Conclusion

One of the most striking features of the private international law of succession is the apparent continuity of basic principles in England and in much of the common law world. Scission continues to rule with succession to movable property being governed by the lex domicilii and succession to immovable property being generally governed by the lex situs. Some changes have, of course, taken place, such as the more liberal choice of law in relation to the formal requirements for a valid will, and there has been some experimentation in Commonwealth countries in the field of family provision. However, despite the appearance of several international conventions in the field of succession, the basic structure remains intact. ¹ Even in the United States movement appears to have been limited. Thus Professor Schoenblum has noted: ²

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. The ambivalence of conflicts theorists has also been an important factor. For example, while several have sought to depart from the complete inflexibility of the present situs rule with respect to real property, they have at the same time recognized that considerations such as efficiency, simplicity and predictability are essential when dealing with the transfer of title to property and that a state must be able to exercise some control over the determination of who shall be entitled to inherit land within its borders, on what terms, and subject to what restrictions.

277This does not mean that there are no problems, or that no improvement can be made. ³ The potential cost of litigation in relation to estates spread across more than one jurisdiction may provide a particularly strong incentive to a settlement of disputes thereby preventing the airing of problems. In England and Wales the number of contested actions in the field of succession is relatively small even where no international element is involved. ⁴ Even when change is thought to be necessary agreement on the changes that should be made is not easy to achieve especially in the international context. There are basic differences in approach between common law countries on the one hand and most civil law systems on the other, and even when a compromise has been negotiated its general acceptance has not so far been achieved. In this final chapter it is proposed to look at what are perceived as two of the principal points of difficulty and the attempts to deal with them by international convention.