Foreign element & conflict of laws

Trusts Discussion
1

Dear Forum, I am instructed to prepare an opinion of foreign law concerning interpretation of law.

H, a UK national, died intestate, leaving a property in Israel, held jointly with W. Recently, W, also UK national, has died leaving a Will.

Back to H’s estate: under UK intestacy rules, as H’s estate was less than the statutory legacy, the entire estate went to W. Under Israeli intestacy rules, H’s share in the property should be divided equally between W and children. Which law prevails?

The Israeli Court insists on having a clear answer on which law should govern the property in Israel, following H’s death.

Whilst I am aware of the PIL rules, I find it challenging to determine and I would appreciate your invaluable input with chapter and verse if possible.

2

It is for Israel to tell you which law it applies.

Presumably, in the first instance, as you are being asked to prepare an affidavit of English law, Israel looks to what England does.

Under English law, the succession to immovables is governed by the lex situs – the law of the place it is situate – ie Israeli law in this case.

What does Israel then do with that? Does it accept this renvoi or not? That’s not something you can say.

Christopher Salomons
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1 Like
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Maybe see Choice of Law and the Doctrine of Renvoi in Israeli Law - A Comparative Commentary, 15 Tel Aviv U. Stud. L. 123 (2000). It’s behind a paywall on Heinonline (US$30) but you can get free access at any UK law faculty library, and law students can sign on at home. Menashe Shava (the author, who is or was professor at Tel Aviv University) and Prof, Claude Klein of the HUJ (who was on my doctoral dissertation defence jury at Louvain in 1999) are the likely experts.

4

Thank you Christopher! the succession of immovables assets which governs by the lex situs was explained to the Court in Israel, so I fail to understand why the question landed back on my desk… what else is the Court looking for?!

5

Thank you Andrew, I will ask my colleagues in Israel to assist with that. Toda!

6

I have changed this post as the land is Israeli not English. The same principles need to be looked at.

As you know, irrespective of nationality or domicile any English real estate / land would devolve by law (irrespective or any testamentary disposition or otherwise) on the deceased’s personal representatives under s.1 AEA 1925, not by direct seisin of the deceased’s wife or children. The Israeli Court is therefore right to ask for further “particulars” if English law is being cited as relevant.

The statutory table on intestacy imposed over English land, not Israeli land (real estate) as a matter of law and lex situs would therefore apply to the personal representatives of the deceased, whoever they may be, whether appointed or not and irrespective of the nationality, residence or domicile of the deceased were English land involved. Any English real estate/property cannot be administered under an intestacy without English PRs being appointed and the statutory table would apply directly. That is not the case with Israeli land outside an English court’s jurisdiction under s.58(3) AEA 1925

S.1 Administration of Estates Act 1925 reads:

1 Devolution of real estate on personal representative.

(1) Real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this Act chattels real devolved on the personal representative from time to time of a deceased person.

(2)The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.

(3)The personal representatives shall be the representative of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate.

I do not think that there is any room for maneuvering outside that allocation of jurisdiction over purely English land to invoke an English intestacy on Israeli land alone.

Nationality is of very limited relevance from the UK/English perspective in relation to English real estate and domicile only comes in at a later point - over personalty/ movables an immovables - once PRs are appointed.

S.1. AEA 1925 is as primary a “lex sol” as you can get. It does not apply to land outside England and Wales. You cannot use it to invoke intestacy rights over foreign land without English PRs being appointed over the whole estate and that would normally only happen where the deceased had an English domicile. The UK IHT position would also need to be considered before taking such a step.

So whether English law can apply to land in Israel may depend upon where and whether the deceased was “domiciled” and whether personal representatives subject to English law have been appointed. In my view, and I stand to be corrected, the Intestacy table under s. 46 AEA could only be brought in where English PRs have been appointed and the deceased was domiciled within the UK.

I hope that helps,

Peter Harris
www.overseaschambers.com