Legal Succession

From the perspective of comparative law,the law applicable to legal succession on death is determined on the basis of one of the two following principles: scission system and unitary system.

Distinguishing between immovables and movables,the scission system establishes that the deceased’s movable property is governed by his personal law,i.e.,his national law or,the law of his domicile,while his immovables are inherited under the lex situs.This distinction has its historical roots in feudal law.The feudal lords could not allow the descent of their land to be affected if one of their vassals should acquire a foreign domicile.This conception led to the principle of scission.2 This system obtains endorsement in the United Kingdom,the United States,Russia,France,Belgium,and China as well.

Unitary system provides that a unitary law,i.e.,the personal law of the deceased,is applied to the whole of his property.This principle is established on the conception of universal succession as developed in Roman law.3 Universal succession was often based on Justinian’s mystic idea that the deceased and his heir are in a certain sense one person,and the heir continues the personality of the deceased.The principle of a unitary law obtains endorsement in the laws of many countries,such as Germany,Switzerland,Japan,Sweden,and Egypt,largely due to the influence of Savigny.(https://www.daowen.com)

Objectively speaking,there are advantages and defects in both systems.To criticize the scission system on the historical ground of the disappearance of feudalism from which it derived is to misinterpret the function of history; many sound institutions survive their historical basis.Similarly,it would be a mistake to reject the unitary system on the ground that the Roman rule on universal succession has no place in modern law.

The advantage of scission system is that it is usually easy to be enforced in the case where the immovables are situated in a foreign country; while its major defect is the complicated application of law when the property left by the deceased scatters around several countries.Moreover,the rationale that the different parts of the property of the same deceased are governed by different laws seems to be unconvincing.

The advantage of the unitary system,apparently,is its greater simplicity.Where the deceased leaves several immovables in different countries,these together with this movable property form a single mass,all parts of which are treated alike.Complications are thus avoided which arise when several parts of property in one estate are to be distributed under different rules.The simplicity of the unitary system is,however,counterbalanced by considerable disadvantages.For instance,if the succession law of country A is to be applied to the whole estate,including land situated in country B,and if the succession law of B is at variance with the law of A,the rights acquired under the law of A with regard to the foreign land are merely nominal; the courts of A have in fact no power to enforce them.