Testamentary Succession
In the case of testamentary succession,will plays a vital role,therefore,it will be convenient to distinguish capacity,formalities,essential validity and interpretation of will.
3.1 Testamentary Capacity
In terms of comparative law,the capacity to make a will is generally decided by two approaches.The first approach believes that the personal law of the testator determines whether he has capacity to make a will of both movables and immovables.This approach is followed by most civil law countries.Based on the distinction between the movables and immovables,the second approach establishes that the personal capacity of a testator to make a will of movables is governed by the law of his domicile,and the lex situs governs his capacity to make a will of immovables.4 Most common law countries follow the second approach.
Under both approaches,a problem may arise: if the personal law of the testator is not the same at the date of his death as it was when he made his will.That is to say,his domicile (or nationality in some countries) changes between these two dates,and the two laws differ,it is necessary to choose between them.Addressing this question,the laws of most countries provide that the personal law at the date of the will should govern.5 Nevertheless,the laws of certain states in the United States provide that the personal law at the date of the death of the testator prevails.6
3.2 Formal Validity
The continued disparity between the laws of succession governing movables and immovables has been found most undesirable with regard to the required forms of testation,since wills valid as the movables under the testator’s domiciliary law,may be invalid as the land located in another country.In order to settle this problem,most civil law countries which make no distinction between the will of movables and that of immovables tend to loosen the formal requirements for the will.For instance,the laws of some civil law countries provide that the formal validity of the will should be decided by the law which deems it valid between the national law and the domiciliary law of the testator.Some other civil law countries establish that a will is valid as long as it satisfies the required form of either the personal law of the testator or the lex loci actus.
Following the distinction between movables and immovables,common law provides that a will of movables is valid in point of form if it complies with the formalities prescribed by the law of the testator’s domicile at the date of his death,and a will of immovables is valid if it complies with the formal requirements of the lex situs.7(https://www.daowen.com)
3.3 Essential Validity
The provision of a will may be so vague as to be rendered invalid by virtue of legislative provisions having to do with an orderly administration of inheritances.The provisions of a will may also violate a rule of the state relating to property-holding in general.In these cases,the instrument is entitled to be considered as a will,but its substantive provisions may not be permitted to be carried out at the place of probate.Suppose,however,that the execution of the testator’s design is to take place in a foreign country where such provisions could not be carried out,will the provisions be upheld? The solution to this problem depends on the law governing the essential validity of a will.
Basically speaking,the countries adopting the scission system,such as the United Kingdom,the United States and Canada,follow the approach that the material or essential validity of a will of movables is governed by the law of the testator’s domicile at the time of his death,and the material or essential validity of a will of immovables is governed by the lex situs.8 On the other hand,under the laws of the countries endorsing the unitary system,such as Germany and Japan,the essential validity of a will of either movables or immovables is governed by the personal law of the testator at the time of his death.9
3.4 Interpretation
Under all legal systems the interpretation of a will must be directed to ascertaining the testator’s intention as expressed in the document.But they differ in respect of the means to be adopted to this end.For instance,English law does not as a rule allow any intention to be taken into account which cannot be proved by the text of the will itself but merely deducible from “extrinsic” circumstance.Civil law recognizes no such limitation.Moreover,most legal systems have established their own rules of interpretation,or canons of construction,determining what is to be regarded as the presumptive intention of a testator who uses certain words such as “next of kin”,“children”,“issue”,or makes certain dispositions.
Which law applies? Generally speaking,in civil law countries,the law governing the essential validity applies.10 In common law countries,the interpretation of a will is governed by the law intended by the testator.In the case of a will of movables,this is presumed to be the testator’s domicile at the date of execution of the will,but this presumption may be rebutted by any sufficient indication that the testator intended his will to be construed according to the law of another legal unit.The testator’s intention may be expressed in the will,or it may be implied from circumstances such as his use of a particular language,or of expressions known only to a particular law.11 Prima facie,a will of immovables must be construed according to the law of the testator’s domicile at the date of execution of the will,but this presumption may be rebutted by any sufficient indication that the testator intended to refer to some other law,as where he uses the technical language of the state where immovables are situated.12 When construing a will of immovables in accordance with the law of the testator’s domicile,the court will construe it so as to enable its disposition to operate to the fullest extent that they are allowed to do so by the lex situs.13 The interpretation of a will of movables or immovables cannot be altered by reason of any change in the testator’s domicile after the execution of the will.14