Choice of Law and Succession to Wealth: A Critical Analysis of the Ramifications of the Hague Convention on Succession to Decedents' Estates
Schoenblum, Jeffrey A.
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 as well as many civil law regimes. To date, the conflicts revolution that has engulfed other fields of law such as contracts and torts has barely intruded into the realm of property and succession law. In large part, this has been attributable to the nearly absolute adherence of judges and legislators to the relatively simple, straightforward standards that have held sway for centuries...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 perspective which are likely to flow from the substitution of new and arbitrary 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 Convention's likely impact on estate planning and the efforts of mobile individuals and those with multijurisdictional estates to predetermine the rules by which their wealth will be disposed. The Article then proceeds 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 resolution of conflicts of law, renvoi, incidental questions, what is a "conflict," 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 Convention. The conclusion is reached that this primary goal of the Convention is an elusive and unattainable one. Furthermore, in the futile attempt to achieve this objective, a set of conflicts rules is being proposed which is as rigid as the existing ones, but do not have their predictability.