Succession

Unit 18
Unit 18
• Succession to immovable property
Administration and succession distinguished
• Claims to succession, validity of wills and administration of assets are
related topics
• Administration comprises the duties of the personal representative of
the deceased person in bringing the estate of the deceased in a
position for beneficial distribution. He is to get all the assets, pay all
the duties, clear all the liabilities and bring forward the balances for
distribution to the persons entitled to the property of the deceased.
• Succession comprises the legal rights and claims of persons who are
entitled to the property of the deceased either under his will, if any or
on his intestacy.
Administration and succession distinguished
• One main point of difference between the 2 concepts is that
administration is not beneficial to the administrator, while succession
is is essentially of benefit to the successor.
• From the point of view of choice of law, the distinction is that while
administration is governed by the lex fori, succession is mainly
governed either by the lex situs or by the lex domicile according to
the nature of the property involved.
Administration and succession distinguished
• In English law, the general principle is that no one is entitled to deal with the
property of a deceased person unless he has obtained authority of the Court. If
the deceased has executed a will and appointed one executor who is willing to act,
the necessary authority is obtained by the executor when he obtains a probate.
• If the deceased has died intestate (without executing a will), the necessary
authority is acquired by some person (a relation or creditor) by obtaining a grant
of letters of administration. In cases where a testator has not appointed an
executor or the appointment has failed, an executor will be appointed by the
court. These personal representatives, either executors or administrators, succeed
to the property of the deceased and are bound to clear the estate of debts, duties
etc and then distribute the surplus among the persons entitled, according to the
relevant law, to the properties of the deceased. This is administration.
Unity of succession not adopted by English
law
• Succession can be either testate or interstate.
• It can be for movable property or immovable property.
• Many countries have adopted the principle of unity of succession by
which questions relating to succession by will or on intestacy are
governed by one single law, the personal law of the deceased
irrespective of the question whether the subject matter is movable or
immovable.
• But this principle has never been recognized by the common law of
England. Different principles apply for succession to movable property
and immovable property.
Intestate succession to immovables
• The traditional rule of English Private International Law is that when
the owner of immovable property dies intestate the order of descent
or distribution prescribed by the lex situs will be applied by the
English Court, no matter what his domicile may have been. This rule is
incorporated in Section 5 of the Indian Succession Act which is as
follows:
• Succession to the immovable property in India of a person deceased
shall be regulated by the law of India wherever such person may have
his domicile at the time of his death.
Intestate succession to immovables
• The rule that succession to immovable property is governed by the lex
situs is out of tune with present day conditions.
• Morris observes “The rule made some sense before 1926 when there
were 2 systems of intestate succession in English domestic law, one for
realty and the other for personalty. It makes no sense today when
England and all other countries in the world have adopted one system
of intestate succession for all kinds of property.
• Moreover, outside the common law world, the lex situs rule for
intestate succession has been abandoned….the situs rule has outlived
its usefulness in England and should be abandoned in favour of the
intestate’s domicile.
Testate succession to immovables
• So far as wills regarding immovable property are concerned, the
common law rule is that it is the lex situs and the lex situs exclusively
which determines questions relating to the validity of wills.
• Such questions as to whether the testator has capacity to execute the
will, whether appropriate formalities for making or revoking the will
have been observed; whether the testator has unlimited or only a
restricted power or disposition and whether the interest devised is
essentially valid are all decided by the law of the place where the
concerned immovables are situated. The lex domicile of the testator
according to common law has no role to play in such matters.
Testate succession to immovables
• With regard to formalities, however lex situs rule has been enlarged
by the Wills Act 1963 according to which it is enough if the will
conforms to the formalities prescribed by any of the systems of law
mentioned in section 1.
• They include the law of the country where the testator was domiciled
or habitually resident or of which he was national either at the time
of the execution of the will or at the time of death and the law of the
territory where the will was executed.
Whether a contract made by the testator can exclude the
operation of lex situs in regard to the testamentary
disposition of immovables
• The general rule is that the lex situs determines whether a disposition
of immovable property made by a testator in his wills is valid or not.
But if the testator had previously made a contract regarding
devolution of his properties after his death, reference must be made
to the law that governs the contract. The rule applies in case of
implied contracts too.
• The leading case regarding the above proposition is the House of
Lords’ decision in De Nicols Curlier
De Nicols Curlier
• In this case, a husband and wife, both domiciled in France were
married in Paris without making any express contract with regard to
their proprietary right. By French law, under this circumstance, there
was an implied contract that the properties of both husband and wife
should be subject to the French system community of goods under
which each spouse was entitled to one half of their total assets.
• At the time of marriage, they didn’t have any property worth
mentioning, but later they emigrated to England and acquired an
English domicile of choice. They set up a restaurant in London which
prospered exceedingly and when the husband died he left enormous
wealth in both movables and immovables.
De Nicols Curlier
• The husband left a will which ignored the French community rule of one
half to the wife. The wife instituted proceedings in England claiming her
one half share according to French law.
• The House of Lords held that there was an implied contract made in
France at the time of marriage, adapting the community system with
regard to with regard to matrimonial property. This implied contract was
held to be binding on movables subsequently acquired in England where
the husband died domiciled. The question then arose whether the French
implied contract should be extended to immovables in England. Should
the right of the surviving wife to the immovables in England be decided
by French law on the basis of implied contract or by the English situs?
De Nicols Curlier
• It was held that the implied contract must operate according to the
intention of the parties so as to bind the immovable properties of the
deceased in England, unless there was any overriding principle of
English law that would render it unenforceable.
• Therefore the French law was applied as the proper law of the French
implied contract.
Construction of wills of immovables
• In the case of movables, provisions in the will are constructed in
accordance with the law intended by the testator which generally is
his lex domicili at the time of making the will.
• The question to be considered here is whether the same rule of
construction should be applied in the case of provisions relating to
immovables also, or whether the immovables should be governed
exclusively by the lex situs. Cheshire maintains that on principle the
law intended by the testator should govern construction, irrespective
of the question whether the properties involved are movable or
immovable.
Construction of wills of immovables
• This is so because the object of every court in the civilized world,
when dealing with a will is first to ascertain the intention of the
testator and then give effect to that intention so far as is consonant
with the governing law.
• If we are to go by the intention of the testator in this matter, it is clear
that the lex situs cannot have any claim for exclusive recognition; on
the contrary the presumption is in favour of the lex domicili of the
testator at the time of making the will, for that is the system under
which he lives and with which he is expected to be familiar. This
presumption can be rebutted by showing that the testator had in
mind some other system of law like the lex situs.
Construction of wills of immovables
• On the above premise, Cheshire states the rule as to construction of
wills relating to immovable property as follows: A will of immovable
property must be constructed according to the system of law
intended by the testator. This is presumed to be the law of his
domicile at the time when the will is made, but the presumption will
be rebutted if evidence is adduced from the language of the will
proving that he made his disposition with reference to some other
legal system.
• If however, the interest that arises from such construction is not
permitted by the lex situs, the latter law must prevail.
Construction of wills of immovables
• Let us suppose that A in his will had made disposition of certain
immovable property situated in England to heirs of X. At the time of
making the will, both A and X were domiciled in France. How is the
word ‘heirs of X’ to be constructed?
• Should the meaning of the words be construed in accordance with
English law as the lex situs or according to French law as the lex
domicili of the testator at the time of making the will? In terms of the
above view, the interpretation of the words ‘heirs of X’ must be made
according to French law.
Studd v Cook
• A domiciled Englishman executed a will in English form devising lands
in England and Scotland to the use of X for life and then to the use of
X’s first and other sons successively. By English law, X had only a life
interest, but if construed according to Scots law, X had full ownership
because the testator did not use the word “only” after “for life”.
• The House of Lords held that the testator clearly intended the
limitations he introduced in devising lands, to be understood in their
English sense since he had used technical language familiar to English
conveyancing and therefore English law governed not only the English
lands but also the Scottish lands mentioned in the will.
In Re Miller
• The testator A was domiciled in Scotland and the will was in Scottish
form in relation to lands both in England and Scotland. The devisement
in the will was “for behalf of my eldest son James and the heirs made of
his body” . James died without issue, but he executed a will by which he
disposed the whole of his estate including the lands he got under his
father’s will.
• According to English law, as it then stood, James could not dispose of by
will his land in England. But by Scots law, James got sufficient interest in
Scottish lands as to enable him to dispose it off by will.
• It was held that the question whether James had the power to dispose
off the land in England must be decided by English law.
• How would you reconcile the decision in In Re Miller with that it Studd v Cook? In
Studd v Cook, the lex domicile was applied whereas in In Re Miller the lex situs
was applied. On close examination, it isn’t difficult to reconcile these 2 cases.
• In Studd v Cook, the omission of the word only raised a pure question of
construction which normally was governed by the lex domicile of the testator. In
In Re Miller, the question raised cannot be characterized as one of construction
only. The effect of A’s will in Re Miller under Scots law was to create an estate in
England, then unknown to English law. The question really is, said Warrington J,
not so much what is the construction of the will, but what is the nature of the
estate created by the disposition in question. In other words, the real question
was did English law recognize the estate that A had purported to create? This is
the question to be decided by the lex situs.