CONVENTION CONCERNING THE
INTERNATIONAL ADMINISTRATION OF THE ESTATES OF DECEASED PERSONS
(Concluded 2 October
1973)
The States signatory to this Convention,
Desiring to facilitate the international administration of
the estates of deceased persons,
Have resolved to conclude a Convention to this effect and
have agreed upon the following provisions:
chapter i -
the international certificate
Article 1
The Contracting States shall establish an international
certificate designating the person or persons entitled to administer the
movable estate of a deceased person and indicating his or their powers.
This certificate, drawn up in the Contracting State
designated in Article 2 in accordance with the model annexed to this
Convention, shall be recognised in the Contracting States.
A Contracting State may subject this recognition to the
procedure or to the publicity provided for in Article 10.
chapter ii -
the drawing up of the certificate
Article 2
The certificate shall be drawn up by the competent
authority in the State of the habitual residence of the deceased.
Article 3
For the purpose of designating the holder of the
certificate and indicating his powers, the competent authority shall apply its
internal law except in the following cases, in which it shall apply the
internal law of the State of which the deceased was a national -
(1) if both the State of his habitual residence and the
State of his nationality have made the declaration provided for in Article 31;
(2) if the State of which he was a national, but not the State of his habitual
residence has made the declaration provided for in Article 31, and if the
deceased had lived in the State of the issuing authority for less than 5 years
immediately prior to his death.
Article 4
A Contracting State may declare that in designating the
holder of the certificate and in indicating his powers it will, notwithstanding
Article 3, apply its internal law or that of the State of which the deceased
was a national in accordance with the choice made by him.
Article 5
Before issuing the certificate, the competent authority,
when applying the internal law of the State of which the deceased was a
national, may enquire of an authority of that State, which has been designated
for that purpose, whether the contents of the certificate accord with that law
and, in its discretion, fix a time-limit for the submission of a reply. If no
reply is received within this period it shall draw up the certificate in
accordance with its own understanding of the applicable law.
Article 6
Each Contracting State shall designate the competent
judicial or administrative authority to draw up the certificate.
A Contracting State may declare that a certificate drawn up
within its territory shall be deemed to be "drawn up by the competent
authority" if it is drawn up by a member of a professional body which has
been designated by that State, and if it is confirmed by the competent
authority.
Article 7
The issuing authority shall, after measures of publicity
have been taken to inform those interested, in particular the surviving spouse,
and after investigations, if any are necessary, have been made, issue the
certificate without delay.
Article 8
The competent authority shall, on request, inform any
interested person or authority that a certificate has been issued and of its
contents, and of any annulment or modification of the certificate or of any
suspension of its effects.
The annulment or modification of the certificate or the
suspension of its effects by the issuing authority shall be brought to the
attention of any person or authority that has been notified in writing that the
certificate had been issued.
chapter iii -
recognition of the certificate - protective or urgent measures
Article 9
Subject to the provisions of Article 10, in order to attest
the designation and powers of the person or persons entitled to administer the
estate, the production only of the certificate may be required in the
Contracting States other than that in which it was issued.
No legalisation or like formality may be required.
Article 10
A Contracting State may make the recognition of the
certificate depend either upon a decision of an authority following an
expeditious procedure, or upon simple publicity.
This procedure may comprise "opposition" and
appeal, insofar as either is founded on Articles 13, 14, 15, 16 and 17.
Article 11
If the procedure or the publicity envisaged in Article 10
is required, the holder of the certificate may, on mere production, take or
seek any protective or urgent measures within the limits of the certificate, as
from the date of its entry into force and throughout the duration of the
procedure of recognition, if any, until a decision to the contrary is made.
A requested State may require that interim recognition is
to be subject to the provisions of its internal law for such recognition,
provided that the recognition is the subject of an expeditious procedure.
However, the holder may not take or seek the measures
mentioned in paragraph 1 after the sixtieth day following the date of entry
into force of the certificate, if by then he has not initiated the procedure
for recognition or taken the necessary measures of publicity.
Article 12
The validity of any protective or urgent measures taken
under Article 11 shall not be affected by the expiry of the period of time
specified in that Article, or by a decision refusing recognition.
However, any interested person may request the setting
aside or confirmation of these measures in accordance with the law of the
requested State.
Article 13
Recognition may be refused in the following cases -
(1) if the certificate is not authentic, or not in
accordance with the model annexed to this Convention;
(2) if it does not appear from the contents of the certificate that it was
drawn up by an authority having jurisdiction within the meaning of this
Convention.
Article 14
Recognition of the certificate may also be refused if, in
the view of the requested State -
(1) the deceased had his habitual residence in that State;
or
(2) the deceased had the nationality of that State, and for that reason,
according to Articles 3 and 4, the internal law of the requested State should
have been applied with respect to the designation of the holder of the
certificate and to the indication of his powers. However, in this case
recognition shall not be refused unless the contents of the certificate are
contrary to the internal law of the requested State.
Article 15
Recognition may also be refused if the certificate is
incompatible with a decision on the merits, rendered or recognised in the
requested State.
Article 16
Where a certificate mentioned in Article 1 is presented for
recognition, and another certificate mentioned in the same Article which is
incompatible with it has previously been recognised in the requested State, the
requested authority may either withdraw the recognition of the first
certificate and recognise the second, or refuse to recognise the second.
Article 17
Finally, recognition of the certificate may be refused if
such recognition is manifestly incompatible with the public policy ("ordre
public") of the requested State.
Article 18
Refusal of recognition may be restricted to certain of the
powers indicated in the certificate.
Article 19
Recognition may not be refused partially or totally on any
grounds other than those set out in Articles 13, 14, 15, 16 and 17. The same
shall also apply to the withdrawal or reversal of the recognition.
Article 20
The existence of a prior local administration in the
requested State shall not relieve the authority of that State of the obligation
to recognise the certificate in accordance with this Convention.
In such a case the powers indicated in the certificate
shall be vested in the holder alone. The requested State may maintain the local
administration in respect of powers which are not indicated in the certificate.
chapter iv -
use of the certificate and its effects
Article 21
The requested State may subject the holder of the
certificate in the exercise of his powers to the same local supervision and
control applicable to estate representatives in that State.
In addition, the requested State may subject the taking of
possession of the assets situated in its territory to the payment of debts.
The application of this Article shall not affect the
designation and the extent of the powers of the holder of the certificate.
Article 22
Any person who pays, or delivers property to, the holder of
the certificate drawn up, and, where necessary, recognised, in accordance with
this Convention shall be discharged, unless it is proved that the person acted
in bad faith.
Article 23
Any person who has acquired assets of the estate from the
holder of a certificate drawn up, and, where necessary, recognised, in
accordance with this Convention shall, unless it is proved that he acted in bad
faith, be deemed to have acquired them from a person having power to dispose of
them.
chapter v -
annulment - modification - suspension of the certificate
Article 24
If, in the course of a procedure of recognition, the
designation or powers of the holder of a certificate are challenged on the
merits, the authorities of the requested State may suspend the provisional
effects of the certificate, stay judgment and, if the case so requires, settle
a period of time within which an action on the merits must be instituted in the
court having jurisdiction.
Article 25
If the designation or powers of the holder of a certificate
are put in issue in a dispute on the merits before the courts of the State in
which the certificate was issued, the authorities of any other Contracting
State may suspend the effects of the certificate until the end of the
litigation.
If a dispute on the merits is brought before the courts of
the requested State or of another Contracting State, the authorities of the
requested State may likewise suspend the effects of the certificate until the
end of the litigation.
Article 26
If the certificate is annulled or if its effects are
suspended in the State in which it was drawn up, the authorities of every
Contracting State shall give effect within its territory to such annulment or
suspension, at the request of any interested person or if they are informed of
such annulment or suspension in accordance with Article 8.
If any provisions of the certificate are modified in the
State of the issuing authority, that authority shall annul the existing
certificate and issue a new certificate as modified.
Article 27
Annulment or modification of the certificate or suspension
of its effects according to Articles 24, 25 and 26 shall not affect acts
carried out by its holder within the territory of a Contracting State prior to
the decision of the authority of that State giving effect to the annulment,
modification or suspension.
Article 28
The validity of dealings by a person with the holder of the
certificate shall not be challenged merely because the certificate has been
annulled or modified, or its effects have been suspended, unless it is proved
that the person acted in bad faith.
Article 29
The consequences of the withdrawal or reversal of
recognition shall be the same as those set out in Articles 27 and 28.
chapter vi -
immovables
Article 30
If the law in accordance with which the certificate was
drawn up gives the holder powers over immovables situated abroad, the issuing
authority shall indicate in the certificate the existence of these powers.
Other Contracting States may recognise these powers in
whole or in part.
Those Contracting States which have made use of the option
provided for in the foregoing paragraph shall indicate to what extent they will
recognise such powers.
chapter vii -
general clauses
Article 31
For the purposes of, and subject to, the conditions set out
in Article 3, a Contracting State may declare that if the deceased was a
national of that State its internal law shall be applied in order to designate
the holder of the certificate and to indicate his powers.
Article 32
For the purposes of this Convention, "habitual
residence" and "nationality" mean respectively the habitual
residence and nationality of the deceased at the time of his death.
Article 33
The standard terms in the model certificate annexed to this
Convention may be expressed in the official language, or in one of the official
languages of the State of the issuing authority, and shall in all cases be
expressed either in French or in English.
The corresponding blanks shall be completed either in the
official language or in one of the official languages of the State of the
issuing authority or in French or in English.
The holder of the certificate seeking recognition shall
furnish translations of the information supplied in the certificate, unless the
requested authority dispenses with this requirement.
Article 34
In relation to a Contracting State having, in matters of
estate administration, two or more legal systems applicable to different
categories of persons, any reference to the law of that State shall be
construed as referring to the legal system specified by the law of that State,
as applicable to the particular category of persons.
Article 35
If a Contracting State has two or more territorial units in
which different systems of law apply in relation to matters of estate
administration, it may declare that this Convention shall extend to all its
territorial units or only to one or more of them, and may modify its
declaration by submitting another declaration at any time.
These declarations shall state expressly the territorial
units to which the Convention applies.
Other Contracting States may decline to recognise a
certificate if, at the date on which recognition is sought, the Convention is
not applicable to the territorial unit in which the certificate was issued.
Article 36
In the application of this Convention to a Contracting
State having two or more territorial units in which different systems of law
apply, in relation to estate administration -
(1) any reference to the authority or law or procedure of
the State which issues the certificate shall be construed as referring to the
authority or law or procedure of the territorial unit in which the deceased had
his habitual residence;
(2) any reference to the authority or law or procedure of the requested State
shall be construed as referring to the authority or law or procedure of the
territorial unit in which the certificate is sought to be used;
(3) any reference made in the application of sub-paragraph 1 or 2 to the law or
procedure of the State which issues the certificate or of the requested State
shall be construed as including any relevant legal rules and principles of the
Contracting State which apply to the territorial units comprising it;
(4) any reference to the national law of the deceased shall be construed as
referring to the law determined by the rules in force in the State of which the
deceased was a national, or, if there is no such rule, to the law of the
territorial unit with which the deceased was most closely connected.
Article 37
Each Contracting State shall, at the time of the deposit of
its instrument of ratification, acceptance, approval or accession notify the
Ministry of Foreign Affairs of the Netherlands of the following -
(1) the designation of the authorities, pursuant to Article
5 and the first paragraph of Article 6;
(2) the way in which the information provided for under Article 8 may be
obtained;
(3) whether or not it has chosen to subject the recognition to a procedure or
to publicity, and, if a procedure exists, the designation of the authority
before which the proceedings are to be brought.
Each Contracting State mentioned in Article 35 shall, at
the same time, notify the Ministry of Foreign Affairs of the Netherlands of the
information provided for in paragraph 2 of that Article.
Subsequently, each Contracting State shall likewise notify
the Ministry of any modification of the designations and information mentioned
above.
Article 38
A Contracting State desiring to exercise one or more of the
options envisaged in Article 4, the second paragraph of Article 6, the second
and third paragraphs of Article 30 and Article 31, shall notify this to the
Ministry of Foreign Affairs of the Netherlands, either at the time of the
deposit of its instrument of ratification, acceptance, approval or accession or
subsequently.
The designation envisaged by the second paragraph of
Article 6, or the indication envisaged by the third paragraph of Article 30,
shall be made in the notification.
A Contracting State shall likewise notify any modification
to a declaration, designation or indication mentioned above.
Article 39
The provisions of this Convention shall prevail over the
terms of any bilateral Convention to which Contracting States are or may in the
future become Parties and which contains provisions relating to the same
subject-matter, unless it is otherwise agreed between the Parties to such
Convention.
This Convention shall not affect the operation of other
multilateral Conventions to which one or several Contracting States are or may
in the future become Parties and which contain provisions relating to the same
subject-matter.
Article 40
This Convention shall apply even if the deceased died
before its entry into force.
chapter viii
- final clauses
Article 41
This Convention shall be open for signature by the States
which were Members of the Hague Conference on Private International Law at the
time of its Twelfth Session.
It shall be ratified, accepted or approved and the
instruments of ratification, acceptance or approval shall be deposited with the
Ministry of Foreign Affairs of the Netherlands.
Article 42
Any State which has become a Member of the Hague Conference
on Private International Law after the date of its Twelfth Session, or which is
a Member of the United Nations or of a specialised agency of that Organisation,
or a Party to the Statute of the International Court of Justice may accede to
this Convention after it has entered into force in accordance with Article 44.
The instrument of accession shall be deposited with the
Ministry of Foreign Affairs of the Netherlands.
Such accession shall have effect only as regards the
relations between the acceding State and those Contracting States which have
not raised an objection to its accession in the twelve months after the receipt
of the notification referred to in sub-paragraph 3 of Article 46.
The objection may also be raised by Member States at the
time when they ratify, accept or approve the Convention after an accession. Any
such objection shall be notified to the Ministry of Foreign Affairs of the
Netherlands.
Article 43
Any State may, at the time of signature, ratification,
acceptance, approval or accession, declare that this Convention shall extend to
all the territories for the international relations of which it is responsible,
or to one or more of them. Such a declaration shall take effect on the date of
entry into force of the Convention for the State concerned.
At any time thereafter, such extensions shall be notified
to the Ministry of Foreign Affairs of the Netherlands.
The extension shall have effect as regards the relations
between the Contracting States which have not raised an objection to the
extension in the twelve months after the receipt of the notification referred
to in Article 46, sub-paragraph 4, and the territory or territories for the
international relations of which the State in question is responsible and in
respect of which the notification was made.
Such an objection may also be raised by Member States when
they ratify, accept or approve the Convention after an extension.
Any such objection shall be notified to the Ministry of
Foreign Affairs of the Netherlands.
Article 44
This Convention shall enter into force on the first day of
the third calendar month after the deposit of the third instrument of
ratification, acceptance or approval referred to in the second paragraph of
Article 41.
Thereafter the Convention shall enter into force
- for each State ratifying, accepting or approving it
subsequently, on the first day of the third calendar month after the deposit of
its instrument of ratification, acceptance or approval;
- for each acceding State, on the first day of the third calendar month after
the expiry of the period referred to in Article 42;
- for a territory to which the Convention has been extended in conformity with
Article 43, on the first day of the third calendar month after the expiry of
the period referred to in that Article.
Article 45
This Convention shall remain in force for five years from
the date of its entry into force in accordance with the first paragraph of
Article 44, even for States which have ratified, accepted, approved or acceded
to it subsequently.
If there has been no denunciation, it shall be renewed
tacitly every five years.
Any denunciation shall be notified to the Ministry of
Foreign Affairs of the Netherlands, at least six months before the expiry of
the five year period. It may be limited to certain of the territories to which
the Convention applies.
The denunciation shall have effect only as regards the
State which has notified it. The Convention shall remain in force for the other
Contracting States.
Article 46
The Ministry of Foreign Affairs of the Netherlands shall
notify the States Members of the Conference, and the States which have acceded
in accordance with Article 42 of the following -
(1) the signatures and ratifications, acceptances and
approvals referred to in Article 41;
(2) the date on which this Convention enters into force in accordance with
Article 44;
(3) the accessions referred to in Article 42 and the dates on which they take
effect;
(4) the extensions referred to in Article 43 and the dates on which they take
effect;
(5) the objections raised to accessions and extensions referred to in Articles
42 and 43;
(6) the designations, indications and declarations referred to in Articles 37
and 38;
(7) the denunciations referred to in Article 45.
In witness whereof the undersigned, being duly authorised
thereto, have signed this Convention.
Done at The Hague, on the 2nd day of October, 1973, in the
English and French languages, both texts being equally authentic, in a single
copy which shall be deposited in the archives of the Government of the
Netherlands, and of which a certified copy shall be sent, through the
diplomatic channel, to each of the States Members of the Hague Conference on
Private International Law at the date of its Twelfth Session.
ANNEX TO THE CONVENTION
International Certificate
(Hague Convention of 2 October 1973 Concerning the
International Administration of the Estates of Deceased Persons)
A Issuing Authority
1 Country:
2 - The (name and address of the authority) certifies that:
or
- (name, address and capacity of the person)
designated according to Article 6, paragraph 2 and whose certificate is
confirmed in accordance with I b) below, certifies that:
B Information concerning the deceased
3 following the death on . . . at . . . of . . .[1] (marital
status, sex of deceased, date and place of birth)
4 whose last known address was . . .
5 of . . . nationality[2]
6 whose last habitual residence was in (State, town,
street)
7 whose will has/has not been produced to the authority
8 and whose marriage contract dated . . . has/has not been
presented
C Holder of the certificate
9 name . . . address . . . (of the person or body)
10 is/are entitled under . . . law to effect all acts in
respect of all corporeal or incorporeal movables in the estate and to act in
the interest or on behalf of such movable estate[3],
or
is/are entitled under . . . law to effect all acts
in respect of all corporeal or incorporeal movables in the estate, and to act
in the interest or on behalf of such movable estate3,
with the exception of: . . .
a) in respect of all
assets: . . .
b) in respect of any
particular asset or category of assets: . . .
or
is/are entitled under . . . law to effect the acts
indicated in the annexed schedule3.
D Powers, if any, over immovables[4]:
E Power to appoint an agent:
Yes/No
F Other remarks:
G Date, if any, of expiry of the powers:
H Date, if any, of the entry into force of the
certificate:
I Date of the certificate and signatures:
Drawn up on the . . . at . . .
Signature/seal of the issuing authority:
or
a) Signature/seal of the
person drawing up the certificate,
and
b) Signature/seal of the
confirming authority.
Schedule
|
Acts
which may be carried out in respect of the corporeal or incorporeal movables
in the estate, and in the interest or on behalf of such estate |
Put
"No" against acts which the bearer may not carry out |
Severally |
Jointly |
|
To
obtain all information concerning the assets and debts of the estate Any
other acts[5]: |
|||
|
Particular
assets or categories of assets in respect of which acts cannot be carried out
- a) Particular
assets or categories of assets: |
|||
[1] For
married persons, indicate, according to custom, maiden name or name of spouse.
[2] If
the issuing authority knows that the deceased had more than one nationality, it
may indicate them.
[3] The
issuing authority may indicate the capacity in which the holder of this
certificate may act (e.g. executor, administrator, heir).
[4] See
Article 30 of the Convention.
[5] See
in particular Article 30 of the Convention.
Không có nhận xét nào:
Đăng nhận xét