills, namely: (1) capacity; (2) formal requirements; (3) essential validity; (4) construction; and (5) revocation.

Capacity

There is English authority¹⁵⁹ in favour of recognising the exercise of a power of appointment over movables by will where the appointor has capacity under his lex domicilii but not by the law governing the instrument creating the power. There is no judicial authority dealing with the position where matters are reversed. It has been suggested¹⁶⁰ that the exercise of a special, but not

a general, power should be valid in such a case. This distinction gives effective recognition to the practical distinction between special and general powers.¹⁶¹ As against this, it may be debated whether a power of appointment is in fact exercised “by will” when the will is not valid by the law governing testamentary capacity.¹⁶² Where the power of appointment is over immovables, it could appear that the lex situs should govern.¹⁶³

Formal Requirements

Where a person, under an Irish settlement or will, is given a power of appointment exercisable by will, and he later dies abroad, having made a will in the foreign country, the question will arise as to whether the power of appointment is formally valid. Whose laws should determine this question? The position has been made far easier by the Succession Act 1965. We have already noted that section 102(1), which upholds the formal validity of a will if it complies with any one of five specific laws, also applies to powers of appointment by will.¹⁶⁴ Thus a power of appointment by will is formally valid if it complies with the formal requirements of the locus actus or the nationality, domicile or habitual residence of the testator, or, in the case of immovables, of the lex situs.

Furthermore, section 104(1) of the Succession Act 1965 provides as follows:

The subsection is in harmony with a number of earlier authorities, including Murphy v. Deichler,¹⁶⁵ where the House of Lords affirmed the Irish Court of Appeal. Section 104(2) of the Succession Act 1965 provides that:

Formerly, compliance with these formalities was necessary where the testamentary disposition derived its formal validity from foreign law.¹⁶⁶

Essential Validity

When we consider the question of the essential validity of a will exercising a power of appointment over movables, we have to bear in mind the distinction between special and general powers. Where the power is special, the lex domicilii of the donor rather than of the appointor controls, since the appointor is acting merely as the agent of the donor.¹⁶⁷ Where the power is general, and the appointor deals with the appointed property and his own property “as one mass”,¹⁶⁸ this is regarded as so clearly a matter under the appointor's control and concerned with his interests, rather than those of the donor, that the lex domicilii of the appointor should control.¹⁶⁹ But where the power is general and the appointor in making an appointment keeps the property subject to the power separate from his own property, the appointor is again regarded as acting as the agent of the donor, whose lex domicilii accordingly controls.¹⁷⁰

So far as immovables are concerned, judicial authority is sparse but the clear rule appears to be that the lex situs governs.¹⁷¹

Construction

The construction of wills exercising a power of appointment proceeds on the same basis as the construction of wills generally.¹⁷² The courts seek to interpret the will in accordance with the law intended by the testator; in the absence of contrary indications, this is presumed to be the lex domicilii at the time the will was made.¹⁷³

In Murray v. Champernowne,¹⁷⁴ a testator domiciled in Scotland made a will in execution of a general power of appointment, in which he disposed of land in Ireland subject to a trust of sale as yet unsold. The will was invalid under Scots law but valid under Irish and English law.¹⁷⁵ The original deed creating the power of appointment was either Irish or English.

Andrews, J. upheld the disposition, on the basis that the property should be categorised as immovable, and thus, the will was governed by Irish law.¹⁷⁶ But the Judge was willing to hold that, even if the property should be categorised as movable, the will was still valid. The question was one of construction, and

Warren, J. construed the intention of the original deed as being to give the testator “power to appoint by a will made in accordance with Irish or English law, and to be construed in accordance with such law.”¹⁷⁷ The words specifying the power, in conjunction with an earlier provision, suggested to the Judge that this construction was correct.¹⁷⁸ The testator “must be taken to have intended”¹⁷⁹ that it should be construed in accordance with the rules of Irish and English law.

Revocation

A power of appointment over movables exercisable by will may be revoked in any of three circumstances:¹⁸⁰

CHAPTER 4: ANALYSIS OF THE HAGUE CONVENTION ON SUCCESSION

In this Chapter, we analyse the Hague Convention on an article-by-article basis. We defer to Chapter 5 consideration of whether Ireland should ratify the Convention and, if so, what reservation, if any, it should make. Our analysis of the Convention was greatly assisted by the Explanatory Report prepared by Professor DWM Waters, which clarifies for the common law reader many of the relatively unfamiliar civil law doctrines, as well as offering several insights into the meaning and practical implications of the Convention's provisions.

CHAPTER I: SCOPE OF THE CONVENTION

Article 1, paragraph 1, provides that the Convention determines the law applicable to the estates of deceased persons. Paragraph 2 sets out the limits of the Convention's scope. It does not apply to:

Several points about Article 1 may be noted. Firstly, as regards the four matters excluded from the scope of the Convention, it is, of course, possible for a Contracting State to apply the rules of the Convention as part of its own

conflict rules,¹ on any matter it thinks fit that it is not within the scope of the Convention without any necessary expectation of reciprocity from other Contracting States. Secondly, as well as specifically excluding four matters from its scope, the Convention is silent on certain other matters, notably the question of construing testamentary documents.² The differences of approach to this subject among the several civil law and common law jurisdictions were so substantial that Commission II decided it was better to leave it to be dealt with by each jurisdiction's existing solution.

Thirdly, it should be noted that Article 1 of the Convention does not define “succession”: its meaning and scope are determined by Article 7(2). It is clear that the term embraces both testate and intestate succession (and thus cases of partial testacy) as well as succession claims based on agreements as to succession. Also included are cases where succession occurs to the estate of a person who is judicially declared to be dead, as, for example, in cases of those missing presumed dead.³

As regards the four exclusions, the first, relating to formal validity, springs from the existence of the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions of 1961, the provisions of which, as we have noted, have been incorporated into Part VIII of the Succession Act 1965. The forum decides, by way of characterisation,⁴ whether the issue is one of formal or material validity.

The second exception, relating to capacity to dispose of property upon death, embraces questions of general capacity and incapacity, such as where a person has been declared a ward of court on account of his or her mental incapacity, and the age of majority,⁵ but not to defects in consent (vices de consentement) such as may arise in respect of fraud, duress or undue influence, which “are not matters of capacity in the strict sense”.⁶ This distinction may be difficult to draw in certain cases, and lends itself to philosophical and linguistic debate. It is for the forum to determine the question in this context. If it characterises the issue to be one of capacity, it falls outside the Convention by virtue of Article 1(2)(b); if it characterises it as involving a question of consent it falls within the scope of Article 7. Professor Waters notes that:

The third exclusion, relating to issues pertaining to matrimonial property, is clearcut but caused the delegates very considerable difficulty since such a clearcut exclusion may not work out justly, especially in cases where spouses move between States with differing matrimonial property regimes. It is necessary to record what Professor Waters has to say on the delegates' deliberations:

The effect of the fourth exception, in relation to property rights, interests or assets created or transferred otherwise than by succession, makes it clear that the wide range of “will-substitutes” in common law jurisdictions, which involve inter vivos dispositions of assets, are excluded from the scope of the Convention, even though death “triggers” an accrual or augmentation of a particular property interest. Thus the Convention does not extend to such matters as joint tenancies, inter vivos trusts, joint bank accounts where the survivor takes the balance, life assurance with a designation of a beneficiary to take the benefits of the policy on the death of the insured (and payor of the premiums), and pension provision accounts where the designated beneficiary takes the benefit of the account proceeds, by way of a joint lives and survivor annuity, in the event of the prior death of the pensioner.⁹ One may here note O'Hanlon J's reluctance in Lynch v. Burke,¹⁰ to adhere to the ratio of the former Supreme Court in Owens v. Greene.¹¹

Article 2 provides that the Convention applies even if the applicable law is that of a non-Contracting State. It is the Convention itself, not the law governing the succession, which determines that the law of a non-Contracting State, if designated by Article 3, may be the applicable law.¹² Since the Convention brings the laws of non-Contracting States within its scope, the maker of a will, declaration or pacte successoral may designate the law of a non-Contracting State as the applicable law under Article 5(1).¹³

CHAPTER II: APPLICABLE LAW

This chapter sets out the means by which the applicable law is to be determined, and the consequences of that determination.¹⁴ It also specifies the matters required to be governed by the applicable law. The chapter prescribes two tests for determining the applicable law, one involving objective criteria,¹⁵ the other subjective in the sense that they are a matter for the testator's choice.¹⁶

Article 3 provides as follows:

Article 3 is “a very delicate fabric resulting from a compromise”.¹⁷ It employs three connecting factors: the law of the nationality, the law of the habitual residence and the law of “more close connection”. The Convention leaves to the forum the task of defining nationality, as well as dealing with such matters as dual nationality¹⁸ and statelessness.¹⁹ This is in harmony with the traditional approach of Hague Conventions.²⁰ The use of habitual residence in preference to domicile as a connecting factor has become a feature of Hague Conventions. It is useful to capture what Professor Waters has to say on the matter in view of the long tradition in Irish private international law of applying the lex domicilii to questions of succession:

The latter sentence is worth noting in particular in relation to a spouse who might be disposed to acquire an ostensible habitual residence in order to defeat the statutory entitlements of his or her family in respect of his or her estate.

Professor Waters explains that “more close connection” of a law is discovered by examining the same elements as for habitual residence with a view to discovering whether the centre of the personal and family life of the de cujus was in one place more than another:

As regards the scope of paragraph 1 of Article 3, two matters are worth noting. Firstly, that the paragraph requires merely that the habitual residence and nationality of the de cujus coincide at the time of his death: thus, an Irishman who lived all his life in the United States but came to Ireland and established an habitual residence here as an old man, which he retained until his death would have fulfilled the requirements of the paragraph. Secondly, the paragraph offers a solution to many cases of dual nationality, since a substantial proportion of dual nationals will be likely to die in the State of their habitual residence which will coincide with one of those nationalities.

Paragraphs 2 and 3 deal with cases where the States of nationality and

habitual residence of the de cujus do not coincide at the date of his or her death. It should be noted that the first sentence of paragraph 2 requires, not that the de cujus has been habitually resident in the particular State for five years preceding his or her death but that he or she has been (i) resident there for this minimum period and (ii) habitually resident there at the time of his or her death. The forum has the function of determining this question.

The second sentence of the second paragraph contains the important proviso that, in exceptional circumstances, if at the time of his or her death the de cujus was “manifestly more connected” with the State of which he or she was then a national, the law of that state applies. In its discussions Commission II “conceived of this exception as an 'escape clause' to be used in genuinely unusual circumstances”.²³ It is worth recording the following examples proffered by Professor Waters:

Paragraph 3 of Article 3 deals with cases other than where the de cujus died (i) in the State of his or her nationality and habitual residence or; (ii) habitually resident at the time of his or her death in a State in which he or she had resided for the previous five years. In cases falling under paragraph

3, the applicable law will be that of the State of which the de cujus at the time of his or her death was a national, unless at that time he or she was more closely connected with another State, in which case the law of the latter State applies.

Professor Waters deals with a case, not capable of easy resolution in accordance with the express language of the paragraph, where there is more than one State with which the de cujus was more closely connected than that of his or her nationality:

What of a case where the de cujus has dual nationality? In such circumstances the laws of two countries could claim to be the applicable law as being “the law of the State of which at the time of his death the deceased was a national”. The simple solution would be to look to the proviso in the paragraph and to apply the law of whichever of the two States of nationality was that with which the deceased was more closely connected (unless of course the deceased was even more closely connected with another State of which he or she was not a national).

Article 4 provides that, if the law applicable according to Article 3, is that of a non-Contracting State, and if the choice of law rules of that State designate, with respect to the whole or part of succession, the law of another non-Contracting State which would apply its own law, the law of the latter State applies. This is a particular, somewhat limited, application of the renvoi doctrine.²⁶ The parameters should be noted. The Article applies only where the law applicable according to Article 3 is that of a non-Contracting State. Where the applicable law is that of a Contracting State, renvoi has no application.²⁷ Secondly Article 4 does not apply to cases where the conflicts rules of the non-Contracting State designate a Contracting State. Thirdly, the Article has no application where a designated non-Contracting State either

remits the question to the first non-Contracting State or transmits it onwards to a third non-Contracting State, even if that third State would apply its own law.

It may be seen, however, that Article 4 does apply even where the applicable law under the Convention is that of a non-Contracting State which would refer the matter on to another non-Contracting State so far only as part of the estate or its assets is concerned:

Professor Waters notes that it would seem that the approach taken by Article 4 prevailed because most delegations recognised it as an attempt not to destroy unity where it already exists:

Finally it is worth noting in relation to Article 4 that support for the idea of extending its principle from objective connecting factor circumstances involving the non-Contracting State to embrace the subjective connecting factors encapsulated in Article 5 was not forthcoming from the delegations. There was a quite understandable fear that to take this step might actually defeat the testator's expectations since no testator could exercise a choice of the law of a non-Contracting State under Article 5 save after receiving sophisticated legal advice as to the private international law rules of the chosen non-Contracting State.

Article 5 provides as follows:

Article 5, as may be seen, allows a person some freedom of choice as to the law that is to govern his succession. The person is not entitled to designate any law he wishes: his choice is restricted to the law of his nationality or habitual residence:

Paragraph 1 of Article 5 enables a person to designate one of four laws: the law of his nationality at the time of his death or at the time of designation or the law of his habitual residence at either of these times. It is of no importance that the habitual residence at either of these times should have lasted any particular period beyond that which in the circumstances was sufficient to make the residence habitual.

The Special Commission had permitted only two choices: the law of the person's nationality or habitual residence at the time of his death. Commission II “was persuaded by the argument that the testator should be able to know when he makes his will what law will govern it, and that he can only be assured of this if he may also choose the law of his nationality or of his habitual residence as that nationality or habitual residence is at the time of the execution of his will”.³¹ One reason for this shift of view was that it would more conveniently accommodate pactes successoraux, in respect of which the designation adopted in the Convention was the law as at the date of the agreement; another reason was that changes in habitual residence (and, to a considerably lesser extent, nationality) might occur without the de cujus appreciating this fact.³² But

Article 5(1) offers an opportunity to a person with more than one nationality to eliminate any question as to which is to be taken into account: the applicable law will be that of the nationality so designated by him.

Article 5(1) lays down no specific requirements as to how designation should be expressed:

It appears sufficient if the de cujus designates the law of a State by reference to the name of the State, without any averment that this is the law of his habitual residence or nationality:

The choice exercised under paragraph 1 is of a State rather than of the particular law of that State at the time of designation. Thus, if the de cujus designates the law of a particular State, and, under the law at the time of the designation, the will is invalid but, under that law at the time of his death, it no longer is invalid, the will may be upheld.³⁶

Paragraph 2 of Article 5 deals with issues concerning the form of the designation and the existence of the real consent of the de cujus to the making of a designation.³⁷ The designation must be “expressed in a statement” made in accordance with the formal requirements for disposition of property upon death. Thus implied designations are excluded. It appears that an oral statement will suffice, provided the law governing the formal validity permits this.³⁸ As we have already noted, the meaning of “formal validity” is for the forum to determine.

Apart from formal requirements, paragraph 2 is also concerned with “[t]he existence and material validity of the act of designation”. This relates to issues such as mistake, fraud, duress and undue influence: in essence the question is whether the designation was a voluntary act on the part of the de cujus.³⁹ This question is to be answered by the law designated.

Paragraph 3, as we have seen, provides that the revocation by its maker of a disposition made under paragraph 1 must comply with the rules as to form applicable to the revocation of dispositions of property upon death. Paragraph 3 is capable of embracing differing types of revocation, whether by act of the maker (such as by execution of a later, wholly incompatible, testamentary instrument or by burning or tearing up the will) or by operation of law (such as subsequent marriage). The conflicts rules of the forum as to the requirements for form will lead to a determination as to whether a revocation may take the character of an act by the maker or by operation of

law.⁴⁰ Professor Waters notes that:

Paragraph 4, as we have seen, provides that a designation of the applicable law under paragraph 1, in the absence of an express contrary provision by the deceased, is to be construed as governing succession to the whole of the estate of the deceased, whether he died intestate or wholly or partially testate:

The qualification, “in the absence of an express contrary provision by the deceased”, is a reference to Article 6, which permits the deceased to incorporate into his succession the laws of one or more other States or jurisdictions to govern the succession to particular (or specified) assets in his

estate, subject to mandatory provisions of the law applicable under Article 5(1):⁴⁴

Article 6 may be quoted in full:

Article 6 “was the outcome of a protracted effort of a significant number of delegations to secure recognition of the lex situs as a third possible applicable law, in addition to the laws of the nationality and of the habitual residence”.⁴⁶ These delegations argued that testators with assets in more than one jurisdiction want to invoke the local law for local assets, because lawyers know best their local law, and the whole process of administration is consequently quicker, more reliable and less expensive. Multiple wills are popular in common law jurisdictions for this reason”.⁴⁷ Opponents of this approach argued that it would result in scission, contrary to a central object of the Convention⁴⁸; they argued, moreover, that “it meant that the protection of the family, another object of the Convention, would in fact suffer, because the unscrupulous could site their assets in States with no family protection laws”.⁴⁹

The notion at the base of Article 6 is “substantive law reference”, or incorporation.⁵⁰ Professor Waters describes the breadth of what is here

envisaged:

The following brief summary of the implications of Article 6, published in Britain by the Lord Chancellor's Department and Scottish Courts Administration, is instructive:

Article 7 of the Convention provides as follows:

It may be seen, this Article serves three separate goals: first, to confirm that, subject to Article 6, a single dominant law governs all assets of the de cujus, wherever situate: second, to spell out the substantive legal topics that a Contracting State must regard as falling within the scope of the Convention, and, third, to make it clear that, for the purpose of its own conflicts rules, a Contracting State may bring any topic not mentioned in Article 4(2) within the scope of “succession”.

Article 5(1) is the only provision in the Convention which refers to the unity principle. Its effect, of course, in conjunction with the other provisions of the Convention, is that a Contracting State will not be permitted invariably to apply its own law to immovables within its jurisdiction. In cases where it has to apply a foreign law to these immovables, how is that foreign law to be proved? Professor Waters addresses this very relevant practical question as follows:

The need for a provision on the lines of Article 7(2) springs from the wide diversity of understanding between civil law and common law countries as to the meaning of “succession”:

Paragraph (2) represents the lowest common denominator of matters that all jurisdictions would regard an succession; paragraph (3) deals with the “grey area”, of matters which only some jurisdictions regard as succession. As Professor Waters notes,

Sub-paragraph a of paragraph 2 “is concerned with the ascertainment of the persons who are entitled to inherit, what it is they inherit, and on what terms, if any.”⁵⁶ The reference to “share” appears to include the reserve, legitime and forced share entitlement, to the extent that that entitlement does not relate to specific assets.⁵⁷ Thus it seems that the shares arising on an intestacy or

by way of legal right under the Succession Act 1965 fall within the scope of the sub-paragraph.

If they do not, they fall within the description of “other succession rights arising by reason of death ...” This latter expression, incidentally, appears to capture the right of the surviving spouse to have the dwelling and household chattels appropriated to him or her under section 56 of that Act. The expression “obligations imposed on [the heirs etc] by the deceased” appears to refer to conditions or personal duties imposed on the beneficiary which the deceased attaches to the particular right of inheritance.⁵⁸

Applications by children of a deceased testator under section 117 of the 1965 Act seem plainly to fall within the scope of the expression “other succession rights arising by reason of death including provision by a court or other authority out of the estate of the deceased in favour of persons close to the deceased”. A technical argument could perhaps be made that no child has any right to provision“arising by reason of the death” of his or her parent, but rather has merely a right to apply to the court for an order making such provision; on this view, the court's exercise of its discretion to make a grant of provision is the source of the right, rather than the death of the parent. Applications under section 117 may be contrasted with statutory schemes in some other jurisdictions which, although they envisage application to the court to determine the quantum of a particular share, are premised on the automatic entitlement to some share or, if not going quite so far, are at all events not conditional on the exercise of judicial discretion to make proper provision for the applicant. It seems clear from the structure of the Convention and from its entire corpus of deliberations that applications under section 117 do indeed fall within the scope of the sub-paragraph. Reinforcement for this interpretation comes from the statement by Professor Waters that:

Sub-paragraph b deals with disinheritance and disqualification by conduct. In our law, we are now familiar with this notion but it is worth recalling that Part X of the Succession Act 1965⁶⁰ involved a radical change from the former common law approach by the adoption of what is essentially a civil law principle.⁶¹

It should be noted that disinheritance by choice– such as by disclaimer,

renunciation or election against the will (save in favour of a “legal right” such as arises under Part X of the Succession Act 1965) – is not included within the sub-paragraph.⁶² It seems, however, that since in cases where a member of a class of testate beneficiaries or intestate heirs disclaims, an increase in the shares of the other members of that class will result, a dispute about the efficacy of an alleged disclaimer would fall within the scope of sub-paragraph a, because it relates to “shares”, which are specifically mentioned there.⁶³

Sub-paragraph c renders subject to the applicable law all questions concerning obligations to restore an account for gifts, advancements or legacies when determining the shares of heirs, devisees or legatees. In Irish law, such matters as are dealt with by sections 63 and 116 of the Succession Act 1965 fall within the scope of the sub-paragraph.

Sub-section d is concerned with freedom of testation and its limits. It relates to the questions of inalienability of a portion (or the entirety) of the estate, and is not intended to cover creditors' rights.⁶⁴ In addressing the question of inalienability, the sub-paragraph covers issues as to what part of the estate the deceased was free to distribute to whom he wished and extends to:

We confront here a troubled boundary-line between succession and matrimonial property. Professor Waters states that:

Sub-paragraph e is included on account of Chapter III, which deals with the material validity of pactes successoraux.⁶⁷ The expression, “testamentary dispositions” was used on purpose here instead of “dispositions of property upon death” because the latter also includes agreements of succession, the material validity of which is dealt with in Chapter III; Article 7, paragraph 2, sub-paragraph e deals solely with the material validity of testamentary dispositions. The forum defines material validity.⁶⁸

As regards paragraph 3 the delegations reluctantly decided that the question of interpretation of wills should fall within its scope rather than that of paragraph 2, because of the diversity of approaches among the several jurisdictions as to how to deal with interpretation.⁶⁹

CHAPTER III: AGREEMENTS AS TO SUCCESSION

Chapter III (Articles 8–12) deals with agreements as to succession. What are in question here are not unilateral revocable wills, but (1) agreements between parties as to a future succession (pactes successoraux) and (2) wills of different parties which are reciprocal.⁷⁰

The notion of reciprocal wills is, of course, already well established in common law jurisdictions. Reciprocity in these jurisdictions takes the form that each will confers a succession benefit on the other testator, where the conferment of benefit by each testator is in expectation that a third person will benefit from both wills; in some civil law jurisdictions, however, there is no requirement for that expectation.

The concept of a pacte successoral, so far as it relates to the establishment rather than extinction of succession rights, is an exclusively civil law creation. The essence of the notion is that of a contractual agreement, whether for consideration or otherwise,⁷¹ involving the disposition of future property at the time of the death of the transferor.⁷² Article 1(2)d specifically excludes from the Convention all dispositions of property save those upon death; thus, where, as often occurs in common law jurisdictions, a dispositive act inter vivos generates immediate full property rights, possession rights only vesting in the transferee on the transferor's death, this will be outside the terms of the Convention.

Professor Waters comments that:

The precise definition of an agreement as to succession contained in Article 8 is of some considerable importance. This is:

It will be recalled that section 113 of the Succession Act 1965 provides that a spouse's legal right may be renounced by an antenuptial contract made in writing between the parties to an intended marriage or may be renounced by a spouse after the marriage and during the lifetime of the testator, if the renunciation is in writing. Such a renunciation would seem properly capable of falling within the scope of Article 8.

It should be noted that Article 8 is limited to agreements created in writing. Commission II “was aware that oral agreements are recognized by a few jurisdictions, but was of the opinion that the agreement 'created in writing' because of evidentiary considerations is as far as the Convention should go. However, this is merely a restriction on the scope of Chapter III. The applicable law may indeed choose to accept the validity of an oral pacte the oral pacte (or agreement) is simply not included in the Convention.”⁷⁴ The requirement that the agreement should have been created in writing means that it will not suffice to establish an oral agreement, however convincingly it may be evidenced in writing.⁷⁵ The Convention says nothing on the question of the form of the agreement; it is for the forum to decide which law determines the form the 'writing' must or may take.⁷⁶

A possible practical limitation of the scope of Article 8 results from Article 1, 2, c: as Professor Waters notes, “any gift of, or agreement as to, future property, though classifiable as a pacte successoral, will nevertheless fall outside the Convention if it is characterised by the forum Contracting State as matrimonial property”.⁷⁷

The following passage from Professor Water's Explanatory Report is of central relevance:

A question may arise as to how to characterise a case of estoppel a la Webb.⁷⁹ If a husband purports to give his wife three-quarters of his net estate at death and, let us assume, the wife acts to her detriment in reliance on that assurance, would a court addressing and (let us further assume) applying the Webb principle to these facts characterise the matter as involving a “disposition of property on death”? Perhaps the answer depends on the nature of the court's holding and order. If it were to hold that the husband's estate “must not be permitted to resile from the promise made by the deceased and accordingly must not frustrate the effectuation of that disposition”, the case

in favour of such a characterisation would, of course, be stronger than if it were merely to award the widow a sum in the nature of damages.⁸⁰

Article 9, paragraph 1, provides that, where the agreement as to succession involves the estate of one person only, its material validity, the effects of the agreement, and circumstances resulting in the extinction of the effects are determined by the law which, under Article 3 or 5, paragraph 1, would have been applicable to the succession to the estate of that person if he or she had died on the date of the agreement. Thus, the objectively applicable law under Article 3 at the time of the agreement is to be applied unless an express choice of law has been made under Article 5, paragraph 1. Article 9, paragraph 2, provides that if, by the law at the date of the agreement the agreement is invalid the agreement will nonetheless be valid if so under the law which at the time of death actually applies to his or her estate according to Article 3 or 5, paragraph 1, as the case may be.

Article 10 deals with agreements involving the estates of more than one person. Such an agreement is materially valid only if so under all the laws which, according to Article 3 or 5, paragraph 1, would have governed the succession to the estates of all those persons if each of them had died on the date of the agreement.⁸¹ A similar cumulative requirement applies to the effects of the agreement and the circumstances resulting in the extinction of the effects.⁸²

Article 11 enables the parties to exercise a professio juris for pactes successoraux and reciprocal wills. They may agree by express designation to subject the agreement (again so far as its material validity, effects and circumstances resulting in the extinction of the effects are concerned) to the law of a State in which the person or any one of the persons whose future estate is involved has his habitual residence or of which he is a national at the time of the conclusion of the agreement. In contrast to Articles 5, paragraph 1 and 9, paragraph 2, Article 11 does not permit the parties to designate in the alternative the law of the nationality or habitual residence of the de cujus at the date of his or her death. Professor Waters explains that:

Article 12 is of some considerable importance, in seeking first to prevent abuse by persons with a compulsory entitlement and secondly to protect persons with a compulsory entitlement who are not parties to an Article 8 agreement from losing their rights.

Paragraph 1 provides that the material validity of an agreement valid under the law applicable according to Articles 9, 10 or 11 may not be contested on the ground that the agreement would be invalid under the law applicable according to Article 3 or 5, paragraph 1. As Professor Waters observes, this:

Paragraph 2 of Article 12 provides that the application of the law applicable according to Articles 9, 10 or 11 is not to affect the rights of anyone not party to the agreement who, under the law applicable to the succession by virtue of Article 3 or 5, paragraph 1, has an “indefeasible interest” in the estate or another right of which he cannot be deprived by the person whose estate is in question. Professor Waters explains that the Convention:

An important question in relation to Irish law is whether paragraph 2 extends to section 117 applications. It will do so only if a child asserting a claim under that section has “an indefeasible interest” in his or her parent's estate or another right of which he or she cannot be deprived by his or her parent.

It seems that the child's right falls within the scope of this terminology: it would be hard to describe it as other than a right of which he or she cannot be deprived by his or her parent.⁸⁶

Finally in relation to Chapter III, it is worth noting that Article 24, paragraph 1 a, permits a Contracting State to make a reservation that it will not apply the Convention to agreements as to succession as defined by Article 8. We examine below⁸⁷ the question whether Ireland should make such a reservation.

CHAPTER IV: GENERAL PROVISIONS

Commorientes⁸⁸

Article 13 provides that, where two or more persons whose successions are governed by different laws die in circumstances in which it is uncertain in what order their deaths occurred, and where those laws provide differently for this situation or make no provision at all, none of the deceased persons are to have any succession rights to the other or others.

This Article is likely to have limited application since it is premised on two contingencies: the existence of different applicable laws as to the succession to the respective estates of the decedents and the existence of laws providing differently (or not at all) for the situation. Professor Waters explains:

Trusts

Article 14, paragraph 1, may best be understood against the background of the Hague Convention of 1985 on the Law Applicable to Trusts and their Recognition.⁹⁰ The Trusts Convention is concerned with express trusts, whether private or charitable, as well as resulting trusts arising by implied intent: constructive trusts are excluded from its scope.

Under the Trusts Convention, trusts and wills are distinct legal phenomena, though of course they can be closely related: thus a will often is the instrument for the creation of certain trusts.⁹¹

It is clear that the private international law rules governing the formal and material validity of a will are not necessarily the same as those governing the formal and material validity of the trusts contained in the wills.⁹²

Article 14, paragraph 1, provides that, where a trust is created in a disposition of property upon death, the application to the succession of the law determined by the Convention does not preclude the application of another law to the trust. Conversely, the application to a trust of its governing law does not preclude the application to the succession of the law governing succession by virtue of the Convention.

The Consultation Paper published in Britain by the Lord Chancellor's Department and Scottish Courts Administration summarises the effect of this provision graphically:

Paragraph 2 of Article 14 applies the same rules, by analogy, as those set out in paragraph 1 to “foundations and corresponding institutions” created by dispositions of property on death. Professor Waters states that:

The lex situs

Article 15 provides that the law applicable under the Convention is not to affect the application of any rules of the law of the State where certain immovables, enterprises or other special categories of assets are situated, which rules institute a particular inheritance regime in respect of these assets because of economic, family or social considerations. The reference certain immovables, enterprises or other special categories of assets should be emphasised: the Article does not apply to rules which apply to all immovables, even where those rules are based on economic, family or social considerations.

Professor Waters outlines the type of rules that fall within the purview of the article:

The Article does not cover provisions of the situs concerning such matters as the ability of foreigners under the law of the situs to own such property as waterfront land, land on State borders or interests in operations of great concern to the State, such as utility supply units and nuclear power stations.⁹⁶ The Special Commission, after much debate, took the view that these should more appropriately be left to fall under the ordre public provision,⁹⁷“and the forum, if it is not the situs, would consider whether the ownership, use or control restrictions of the situs constitute an ordre public exception to the application of the succession law”.⁹⁸ The matter was re-opened at the

Sixteenth Session but the delegates came to the same conclusion.⁹⁹

It is necessary to examine the range of reference of “enterprises, immovables or special categories of assets”. Professor Waters explains that:

As to the terms “economic, family or social considerations”, it “was not the Commission's intention that they should imply a wide span of potential meaning which the courts might freely construe as a means of giving effect to what are conceived in the situs as desirable local policies”.¹⁰¹ On the contrary,

Without doubt the Article as drafted retains a potentially staggering breadth. One solution would have been to qualify the type of rules to which it refers, by requiring that they be mandatory, in that they would have to be applied in the State of the situs, whatever the law applicable to succession. The delegates, however, ultimately eschewed such a specific description, preferring to leave matters “deliberately ... somewhat vague”.¹⁰³

How does Article 15 impinge on our domestic and private international law? As we have noted earlier, at present, when our courts apply conflicts rules to immovables situated within the State, they apply Irish law as the lex situs. Article 15 is clearly of far narrower scope. It is only in cases where the rules of Irish law institute a particular inheritance regime in respect of certain immovables, enterprises or other special categories of assets situated within the State, and the institution of that particular regime is because of economic, family or social considerations, that the Irish courts could contemplate applying Irish law in a case where the law applicable under the Convention is the law of some other State.

Thus it seems clear that a surviving spouse's legal right (or claim based on intestacy) and a child's claim under section 117 (or on intestacy) do not come within the scope of Article 15 and so would not override a foreign law applicable under the Convention.¹⁰⁴ Whether or not section 56 of the Succession Act 1965 falls within the scope of the Article is less certain. This enables the surviving spouse to require the personal representatives of the estate of the deceased spouse to appropriate the dwelling in which at the time of the deceased's death the surviving spouse was ordinarily resident in satisfaction of his or her share in the estate. Two doubts arise as to its relevance to Article 15: the first concerns the characterisation of the legal

right and spousal share on intestacy – a matter just mentioned¹⁰⁵; the second concerns the question whether the right of appropriation amounts to “a particular inheritance regime” in respect of the family home because of economic, family or social considerations.

In both these contexts it is worth noting the following passage from the Report on the Special Commission's deliberations:

This passage suggests that a statutory life-interest, or right of residence, in the family home is capable of falling within the scope of Article 15. Whether the right to appropriate the family home should be similarly characterised is not entirely clear in view of the fact that it is secondary to, and entirely dependent on, the existence of a specific inheritance right (whether by way of intestacy or legal right) inhering in the claimant spouse. In the absence of such a specific inheritance right, no right to appropriate accrues. Our courts have not addressed the question whether the policy reflected in section 56(1) represents such a strong social policy that it should be applied even where the applicable law of succession is not Irish. One reason for this is no doubt that under our private international law rules the dwelling which is the subject of appropriation will, invariably¹⁰⁷, it seems, be an immovable and thus subject to the provisions of the Succession Act 1965, including section 56(1), as the lex situs.

There thus remains a doubt as to whether the right of appropriation of the family dwelling falls within Article 15.

Bona Vacantia and Regalian Right

In cases where there is no designated beneficiary under a will and no physical heir to take on intestacy, different legal systems adopt differing strategies.

Some, following the theory of the regelian right, hold that the State takes as bona vacantia all estate assets whose situs is in that State. Others, including Ireland,¹⁰⁸ as well as a number of civil law jurisdictions, provide that the State takes as ultimus heres. The effect of these differing strategies is that both positive and negative conflicts may arise:

Article 16 deals with the difficulty by providing that, where, by the law applicable by virtue of the Convention, there is no heir, devisee or legatee under a disposition of property upon death, and no physical person is an heir by operation of law, the application of law so determined does not preclude a State (or an entity appointed thereto by that State) from appropriating the assets of the estate that are situated in its territory. The effect of the Article is that, if the State of the applicable law under the Convention differs from the State of the situs, and the situs State regards itself as the appropriate party to take the assets on its soil, whether as bona vacantia or in its capacity as ultimus heres, the situs State may do so. If, however, the situs State, on the basis of the ultimus heres theory, is prepared to let the fate of the assets be determined by the applicable law, then it can look to the applicable law for the answer.¹¹⁰

Renvoi

Article 17 provides that in the Convention, and subject to Article 4, “law” means the law in force in a State other than its choice of law rules. This is in substantive harmony with the general policy of successive Hague

Conventions to exclude the application of the renvoi doctrine.¹¹¹

Ordre public

Article 18 provides that the application of any of the laws determined by the Convention may be refused only where the application “would be manifestly incompatible with public policy (ordre public)”. A provision on these lines is customary in Hague Conventions. It serves the useful advantage of encouraging States to ratify Conventions which contain many good provisions but also some which, on a pessimistic interpretation, might interfere with an important public policy, such as a fundamental constitutional right.

Article 18, as we have seen¹¹², contemplates that Contracting States might wish to invoke ordre public on grounds of national security or in respect of foreign ownership of waterfront property, border lands and utilities and other enterprises of great economic significance.¹¹³ It was because of the inclusion of Article 18 that Article 15 could be drafted more narrowly than some delegations would have wished.

Professor Waters counsels that:

As to the precise scope of Article 18, it is worth noting that the reference to “any of the laws” determined by the Convention makes it clear that the public policy exception may be invoked, not merely where the law in question is that determined by Articles 3, 5 or 6, but also where Articles 9, 10 and 11 are concerned.¹¹⁵

Multi-Jurisdictional States

Article 19 deals with the problem of identifying the applicable law where a State comprises two or more territorial units, each of which has its own system of law or its own rules of law in respect of succession. This may of

course be a federal State, such as the United States of America or Canada; but the description also includes unitary States, such as Spain and Britain, which have distinct geographic areas each with its own system of rules pertaining to succession.

Paragraph 2 of Article 19 gives to the multi-jurisdictional State power to prescribe rules to identify which unit is to be taken as the unit of reference in any of the situations for which the Convention provides.¹¹⁶ The remaining paragraphs deal with the position where the State has not exercised this option.

Paragraph 3 deals with the meaning of “habitual residence” and “nationality” in this context. “Habitual residence” means the law of the unit in which the de cujus had his or her habitual residence at the relevant time.¹¹⁷“Nationality” also means the law of the unit in which the de cujus had his or her habitual residence at the relevant time; if he or she had no such habitual residence, the law of the unit with which he or she had his or her closest connection is to apply.

Paragraph 5 is designed to ensure that persons who are nationals or habitual residents of multi-jurisdictional States will not abuse the powers of designation conferred on them by the Convention so as to restrict or completely defeat the inheritance rights of their family in relation to their estate. Paragraph 5(a) provides that (subject to Article 6), if the deceased was a national of the State of which he has designated a unit, the designation is valid only if, at the relevant time, he had his habitual residence in that unit, or in the absence of such an habitual residence, he had a close connection with that unit. Paragraph 5(b) provides that, (again subject to Article 6), where the deceased was not a national of the State, one of whose units he has designated, the designation is valid only if, at the relevant time, he was habitually resident in that unit. If he was not then habitually resident in that unit but was at the time resident in the State, the designation will still be valid provided that at some time he had had an habitual residence in that unit.¹¹⁸

These rules are fairly stringent but were considered necessary by the majority

of the delegates in order to prevent a testator from “shopping around” for the law most to his (as opposed to his family's) taste in terms of family inheritance rights.¹¹⁹

Paragraph 6 provides that, for the purposes of any designation under Article 6 with regard to particular assets whereby the deceased designates the law of a State, it is presumed that, subject to evidence of contrary intent, the designation means the law of each unit in which the assets are situated. The paragraph does not specify the weight of evidence necessary to rebut the presumption; there is no reason to imagine why it should be other than on the balance of probabilities.

Paragraph 7 is concerned with the application of Article 3(2) to multi-jurisdictional States. It will be recalled that, under Article 3(2), the applicable law is determined, in the absence of a valid choice, by the State in which the deceased was habitually resident at his death, having had five years of continual residence in that State prior to his death. Paragraph 7 first provides that, in a multi-jurisdictional State, this period of residence may be acquired even though the de cujus resided in more than one of its units during the five years. If he had no habitual residence in any of the units, though having an habitual residence in the State at the time of his death and having resided in the State for five years, the applicable law is the law of that unit in which he last resided, unless at that time he had a closer connection with another unit of the State, in which case the law of the latter unit applies.

Differing Personal Laws

Article 20 provides that, for purposes of identifying the law applicable under the Convention, where a State has two or more legal systems applicable to the succession of deceased persons for different categories of persons, any reference to the law of that State is to be construed as referring to the legal system determined by the rules in force in that State. In the absence of such rules, the reference is to be construed as referring to the legal system with which the deceased had the closest connection.

This Article is familiar in modern conventions. Some States include persons who are subject to, or acknowledge, differing personal law systems, such as Islamic, Christian or Hindu law, and the State recognises these laws, and their adherents. The Article enables the State to prescribe rules dealing with the position relative to the applicable law under the Convention and, in default, to adopt a “closest connection” test which normally should be easy to determine.¹²⁰

Internal Conflicts

Article 21 provides that a Contracting State in which different systems of law or sets of rules of law apply to succession is not bound to apply the rules of the Convention to conflicts solely between the laws of these different systems or sets of rules of law. A provision such as this is a necessity in Conventions of this type¹²¹ since there frequently will be no compelling reason why a multi-jurisdictional State should contemplate applying the rules of the Convention to its several units, or why a State with differing personal laws should similarly apply the rules of the Convention to different groups.

Transitional Arrangements

Article 22 provides that the Convention is not retrospective: it applies in a Contracting State to the succession of any person whose death occurs after the Convention has entered into force for that State.¹²² If the deceased, before such entry into force, has designated the law applicable to his succession, the designation will be valid if it complies with Article 5.¹²³ Moreover, where parties to an agreement as to succession,¹²⁴ before such entry into force, have designated the law applicable to their agreement, their designation will be valid if it complies with Article 11.11¹²⁵

Relationship with Other Conventions

Article 23 is in harmony with the policy of several previous Hague Conventions,¹²⁶ in accepting that Contracting States may be parties to other Conventions on the same subject, even if there is a conflict between the Hague Convention and other conventions. Unusually, however, this conclusion was reached only after very considerable debate.¹²⁷

Paragraph 1 of Article 23 provides that the Convention does not affect any other international instrument to which Contracting States are or become parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States party to the instrument. Paragraph 2 provides that paragraph 1 also applies to uniform laws based on special ties of a regional or other nature between the States concerned. This applies most obviously to the Scandinavian countries which are parties to the Helsinki Agreement on Nordic Co-operation of 1962.¹²⁸

Reservations

Article 24 of the Convention is of very considerable importance in providing for the possibility of up to four reservations:

Sub-paragraph (a)

With regard to sub-paragraph (a), Professor Waters explains the underlying thought of the delegations:

It is clear that, in a case where a Contracting State makes a reservation under sub-paragraph (a) declining recognition of Chapter III succession agreements, it is free, at its option, to continue to accept any Article 5 designation even though it be in the form which is not acceptable for a testamentary disposition.¹³⁰ It is worth quoting the words of advice of Professor Waters for

States contemplating making a reservation under sub-paragraph (a):

Sub-paragraph (b)

Sub-paragraph (b) enables a Contracting State to make a reservation that it will not apply Article 4 of the Convention, which deals with a specific case of renvoi as between non-Contracting States.¹³² The reservation would have some attraction for States, such as Denmark, which are strongly opposed to the renvoi doctrine.¹³³ The hostility of some scholars to this “bete noire of the conflict of laws”¹³⁴ is deeply rooted. Rabel has described the doctrine as “the most famous dispute in conflicts law, a classical example of violently prejudicial literature confronting naively consistent practice”.¹³⁵ Whatever may be said about the demerits of renvoi, it should be noted that, in its applications under Article 4, it works to support a harmony existing between the conflicts rules of the two non-Contracting States. Moreover, to decline to apply Article 4 on principle may result in causing practical difficulties for individuals. Professor Waters argues against the merits of the reservation in blunt terms:

Sub-paragraph (c)

Sub-paragraph (c) enables a Contracting State, by reservation, not to recognise a designation made under Article 5 by a person who, at the time of his death, was not or was no longer either a national of, or habitually resident in, the State whose law he had designated, but at that time was a national of and habitually resident in the reserving State. The French and Italian delegations originally proposed a wider reservation, without the limitation to cases where the deceased died habitually resident and with his nationality in the reserving State.¹³⁷ Sub-paragraph (c) was proposed by way of compromise by the British delegation and accepted by the French and Italian delegations.

The following example clarifies how the reservation operates:

Professor Waters evinces little enthusiasm for the reservation. He observes that:

It may be useful, however, to consider the issue from the standpoint of the testator's family. If he dies a national of, and habitually resident in, State A, the fact that many years previously he has made a designation under Article 5 when habitually resident abroad (or when a national of another State) might not seem a sufficient reason to override the claims of his family.

Sub-paragraph (d)

Sub-paragraph (d) permits a reservation not to recognise a designation made under Article 5, if three conditions are fulfilled: (1) the law of the reserving State would have been the applicable law under Article 3 if there had been no valid designation made under Article 5, (2) the application of the law designated under Article 5 would totally or very substantially deprive the spouse or a child of the deceased of an inheritance or family provision to which the spouse or child would have been entitled under the mandatory rules of the law of the reserving State, and (3) that spouse or child is habitually resident in or a national of that State.

This reservation derived from the concern of the Australian delegation that the family provision laws of the Australian states should be enforceable by those family members who are habitual residents or nationals of Australia.¹⁴⁰

It catches the testator who is habitually resident in Australia but who retains the nationality of the State whence he emigrated to Australia. (Over a hundred nationalities are represented among Australia's immigrants).¹⁴¹

To the argument that the situation envisaged in this sub-paragraph might better be dealt with, if at all, by resort to ordre public under Article 18, it was replied that common law jurisdictions give a much more limited scope to public policy invocation than to other jurisdictions.¹⁴² It was also noted that the reservation is relatively narrowly drafted: it applies only where the application of the designated law “would totally or very substantially deprive”: the family of an inheritance or family provision.

It may be noted here that this reservation would not be likely to have great relevance to Ireland, where immigration, though increasing, is not a significant phenomenon. The reservation would of course apply to Irish nationals who, after a period abroad, in which they acquired a foreign habitual residence, return here, possibly to retire. The number of these who will have made a designation, assuming optimum ratification of the Convention, is difficult to forecast.

CHAPTER 5: RECOMMENDATIONS

We must now consider the question whether Ireland should ratify the Convention. The case in favour of doing so depends in part on the inadequacy of our existing rules of private international law on the subject and in part on the particular merits of the approach favoured in the Convention.

Our existing rules of private international law may be criticised on two main grounds: their preference for scission rather than a unitary approach, and their central reliance on the concept of domicile.

The scission approach has been criticised over the years by a number of courts¹ and commentators.²

Wolff's comparison of the advantages and disadvantages in both the scission and unitary systems is worth recording:

The advantage of the Convention is that it removes the problem of the de facto dominance of courts of the situs, so far as Contracting States are concerned.

A weakness of the present law, to which we have adverted, is its reliance on the notion of domicile. The case against domicile is a well-known one. The concept is complex, and capable of yielding arbitrary attributions of domicile, especially where the domicile of dependency⁴ or of origin⁵ is concerned. Moreover, the emphasis on the intention of the de cujus opens up his entire life for scrutiny, in order to determine his mental disposition: this can be a time-consuming and expensive process, involving the expenditure of much

judicial energy.⁶

The Convention offers what may be considered to be an improvement in respect of both these deficiencies. In place of scission, it proposes unity and in place of domicile it offers habitual residence. The latter change is perhaps worth examining in some detail. The concept of habitual residence⁷ has several virtues, but it also has what some may consider to be significant vices. Its principal virtue is its simplicity (though its application may not be easy in a case where the de cujus has strong and competing connections with more than one State).

Its principal vice, at all events in comparison to domicile, is that it may fail to give, sufficient weight to long-term intentions in some cases. For example, an Irishman, born in County Cavan, goes to work in London at the age of twenty-two with the intention of spending four years there and to return to Cavan “to build a house and buy a few acres” with the money earned in London. After three years he is killed in a traffic accident there. A court may hold that he had sufficient connections with England to make it the State of his habitual residence; but his longer-term connections were with Ireland – his Irish domicile would not have been abandoned – and some may consider that Irish rather than English law should more appropriately determine the question of succession to his estate.

As it happens, if the Convention were to apply to this case, the applicable law could well be Irish (in the absence of a professio juris) even if the man were considered to have been habitually resident in England at the time of the death. This conclusion, which many may consider the most satisfactory, springs, however, not from the simple fact that habitual residence is a more appropriate connecting factor than domicile in respect of succession, but from the delicate compromise between habitual residence and nationality which is