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Choice of Law and Succession to Wealth: a Critical Analysis of the Ramifications of the Hague Convention on Succession to Decedents' Estates Jeffrey Schoenblum

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Choice of Law and Succession to Wealth: a Critical Analysis of the Ramifications of the Hague Convention on Succession to Decedents' Estates Jeffrey Schoenblum Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 1991 Choice of Law and Succession to Wealth: A Critical Analysis of the Ramifications of the Hague Convention on Succession to Decedents' Estates Jeffrey Schoenblum Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Law Commons Recommended Citation Jeffrey Schoenblum, Choice of Law and Succession to Wealth: A Critical Analysis of the Ramifications of the Hague Convention on Succession to Decedents' Estates, 32 Virginia Journal of International Law. 83 (1991) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/427 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Choice of Law and Succession to Wealth: A Critical Analysis of the Ramifications of the Hague Convention on Succession to Decedents' Estates JEFFREY SCHOENBLUM* TABLE OF CONTENTS I. Introduction ............................................ 84 1"1. Choice of Law Considerations .......................... 85 A. The General Operation of the Convention .......... 85 B. The Elimination of the Situs Rule for Real Property ........................................... 87 C. The Absence of a Persuasive Theoretical Basis for the Unqualified Abandonment of the Situs Rule .... 99 D. The Elimination of the Domicile Rule for Personal Property ........................................... 105 E. The Absence of a Persuasive Theoretical Basis for the Unqualified Abandonment of the Domicile Rule ............................................... 113 F. The Convention and Party Autonomy in Choice of Law ............................................... 118 G. Additional Concerns - Proof of Foreign Law, Renvoi, and the Incidental Question ............... 129 1. Proof of Foreign Law .......................... 129 2. Renvoi ......................................... 134 3. The Incidental Question ........................ 136 H. The Scope of the Convention - The Meaning of "Solely," "Succession," and "Conflicts" ............ 137 * A- B. Johns Hopkins, 1970; J.D. Harvard, 1973. Professor of Law, Vanderbilt University. HeinOnline -- 32 Va. J. Int'l L. 83 1991-1992 84 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 32:83 I. The Convention's Public Policy Exceptions- Self-Defeating Escape Mechanisms ................. 145 III. Conclusion ............................................. 151 A. A Technical Solution .............................. 151 B. The Convention and the Search for Uniformity in Choice of Law ..................................... 153 I. INTRODUCTION The Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons' is an exceptionally complex document with the avowed purpose of radically altering the choice of law rules in the succession field that have traditionally guided all common law jurisdictions 2 as well as many civil law regimes.3 To date, the con- flicts revolution that has engulfed other fields of law such as contracts and torts4 has barely intruded into the realm of property and succes- sion law.5 In large part, this has been attributable to the nearly abso- lute adherence of judges and legislators6 to the relatively simple, straightforward standards that have held sway for centuries.7 The ambivalence of conflicts theorists has also been an important factor. For example, while several have sought to depart from the complete inflexibility of the present situs rule with respect to real property, 8 they have at the same time recognized that considerations such as efficiency, simplicity, and predictability are essential when dealing with the transfer of title to property and that a state must be able to exercise some control over the determination of who shall be entitled to inherit land within its borders, on what terms, and subject to what 1. See Convention on the Law Applicable to Succession to the Estates of Deceased Persons, Aug. 1, 1989, 28 I.L.M. 150, reprinted in 2 Proceedings of the Sixteenth Session of the Hague Conference on Private International Law 515 (1990) [hereinafter Convention]. 2. See infra text accompanying notes 14 & 18-20. 3. See infra notes 21-22. 4. See, e.g., Alfred Hill, The Judicial Function in Choice of Law, 85 Colum. L. Rev. 1585 (1985); Friedrich K. Juenger, Conflicts of Law: A Critique of Interest Analysis, 32 Am. J. Comp. L. 1 (1984); Albert A. Ehrenzweig, A Counter-Revolution in Conflicts Law? From Beale to Cavers, 80 Harv. L. Rev. 377 (1966). 5. See, e.g., Robert Alden, Note, Modernizing the Situs Rule for Real Property Conflicts, 65 Tex. L. Rev. 585 (1987). See also Robert A. Sedler, Across State Lines 75-83 (1989); Eugene F. Scoles & Peter Hay, Conflict of Laws 713 (Lawyer's ed. 1982). 6. See Scoles & Hay, supra note 5, at 715. 7. The traditional choice of law rule is the law of the situs for real property and the law of the domicile for personal property. See infra text accompanying notes 14-15. 8. See, e.g., Russell J. Weintraub, Commentary on the Conflict of Laws 412-48 (3d ed. 1986). HeinOnline -- 32 Va. J. Int'l L. 84 1991-1992 1991] DECEDENTS' ESTATES restrictions.9 The Convention sets its own course-it upends the pre- vailing system, but in doing so, totally disregards the interests of both the situs and domicile states. Instead, it proposes a novel, untested potporri of choice of law rules to be applied worldwide. This Article will first examine critically the general operation of the Convention. An evaluation will be made of the arguments in support of the proposal to eliminate the situs rule for real property and the consequences from both a choice of law and wealth transfer perspec- tive which are likely to flow from the substitution of new and arbi- trary rules. The Article will then undertake a similar review of the Convention's departure from the domicile standard with respect to personal property. Following this consideration, the Article will evaluate the Conven- tion's likely impact on estate planning and the efforts of mobile indi- viduals and those with multijurisdictional estates to predetermine the rules by which their wealth will be disposed. The Article then pro- ceeds to examine other fundamental issues of choice of law that are raised by the Convention and its quixotic quest for uniformity and a unitary choice of law rule, specifically: proof of foreign law, debate among scholars as to the proper approach in identification and resolu- tion of conflicts of law, renvoi, incidental questions, what is a "con- flict," and the viability and scope of the public policy exception to choice of law rules. With these issues in mind, the Article considers a technical solution to the problems raised by the Convention. It then proceeds to discuss the broader issue of choice of law uniformity raised by the Conven- tion. The conclusion is reached that this primary goal of the Conven- tion is an elusive and unattainable one. Furthermore, in the futile attempt to achieve this objective, a set of conflicts rules is being pro- posed which is as rigid as the existing ones, but do not have their predictability. II. CHOICE OF LAW CONSIDERATIONS A. The General Operation of the Convention The Convention generally sets forth certain uniform rules deter- mining which country's law governs matters of intestate and testate 9. See, eg., Hill, supra note 4, at 1628; Moffatt Hancock, Full Faith and Credit to Foreign Laws and Judgments in Real Property Litigation: The Supreme Court and the Land Taboo, reprinted in Studies in Modern Choice-of-Law: Torts, Insurance, Land Titles 327, 332-33 (1984); Brainerd Currie, Full Faith and Credit to Foreign Land Decrees, 21 U. Chli. L Rev. 620, 658 (1954). HeinOnline -- 32 Va. J. Int'l L. 85 1991-1992 86 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 32:83 succession.'0 It makes at least four major changes in the choice of law principles observed by most, if not all, states'" with respect to trans- fers of wealth at death. First, the Convention eliminates reference to the law of the situs with respect to real property. Second, the deter- minative law of personal property is changed from that of the dece- dent's domicile at death to that of the decedent's nationality and habitual residence, standards which no American states currently employ.12 These same standards are also applied to real property. Third, the Convention forecloses certain voluntary choice of law options that are presently available in an estate planning context. Fourth, the Convention applies separate choice of law rules for multi- state estates, as opposed to multinational estates. As a result, attor- neys must carefully evaluate whether to apply the current choice of law rules or those under the Convention for their clients with interna- tional contacts. A careful reading of the Convention and the Explanatory Report by the Reporter for the Draft Convention, Professor D.W.M. Waters,13 reveals technical flaws and unsettled issues. For now, how- ever, the process of review should focus on the broader question of whether the United States should support the major changes wrought by the Convention. These key changes and their overall implications for choice of law are considered below. 10. See Convention, supra note 1. This Article does not focus directly on
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