AJA00104051_228

Prévia do material em texto

Conflicting laws of conflict in cases of 
international succession 
H Christian A W Schulze· 
Associate Professor of Law 
Chief Researcher: Institute of Foreign and Comparative Law 
University of South Africa 
Introduction 
Under South African private international law, the choice of law in conflict 
cases on succession points to the general connecting factors of the situs in the 
case of immovables, and the last domicile of the testator or intestate in the 
case of movables. 1 In other words, a single law shall govern the distribution 
of the movable estate (the advantage of this unitary principle being conveni· 
ence2), whereas in respect of immovables, the scission principle applies. The 
distribution of immovable property is determined by the lex situs of each 
immovable. Consequently, the immovable estate of the deceased is divided up 
according to where the immovables are situated and distributed according to 
the various leges situum.3 Although the scission principle has been 
criticised4 as causing excessive inconvenience, it is nevertheless still applied 
in a number of countries in regard to immovables, notably in Austria,' 
Belgium, France, Luxembourg, Turkey, the common law countries and South 
"Dr jur (Genrumy); Assessor (Germany). 
ISee only Kahn 'Choice of law In succession In the South African conflict of laws' 
(1956) 73 SAL] 303-318; 392-401; (1957) 74 SAlJ 43-60. 
2Forsyth Private International law (3ed 1996) 340. 
lIbid. See also Edwards 'Conflict of l:rws' LAWSA vol 2 (Reissue 1993) par 450; Kahn 
'The conflict of laws In the South African law of succession' Appendix to Corbett, 
Hablo & Hofmeyr Tbe law of succession In Soutb Africa (1980) (hereinafter referred 
to as Kahn Succession) 603-659 at 634. 
~orris 'Intestate succession to land In the confllct of laws' 85 (1969) LQR 339-371 
at 345347-352369370 argues that the scission principle and the situs rule have 
outlived their usefulness. Only In terms of the pre.1926 English law, where there 
were two systems of Intestate succession, one for realty and the other for personalty, 
It W2S natural that there should have been two rules of the conflict of laws, one for 
Immovables and' the other for movables. Since, howcvu, most countries In the 
world have adopted one system of Intestate succession for all kinds of property, the 
scission principle should be abandoned In favour of the law of the Intestate's 
domiCile. See also McClean & Morris Tbe conflict o/Iaws (4ed 1993) 348-349; 
Collins (ed) Dicey and Morris on tbe conflict o/Iaws IJOlutne 2 (12ed 1993) 
1024-1025; North & Fawcett Cbeshire andNortb'sprlvate International law (13ed 
1999) 999-1000. 
'With regard to the somewhat unclear situation under Austrian private international 
law, see below n 50. 
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Laws of conflict In International succession 35 
Africa. 6 
The unitary principle, in contrast, appUes in South African choice-of-Iaw 
pertaining to the matrimonial property regime (in the absence of an antenup-
tial contract) with regard to both movable and immovable assets. However, 
the Roman-Dutch writers never supported its appUcability to the sphere of 
succession. 7 
This article illustrates how a collision between the choice-of-Iaw rules of 
different countries can lead not only to different results, but can also bring 
about situations where it is believed to be impossible to find a convincing 
solution. 
Case of international succession 
Let us assume the following scenario: a German national, his wife and three 
children immigrate to South Africa where they take up permanent residence, 
although retaining their German dtl2enship. After a few years the marriage is 
dissolved by divorce and shortly thereafter the father' dies in a car acddent 
In terms ofhis last will and testament executed in South Africa, he bequeathed 
his entire estate comprising movable and immovable assets both in South 
Africa and in Germany to his female companion who had joined him after the 
divorce. His three children who were not mentioned in their late father's will, 
wish to claim their compulsory minimal portions in terms of the German law 
of succession and contest the will. 
Succession rights under South African private intemationallaw 
As discussed above, the relevant choice-of-Iaw rules under South African 
private international law refer to the lex ultiml domlctlil as tar as all movable 
property, wherever situated, is concerned, and to the lex sitae with regard to 
the immovable assets.9 Consequently, the succession rights related to the 
estate of the deceased are those of South African domestic law regarding aU 
movable assets of the estate and the immovables situated in South Africa, 
whereas the immovable property situated in Germany will devolve according 
to the German law of succession. 
The validity of the last will and testament 
For its validity the last will and testament has to comply with the provisions of 
the Wills Act 7 of 1953. The formal validity of a last will and testament is largely 
'Kahn '1994 supplement' to Corbett, Hablo & Hofmeyr ]be law of succession in 
Soutb Africa 179/634 n 163. 
'See only Kahn Succession n 3 above at 635 with further reference. . 
8Herelnaner referred to as 'the deceased'. 
~ee also the cases of Rosa's Hein v Inbambane Sugar Estates Ltd 1905 111 11 at 
13-14; Estate Wrigbt v Wrigbt (1908) 25 SC 769 at 774-775; David and Berlein NO 
v Tbe Orpban Master (1897) 4 Off Rep 326 at 329-330; Ex parte Low: in re Estate 
Mangan 1915 SR 147 at 150 (regarding the validity of a last will and testament); 
Soomar v Estate Moonda 1937 NPD 312 at 316-317. 
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36 XXXIV CILSA 2001 
regulated by the provisions of section 3bislO of the Wills Act. This section is 
based on the draft convention for the validity of wills which flowed from the 
ninth session of the Hague Conference on Private International Law in 
1960. 11 In terms of section 3bis (I)(a) of the Wills Act, a last will and testa-
ment is formally valid if its form complies with the internal law of the state or 
territory in which the will was executed; in which the testator was, at the time 
of the execution of the will or at the time of his death, domiciled or habitually 
resident; or of which the testator was, at the time of the execution of the will 
or at the time of his death, a atizen. These tests apply to every will that the 
statute covers, whether it disposes of movable or immovable property, or 
both. 12 So far as immovable property is disposed of in the will, the will is 
formally valid in terms of section 3bis (I) (b) if it complies with the law of the 
state or territory in which that property is situated 13 
Under German private international law the formal validity of testamentary 
dispositions is regulated in article 26 paragraph 1 of the Introductory Act to 
the Civil Code.14 The will and testament is formally valid if it complies with 
the requirements 
• of the law of the state where it was executed, or of which the testator was 
a atizen at the time of his death; 
• of the law of the place where it was executed; 
• of the law of the place where the testator had his domicile or habitual 
residence at the time of the execution of the will or at the time of his death; 
• of the law ofthe place where immovable property concerned is situate; and 
• of the law which is applicable to devolution upon death, or which would 
be applicable at the time when the disposition was made. 
The legislator of article 26 paragraph 1 EGBGB has adopted the wording of the 
Convention on the Conflicts of Laws relating to the Form of Testamentary 
Dispositions of 5 October 1961 1) (which came into force for Germany on 1 
lOS 3bis was inserted by the Wills Amendment Act 41 of 1965 which cameinto force 
on 4 December 1970. 
IIErasmus & De Waal 'Wills' LAWSA vol 31 (1988) para 170; Kahn 'Conflict of laws' 
(1965) Annual Survey of Soutb African Law 475 et seq. 
12Kahn Succession n 3 above at 644. 
IlHartzenberg J confirmed in Tomlinson v ZUJircbmayr 1998(2) SA 840 at 850 that 
the clauses in section 3bts (I)(a) pertain to all sorts of property, also immovable 
property, and that although section 3bts (I)(b) is separated from section 3bts (I) (a), 
the effect thereof is not that the only instance of validity of a will dealing with 
immovable property is when it complies with the lex situs; it is an additional 
instance. 
14Ein/iibrungsgesetz %Um Burgerlicben Gesetzlmcb, hereinafter referred to as EGBGB. 
15Hereinafter referred to as the Hague Convention, published in Bundesgesetzblatt 
1965 II 1144. The following countries have so far acceded to the Hague Conven-
tion: Antigua and Barbados; Australia; Belgium; Bosnia-Herzegovina. Botswana; 
Brunei. Denmark. Estonia. Fiji. Finland; France. Grenada. Greece. Ireland. Israel. 
Japan.Jugoslavia. Croatia; Lesotho. Luxembourg; MauritiuS; Macedonia; Netherlands. 
Norway; Austria. Poland. Sweden. Switzerland. Slovenia. Spain. South Africa; 
Swaziland. Tonga. Turkey; United Kingdom (as published In Bundesgesetzblatt 2000 
II Fundstellennachweis B 438). 
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Laws of conflict In Internattonal succession 37 
January 1966(6). The question as to the applicability of article 26 paragraph 
1 EGBGB in the light of the provision of article 3 paragraph 2 sentence 1 
EGBGB remains controversial (even though the controversy will not produce 
any distinctions in the end result). In terms of article 3 paragraph 2 sentence 
1 EGBGB, rules in international treaties, insofar as they have become directly 
applicable domestic law, take priority over the provisions of the EGBGB. With 
regard to the formal validity of testamentary dispositions, this could mean that 
the provisions of the Hague Convention become directly applicable, instead 
of article 26 BGBGB. Some commentators are of the opinion that article 3 
renders the provisions in article 26 paragraph 1 BGBGB meaningless and 
inapplicable." Others argue that the fact that article 26 paragraphs 1-3 are 
'incorporated conflict of law rules which originate from legal treaties' is not 
in contradiction to article 3 paragraph 2 EGBGB, as long as the clauses 
conform with each other with regard to their applicability. It would, therefore, 
be unnecessary to apply the conflict rules laid down in treaties. II In 1991 the 
Federal High Court of Justice'9 held that rules in international treaties take 
priority over the provisions of the German private international law in terms 
of article 3 BGBGB, but without providing any further argument.10 
In this context it should be noted that the German Basic Law' does not 
provide that international treaties take priority over the national laws. 
Especially article 25 GG which provides that the general principles of public 
international law shall be an integral part of the federal law does not transform 
the provisions of international treaties into national law. n The transform· 
ation of treaty law into directly applicable domestic law rather takes place in 
terms of article 59 paragraph 2 GG which provides that treaties which regulate 
16Bundesgesetzblatt 1966 II 11; for South Africa the Hague Convention came into 
effect on 4 December 1970, Proc R 306 of 1970 GG 2934 of 27 November 1970 (Reg 
Gaz 1367). 
17Jayme 'Das neue IPR·Gesetz - Brennpunkte dec Refonn' IPRax 1986 265-270 at 
266; Mansel 'Zu Auslegungsproblemen des IPR.Reformgesetzes' StAZ 1986 315-318 
at 316-317; Basedow 'Die Neuregelung des intern.ationalen Prlvat- und ProzeBrechts' 
/t{/W 1986 2971-2979 at 2977; Siehr 'Das intem;ltionale Erbrecht nach dem Gesetz 
zur Neuregelung des IPR' IPRax 1987 4-8 at 6; Elwan & Otto 'Das Zusammenspiel 
von Ehegiiterrccht und Erbrecht in Namibia und Siidafrlka' IPRax 1995354-360 at 
354; KrophoUer Intematlonales Prlllal"recbt (3ed 1997) 396; DOmer in J lion 
Staudlngen Kommentar %11m BiiTgerllcben Gesetzbucb art 25, 26 EGBGB (Bed 
1995) art 26 nos 12-18; Birk in Miincbener Kommentar %11m BiiTgerllcben 
Gesetzbucb Band 10 Intemationales PrlV2trecht (3ed 1998) art 26 no 2. 
l'Schurlg}Z 1987 764; Heidrich in Palandt BiiTgerllcbes Gesetzbucb (5ged 2000) art 
3 no 8, art 26 1; Von Bar Intematlonales Prlllatrecbt 11987203, n 1991356 who 
regards art 26 paragraphs 1-3 as lex speclalls to art 3 paragraph 2. 
19Bundesgerlcbtsbo! - BGH. 
~GH IPRax 1992 101 at 102 with regard to the Hague Convention on the Uw 
Applicable to Maintenance Obligations of 2 October 1973 (published in Bundes-
gesetzblatt 1986 11837). . 
llGnlndgesetz hereinafter referred to as GG. 
~aunz-Diirig GnIndgesetz Kommentar (1999) art 25 no 29 point out that the maxim 
'pacta sunt servanda' only means that the sigrutories to international treaties arc 
under the obligation to fulfll such treaties; it does not transfonn treaty law into law 
which is superior to national law; see also Rojahn in Von Munch & Kunig (eds) 
Grundgesetz-Kommentar (3ed 1995) Band 2 art 59 no 37. 
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38 XXXN CILSA 2001 
the political relations of the federation or relate to matters of federal 
legislation shall require the consent or participation, in the form of a federal 
law, of the bodies responsible for such federallegislation. ll 
Although article 3 paragraph 2 EGBGB provides that those rules in interna-
tional treaties which have become directly applicable domestic law (in terms 
of article 59 GG) take priority over the private international law prOvisions, it 
does not create a hierarchy between the provisions of international treaties 
and those of private international law. The transformation process of article 
59 GG can transform international treaty law into domestic law, but it cannot 
create a law which is superior to the domestic law.14 The minority opinion 
that the provisions of international treaties are not only superior to the 
domestic law, but also the Basic Law) is regarded as unconvincing and 
lacking in logic, for it cannot explain how the legislator of the Basic Law which 
is the supreme law of the state, can create a law which is supposedly even 
superior to the Basic Law.16 
Article 3 paragraph 2 EGBGB merely regulates as to how the two types of rule 
compete with one another, ie that, when applied, the international treaty rules 
take priority over the private international law provisions.27 In this regard the 
principles of 'lex posterior derogat legi anterior' and 'lex specialis derogat 
legi generaU' apply.1S 
Given this background, it should also be taken into account that when 
considering the different arguments regarding the applicability of the rules laid 
down in article 26, as early as in 1909 the Supreme Court of the German 
Reich19 held that if the legislator enacted a law after an international treaty 
had been concluded with other countries, it could not be assumed that by 
enacting that specific law the legislator had intended to render the treaty 
clauses inapplicable, at least for as long as the treaty still had binding effect on 
the contractual parties and unless the legislator specifically expressed his 
intention of doing so. The court regarded this argument as a foregone con-
c1usion. 30 This was confirmed by the Federal High Court of Justice in 1984 
when the court held that conflict clauses based on international treaties had 
to take priority over the legal provisions of a national law, even if the national 
2lMaunz-Diirig n 22 above art 59 13-15; Streinz In Sachs (ed) Gtundgesel% 
Kommentar (2ed 1999) art 59 nos 20-37. 
24Jayme & Meesen Staatsvertriige zum Intemationalen Prlvatrecbt (Berichteder 
Deutschen Gesellschaft fUr Vdlkerrecht Heft 16) (1975) 25-26; Maunz-Diirig n 22 
above art 25 no 29; Strelnz n 23 above art 25 nos 85-92. 
2.STbese vom Oberverfassungsrang der Viilkerrecbtsregeln advocated especially by 
Menzel, see Rudolf Volkerrecbt und deutscbes Recbt (1967) 262-264; Rojahn n 22 
above art 25 no 37, each with further ref. 
26Rojahn ibid; Rudolf n 25 above at 265-268; Maunz-Diirig n 22 above art 25 no 24. 
17Hausmann In] von Staudingers Kommentar zum Biirger/icben Geset%bucb art 3-6 
EGBGB (13ed 1996) art 3 nos 13-15; Sonnenberger In Miincbener Kommentar n 17 
above art 3 nos 11-15. 
'Jj,Ibid. 
29Reicbsgerlcbt. 
3iJRGZ 71 293 at 296. 
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Laws of conflict in international succession 39 
law had been enacted after the conclusion of the treaty. 31 
This author, therefore, deems it only logical to argue that conflict rules in 
international treaties have to take priority over the provisions of national law. 
One can even use Von Bar's argument of the lex speciaJts rule,32 although 
it makes more sense to tum it around. If the conflict rules laid down in article 
26 paragraphs 1-3 EGBGB are the general law, then article 3 paragraph 2 
EGBGB is the lex specialis, and the conflict rules of international treaties have 
to take priority over the codified private international law provisions. 
If one thus reaches the conclusion that the last will and testament of the 
deceased is formally valid in terms of the conflict rules of the Hague Conven-
tion, as it complies with the laws of the Republic of South Africa as the laws of 
the place where it was drawn and where the deceased was domiciled at the 
time of his death, then it will also be regarded as formally valid in terms of 
German law. 
Right to a compulsory portion under German law of succession 
The law of succession is dealt with in the fifth book of the German Civil 
Code. 33 The first section of the fifth book (sections 1922-1941 BGB) has the 
title 'Order of succession'. Sections 1924 et seq BGB make provision for the 
different classes of statutory heir in cases of intestate succession. Statutory 
heirs of the first class are the descendants of the deceased, who inherit in 
equal shares in terms of section 1924 paragraph 4 BGB. The statutory heirs of 
the second class are described in section 1925 as the parents of the deceased 
and their descendants (the siblings of the deceased), whereas section 1926 
lists the statutory heirs of the third class as the grandparents of the deceased 
and their descendants. The statutory right of inheritance oCa surviving spouse 
is laid down in section 1931 BGB. 
The fifth section of the fifth book (sections 2303-2338a BGB) deals with the 
compulsory portion rule. In terms of section 2303, the persons entitled to 
compulsory portions are the descendants, the parents and the spouse of the 
testator. If the testator excludes a descendant from succession by disposition 
mortis causa, the excluded person may demand his compulsory portion from 
the testamentary heir(s). The testator's parents and his spouse enjoy the same 
right to claim a compulsory portion, which amounts to one-half of the 
statutory portion. 
The compUlsory portion rule34 has been described as a compromise between 
the succession rights of the members of the family and the complete freedom 
of testation. U The Basic Law guarantees the right to inheritance in its article 
lIBGHZ 89 325 at 336. 
l2See n 18 above. 
llBiirger/icbes Gesettbucb, hereinafter referred to as BGB. 
~ich has its origin In the Roman uw. see KJpp & Coing Erbrecbt (14ed 1990) 
51-55; Lange & Kuchlnke Lebrbucb des Erbrecbts (3ed 1989) 685-687. 
lSFrank in Miincbener Kommentar zum biirgerlicben Gesettbucb Band 9 Erbrecht 
(3ed 1997) §2303 no 1. 
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40 XXXIV CILSA 2001 
14. Article 6 paragraph 1 GG, in terms of which marriage and family shall enjoy 
the special protection of the state, is regarded as the protection clause for the 
compulsory portion rule. 36 
The German system of compulsory portions is unknown under modem South 
African law, although it formed part of the Roman and Roman-Dutch law and 
of the law of the Cape until it was abolished by statute in 1874. 37 Since then 
South African law has been one of the few modem systems of law 'in which 
a man's dearest and nearest have no protection whatsoever against 
disherison'.38 This lacuna was partly filled by the development of the rule 
that the estate of a deceased parent 'inherits' the duty to support his or her 
children, and that children are therefore entitled to claim maintenance from 
the estate, as well as by the Maintenance of Surviving Spouses Act. 39 The Act 
provides the surviving spouse who is unable to support himself or herself from 
his or her own means and earnings, with a claim for his or her reasonable 
maintenance needs against the estate of the deceased spouse.40 Further 
protection for a decedent's surviving spouse and a descendant is provided by 
section 1(1)(c)(i), (ti) of the Intestate Succession Act,41 in terms of which the 
surviving spouse shall inherit a child's share of the intestate estate, or so much 
of the intestate estate as does not exceed in value the amount fixed from time 
to time by the Minister of Justice by notice in the Gazette, whichever is the 
greater, and the descendant shall inherit the residue of the intestate estate. For 
that purpose, the amount was fixed at R125 000.42 
Consequently, and in so far as the above-mentioned case of international 
succession is concerned, the compulsory portion rule as we find it in the 
German law of succession is not enforceable in respect of the movable and 
immovable property in South Africa. 
As the movable assets of the estate of the deceased are governed by the lex 
ultimt domicilii, in terms of the choice-of-Iaw rules under South African 
16Jarass & Pieroth Grundgesetzjiirdie Bundesrepublik Deutscbland (4ed 1997) art 14 
no 70a; Maunz-Diirig n 22 above art 14 nos 244 246; Haas in] von Staudingers 
Kommentar zum biirgerlicben Gesetzbucb FUnftes Buch Erbrecht (ned 1998) 
Vorbem zu §§ 2303ff no 15; BGHZ 98 226 233; BGH N]W 1990 911 913. 
J7Hahio 'The Case against freedom of testation' (1959) 76 SAl] 435-447 at 435-437 
with further ref; Erasmus & De Waal 'Wills and succession' (1988) 31lAWSA pan. 
205 with further ref. 
lSHahlo n 37 above at 436; but Erasmus & De Waa! n 37 above and Corbett, Hahlo 
& Hofmeyr n 3 above 33-34 clarify that this freedom of testation is by no means 
absolute, but subject to certain limitations, such as bequests which are illegal or 
against public policy or too vague or uncertain to be enforced; the prohibition of 
alienation of immovable property; the limited subdivision of agricultural land and 
mineral rights. 
19Act 27 of 1990. 
4OAlthough the same does not apply in the case of parents or other close relatives, 
whom the testator may leave destitute at will; see Hosten, Edwards, Church & 
Bosman Introduction to Soutb African law and legal tbeory (2ed 1995) 687-688 
with further ref. 
~IAct 81 of 1987, as amended by the Law of Succession Act 43 of 1992. 
~2Gazette 11188 GN 483/1988 of 18 March. 
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Laws of conflict in international succession 41 
private international law, the question arises as to whether the compulsory 
portion rule would be enforceable in South Africa with regard to the movable 
assets of the estate in Germany. 
Succession rights under German private international law 
In terms of German private international law, the devolution upon death is 
governed by the law of the state of which the deceased was a citizen at thetime of his death.43 This is regulated in article 25 paragraph 1 EGBGB and 
applies to all matters related to succession, without differentiating between 
the succession to movables and immovables. This is called the unitary prin· 
dple. 44 The decedent's personal law also governs the compulsory portion 
rule and thus deddes whether and to what extent the deceased will be 
permitted to reduce the statutory portions of his next of kin. That means that 
if a person changes his nationality, such change will have consequences in so 
far as the succession rights upon that person's death are concerned. If, for 
example, a British citizen acquires the German dtizenship, then his descend· 
ants, his spouse and his parents have a claim for their compulsory portions to 
which they would otherwise not have been entitled if the deceased had 
remained a British citizen." 
If the decedent's personal law refers to the law of another country, which 
includes that country's private internationallaw,46 then the German private 
international law accepts such referral in terms of article 4 paragraph 1 
EGBGB. 47 The referral to the law of another country may have the resul t that, 
in terms of that country's private international law rules, the decedent's lex 
u/timi domicilii will govern the movable assets of the estate, whereas !he lex 
ret sitae will govern the estate's immovable assets. This means that, in contrast 
to the unitary prindple, the scission principle would apply in such a case, 
whereby only all the movable assets of the estate worldwide will be governed 
by the law of the decedent's last domidle, whereas the immovables will be 
governed by the law of the state in which they are situated. For instance, 
under Swiss law, the lex u/tim! domicilii will govern the succession rights to 
the whole estate,48 whereas the scission principle applies to the estate in 
terms of the private international law rules of Belgium, France, Luxembourg, 
Rumania, Turkey, the common law countries and South Africa,49 and Austria 
- although the situation under Austrian law is not quite clear in this regard 
~lSo-called Erbstatut; Kahn n 1 above at 306 calls It the decedent's personal law 
which is in this case the lex patriae. 
MNacbla'petnbett; see Domer n 17 above art 25 no 19; HeIdrich n 18 above art 25 no 
1. 
~5Domer n 17 above art 25 no 188; Birk n 17 above art 25 no 136; Kropholler n 17 
above 391. 
~o-called GesamtveTWetsung which means collective referral. 
~7This Is the undisputed opinion of the commentators; see only HeIdrich n 18 above 
art 25 no 2; Siehr n 17 above at 5 . 
.aDomer n 17 above Anh zu art 25f nos 503 et seq. 
~9See Kahn n 6 above at 179/634 n 163. 
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42 XXXN CILSA 2001 
and seems to have changed since 1979.'° 
One must, however, differentiate between cases of a special referral to the 
private international law provisions of another country with regard to certain 
assets, eg immovables, and cases where, in terms of foreign private interna· 
tionallaw rules, the application of different connecting factors results in the 
succession rights not being governed by the law of the state of which the 
deceased was a dtizen, but by the law of the decedent's last domicile. 
The first case is a case of a spedal referral in terms of article 3 paragraph 3 
EGBGB,I having priority over the general referral, for example, where the 
foreign conflict rules apply the scission prindple thus differentiating between 
different legal systems being applicable to movable and immovable assets (as 
~A1though Austria used to apply the scission principle In the past, this seems to have 
changed after the coming Into effect of the Private International UlW Act 1978. In 
terms of s 28 of the Act, the succession rights are governed by the decedent's 
personal law (which is the law of a person's nationality). However, in spite of this 
provision the acquisition of any immovable property situated In Austria Is governed 
by Austrian law, as is laid down in ss 31, 32 of the Act. Lorenz 'NachlaBspaltung 1m 
geltenden osterreichischen IPR?' IPRax 1990 206 opines that, due to the fact that 
only the modus of the acquisition of immovable property in Austria Is subject to 
Austrian law, whereas the status as a prospective heir Is governed by the decedent's 
personal law, the unitary principle applies under Austrian private International law. 
According to Heidrich n 18 above an 25 no 2 this differentiation made by Lorenz, 
means that the Austrian private International law does not apply the scission 
principle to Its full extent any more; however, both Von Bar Intematlonales 
Prlvatrecbt I n 18 above at no 535, Intematlonales Prlvatrecbt II n 18 above at no 
365, and Hoyer 'Itallenisches LegalS- und Noterbrecht vor asterrelchlschen 
Gerichten' IPRax 1988 255-257 want to apply the scission principle without 
reservation to cases governed by Austrian law. 
The case law of the German and Austrian courts Is not unanimous In this regard. 
The Supreme Regional Court of Bavaria (Bayeriscbes Oberstes Landgericbt -
8ayObLG) held In 1982 that, in terms of Austrian prtv2te International law, the 
scission principle Is to be applied, see BayObLG IPRax 1983 187 at 190. This W2S 
supported by the Austrian Supreme Court «()sterrelcblscber Oberster Gericbtsbof -
asterr.OGH) in its decision of 27 May 1986, see Qsterr.OGH ZjRV 1987 278. Already 
in 1980, however, the BayObLG had held that the unitary principle be applied, 
BayObLG IPRax 1981 100 at 102. The Osterr.OGH applied the unitary principle In 
three decisions in October and November 1986, see IPRax 1988 36 at 37; 37 at 38; 
246 at 248. In Its last Judgment of November 1986 (IPRax 1988 246) the court 
emphasised that, In tenus of s 28 of the Austrian Private International Law Act 1978, 
the decedent's personal law at the time of his death - which Is the lex patriae -
governs the succession rights for the entire estate, whereas the lex rei sitae would 
only be applicable insofar as the acquisition of ownership of Immovable property, 
or the modus of acquisitiOn, is concerned. These I2St three Judgments by the 
Austrian court have been interpreted as confirmation that the legislator of s 28 of 
the Private International UlW Act 1978 envisaged that as from 1 January 1979 (the 
date when the new act became effective) the unitary prinCiple be applied to cases 
of international succession; see Lorenz supra; Kegel Intemationales Prlvatrecbt 
(7ed 1995) 758; KrophoUer Intemationales Prlvatrecbt (2ed 1994) 167 fn 8; Domer 
n 17 above Anh zu art 25f EGBGB no 429; Ferid.Flrschlng Intemationales Erbrecbt 
Band IV '()sterreicb' (1994) no 15; see also Feil Bundesgeset% iiber das intematlo-
nale Privatrecbt (IPR-Geset%) (1978) 178 180 who emphasises that s 28 of the new 
Act abolishes the scission principle In favour of the unitary principle. 
51Sonderstatut bricbt Gesamtvermiigensstatut; art 3 para 3 EGBGB is thus the lex 
speciaUs to an 25 EGBGB, see only Von Bar Intematlonales Prlvatrecbt I n 18 
above at no 534 and DOmer 'Nachla.Bspaltung - und die Folgen' IPRax 1994 
362-366 at 363. 
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discussed above). In cases involving non-German citizens the practical 
importance of article 3 paragraph 3 EGBGB is regarded as negligible, as the 
result of its application does not differ from the application of the provisions 
of article 25 paragraph I, article 4 paragraph 1 EGBGB.'2 The results are 
different in cases involving German citizens, where for instarice a deceased 
German citizen leaves behind immovable property in the state of New Jersey, 
USA. In terms of article 25 paragraph 1 EGBGB, German law would govern the 
succession. However, as the immovable property is situatedin the state of 
New Jersey, it will be governed by the lex rei sitae, in terms ofthe New Jersey 
private international law rules, which means that in terms of article 3 
paragraph 3 EGBGB, the fifth book of the BGB will not be applicable, in spite 
of the rule of article 25 paragraph 1 EGBGB.H 
The second case where the application of different connecting factors results 
in the succession rights not being governed by the lex patriae, but by the law 
of the decedent's last dOmicile, is not a case of the specific rule of private 
international law overriding the general rule, but the application of different 
connecting factors which result in a different personal law (Erbstatut). In that 
case a totally different general personal law is called upon which results in two 
different personal laws facing each other. This is illustrated by the following 
example:'· a German citizen dies at his last domicile in Denmark leaving 
behind movable and immovable property in that country. In terms of article 
25 paragraph 1 EGBGB, the provisions of sections 1922 et seq BGB will govern 
the succession rights. Although the conflict rules of Danish private interna-
tionallaw refer to the lex ultimi domicilii as the law governing the rights of 
succession with regard to both movable and immovable assets of the estate, 
a German lawyer will nevertheless apply the prOvisions of the German 'taw of 
succession, in terms of article 25 paragraph 1 EGBGB, as this is a case of two 
different personal laws facing each other, and not a case of a special referral 
in terms of article 3 paragraph 3 EGBGB having priority over the general 
referral. The Danish private international law referral to the lex ultimi 
domicilii as the law which shaH govern the succession rights is a general 
referral to a different personal law (Personalstatut) and not a referral only to 
certain assets of the estate." 
In our chosen scenario the decedent was a German dtizen who was 
permanently resident in South Africa. Consequently, and in terms of the 
German private international law provision of article 25 paragraph 1 EGBGB, 
the rights of succession to the estate late will be governed by German law 
being the lex patriae. The decedent's personal law (Erbstatut) also governs 
52Ebenroth & Eyles 'Oer Renvoi nach der NoveUierung des deutschen intematlonalen 
Privatrechts'lPRax 1989 1-12 at 4. 
511bid; see also Solomon 'Ott Anwendungsberelch von Art. 3 Abs. 3 EGBGB -
dargesteUt am Beispiel des Intemationalen Erbrechts' IPRax 1997 81-87 at 82. 
504See Ebenroth & Eyles n 52 above at 4. 
sslbid; see also Domer n 17 above at art 25 no 541; Kropholler n 17 above at 168; 
Heidrich n 18 above at art 3 no 15. 
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the legitimate portion rule,.56 except where the special referral of article 3 
paragraph 3 EGBGB takes priority over article 25 paragraph 1 EGBGB, for 
instance, if the conflict rules of a foreign country provide for the immovable 
property of a deceased estate situated in that country to be governed by the 
lex sitae, in tenos of the scission principle (as is the case in the USA)7).)8 
As was shown above, the South African choice·of·law rules provide that the 
South African law of succession as the lex ultimi domicilii will govern the 
movable assets of the estate and the South African immovable property, 
whereas the fixed property situated in a foreign country will devolve according 
to that country's law of succession. That means that in terms of the South 
African conflict rules, the South African law of succession will govern the 
movable assets of the estate, both in South Africa and in Germany, and the 
South African fixed property, whereas the immovables situated in Germany will 
be governed by German law. On the other hand, the conflict rules of German 
private international law provide that the decedent's entire estate (the 
movable assets in Germany and in South Africa, as well as the fixed property 
in Germany) will devolve according to German law of succession (in tenos of 
article 25 paragraph 1 EGBGB), and the immovable South African property will 
be governed by the South African law of succession, as the result of the special 
referral of article 3 paragraph 3 EGBGB. 
In so far as the children's claims for their compulsory portions in terms of 
German law are concerned, the children could enforce such claims against the 
(movable and immovable) assets in Germany, if German law were to be 
applied in terms of the German private international law prOvisions, whereas 
if the South African conflict rules were to be applied (also governing the 
movable assets in Germany), the children would not be able to claim their 
compulsory portions with regard to the movables in Germany. In other words, 
there is an obvious collision between the conflict rules of South African 
private international law and the prOvisions of German private international 
law. 
The fact that not only South Africa, but also the legal systems of the USA and 
England,)9 for example, do not include a compulsory portion rule as known 
56See already BGHZ 9 151 at 154; conflnned In BGH NJW 1993 1920 at 1921. 
57Flrschlng Deutscb-Amerlkanlscbe Erbflille 1965 24; Ferld, Kegel & Zwelgen 
Gutacbten %Um Intemaltonalen und ausllindlscbenPrlvatrecbt 1965 und 19661968 
522. 
58BGH NJW 1993 1920 at 1921; the Federal High Coun of Justice held already In 
BGHZ 50 63 at 64 that the decedent's personal law - Personalstatut - does not 
apply to assets which are situated outside Gennany and which are governed by the 
foreign country's 'special provisions' (with regard to Immovable property in Austria, 
before the law refonn of 1978; see n 50 above); see also BayObLG IPRax 1983 187 
(also discussed supra n 50) and the case note by Flrschlng '(}sterrelchlsche 
Nachliisse'IPRax 1983 166-169 (who Is In suppon of the decision of the BayObLG). 
59Aithough a spouse enjoys freedom of testation under English law (see only Ferid· 
Firsching Intemaltonales Erbrecbt Band III 'Groftbrltannlen' (1984) no 229). the 
surviving spouse Is somewhat protected under the rules of Intestate succession. 
Under the present law, where there are children, the surviving spouse inherits the 
personal chattels, a statutory legacy of £125 000 of the estate and a life interest In 
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under German law in their respective laws of succession is not regarded by the 
majority of the commentators as a contravention of the public policy 
provision60 of the German private internationallaw.61 Others opine that the 
non-existence of a compulsory portion rule under a foreign legal system does 
not contravene article 6 EGBGB, as long as the persons who are entitled to a 
compulsory portion are taken care of otherwise and do pot become a burden 
to society.62 In this context, it should be noted that, although article 6 
EGBGB also applies to the international law of succession, the provision (and 
also its predecessor provision of article 30 EGBGB, old version) was hardly 
ever tested in practice in international succession cases.63 It seems that the 
German courts have so far adopted a very lenient attitude in cases of 
international succession.64 
The appllcation of different conflict rules 
The simultaneous application of different conflict of law rules leads to 
different results. In terms of German private international law, the special 
referral of article 3 paragraph 3 EGBGB can result in movable assets of the 
estate being treated differently from the immovables, as is the case when the 
scission principle applies. In that case each part of the estate - comprising 
either movables or immovables - is to be treated differently, depending on 
the respectivepersonal law (Erbstatut), and is to be regarded as an indepen-
dent estate.6' The situation becomes more complicated if only one of the 
legal systems which are called upon to govern the estate in terms of the 
respective countries' personal law recognises the compulsory portion rule (as 
is the case in the chosen scenario). In such cases the commentators opine that 
it is difficult to find a satisfactory solution,66 it is even believed to be imposs-
hall the residue. Where there are no children but close relatives, the surviving 
spouse inherits the personal chattels, a statutory legacy of £200 000 and hall the 
balance. In other cases, the surviving spouse inherits the whole estate. Where on 
death a surviving partner (spouse or cohabitant) or any other person who was 
dependent on the deceased is not provided for, or is insufficiently provided for, an 
application may be made under the Inheritance (PrOvision for Family and 
Dependants) Act 1975, as amended by the Law Reform (Succession) Act 1995, for 
reasonable financial provision from the deceased's estate. See Black, Bridge & Bond 
A practical approacb to Family Law (Sed 1998) 344-345; Standley Cases and 
materials on family law (1997) 111-113; see also Regional Appeal Court 
(Oberlandesgericbt - OLG) of KOln IPRspr 1975 Nr 15. 
60Referred to as ordre public in art 6 EGBGB. 
61See for example Heidrich n 18 above at art 6 no 30; Von Bar lnternationales 
Prlvatrecbt II n 18 above at no 384; Kegel n 50 above at 763-764, each with further 
ref. 
62Blrk n 17 above at art 25 no 113; Domer n 17 above at art 25 no 695; Domer n 51 
above at 363. 
6lVon Bar Inte77l.ationales Prlvatrecbt n n 18 above at no 384 with ref to RG]W 1922 
22; Federal Fiscal Court (BundesJinanzbof - BFH) BFH N]W 1958 766; OLG KOln 
n 59 above. 
64yon Bar ibid with ref to BFH N]W 1958 766 at 768 where the court held that art 30 
EGBGB (old version) had to be applied cautiously; BGH N]W 1993 1920 did not 
mention a possible contravention of art 6 EGBGB. 
6SBGHZ 24 352 at 355. 
66Domer n 17 above at art 25 no 721; Birk n 17 above at art 25 no 131. 
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46 XXXN CILSA 2001 
ible to solve this problem convincingly.67 
The possibilities of connecting a person with a territorial system of law, by 
means of applying a personal law to him, are also recognised under English 
law, although English law uses the test of a person's domicile in conflict onaw 
cases. This 'general rule' was spelt out in a leading case in 194768 when the 
court held that 
... It Is the clear rule of English law, for which at this date no authority need be 
cited, that the distribution of the distributable residue of the movables of a 
deceased Is In general governed by the law of his domicile at the time of his 
death. As there are cresent in this case no circumstances to take It out of that 
general rule, It fo ows that the questions of succession to the movable 
property of the testator comprised In the Spanish will must be determined by 
English law.69 
The South African courts also held in 190870 and in 193~1 respectively, that 
the distribution of the movable assets of the deceased is governed by the 
decedent's lex domtciltt at the time of his death, even if those movables are 
situated outside South Africa. 
Although a conflict system using the nationality as a connecting factor has 
'considerable merit', it is said to have its difficulties in cases of dispute and to 
lead to different results.71 This is especially the case where assets of a 
deceased estate are found in different countries. This was spelt out clearly in 
the English case of Re Co/lens73 where the court considered it to be unsatis-
factory that the different kinds of property of a deceased should be distributed 
according to different regimes which could lead to results not contemplated 
by either law.74 
If the laws of those different countries in which any parts of the estate are 
situated have an interest in particular parts of the whole estate, the question 
remains which of those laws is to enjoy the dominant position when they are 
in conflict. 7j 
Until the legislators of the respective countries amend their codes of private 
67Birk n 17 above at an 25 no ~32. 
68ln re Duke of Wellington (1947) Ch 506. 
69At 513 by Wynn-pany J. 
'IOJn the case of Estate Wright II Wright (1908) 25 SC 769 at 774-775. 
71In the case of Wynn NO {, Westminster Bank lld NO II Oppenheimer 1937 TPD 91 
at 100. 
720'Brien Smith's conflict of laws (2ed 1999) 44. 
7lRe Callens (1986) 1 All ER 611. 
7·Slr Browne-Wilkinson VC acknowledged that the state of the English law was open 
to criticism, for there seemed little reason why English domestic law should govern 
the Intestate succession of land In England left by a person who died domiciled In 
Trinidad and Tobago. Although he noted that English Interests were not affected 
by the way the property was divided amongst the deceased relatives and, If the law 
of domicile was the appropriate law for movables, It should be equally so for 
Immovables, he recognised that he was bound to give effect to the plain words of 
s 46 of the Administration of Estates Act 1925: at 616. 
750'Brien n 72 above at 53. 
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Laws of conflict in international succession 47 
international law by introducing new legal prOvisions which address the 
simultaneous application of different conflict rules and the consequences of 
their application (or, in case of the common law countries, until the courts 
show a clear a way out of the dilemma), an answer must be inferred from the 
interpretation of the existing law within the overall context of foreign private 
international law rules.76 
Practicable solutions 
The question with regard to conllicting laws of conflict remains as to how to 
deal with this problem in practice. Since the scission principle has received 
harsh critiCism for being too inconvenient and cumbersome,n one could 
appeal to those countries still submitting to the scission principle to amend 
their conllict of law rules to the effect that the unitary principle be applied to 
the whole estate, thus abolishing the lex situs rule. This would mean to 
applying one single connecting factor to cases of international succession, 
namely either the lex ultimi domicilii or the lex patriae of the deceased, for 
it is the simultaneous application of these two different connecting factors 
which results in often insunnountable problems and leads to unsatisfactory 
results. As long as either of the two be applied to the entire estate, it would 
actually make no difference which of the two be given preference over the 
other. However, this author is fully aware that such a 'unification' and 
modification of the existing different conflict rules - maybe in the fonn of 
another Hague Convention? - is still far beyond reach. In the interim, a 
plausible and logical solution could be to apply the respective countries' 
conllict rules only within their own borders. In other words, the lex domicilii 
or the lex patriae cannot govern the succession rights with regard to'assets 
(movable and immovable) which are situated outside the respective country's 
own boundaries. Thus, one would avoid the situation where the application 
of different countries' conflict rules have in fact an 'overlapping' effect which 
results in a collision between the different rules. 
Kahn seems to favour a similar solution when he suggests that the prOvisions 
of the South African law of succession should not be applied to movables 
situated in Spain." 
For our chosen scenario that would mean that the surviving children would 
be entitled to their compulsory portions in tenns of Gennan law only with 
regard to the movable and immovable assets situated in Gennany,whereas 
they would not be able to enforce their compulsory portion rights in South 
Africa. 
However, until the mammoth task of unifying and modifying the existing 
conllict rules worldwide is accomplished, the dilemma of conflicting laws of 
conflict in cases ofinternational succession will remain an unwelcome reality. 
76Birk n 17 above at art 25 no 132; Domer n 17 above at art 25 no 732; O'Brien n 
72 above at 44. 
"See above on 1. 
78Note 1 above at 311. 
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