DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 41

Succession mortis causa

1. Succession mortis causa shall be governed by the law of the deceased person's domicile at the time of their death. Without prejudice to the provisions in the following paragraphs, this law shall apply to the entire succession, regardless of the nature of the property and the place where it is located.

2. Testators may choose to submit their entire succession to the law of their domicile or their nationality at the time of the choice. The choice must be made expressly in the form of a disposition of property upon death, or must be demonstrated beyond any doubt in the form of a disposition of this type.

3. Wills drawn up in conformity with the law of the deceased person's domicile at the time of being drawn up shall maintain their validity regardless of the law governing the succession. In any case, the reserved portion or other similar rights to which the deceased person's spouse or children might be entitled shall be governed, where applicable, by the law governing the succession in accordance with paragraphs 1 and 2 of the present article.

4. The agreements as to succession that affect only one succession and concluded in accordance with the law of the deceased person's domicile at the time of being drawn up shall maintain their validity regardless of the law governing the succession. The agreements as to succession that affect more than one succession shall be governed by the law of the domicile of any of the testators expressly chosen by all of them; if no law is chosen, they shall be governed by the law of the testators' common domicile at the time of the conclusion of the agreement; if there is no common domicile, they shall be governed by their common national law and if there is no common national law, the shall be governed by the law most closely connected to the agreement, taking into account all of the circumstances.

In all events, the reserved portion and other similar rights to which deceased person's spouse or children might be entitled shall be governed, where necessary, by the law governing the succession in accordance with paragraphs 1 and 2 of the present article.

5. The partition of the estate shall be governed by the law applicable to the succession, unless the heirs of the estate have designated by common accord the law of the place of the opening of succession or the law of the place in which most of the succession property is located.

300. Article 41 of the Law addresses the law applicable to the substantive aspects of succession mortis causa. The complexity of this matter has always been based on the main models that divide comparative law between those which advocate a uniform solution for the entire succession (monist or uniform model) and those which advocate a different solution for succession of movable property and immovable property (dualist or scission-based model)398 399. The uniform solution, in turn, establishes an alternative between the deceased's national law and the law of their domicile or habitual residence localised at the time of their death. The dualist model tends to apply the lex rei sitae to the succession of real estate property and a personal law, generally the law of the deceased person's last domicile, to the succession of movable property (v.gr., France, Belgium or United Kingdom). This second option is based on the potential acceptance of various estate possessions submitted to various systems. It is definitively based on the splitting up of a single estate. Furthermore, it should be noted that none of the two main systems or models opts for a material or substantive orientation in the choice of the law. The conflict rules on which they are based are neutral. The law of the place where a real estate property is located will determine its succession regime, whatever this may be; and the same applies to the law of the deceased's last domicile or the deceased's national law at the time of their death. In other words, the materialisation of the conflict rule is not necessary regarding the identification of the law governing international succession. The determination of the law applicable to succession mortis causa is not animated by the search for a law that will grant more rights to the surviving spouse, or to the children, or which will grant greater freedom of disposition to the deceased, or which greatly restricts this for the benefit of the forced heirs, etc. All of these substantive or material issues and any others of a similar nature have been excluded from the conflict rule, which opts for the law applicable to the succession.

301. This picture is reflected in article 41 of the Law which, on the one hand, opts for a uniform model in the regulation of succession mortis causa and, on the other hand, ensures continuity by not opting for a material or substantive orientation in the determination of the applicable law. Furthermore, by implementing the monist or uniform solution, the present Law opts for the determining factor of the deceased's last domicile. It is a modern and complete provision that is unique in the comparative law of the Caribbean.

The option for a single law that governs the entire succession, which is provided by article 41.1, second sentence, has certain advantages regarding the option for a subdivision model; the most obvious advantage is the possibility for the deceased to plan their succession easily under the purview of a single law, without having to undertake very complex calculation work, and efforts to adapt to all of the laws involved (which will also include the owner of real estate properties located in various countries), which, per se, entails taking into account different limitations placed on their freedom to draw up a will, on various causes of disinheritance, etc. The option for the uniform model is also the one which has governed the international codification of private international law in recent years and the solution adopted in Europe400. The work of the Hague Conference is particularly significant for, while its delegates are from countries with very different legal cultures, which have opted for a dualist or scission-based system in the law applicable to succession, was rapidly agreed to opt for a uniform solution without any problems401.

For this monist or uniform option - the principle of unity and universality of succession - the law of the deceased person's last domicile is an appropriate law. It is also the law adopted by the two most complete and modern international instruments in the area402. This is explained by the fact that the idea that the domicile is precisely the place where the deceased's centre of life and, more importantly, the centre of their patrimonial interests was located, that is to sat the place where they probably have most of their estate.

Of course, the reality is not always like that, and the rule of article 41.2 of the Law introduces a further clear element of modernisation of the law applicable to succession mortis causa: the so-called professio iuris or possibility that the deceased person may choose the law applicable to their entire succession403. The introduction of this possibility of choice of law is justified, first and foremost, in the importance of the autonomy of the will with regard to succession. The idea that the deceased person's will - demonstrated through a will or agreement as to succession - is the law of succession remains widespread both in civil law as well as in common law systems. The rule only projects the importance of the autonomy of the will beyond merely self-regulating autonomy; it will cause it to become a genuine “autonomy of conflict” as reflected, on the other hand, in other solutions provided by the Law for resolving matters related to persons and their families404. However, the possibility to submit to a law to determine its succession cannot be absolutely free; the laws likely to be chosen must have a sufficient connection with the deceased, which is the case of the law of their domicile and the law of their nationality at the time of the choice. This delimitation of laws offers the deceased a sufficiently attractive wide range of choice permitting them to be able to organise their succession in a coherent manner in accordance with a law that is closely connected to them and, above all, predictable. It eliminates any uncertainty regarding their domicile at the time of their death and assures them that their will (to the maximum extent permitted by the chosen law, and its subsequent amendments) will be valid beyond their death. If the deceased has more than one nationality, they may submit their succession to the law of any one of the nationalities held at the time of making the choice. On the other hand, the same essence of the autonomy of unilateral conflict of laws rules enshrined by the present article means that the professio iuris favourable to a law may be revoked at any time afterwards (the law of succession will then be the law of their last domicile) or replaced by another law: for example, the deceased can submit their succession to the law of their current domicile and, subsequently, decide to submit this to the law of their nationality.

An important aspect in relation to this professio iuris is the possibility for it to be either express or tacit. Undoubtedly, the express choice should be recommended in order to eliminate any conflict regarding the applicable law. However, one cannot ignore that on many occasions the deceased has a clear intention to submit their succession to a particular law, whose typical institutions, including specific articles, are cited or reproduced in their will. If such terms are unequivocally connected to one of the potentially eligible laws, this choice of law of succession will have to be considered. In any case, this choice must be made in the form of a disposition of property upon death, both in its first version as well as in its subsequent developments (revocation, amendment)405.

302. Paragraph three of this article 41 introduces a special rule for the cases in anticipation of succession by drawing up a will. It provides a response to the situation, which is not so uncommon, in which the will is drawn up under the law of the “current” domicile, which turns out not to be the law of the deceased's last domicile, which will be law governing the succession. This change of connecting factor can lead to the radical invalidity of wills, which would not take into account at all the law of succession, simply because the testator was not aware of it. The rule of article 41.3 of the Law tries to preserve as far as possible the estate planning undertaken in accordance with the law of the domicile, by conserving its validity within the limits of the reserved portion or other similar rights to which spouses and children may be entitled. These rights will be determined by the law governing the succession, the law of the deceased's domicile at the time of death or the law chosen by virtue of article 41.2 of the Law. Obviously, in this second case, the logic is that the will is already draw up in accordance with the chosen law and the problem raised by the paragraph in question is not even raised. Indeed, one of the great virtues presented by the professio iuris is precisely that it avoids this potential change of applicable law.

In any case, if the factual situation of article 41.3 of the Law exists, the will drawn up in accordance with a closely connected law, the law of the deceased's “current” domicile, will continue to be valid but will be likely to be corrected by the reserved portion only as regards the children and the spouse and not by any other reserved portion further away from the deceased. It is, once again, a constraint imposed on the deceased's will and, ultimately, a way of ensuring that a change of law, such as that set out in the present provision, does not excessively limit the deceased person's freedom. Indeed, it is important not to lose sight of the fact that the deceased person has already respected the reserved portion of the law of their domicile at the time of drawing up their will and, as a result, it does not appear appropriate to submit this to a “second filter”.

303. The provision regarding agreements as to succession reflects a similar complexity in the other legislations where they are recognised. The agreements as to succession, which concern only one succession, opt for a solution similar to the one provided for wills. The agreements maintain their validity provided that they are in conformity with the law of the deceased's domicile at the time of the conclusion of the agreement (v.gr., an agreement between a father and a child that the child renounces their rights of succession in exchange for a present benefit). In the cases of agreements concerning more than one succession (v.gr., an agreement between two spouses who reciprocally designate each other as heirs) the solution is more complex. If the agreement as to succession must be governed by a single law, this law should be chosen from among the laws potentially involved: once again, the Law opts, first and foremost, to permit the interested parties to choose from among the different laws of their domicile in the event that they do not have a common domicile. In the absence of such agreement, it will be precisely the law of the common domicile that will govern the validity and legal regime of the agreement (in most cases, this will be the applicable law); if there is no common domicile, the other personal law will come into play, that is to say the common nationality. Taking into account the configuration of the agreements as to succession and the fact that they are frequently concluded between persons belonging to the same family, it is not uncommon for the agreement to be submitted to the law of the nationality (v.gr., parents and children of the same nationality but domiciled in different countries). Finally, if the situation is scattered over an extremely wide geographical area - and the parties to the agreement have not taken care to choose the law applicable to the agreement - the law governing the agreement as to succession will be the law most closely connected to the agreement (not to the parties to the agreement, although clearly these are also relevant).

Two important aspects should be taken into account in this regard: firstly, the law governing the validity and legal regime of the agreement as to succession may be different from the law of succession and the latter, as in the case of wills, will continue to be the law that will determine the extent of the spouses' and the children's reserved portion. Secondly, due to this possible dissociation between the law applicable to the agreement as to succession and the law of succession, it must be noted that the autonomy of the will which permits the parties to the agreement to choose the law of the domicile of either one of them may not be confused with the professio iuris enshrined in article 41.2 of the Law. The latter is unilateral, essentially alterable by the will of the deceased and determines the law of succession. The former is bilateral, not alterable by the will of one of the parties to the agreement, and limited to the validity of the agreement: it does not determine the law of succession. Nonetheless, in a well-planned succession, the law applicable to the agreement and the law of succession may coincide through the combination of the possibilities provided by paragraphs 2 and 4 of article 41.

304. Article 41 of the Law concludes with a new rule, which relaxes the classical solution of the application of the law of succession to estate partition operations. This solution this time once again introduces the autonomy of the will, not of the deceased person, but of the parties with a real interest in the succession: the parties with any right of succession of any kind, either under a will or no will at all or formally agreed. These parties can undertake the partition in accordance with the provisions by the law of succession (law of the deceased person's last domicile or the law chosen by it through the exercise of professio iuris) or indeed by virtue of the law that they will decide to choose between the law where the succession is opened and the law of the country where most of the hereditary property is located.

305. Furthermore, it should be pointed out that the law of succession will apply to the causes, the time and the place of opening of the succession; the determination of the heirs, legatees or other beneficiaries, of their respective shares and of the obligations that may have been imposed by the deceased, as well as the determination of any other right of succession, including the rights of succession of the spouse or the surviving partner; the capacity to inherit; the causes of disinheritance and disqualification by conduct; the transfer of assets, rights and obligations making up the succession to the heirs and, where applicable, to the legatees, including the conditions and effects of accepting or waiving the succession or legacy; the powers of the heirs, the executors of the wills and other administrators of the succession; responsibility for the debts and charges under the succession; the disposable part of the estate, the reserved portions and the other restrictions on the freedom to dispose of property upon death, including the claims that might be brought against the estate or against the heirs or other beneficiaries by the relatives of the deceased; any obligation to restore, collate or account for lifetime gifts or donations by the deceased; and sharing the inheritance taking into account the provisions of the last paragraph of the article.


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