CONVENTION ON THE LAW APPLICABLE TO SUCCESSION TO THE
ESTATES OF DECEASED PERSONS
(Concluded on August 1st, 1989)
The States
signatory to this Convention,
Desiring to
establish common provisions concerning the law applicable to succession to the
estates of deceased persons,
Have resolved to
conclude a Convention for this purpose and have agreed upon the following
provisions -
chapter i -
scope of the convention
Article 1
(1) This
Convention determines the law applicable to succession to the estates of
deceased persons.
(2) The Convention does not apply to -
a) the form of dispositions of
property upon death;
b) capacity to dispose of property
upon death;
c) issues pertaining to
matrimonial property;
d) property rights, interests or
assets created or transferred otherwise than by succession, such as in joint
ownership with right of survival, pension plans, insurance contracts, or
arrangements of a similar nature.
Article 2
The Convention
applies even if the applicable law is that of a non-Contracting State.
chapter ii -
applicable law
Article 3
(1)
Succession is governed by the law of the State in which the deceased at the
time of his death was habitually resident, if he was then a national of that
State.
(2) Succession is also governed by the law of the State in which the
deceased at the time of his death was habitually resident if he had been
resident there for a period of no less than five years immediately preceding
his death. However, in exceptional circumstances, if at the time of his death
he was manifestly more closely connected with the State of which he was then a
national, the law of that State applies.
(3) In other cases succession is governed by the law of the State of
which at the time of his death the deceased was a national, unless at that time
the deceased was more closely connected with another State, in which case the
law of the latter State applies.
Article 4
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 the succession, the law of another non-Contracting State which would
apply its own law, the law of the latter State applies.
Article 5
(1) A
person may designate the law of a particular State to govern the succession to
the whole of his estate. The designation will be effective only if at the time
of the designation or of his death such person was a national of that State or
had his habitual residence there.
(2) This designation shall be expressed in a statement made in accordance
with the formal requirements for dispositions of property upon death. The
existence and material validity of the act of designation are governed by the
law designated. If under that law the designation is invalid, the law governing
the succession is determined under Article 3.
(3) The revocation of such a designation by its maker shall comply with
the rules as to form applicable to the revocation of dispositions of property
upon death.
(4) For the purposes of this Article, a designation of the applicable
law, 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.
Article 6
A person may
designate the law of one or more States to govern the succession to particular
assets in his estate. However, any such designation is without prejudice to the
application of the mandatory rules of the law applicable according to Article 3
or Article 5, paragraph 1.
Article 7
(1)
Subject to Article 6, the applicable law under Articles 3 and 5, paragraph 1,
governs the whole of the estate of the deceased wherever the assets are located.
(2) This law governs -
a) the determination of the heirs,
devisees and legatees, the respective shares of those persons and the
obligations imposed upon them by the deceased, as well as 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;
b) disinheritance and
disqualification by conduct;
c) any obligation to restore or
account for gifts, advancements or legacies when determining the shares of
heirs, devisees or legatees;
d) the disposable part of the
estate, indefeasible interests and other restrictions on dispositions of
property upon death;
e) the material validity of
testamentary dispositions.
(3)
Paragraph 2 does not preclude the application in a Contracting State of the law
applicable under this Convention to other matters which are considered by that
State to be governed by the law of succession.
chapter iii -
agreements as to succession
Article 8
For the purposes
of this Chapter an agreement as to succession is an agreement created in
writing or resulting from mutual wills which, with or without consideration,
creates, varies or terminates rights in the future estate or estates of one or
more persons parties to such agreement.
Article 9
(1) Where
the agreement involves the estate of one person only, its material validity,
the effects of the agreement, and the 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
that person had died on the date of the agreement.
(2) If under that law the agreement is invalid, it is nevertheless valid
if it is valid under the law which at the time of death is the law applicable
to the succession to the estate of that person according to Article 3 or 5,
paragraph 1. The same law then governs the effects of the agreement and the
circumstances resulting in the extinction of the effects.
Article 10
(1) Where
the agreement involves the estates of more than one person, the agreement is
materially valid only if it is so valid 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 such person had died on the date of the agreement.
(2) The effects of the agreement and the circumstances resulting in the
extinction of the effects are those recognised by all of those laws.
Article 11
The parties may
agree by express designation to subject the agreement, so far as its material
validity, the effects of the agreement, and the 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.
Article 12
(1) The
material validity of an agreement valid under the law applicable according to
Article 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.
(2) However, the application of the law applicable according to Article
9, 10 or 11 shall not 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.
chapter iv -
general provisions
Article 13
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 shall have any succession rights to the other
or others.
Article 14
(1) 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.
(2) The same rules apply by analogy to foundations and corresponding
institutions created by dispositions of property upon death.
Article 15
The law
applicable under the Convention does not 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 such assets because of economic, family or
social considerations.
Article 16
Where under 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 the 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.
Article 17
In this
Convention, and subject to Article 4, law means the law in force in a State
other than its choice of law rules.
Article 18
The application
of any of the laws determined by the Convention may be refused only where such
application would be manifestly incompatible with public policy (ordre public).
Article 19
(1) For
the purposes of identifying the law applicable under this Convention, 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, the provisions of this
Article apply.
(2) If there are rules in force in such a State identifying which law
among the laws of the two or more units is to apply in any circumstance for
which this Article provides, the law of that unit applies. In the absence of
such rules the following paragraphs of this Article apply.
(3) For the purposes of any reference in this Convention, or any
designation by the deceased pursuant to this Convention,
a) the law of the State of the
habitual residence of the deceased at the time of designation or of his death
means the law of that unit of the State in which at the relevant time the
deceased had his habitual residence;
b) the law of the State of the
nationality of the deceased at the time of designation or of his death means
the law of that unit of the State in which at the relevant time the deceased
had his habitual residence, and in the absence of such an habitual residence,
the law of the unit with which he had his closest connection.
(4) For
the purposes of any reference in this Convention, the law of the State of
closest connection means the law of that unit of the State with which the
deceased was most closely connected.
(5) Subject to Article 6, for the purposes of any designation pursuant to
this Convention whereby the deceased designates the law of a unit of the State
of which at the time of designation or of his death
a) he was a national, that
designation is valid only if at some time he had had an habitual residence in,
or in the absence of such an habitual residence, a close connection with, that
unit;
b) he was not a national, the
designation is valid only if he then had his habitual residence in that unit,
or, if he was not then habitually resident in that unit but was so resident in
that State, he had had an habitual residence in that unit at some time.
(6) 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.
(7) For the purposes of Article 3, paragraph 2, the required period of
residence is attained when the deceased for the five years immediately
preceding his death had his residence in that State, notwithstanding that
during that period he resided in more than one of the units of that State. When
the period has been attained, and the deceased had an habitual residence in
that State at that time, but no habitual residence in any particular unit of
that State, the applicable law is the law of that unit in which the deceased
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.
Article 20
For purposes of
identifying the law applicable under this 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 such State shall
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 shall be construed
as referring to the legal system with which the deceased had the closest
connection.
Article 21
A Contracting
State in which different systems of law or sets of rules of law apply to
succession shall not be bound to apply the rules of the Convention to conflicts
solely between the laws of such different systems or sets of rules of law.
Article 22
(1) The
Convention applies in a Contracting State to the succession of any person whose
death occurs after the Convention has entered into force for that State.
(2) Where at a time prior to the entry into force of the Convention in
that State the deceased has designated the law applicable to his succession,
that designation is to be considered valid there if it complies with Article 5.
(3) Where at a time prior to the entry into force of the Convention in
that State the parties to an agreement as to succession have designated the law
applicable to that agreement, that designation is to be considered valid there
if it complies with Article 11.
Article 23
(1) 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 this Convention, unless a contrary declaration is made by
the States Parties to such instrument.
(2) Paragraph 1 of this Article also applies to uniform laws based on
special ties of a regional or other nature between the States concerned.
Article 24
(1) Any
State may, at the time of signature, ratification, acceptance, approval or
accession, make any of the following reservations -
a) that it will not apply the
Convention to agreements as to succession as defined in Article 8, and
therefore that it will not recognise a designation made under Article 5 if the
designation is not expressed in a statement made in accordance with the
requirements for a testamentary disposition;
b) that it will not apply Article
4;
c) that it will not 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;
d) that it will not recognise a
designation made under Article 5, if all of the following conditions are met
- the law of the State making the
reservation would have been the applicable law under Article 3 if there had
been no valid designation made under Article 5,
- 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 State making this reservation,
- that spouse or child is habitually resident in or a national of that State.
(2) No
other reservation shall be permitted.
(3) Any Contracting State may at any time withdraw a reservation which it
has made; the reservation shall cease to have effect on the first day of the
month following the expiration of three months after notification of the
withdrawal.
chapter v -
final clauses
Article 25
(1) The
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 Sixteenth
Session.
(2) 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 Kingdom of the Netherlands, depositary of the
Convention.
Article 26
(1) Any
other State may accede to the Convention after it has entered into force in
accordance with Article 28, paragraph 1.
(2) The instrument of accession shall be deposited with the depositary.
Article 27
(1) If a
State has two or more territorial units in which different systems of law are
applicable in relation to matters dealt with in this Convention, it may at the
time of signature, ratification, acceptance, approval or accession declare that
this Convention shall extend to all of its territorial units or only to one or
more of them and may alter this declaration by submitting another declaration
at any time.
(2) Any such declaration shall be notified to the depositary and shall
state expressly the territorial units to which the Convention applies.
(3) If a State makes no declaration under this Article, the Convention is
to extend to all territorial units of that State.
Article 28
(1) The
Convention shall enter into force on the first day of the month following the
expiration of three months after the deposit of the third instrument of
ratification, acceptance or approval referred to in Article 25.
(2) Thereafter the Convention shall enter into force -
a) for each State ratifying,
accepting or approving it subsequently, or acceding to it, on the first day of
the month following the expiration of three months after the deposit of its
instrument of ratification, acceptance, approval or accession;
b) for a territorial unit to which
the Convention has been extended in conformity with Article 27, on the first
day of the month following the expiration of three months after the
notification referred to in that Article.
Article 29
After the entry
into force of an instrument revising this Convention a State may only become
Party to the Convention as revised.
Article 30
(1) A
State Party to this Convention may denounce it, or only Chapter III of the
Convention, by a notification in writing addressed to the depositary.
(2) The denunciation takes effect on the first day of the month following
the expiration of three months after the notification is received by the
depositary. Where a longer period for the denunciation to take effect is
specified in the notification, the denunciation takes effect upon the
expiration of such longer period after the notification is received by the
depositary.
Article 31
The depositary
shall notify the States Members of the Hague Conference on Private
International Law and the States which have acceded in accordance with Article
26 of the following -
a) the
signatures and ratifications, acceptances, approvals and accessions referred to
in Articles 25 and 26;
b) the date on which the
Convention enters into force in accordance with Article 28;
c) the declarations referred to in
Article 27;
d) the reservations and
withdrawals of reservations referred to in Article 24;
e) the denunciations referred to
in Article 30.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the 1st day of August 1989, 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 Kingdom of the Netherlands, and of which a
certified copy shall be sent, through diplomatic channels, to each of the
States Members of the Hague Conference on Private International Law at the date
of its Sixteenth Session.
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