ONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM
OF TESTAMENTARY DISPOSITIONS
(Concluded 5 October 1961)
The States
signatory to the present Convention,
Desiring to
establish common provisions on the conflicts of laws relating to the form of
testamentary dispositions,
Have resolved to
conclude a Convention to this effect and have agreed upon the following
provisions:
Article 1
A testamentary
disposition shall be valid as regards form if its form complies with the
internal law:
a)
of the place where the testator made it, or
b) of a nationality possessed by
the testator, either at the time when he made the disposition, or at the time
of his death, or
c) of a place in which the
testator had his domicile either at the time when he made the disposition, or
at the time of his death, or
d) of the place in which the
testator had his habitual residence either at the time when he made the
disposition, or at the time of his death, or
e) so far as immovables are
concerned, of the place where they are situated.
For the purposes
of the present Convention, if a national law consists of a non-unified system,
the law to be applied shall be determined by the rules in force in that system
and, failing any such rules, by the most real connexion which the testator had with
any one of the various laws within that system.
The
determination of whether or not the testator had his domicile in a particular
place shall be governed by the law of that place.
Article 2
Article 1 shall
apply to testamentary dispositions revoking an earlier testamentary
disposition.
The revocation
shall also be valid as regards form if it complies with any one of the laws
according to the terms of which, under Article 1, the testamentary disposition
that has been revoked was valid.
Article 3
The present
Convention shall not affect any existing or future rules of law in Contracting
States which recognise testamentary dispositions made in compliance with the
formal requirements of a law other than a law referred to in the preceding
Articles.
Article 4
The present
Convention shall also apply to the form of testamentary dispositions made by
two or more persons in one document.
Article 5
For the purposes
of the present Convention, any provision of law which limits the permitted
forms of testamentary dispositions by reference to the age, nationality or
other personal conditions of the testator, shall be deemed to pertain to
matters of form. The same rule shall apply to the qualifications that must be
possessed by witnesses required for the validity of a testamentary disposition.
Article 6
The application
of the rules of conflicts laid down in the present Convention shall be
independent of any requirement of reciprocity.
The Convention
shall be applied even if the nationality of the persons involved or the law to
be applied by virtue of the foregoing Articles is not that of a Contracting
State.
Article 7
The application
of any of the laws declared applicable by the present Convention may be refused
only when it is manifestly contrary to "ordre
public".
Article 8
The present
Convention shall be applied in all cases where the testator dies after its
entry into force.
Article 9
Each Contracting
State may reserve the right, in derogation of the third paragraph of Article 1,
to determine in accordance with the lex
fori the place where the testator had his domicile.
Article 10
Each Contracting
State may reserve the right not to recognise testamentary dispositions made
orally, save in exceptional circumstances, by one of its nationals possessing
no other nationality.
Article 11
Each Contracting
State may reserve the right not to recognise, by virtue of provisions of its
own law relating thereto, forms of testamentary dispositions made abroad when
the following conditions are fulfilled:
a)
the testamentary disposition is valid as to form by reason only of a law solely
applicable because of the place where the testator made his disposition,
b) the testator possessed the
nationality of the State making the reservation,
c) the testator was domiciled in
the said State or had his habitual residence there, and
d) the testator died in a State
other than that in which he had made his disposition.
This reservation
shall be effective only as to the property situated in the State making the
reservation.
Article 12
Each Contracting
State may reserve the right to exclude from the application of the present
Convention any testamentary clauses which, under its law, do not relate to
matters of succession.
Article 13
Each Contracting
State may reserve the right, in derogation of Article 8, to apply the present
Convention only to testamentary dispositions made after its entry into force.
Article 14
The present
Convention shall be open for signature by the States represented at the Ninth
Session of the Hague Conference on Private International Law.
It shall be
ratified, and the instruments of ratification shall be deposited with the
Ministry of Foreign Affairs of the Netherlands.
Article 15
The present
Convention shall enter into force on the sixtieth day after the deposit of the
third instrument of ratification referred to in the second paragraph of Article
14.
The Convention
shall enter into force for each signatory State which ratifies subsequently on
the sixtieth day after the deposit of its instrument of ratification.
Article 16
Any State not
represented at the Ninth Session of the Hague Conference on Private
International Law may accede to the present Convention after it has entered
into force in accordance with the first paragraph of Article 15. The instrument
of accession shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
The Convention
shall enter into force for a State acceding to it on the sixtieth day after the
deposit of its instrument of accession.
Article 17
Any State may,
at the time of signature, ratification or accession, declare that the present
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 Convention
shall enter into force for the territories mentioned in such an extension on
the sixtieth day after the notification referred to in the preceding paragraph.
Article 18
Any State may,
not later than the moment of its ratification or accession, make one or more of
the reservations mentioned in Articles 9, 10, 11, 12 and 13 of the present
Convention. No other reservation shall be permitted.
Each Contracting
State may also, when notifying an extension of the Convention in accordance
with Article 17, make one or more of the said reservations, with its effect
limited to all or some of the territories mentioned in the extension.
Each Contracting
State may at any time withdraw a reservation it has made. Such a withdrawal
shall be notified to the Ministry of Foreign Affairs of the Netherlands.
Such a
reservation shall cease to have effect on the sixtieth day after the
notification referred to in the preceding paragraph.
Article 19
The present
Convention shall remain in force for five years from the date of its entry into
force in accordance with the first paragraph of Article 15, even for States
which have ratified it 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 end of the five year period.
It may be
limited to certain of the territories to which the Convention applies.
The denunciation
will only have effect as regards the State which has notified it. The
Convention shall remain in force for the other Contracting States.
Article 20
The Ministry of
Foreign Affairs of the Netherlands shall give notice to the States referred to
in Article 14, and to the States which have acceded in accordance with Article
16, of the following:
a)
the signatures and ratifications referred to in Article 14;
b) the date on which the present
Convention enters into force in accordance with the first paragraph of Article
15;
c) the accessions referred to in
Article 16 and the date on which they take effect;
d) the extensions referred to in
Article 17 and the date on which they take effect;
e) the reservations and
withdrawals referred to in Article 18;
f) the denunciation referred to
in the third paragraph of Article 19.
In witness
whereof the undersigned, being duly authorised thereto, have signed the present
Convention.
Done at The
Hague the 5th October 1961, in French and in English, the French text
prevailing in case of divergence between the two texts, 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 represented at the Ninth Session of the Hague Conference on
Private International Law.
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