Succession Under Private International Law

SUCCESION: Under Private International Law INTRODUCTION In the countries of continental Europe and other civil law countries all matters relating to succession are governed by one single system of law, viz., and the law of the nationality of the deceased. This is because these countries follow the principle of unity of succession (France and Belgium are two exceptions) under which succession, testamentary as well as intestate, and all matters relating to succession are regulated by one single system of law viz., the personal law of the deceased which most countries take to be the law of the nationality of the deceased at the time of his death. In the civic law countries, as well as under the personal law of Hindus and Muslims in India, the property vests in the heirs immediately on the death of the deceased. India, England and other countries which follow the common law traditions adopt the principle of succession under which movables and immovable do not devolve under one single system of law. In English law this distinction seems to be on account of historical reasons. In England, freehold land could not be devised by will until 1540, while movables could be bequeathed and were governed by the principle of mobilia sequuntur personam. Although the historical reasons have disappeared, the distinction still exist in English Private International Law under which succession to immovable is regulated by the lex situs and not by the personal law of the deceased, while succession to movables is regulated by the lex domicile of the deceased. Thus, if a person dies intestate leaving behind immovables in England, then devolution to his property would be in accordance to English internal law, whatever might have been his nationality or domicile. On the other hand, a British national or a person domiciled in England dies leaving behind immovable properties in India, then devolution to his property would be governed by the Indian law, i.e. the way an Indian court would be governed by the Indian law, i.e. the way an Indian court would determine the question. Section 5, Indian Succession Act, 1925 statutorily recognizes this principle. The section runs as under: “(1) Succession to the immovable property in India of a person deceased shall be regulated by the law of India, wherever such person may had his domicile at the time of his death.

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(2) Succession to the movable property of a person deceased shall be regulated by the law of the country in which such person had his domicile at the time of his death.” The rules of English and Indian Private International Law could hardly be considered as satisfactory. The will Act, 1963 has tried to solve of the difficulties. The will act.1963 has tried to solve of the difficulties. The Act apples to form and construction, but as Graveson suggests, it is submitted rightly, by analogy it can be applied to other branches of testamentary succession. Thus the subject can be discussed much elaborately under the following heads: a) Administration of Estates, b) Succession to immovables, and c) Succession to movables.

ADMINISTRATION OF ESTATES In English law administration and succession are two different concepts. In English law no one is entitled to deal with or distribute the property of a deceased person unless he has obtained authorisation from the court. If a person dies intestate, or where a will has been made, but the appointment of executor has failed for any reason, then the next-of-kin (husband, wife or child of the deceased) can acquire the necessary authority for dealing with property by obtaining letters of administration. In case a person has appointed an executor under the will who consents to act, then the executor may obtain necessary authority by obtaining probate of the will. In such administrator or executor the property vests immediately on the death of the deceased. Executors and administrators are together referred to as personal representatives. In the countries of continental Europe such persons are known as heirs use the term administrators’. The administrators under English law have three main functions: (a) collection of assets of the deceased, (b) payment of debts, and (c) distribution of residue among the heirs. Jurisdiction of the Court In the following three situations the question of administration of estate of the deceased may arise before the English court: (a) When the deceased has made a will and had also appointed an executor who consents, then the executor may obtain probate of the will,

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(b) When the deceased has made a will, but has either not appointed an executor or the appointment of executor has failed, then the ort may appoint an administrator, and (c) When the deceased had died intestate, then the court may grant letters of administration. Indian Law Indian law closely follows English law. The provision relating to grant of probate and letters of administration are contained in the Succession Act, 1925. In the matter of grant of letters of administration or probate, the jurisdiction is conferred on the District Judge. The High Courts have concurrent jurisdiction with the District Judge. Jurisdiction Under s. 270 of the Succession Act,1925 the basis of jurisdiction are two : (a) if at the time of his death the deceased had a fixed place of abode within the jurisdiction, or (b) if movable or immovable property of the deceased is situated within the jurisdiction of the District Judge. In a purely domestic case, any of these two alternatives bases of jurisdiction, but it seems that in a conflict of laws case Indian court may decline to grant a probate or letters of administration merely on the basis that the deceased had ‘a fixed place of abode’ in India. The grant will be made only if the deceased had left some movable or immovable property within the jurisdiction. From an early date Indian courts have taken the view that a grant of probate can be made of a will executed abroad by a person who is neither domiciled here nor a national of India, if the testator had left some immovable or movable property in India. Choice of Law In the matter of grant of letters of administrations Indian law makes a distinction between Hindus, Muslims, Buddhists, Sikhs and Jains on the one side and other persons of the other. In the former case, letters of administrations are not required and therefore, it is optional for them to obtain letters of administration. In case someone desires to obtain letters of administration, then s.218, succession Act lays down that grant may be made ‘to any person, who accordingly to the rules for distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased’s estate.’ The heir of the deceased would be determined on the basis whether he died as Hindu or as a Muslim. In case the deceased was not a Hindu or Muslim, then those who are connected with him by marriage or by consanguinity are entitled to obtain letters of administration. The order in which they may apply is laid down in s. 219 of the Succession Act, 1925 which is as under: 3

(a) If the deceased has left a widow, administration shall be granted to the widow, unless the court sees cause to exclude her wither on the ground of some personal disqualification, or because she has no interest in the estate of the deceased. (b) If the judge thinks proper, he may associate any person or persons with the widow in the administration who would be entitled solely to the administration if there were no widow. (c) If there is no widow, or if the court sees cause to exclude the widow, it shall commit the administration to the person or persons who would be beneficially entitled to the estate according to the rules for the distribution of an intestate’s estate: Provided that when the mother of the deceased is one of the class of persons so entitled, she shall be solely entitled to administration. (d) Those who stand in equal degree of kindred to the deceased are equally entitled to administration, (e) The husband surviving his wife has the same right administration of her estate as the widow has in respect of the estate of her husband.

SUCCESSION TO IMMOVBABLE POPERTY As has been seen earlier in this Chapter, the English and Indian Private International laws follows the principle that succession to immoveables is governed by the lex situs. English Law Under English law the general rule is that all aspects of succession, intestate or testamentary, are regulated by the lex situs. When a person dies leaving immovable properties, then it is the lex situs and the lex situs alone which decides matters relating to capacity to make will, revocation of will, power of disposition, the validity of disposition and like matters. The law of domicile or nationality of the testator has absolutely nothing to do with any of these matters. The Wills Act, 1963 giving effect to the Fourth Report of the Private International Law committee and to the Draft Convention on the Formal Validity of wills made at the Hague in 1961, lays down that will be

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formally valid if it conforms to the internal law in force in the country where, at the time of its execution or of the testator’s death, he was domiciled or had his b=habitual residence, or in a state of which, at either of those times, he was a national. Indian Law The Indian private international law is substantially the same, Section 5(1), Indian Succession Act, 1925 runs as under: “Succession to the immovable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death.” Under the Indian Private international law also, it seems to matters relating to capacity to make will, revocation of will, power of deposition and the validity of disposition and like are governed by the lex situs. Provisions relating to construction of wills are laid down in ss. 74 to 111, succession Act, 1925 and relating to election ss. 180-190, succession Act, 1925. It appears that whenever a will of deceased person in respect of immovables situated in India comes for construction before an Indian court, the Indian court a bound to apply the lex fori,. i.e. rules of construction as laid down in ss.74 to 111 of the Succession act, 1925. The Indian courts have all along taken the view that intention of the testator is to be carried out. But clear and unambiguous dispositive words are to be given effect to, and not to be controlled by the so-called intention of the testator.

SUCCESSION TO MOVABLE PROPERTY English Law Jurisdiction of the English Court: In English Law succession is usually termed as beneficial distribution of property. Theoretically, if the English court has jurisdiction to grant administration, it has also jurisdiction to determine beneficial distribution of property. But as has been earlier, in the absence of the local assets the English court exercises jurisdiction only when the foreign country where assets are situated requires a grant of administration from the court of the country of the domicile of the deceased. But if he died leaving behind property in England, the English court has jurisdiction to determine the validity of his will, the construction and effect of the will, persons entitled to succeed to property and all matters connected with succession, even though the deceased died domiciled abroad. 5

Jurisdiction of Foreign Courts: The court of the country where the deceased died domiciled have jurisdiction to determine succession to all movables whether situated, though courts do not recognize that the courts of domicile have exclusive jurisdiction. However, “while title has been adjudicated upon by the courts of the domicile, such adjudication is binding upon, and must be followed by, the courts of this country.” It may be conjected that the English law would concede jurisdiction to courts of the country where movables are situated even if the deceased is not domiciled there, as English court also exercise Jurisdiction on this basis.

Choice of Law Intestate Succession Intestate succession to movable is governed by the law of the domicile of the deceased person at the time of his death, irrespective of the fact as to the place where he was born, or died, or of the situation of movables at the time of his death. It is the Lex domicilii which determines the heirs who are entitled to take the relative proportion to which they are entitled to, the right of representation, the rights of a surviving spouse, the liability of the distributes for unpaid debts, the relationship of the claimant with the deceased, and like matters. Testamentary Succession Testamentary succession to movables is also governed by the law of the country where the deceased was domiciled at the time of his death. If a deceased person domiciled elsewhere dies leaving behind his assets in England, then a grant of probate in England is essential and so far as the admisntration is concerned it is governed by the lex fori, but then all questions relating to beneficial succession must be decided in accordance with the law of the domicile of the deceased. In other words, the executor must ascertain as to who are the persons entitled to succeed and in what proportion they would take the property under the law of the domicile. Capacity to make will: The testamentary capacity, i.e. personal capacity to make will, is determined by the lex domicile of the testator. If the testators domicile is the same at the time of making of the will as well as at the time of the death, there is no difficulty. Formal Validity: Under the English common law the rule has been that the will of movables to be formally valid must comply with the law of the domicile of the testator at the time of his death. This rule led to much inconvenience and hardship and led to the passing of the will Act,

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1861which was not only unsatisfactory but discriminatory between the British subject and foreigners. Material Validity: The English Private International Law laid down that the material validity of a will is governed by the Lex Domicilii of the testator at the time of his death. Construction of Wills: The writers of English law and some English decisions take the view that construction of will should be made under the law of the domicile of the testator at the time when the will is made. Revocation of Wills : The rules relating to revocation of will differ from country. Ordinarily, a person who has capacity to make will, will also have the capacity to revoke it. A will may stand revoked by the act of the testator, or by the operation of law.

Power of Appointment English law empowers a person to give, by an instrument, such as will, to some other person or to himself a power to appoint by will the person or persons who would succeed to the property on the death of the person to whom the power is given. The person who thus gives the power is known as the “Donor of the Power” of “the appointor” and the person to whom the power is given is known as “the donor of the power” or the appointee”. The power of the appointment may be either general or special.

Indian Law So far as the testamentary succession is concerned, in India, members of all communities are governed wholly or partly by one law, viz’. the Succession Acr, 1925, though different rules of succession apply to members of each community in the case of intestate succession. Law of testamentary succession in India is contained in Part VI of the succession Act, 1925, and constitutes the law of testamentary succession in India, and applies to all communities, except the Muslims. To the Hindus it applies with some modifications. As to the other communities, such as Christians and Parsis, it applies fully. Section 5(2) of the Succession Act, 1925, as has already been noted, contains a rule of conflict of laws. It lays down that succession to the movables of a deceased person is to be regulated by the law of the country in which such person had his domicile at the time of his 7

death. But the application of this provision has been excluded in case the deceased is a Hindu, Mohammedan, Buddhist, Sikh or Jain.

Jurisdiction of the Court Jurisdiction of the Indian Court: It has been seen in Part I of this chapter that under the Succession Act, 1925 letters of administration or probate can be obtained in respect of the letters of administration or probate can be obtained in respect of the estate or will of any person, including a Hindu and a Muslim. The Indian courts exercise jurisdiction either on the basis of presence of assets within the jurisdiction, or that the deceased had a fixed place of a abode at the time of his death within the jurisdiction. The Indian court does not have as wide a jurisdiction as the English court has under the Act of 1932 to grant administration in respect of “any deceased person”. But it seems, in view of the generality of the provision of s. 5(2), in respect of movables, the court may exercise jurisdiction on the basis that the deceased died domiciled in India whenever it is called upon to exercise jurisdiction in the interest of justice.

Jurisdiction of Foreign Court: There is no reported decision of Indian court as to on what basis the Indian Courts would recognise the jurisdiction of the foreign courts to determine succession to movables. In this connection the main question is : suppose, an Indian Hindu dies domiciled in England leaving behind assets in India, will the Indian Courts accept the determination of Succession in accordance with the lex domicilii of the deceased? The question becomes complicated as for Hindus and Muslims, strictly speaking there is nothing like lex domicilii, they are governed by their personal law, which is the law of their community. When the English court determines succession on the basis of the lex domicilii of the deceased, then it should apply the personal law of the deceased Hindu, as in his case, broadly construed, that will be the law of his domicile. If the English court applies any other law, then the Indian courts will not accord recognition to such assumption of jurisdiction.

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Choice of Law Interstate succession It seems to be clear that intestate succession to movables is governed by the lex domicilii of the of the deceased at the time of the death. But will it equally apply to Hindus and Muslims? Under the influence of English private international law it is often forgotten that nationality is an important connecting link in personal matters in India. Suppose, a Burmese Buddhist dies in Burma leaving behind movable in India. The Buddhist are included in the definition in the term ‘Hindu’. Will succession to his property be regulated under Hindu law? The answer will be affirmative, if we ignore his nationality. It should be ignored that in India intestate succession differs from community. Hindus are governed by their own law of succession, Muslims by Muslim law of succession, Parsis are governed by the Parsi law of succession, and Christian and others by their own laws of interstate succession. Testamentary Succession As has been seen earlier, with minor exceptions, there is one law of testamentary succession in India. Muslims are governed by their own law of testamentary succession and provisions relating to testamentary succession in the Succession Act, 1925 do not apply to them. However, provisions relating to them. Capacity: The Indian law lays down the broad rule that succession to movables is governed by the law of the domicile of the deceased at the time of his death. The question is: does the general principle apply to capacity to make will? It is submitted as far it concerns the personal capacity, it should be governed by the law of the domicile of the deceased at the time of making of the will, as the same arguments apply here as they apply under English Private International Law. Formal Validity: India has not enacted anything like the English statutes of 1861and 1963. Therefore, it seems that the general rule enacted in s. 5(2), Succession Act would apply to formal validity of wills. But in respect of a will of foreign domiciled abroad, the formal validity would be determined by the domiciled abroad, the formal validity would be determined by the lex domicilii of the testator at the time of his death-this is because of the provision I s. 5(2), Succession Act, 1925.

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Material or Essential Validity: It seems that under India private international law the same rules apply to material validity as they apply to formal validity. The material validity of the will of a foreigner will be governed by the law of his domicile at the time of his death. Under Muslim law, a Muslim cannot bequeath more than one-third of his property; if an Indian Muslim bequeaths one-half of movables situated in India and if the validity of his will comes into question before an Indian court, then such a bequeath will not be valid even if the Muslim died domicile in England. Construction of the Will: It seems that the same consideration apply to the interpretation or construction of will of movables under the Indian law as they apply under English law. The Succession Act, 1925, Chapter six contains provisions relating to construction of Wills. Revocation of Will: under the law a will may be revoked: (a) by another will or codicil of the deceased or by some writing declaring an intention to revoke the same and executed in the manner a will is executed (b) by destroying the will, (c) by marriage of the testator, but this doesn’t apply to the wills of Hindus and Muslims.

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CONCLUSION Most foreign Countries have adopted the principle of unity of succession by which questions relating to intestacy or to wills are governed by one ingle law, the personal law of the deceased, irrespective of the nature of the subject-matter. The common law of England, however, has consistently adhered to what is called the principle of succession under the destination of immovables on the death of the owner is governed by the lex situs, not by the law of is domicile as is in the case of movables. India, England and other countries which follow the common law traditions adopt the principle of succession under which movables and immovable do not devolve under one single system of law. In English law this distinction seems to be on account of historical reasons. In England, freehold land could not be devised by will until 1540, while movables could be bequeathed and were governed by the principle of mobilia sequuntur personam. Although the historical reasons have disappeared, the distinction still exist in English Private International Law under which succession to immovable is regulated by the lex situs and not by the personal law of the deceased, while succession to movables is regulated by the lex domicile of the deceased. Thus, if a person dies intestate leaving behind immovables in England, then devolution to his property would be in accordance to English internal law, whatever might have been his nationality or domicile.

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