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Report No. 110

V. Choice as to National Law

5.19. Question whether deceased should be allowed to opt for national law.-

An important question to be considered in connection with section 5 is this. Should there not be a provision permitting a person to choose the national law as the law of succession governing his movables? In this connection, we note that in the French Code on Conflict of Laws (proposed), the following provision appeared:

2307-"Unless by his last testament the deceased expressly opted for his national law, succession shall be governed by the law of his domicile.However, successions concerning immovables and founds de commerce, shall be governed by the law of the situs of the immovable or of the funds, which shall also govern their transmission.

Obligations of the heirs regarding the debts of the succession shall be governed by the law of the domicile of the deceased or (where appropriate under paragraph one, above), by his national law. The obligation to contribute to the payment of the debts of the estate is always in proportion to the value of the share of the assets going to the heir1."

1. Article 2307, Draft French Code on Conflict of Laws, 1970, 18 AJCL 619.

5.20. Recommendation for creating an exception in section 5 for cases where testator chooses national law as regards movable property.-

On principle, it appears to be desirable to create in section 5 an exception-for cases where the deceased, by his will, expressly opted for his national law in relation to movable property, as in the first and third paras of draft Article 2307 of the French proposal quoted above1.

1. Para. 5.19, supra.

5.21. This change in section 5 should be carried out even if our recommendation1 for the addition of liberal provisions generally in regard to the execution of wills is not accepted.

1. Chapter 4, supra.

5.22. If that recommendation is accepted, the change in section 5 proposed in the present paragraph will be without prejudice to the change resulting from the proposed provisions, making other tests applicable in relation to the execution of wills.

5.23. Recommendation to amend section 5 in view of suggested liberal provisions as to law governing execution of wills.-

We are separately recommending the insertion of several provisions1 which seek to render applicable certain tests additional to those mentioned in section 5. In view of this recommendation, section 5 will require consequential amendment. Accordingly, we recommend the addition, at the end of section 5, of the following new sub-sec tion:-

"(3) The provisions of this section shall be subject to those of Part IA."

1. Chapter 4, supra.

The Indian Succession Act, 1925 Back

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