14繼承的法律適用.ppt

1、,第十四章 繼承的法律適用 14-1 法定繼承的法律適用 區(qū)別制 同一制 兩者的利弊 14-2 遺囑的法律適用 立遺囑能力的法律適用 遺囑方式的法律適用 遺囑解釋的法律適用 遺囑撤銷的法律適用,Succession The law of all states distinguishes strictly between succession to immovable and to movable property. As a general rule, the law of the situs of the immovable property applies to succession to

2、 it; the law of the decedents domicile at death applies to succession to movable property. 1. Intestate succession a. immovables: the law of a state in which the land is situated controls and governs its passage in case of intestacy. Situs law therefore controls who succeeds in the case of intestacy

3、 and to how much. b.movables: the state where movable property is located of course has control over its disposition. However, all states have adopted the choice-of-law rule which applies the law of the decedents domicile at death to the succession to his or her movable property. This achieves the d

4、esirable result to have the decedents estate treated as a unit, even though the assets are located in different states. It also effectuates the domiciles interest in making provision for surviving family members.,2.Testate succession A. immovable (1)formal validity: since the will operates as a tran

5、sfer of the land, its validity is governed by situs law. Since different laws may have different formal requirements, a will may be valid to devise land in one state but not in another. (2)equitable conversion: assume that a will directs the executor to sell land located in A and to distribute the p

6、roceeds as directed by the will to named heirs at the testators last domicile,B. Does this provision of the will deal with immovable property or does the will deal with movable property, the proceeds of the sale, to which domiciliary law applies? This involves the doctrine of equitable conversion: “

7、 equity regards as done that which ought to be done”, i.e., the testator had wanted to “convert” the land into money, and this will therefore be considered as having occurred.,B. Movable (1) Formal validity: the traditional rule refers to the law of the testators domicile at death as governing quest

8、ions of formal and substantive validity. With respect to formal validity, statutes providing for alternative validating references apply also to movable. (2) substantive validity: the domicile at death, from a policy of view, has the greatest interest in such questions as the forced share of the sur

9、viving spouse and children, the statutory allowance for surviving family members pending probate, and the like. C. Forced shares: the right of the surviving spouse to take a statutory share is determined by the law of the decedents domicile at death for movable property and by situs law for immovabl

10、e property. D. Family allowance: statutes provide the surviving spouse and minor children of the decedent with temporary support for the time immediately following the decedents death. The general rule is that a family allowance can be sought only in the domiciliary state and under its law.,案例14-1吳某

11、遺產(chǎn)分配案 吳某是上海某大學(xué)教師，1988年辭職后到日本留學(xué)，1990年 即將回國(guó)時(shí)在日本騎車時(shí)被一小車撞死。他的妻子周某以全權(quán)代理人的身份，在吳某大哥的陪同下，東渡日本料理后事。經(jīng)受委托的日本律師的努力，周某獲得下列賠償： （1）“逸失利益”，即假定吳某健在到退休時(shí)可獲得的經(jīng)濟(jì)收入30萬(wàn)元；（2）精神損害賠償費(fèi)，30萬(wàn)元；（3）對(duì)自行車的賠償1000元；（4）吳某在日本投保了人身保險(xiǎn)，獲得保險(xiǎn)金10萬(wàn)元。周某帶著總共70余萬(wàn)元回上海。 對(duì)于這筆錢如何分配，吳某的父母及兄弟姐妹與其妻子周某發(fā)生爭(zhēng)議，無(wú)法解決。吳某的父母及兄弟姐妹以周某及其女兒為被告，于中國(guó)法院起訴。 請(qǐng)問(wèn)：中國(guó)法院應(yīng)該如何適用法律？,案例14-2 姜偉勛遺產(chǎn)案 任愛(ài)玲與姜偉勛1958年12月在廣州登記結(jié)婚。婚后生有兩個(gè)女兒。1963年，姜偉勛只身到香港定居。1983年，姜偉勛在香港開(kāi)設(shè)公司，從事制衣業(yè)。1984年10