contribution_poland_en - GREEN PAPER ON SUCCESSION AND...

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GREEN PAPER ON SUCCESSION AND WILLS ANSWERS TO THE QUESTIONS 2. CONFLICT OF LAWS 2.1. General questions Question 1: What questions should be governed by the law applicable to the succession? In particular, should the conflict rules be confined to the determination of heirs and their rights or also cover the administration and distribution of the estate? The law applicable to succession ( lex successions ) should govern all issues of substantive law concerning succession (for exceptions – see infra )..Therefore the law applicable to succession (status of succession) should include: a) opening of the succession (grounds and the date in which the succession is deemed to be opened) b) intestate succession (including inheritance of a spouse, the State Treasury or a municipality) and other legal consequences of the opening of succession. c) unworthiness to inherit and particular bans to inherit d) scheme of retention or reserved portion in estate with the possibility to preclude heirs from their rights in this regard e) admissibility and effects of wills and other disposals of last will f) admissibility and effects of contracts renouncing an inheritance g) acquisition of succession (the way of acquisition, the acceptance or rejection of inheritance, relations between the heirs, liability for the succession debts, protection of succession) h) effects of testamentary legacy or instruction i) contractual and judicial distribution of the succession, provided that provisions regarding the ability and form of the contract will be regulated by the law applicable according to the national conflict rules on a form and on capacity. The inheritance proceedings are subject to the legi fori processualis . It should be however considered that certain components of succession (for example: farms, family estate, houses) are subject to special regulations in law of the Member State where these components are situated. Question 2 What connecting factor should be used to determinate the applicable law? Should the same factor apply to the whole range of issues covered by the applicable law or might different criteria apply to different aspects of the succession? In particular, should the Community conflict rule distinguish between moveable and immovable property? Should there be a role of the law of the country where immoveable property is situated? One should strongly opt for a single connecting factor solution which guarantees the uniformity of the law applicable to succession regardless the composition of the inheritance (whether or not the inheritance exclusively consists of moveable or immovable property). The uniformity of the law applicable succession can be guaranteed by such connecting factors like nationality of the deceased, his last domicile or his last place of residence. Taking into account traditions of several Member States and the importance of the link between a citizen and the country, it is preferable the connecting factor of nationality (the law of a state which
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This note was uploaded on 06/20/2011 for the course ECON NgocAnhNo1 taught by Professor Ngocanhno1 during the Spring '11 term at Université de Genève.

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contribution_poland_en - GREEN PAPER ON SUCCESSION AND...

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