The Germanic law of succession distinguished sharply between movable and immovable property. The consequences of the distinction extend in English law to the field of the conflict of laws, where different rules apply to the succession in respect of real and personal property. German law on the other hand has in the field of substantive law received from Roman law the principle of the unity of the estate. This principle has on its part conquered the field of the conflict of laws. The result is that-unlike English law German private international law does not distinguish between succession in respect of movable or immovable property and recognises the existence of one single rule which governs succession generally and applies wherever no special rule has provided by way of exception for the different solution. This general rule--only imperfectly. expressed in the text of article 23 and 25
EGBGB-reads as follows: The succession to a person-is governed by the law of the state whose nationality the deceased possessed at the time of his death.
Though the purpose of this rule is to maintain the legal unity of the estate, its application in practice very often does not result in achieving this goal, because the foreign laws to which it refers are frequently based-as is English law-on the principle of splitting up the estate into movable and immovable property. In such a case the foreign rule prevails, often with the result that the immovable portion of the estate, is governed by German law, while the rest of the estate is governed by some foreign legal system. In such cases the German part of the estate may be treated as if it was legally independent from the foreign part of estate with the effect that one heir succeeds to the German part of the estate while another heir succeeds to the foreign part of the estate. There are, however, also cases in which article 27 results in German law being applied to the entire estate. so that a splitting up of the estate becomes unnecessary, notwithstanding the fact that the law to which article 24 refers is based on the principle of splitting up the estate into movables and immovables.
EXAMPLE: A, an Englishman domiciled in Hamburg dies there, leaving real and personal property in Germany. According to article 24ff. EGBGB English law governs the succession to his estate. English law splits the estate up into movable and immovable property. Succession to the movable part of the estate is governed by the...
SECTION XVI - Succession
|Author:||E. J. Cohn|
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