Introduction

In private international law of most countries including England, India, The United states and
most countries of the European continent, it is an established rule that in respect of all
transactions relating to immovable property are ordinarily governed by the law of the situs of
the immovables. The reason for this rule is convenience and expediency, any other rule
would be ineffective as in the last resort the only the only effective order that can be passed
has to be in accordance with the lex situs of the property. English law recognized this rule as
early as 1845.

In the countries of continental Europe and other civil law countries all matters relating to
succession are governed by one single system of law, viz., and the law of the nationality of
the deceased. This is because these countries follow the principle of unity of succession
(France and Belgium are two exceptions) under which succession, testamentary as well as
intestate, and all matters relating to succession are regulated by one single system of law viz.,
the personal law of the deceased which most countries take to be the law of the nationality of
the deceased at the time of his death. In the civic law countries, as well as under the personal
law of Hindus and Muslims in India, the property vests in the heirs immediately on the death
of the deceased.

India, England and other countries which follow the common law traditions adopt the
principle of succession under which movables and immovable do not devolve under one
single system of law. In English law this distinction seems to be on account of historical
reasons. In England, freehold land could not be devised by will until 1540, while movables
could be bequeathed and were governed by the principle of mobilia sequuntur personam.
Although the historical reasons have disappeared, the distinction still exist in English Private
International Law under which succession to immovable is regulated by the lex situs and not
by the personal law of the deceased, while succession to movables is regulated by the lex
domicile of the deceased. Thus, if a person dies intestate leaving behind immovables in
England, then devolution to his property would be in accordance to English internal law,
whatever might have been his nationality or domicile. On the other hand, a British national or
a person domiciled in England dies leaving behind immovable properties in India, then
devolution to his property would be governed by the Indian law, i.e. the way an Indian court
would be governed by the Indian law, i.e. the way an Indian court would determine the
question. Section 5, Indian Succession Act, 1925 statutorily recognizes this principle.
The section runs as under:

“(1) Succession to the immovable property in India of a person deceased shall be

regulated by the law of India, wherever such person may had his domicile at the time of his
death.

(2) Succession to the movable property of a person deceased shall be regulated by

the law of the country in which such person had his domicile at the time of his death.”

The rules of English and Indian Private International Law could hardly be considered as
satisfactory. The will Act, 1963 has tried to solve of the difficulties. The will act.1963 has
tried to solve of the difficulties. The Act apples to form and construction, but as Graveson
suggests, it is submitted rightly, by analogy it can be applied to other branches of
testamentary succession.

Thus the subject can be discussed much elaborately under the following heads:

a) Administration of Estates, b) Succession to immovables, and c) Succession to

movables.

ADMINISTRATION OF ESTATES

In English law administration and succession are two different concepts. In English law no
one is entitled to deal with or distribute the property of a deceased person unless he has
obtained authorisation from the court. If a person dies intestate, or where a will has been
made, but the appointment of executor has failed for any reason, then the next-of-kin
(husband, wife or child of the deceased) can acquire the necessary authority for dealing with
property by obtaining letters of administration. In case a person has appointed an executor
under the will who consents to act, then the executor may obtain necessary authority by
obtaining probate of the will. In such administrator or executor the property vests
immediately on the death of the deceased. Executors and administrators are together referred
to as personal representatives. In the countries of continental Europe such persons are known
as heirs use the term administrators’. The administrators under English law have three main
functions: (a) collection of assets of the deceased, (b) payment of debts, and (c) distribution
of residue among the heirs.
Jurisdiction of the Court

In the following three situations the question of administration of estate of the deceased may
arise before the English court:

(a) When the deceased has made a will and had also appointed an executor who consents,
then the executor may obtain probate of the will,
(b) When the deceased has made a will, but has either not appointed an executor or the
appointment of executor has failed, then the ort may appoint an administrator, and
(c) When the deceased had died intestate, then the court may grant letters of
administration.

Indian Law

Indian law closely follows English law. The provision relating to grant of probate and letters
of administration are contained in the Succession Act, 1925. In the matter of grant of letters
of administration or probate, the jurisdiction is conferred on the District Judge. The High
Courts have concurrent jurisdiction with the District Judge.

Jurisdiction

Under s. 270 of the Succession Act,1925 the basis of jurisdiction are two : (a) if at the time of
his death the deceased had a fixed place of abode within the jurisdiction, or (b) if movable or
immovable property of the deceased is situated within the jurisdiction of the District Judge.
In a purely domestic case, any of these two alternatives bases of jurisdiction, but it seems that
in a conflict of laws case Indian court may decline to grant a probate or letters of
administration merely on the basis that the deceased had ‘a fixed place of abode’ in India.
The grant will be made only if the deceased had left some movable or immovable property
within the jurisdiction. From an early date Indian courts have taken the view that a grant of
probate can be made of a will executed abroad by a person who is neither domiciled here nor
a national of India, if the testator had left some immovable or movable property in India.

Choice of Law

In the matter of grant of letters of administrations Indian law makes a distinction

between Hindus, Muslims, Buddhists, Sikhs and Jains on the one side and other persons of
the other. In the former case, letters of administrations are not required and therefore, it is
optional for them to obtain letters of administration. In case someone desires to obtain letters
of administration, then s.218, succession Act lays down that grant may be made ‘to any
person, who accordingly to the rules for distribution of the estate applicable in the case of
such deceased, would be entitled to the whole or any part of such deceased’s estate.’ The heir
of the deceased would be determined on the basis whether he died as Hindu or as a Muslim.
In case the deceased was not a Hindu or Muslim, then those who are connected with him by
marriage or by consanguinity are entitled to obtain letters of administration. The order in
which they may apply is laid down in s. 219 of the Succession Act, 1925 which is as under:

(a) If the deceased has left a widow, administration shall be granted to the widow, unless
the court sees cause to exclude her wither on the ground of some personal
disqualification, or because she has no interest in the estate of the deceased.
(b) If the judge thinks proper, he may associate any person or persons with the widow in
the administration who would be entitled solely to the administration if there were no
widow.
(c) If there is no widow, or if the court sees cause to exclude the widow, it shall commit
the administration to the person or persons who would be beneficially entitled to the
estate according to the rules for the distribution of an intestate’s estate:
Provided that when the mother of the deceased is one of the class of persons
so entitled, she shall be solely entitled to administration.
(d) Those who stand in equal degree of kindred to the deceased are equally entitled to
administration,
(e) The husband surviving his wife has the same right administration of her estate as the
widow has in respect of the estate of her husband.

SUCCESSION TO IMMOVBABLE POPERTY

As has been seen earlier in this Chapter, the English and Indian Private International laws
follows the principle that succession to immoveables is governed by the lex situs.

English Law

Under English law the general rule is that all aspects of succession, intestate or
testamentary, are regulated by the lex situs.
 When a person dies leaving immovable properties, then it is the lex situs and the lex
situs alone which decides matters relating to capacity to make will, revocation of will, power
of disposition, the validity of disposition and like matters. The law of domicile or nationality
of the testator has absolutely nothing to do with any of these matters. The Wills Act, 1963
giving effect to the Fourth Report of the Private International Law committee and to the Draft
Convention on the Formal Validity of wills made at the Hague in 1961, lays down that will
be formally valid if it conforms to the internal law in force in the country where, at the time
of its execution or of the testator’s death, he was domiciled or had his b=habitual residence,
or in a state of which, at either of those times, he was a national.

Indian Law

The Indian private international law is substantially the same, Section 5(1), Indian Succession
Act, 1925 runs as under:

“Succession to the immovable property in India of a person deceased shall be

regulated by the law of India, wherever such person may have had his domicile at the time of
his death.”

Under the Indian Private international law also, it seems to matters relating to capacity to
make will, revocation of will, power of deposition and the validity of disposition and like are
governed by the lex situs.

Provisions relating to construction of wills are laid down in ss. 74 to 111, succession Act,
1925 and relating to election ss. 180-190, succession Act, 1925. It appears that whenever a
will of deceased person in respect of immovables situated in India comes for construction
before an Indian court, the Indian court a bound to apply the lex fori,. i.e. rules of
construction as laid down in ss.74 to 111 of the Succession act, 1925. The Indian courts have
all along taken the view that intention of the testator is to be carried out. But clear and
unambiguous dispositive words are to be given effect to, and not to be controlled by the so-
called intention of the testator.

Choice of Law

Intestate Succession

An initial question that arises when it is dealing with intestate sucession is that, what law
governs the succession of the immovable property? Legal scholars of the sixteenth and
seventeenth centuries destroyed the Roman law concept of universality of succession by
considering property ("statutes") under two rubrics-personal and real.1 By this method of
classification, immovable property was referred to as "real" and succession to immovable
property was determined by the lex loci rei sitae. Movable property was classified as
personal, and succession to it was determined by the personal law of the decedent. have
always followed the maxim mobilia sequuntur personam, which means movables follow the
person. This rule has remained the guidepost in many countries in the Western Hemisphere
including the United States.2

Intestate succession to movable is governed by the law of the domicile of the deceased person
at the time of his death, irrespective of the fact as to the place where he was born, or died, or
of the situation of movables at the time of his death. It is the Lex domicilii which determines
the heirs who are entitled to take the relative proportion to which they are entitled to, the right
of representation, the rights of a surviving spouse, the liability of the distributes for unpaid
debts, the relationship of the claimant with the deceased, and like matters. Where a person
dies testate, it is necessary to refer to the law of the testator's domicile at the time that the will
was executed.3

Testamentary Succession

Testamentary succession to movables is also governed by the law of the country where the
deceased was domiciled at the time of his death. If a deceased person domiciled elsewhere
dies leaving behind his assets in England, then a grant of probate in England is essential and
so far as the admisntration is concerned it is governed by the lex fori, but then all questions
relating to beneficial succession must be decided in accordance with the law of the domicile
of the deceased. In other words, the executor must ascertain as to who are the persons entitled
to succeed and in what proportion they would take the property under the law of the domicile.

Capacity to make will: The testamentary capacity, i.e. personal capacity to make will, is
determined by the lex domicile of the testator. If the testators domicile is the same at the time
of making of the will as well as at the time of the death, there is no difficulty.

1
GEORGE W. STUMBERG, CASES ON CONFLICT OF LAWS 3 (1956).

2
GEORGE W. STUMBERG, PRINCIPLES OF CONFLICT OF LAWS 371-75 (1963).

3
J.H.C. MORRIS, THE CONFLICT OF LAWS 390 (3d ed. 1984)
 Formal Validity: Under the English common law the rule has been that the will of
movables to be formally valid must comply with the law of the domicile of the testator at the
time of his death. This rule led to much inconvenience and hardship and led to the passing of
the will Act, 1861which was not only unsatisfactory but discriminatory between the British
subject and foreigners.

Material Validity: The English Private International Law laid down that the material
validity of a will is governed by the Lex Domicilii of the testator at the time of his death.

Construction of Wills: The writers of English law and some English decisions take the view
that construction of will should be made under the law of the domicile of the testator at the
time when the will is made.

Revocation of Wills : The rules relating to revocation of will differ from country.
Ordinarily, a person who has capacity to make will, will also have the capacity to revoke it. A
will may stand revoked by the act of the testator, or by the operation of law.
 CASE ANALYSIS

CASE I

A. L. BONNAUD V. EMILE CHAHRIOI, AND OTHERS.

Citation:- (1905) ILR 32 Cal 631
Facts:- A deed was executed by Joseph Alexandre in favour of his wife and family member
on 20 January. That deed contains power upon the trustee to sell the premises, invest, hold,
appoint new trustee. Eventually the plaintiff becomes the trustee of the property on 7 th August
1901. On 25th March 19897 Joseph executed new deed in Brussels remained in force at the
time of his death i.e 24th February 1899. Further the Defendant that Gopal Das claim that the
Plaintiff has executed the property for mortgage for certain money therefore, the deed
executed by the Joseph was null and void and claimed lien upon 1/7 th shares of whole trust.
The Defendant claim that British law will be applicable as the immovable property is situated
in British India.
Issue:- What was the domicile of Husband and what law is the husband property governed?
Reasoning:- to prove the nationality and domicile of Joseph is on that party who are claiming
about it i.e the plaintiff have to prove that he is French Nationality and the defendant have to
prove that he’s having British domicile. In this case there was no conclusive proof which can
proof that he was French nationality and having French domicile. Further, according to
Dicey’s conflict of law, Westlake on Private international law and Foote’s Private
international Jurisprudence have universally recognized the principle that the law of the land
where immovable property is situated will governed by the law of the country.
In case of movable property the if there is contract than according to it will be governed and
if not than according to marriage is celebrated that will governed that property i.e lex
celebrationis but when it come to real or immovable property then it will be adjudge by the
lex rei sitoe which means "the law where the property is situated".
Conclusion: held that the proceed of immovable property, the subject of the settlement and
power under settlement will be exercised by the Joseph and money will be distributed
according to the terms of the power as executed. The judgment spokes about the applicability
of lex situs on succession of  immovable property.
CASE II

Sankaran Govindan vs Lakshmi Bharathi & Others 

Citation: AIR 1974 SC 1764
Facts:- Krishna went to England in 1920 for further study in medicine, for some time his
father helped him by providing money. After the death of his father his brothers refuse to
help him, because of that he find his own resource for his studies. He got financial help from
Miss Hepworth, who help him financially and also spur him. When Krishna qualified the
practice he setup his own practice and also bought a house and few moveable properties. He
has a assistant name Mary Woodliff who help him. After the death of the Krishna, Mary and
Arksey has filed suit for letter of administration, which was in there favor. This was
challenged in the court that the foreign judgment is not binding as it is obtain by fraud and
domicile of Krishna was not England. Therefore, the English court has not authority to deal
with this case. 
Issue:- whether English court have jurisdiction on this case.
Reasoning:- while taking into consideration of the deceased intention whether he want to be
domiciled of England or not, for that we have to look into the his aspiration, financial,
expectation all should be taken into consideration to answer this. Further, according to private
international law any court has give foreign judgment for that they should have jurisdiction
otherwise that judgment is enforceable in India. A judgment declaring the domicile of person
is judgment in rem and therefore notice must be given to everyone who is affected by it.
Conclusion:  held that the judgment given by the English court for moveable or minor thing
is not valid, whereas, the judgment given for the immovable property is valid as the law
governed the immovable property is based where it is situated i.e lex situs. According to
English law succession of immovable property will be determined by lex situs.
CASE III

In re Annesley. Davidson vs Davidson

Citation: [1926] Ch 692

Facts: Sybil Annesley, a British woman, married James O’Donel Annesley whose domicile
was English and lived in France. After her husband’s death, she resided continuously there
until her death in 1924. She never took steps prescribed by Art. 13 of the French Civil Code
to obtain a formal French domicile. At the time of her death, she owned an immovable
property in France (Chateau de Quillebaudy), and movable property (trust money) both in
France and in England. On November 1919, she executed a holograph will in French
language, stating that her two daughters had their share of her property. On December 1919,
she likewise executed in France a will in English form, revoking all former testamentary
dispositions. The will also provide that after all dispositions of her real and personal estate,
the ultimate residue is given to her daughter, Miss Annesly, absolutely. In addition, the will
also contained provisions wherein Sybil stated that she has no intention of abandoning her
England domicile, and that she intend to remain a British subject. On July 1921, she executed
also in France a codicil in English form, confirming her dispositions in the will.

Issue: What law will govern, as to the determination of the testatrix’ domicile which will
affect the dispositions of the will: French or English law?

Reasoning: Domicile flows from the combination of fact and intention, the fact of residence
and the intention of remaining for an unlimited time. The intention required is not an
intention specifically directed to a change of domicile, but an intention of residing in a
country for an unlimited time. The Court here conceded that domicile cannot depend upon
mere declaration, though the fact of the declaration having been made must be one of the
elements to be weighed in arriving at a conclusion on the question of domicile. After careful
consideration of the evidences, it was ruled that according to French law, in administering the
movable property of the deceased foreigner who, according to the law of his country, is
domiciled in France, and whose property must, according to that law, be applied in
accordance with the law of the country in which she was domiciled, will apply French
municipal law, even though the deceased had not complied with Art. 13 of the French Civil
Code.

Conclusion: Regards her English personal estate and her French movable property the
testatrix in this case had power only to dispose of 1/3 by her will.
Fuhrhop v. Austin

Citation: 385 Ill. 149 (Ill. 1943)

Facts: Abner Wilson and Synder Wilson were lawfully married. Out of this lawful marriage,
Fred Walter Wilson, Beatrice Fuhrhop, Gertrude Austin, Willian S. Wilson and Thomas C.
Wilson were born. Abner Wilson entered into a secod marriage with Liza E. Newsom without
giving divore to the 1st wife. This marriage took place in the State of Arkansas, where both
Abner M. Wilson and Liza E. Newsom were domiciled, and was a ceremonial marriage
performed by a justice of the peace according to the laws of Arkansas. Abner M. Wilson and
Liza E. Newsom continued to live together as husband and wife domiciled in Arkansas after
their marriage and, while so living together, Christine Wilson and Margaret Wilson Joyner,
the appellees herein, were born unto them. Fred Walter Wilson, one of the children of Abner
M. Wilson by his first marriage, died intestate on, leaving surviving him as his only heirs, his
mother, Sydner Wilson, his four full brothers and sisters, Beatrice Fuhrhop, plaintiff below,
the defendants, Gertrude Austin, William S. Wilson and Thomas C. Wilson, and also the
defendants and counterclaimants, Christine Wilson and Margaret Wilson Joyner, who claim
to be his legitimate half sisters. At the time of his death Fred Walter Wilson possessed a fee
simple title to real estate located in Illinois which is the subject of this partition suit. Abner
Wilson predeceased Fred Walter Wilson and Sydner Wilson died testate after Fred Walter
Wilson on July 28, 1942, leaving surviving her the aforesaid Beatrice Fuhrhop, Gertrude
Austin, William Wilson and Thomas C. Wilson, her children, as her only heirs-at-law. Under
the terms of the will of Sydner E. Wilson her executor is directed to turn all her property into
cash and divide same equally among her four children above mentioned.

Issues: Whether the illegitimate sisters can claim the property?

Reasoning: That under the law of Arkansas the appellees, at the time of their birth, were
legitimate; that legitimacy depends upon the law of the domicile and since appellees are
legitimate under the laws of Arkansas, they are legitimate under the laws of Illinois and are to
be deemed legitimate sisters and brothers of Fred Walter Wilson. That the legitimization of
the appellees, under the law of Arkansas, is not against the public policy of Illinois but is
consistent therewith. The full-faith-and-credit clause of the constitution of the United States
requires the recognition of legitimation given by the statute of Arkansas. There is no dispute
between the appellants and appellees as to the shares which each should have in the real
estate in the event it is determined that the appellees are entitled to inherit from Fred Walter
Wilson, deceased. It is well settled at common law that the issue of a void marriage are
illegitimate.

Conclusion

The Illinois court refused to allow children born in Arkansas and legitimated under an
Arkansas "saving statute" to inherit Illinois land. The claimants were children of a man who
had not divorced his first wife, although his second wife (the claimant's mother) had married
in good faith. The Arkansas statute provided that the issue of a legally void marriage are
legitimate, but Illinois still had the common law rule that issue of a void marriage are
illegitimate. The court again relied on the principle that the descent of real estate is governed
by the law of the situs, and that no one can take except those who are recognized as
legitimate heirs by that law.
Review of literature

Problems of intestate sucession and conflict of Laws in Ghana (Ernest K. Bankas)

A more policy-conscious methodology must be developed to resolve the problems of conflict

of laws in Ghana, both internal and external. The traditional-rule oriented method, although
well evolved, must be relegated as a source of reference when dealing with intercultural
conflict of laws. The plurilegal nature of Ghana is ripe for implementation of a Currie-Baxter
analysis of conflict of laws problems. The complex nature of intestate succession presents
Ghanaian courts make it difficult when determining which law to apply, the received English
law, customary law, or Islamic law. The difficulties facing Ghanaian judges would become
simplified and judicial precedent would become more uniform if the courts utilized this
Currie-Baxter analysis. These numerous legal options arguably would vanish if the Ghanaian
courts were willing to weigh the interests supporting the respective laws and subsequently
determine which law would be most impaired if not applied.

Rules on the conflict of laws in the matter of sucession in Romanian private

international law (Tribuna Juridicia)4

The law applicable to inheritance made the distinction between the inheritance of
movable property (to which the national law of the deceased applied) and the
inheritance of immovable property (to which lex rei sitae applied). At present, the
Civil Code establishes, as a rule of principle, that inheritance is subject to the law of
the state on whose territory the deceased had habitual residence at the time of
death. Thus, in the new legal regulation, the Romanian legislator considered, on the
one hand, the Hague Conventions in this matter, and on the other hand, European
Union law. In this article it has been analysed the law applicable to inheritance in
Romanian private international law, namely the law applicable to wills. Likewise,
conducted a comparative study with the legislation of other states in this matter. As
regards the domain of application of the law on inheritance in Romanian private
international law.

David Colwyn Williams, Land Contracts in the Conflict of Laws--Lex Situs: Rule or
Exception5

4
Bucharest Academy of Economic Studies, Law department, vol. 4(2), pages 176-181, December
5
11 Hastings L.J. 159 (1959).
But in general the situs rule is weakening all through the law of conflict of laws. Writers have
been almost unanimous in their opposition to the rule when invoked to prevent the
recognition of foreign land decrees. 2 It may well be that it is in this area that land taboo will
first disappear. It appears that land contracts too are now widely recognized to be subject to a
law other than that of the situs, and are, instead, about to share the conflicts law governing
other contracts together with all the difficulties inherent in that law.