1、 Cases
Mr. Y is a German Chinese and married hisoriginal wife, Ms. S, in Germany. Mr. Y often resides in China and Ms. S often resides in Germany. They have not gone through divorce procedures and have a total of three children, all of whom are German nationals. Mr. Y applied to a notary agency for notarization of his will in 2021, requesting that his property be designated for inheritance by his younger son after his death. His main assets include: 1. two sets of real estate located in Chengdu; 2. Number of stocks held by a listed domestic bank.
2、 Thinking Path
A natural person of German nationalityapplies to a notary public to establish a will to designate property within China to be inherited by their German children. According to Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Law of the People's Republic of China on the Application of Foreign Civil Relations: "If a civil relationship falls under one of the following circumstances, the people's court may recognize it as a foreign civil relationship...", the relationship can be recognized as a foreign civil relationship, You can choose which country's substantive law is applicable according to the provisions of the applicable law. When applying the law, the following issues are faced:
1. Preliminaries. According to Article 1122of the Marriage and Family Code of the Chinese Civil Code and Article 2 of the "Rules for Notarization of Wills", notaries need to first sort out the personal and property relationships of the parties involved in the notarization of wills, and analyze the disposed property.
So, when handling the notarization offoreign-related wills, the property analysis should first choose to apply the laws related to the personal and property relationship between spouses in accordance with the provisions of Articles 23 and 24 of the Applicable Law, or directly apply the laws related to the application of foreign-related wills in Articles 32 and 33 of the Applicable Law, and then apply the substantive laws guided by the conflict norms of wills to the personal and property relationship between spouses in that country? In the above case, if the issue of property separation is taken as a prerequisite, according to Article 24 of the Applicable Law, Mr. Y and his wife Ms. S have no agreement to choose which country's law to apply, and they do not have a common habitual residence. They can only apply the law of the country of common nationality, that is, Germany, after the separation, and then choose the applicable law according to Articles 32 and 33 of the Applicable Law. If the issue of property division is not taken as a prerequisite, the law should be applied in accordance with the conflict norms of the applicable law regarding wills, that is, in accordance with Articles 32 and 33 of the applicable law. In the case, according to Article 33 of the Law on the Application of Law, there are four paths for the legal application of the validity of a will. They can apply Mr. Y's habitual residence law, which is Chinese law, the nationality country law, which is German law, and the habitual residence law or nationality country law at the time of Mr. Y's death. Due to the uncertainty of this path during the notarization of the will, it is not possible to choose to apply it. From this, it can be seen that if the separation of property is not taken as a prerequisite issue, Mr. Y's property can be analyzed according to the provisions of the Marriage and Family Code of the Chinese Civil Code in accordance with Article 33 of the Applicable Law, and a notarized will can be signed based on the joint property of the husband and wife.
Article 8 of the Law on the Application ofLaw stipulates that the determination of foreign-related civil relations shall be governed by the law of the court. Article 10 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Law of the People's Republic of China on the Application of Law in Foreign Related Civil Relations stipulates: "When the resolution of a foreign related civil dispute requires the confirmation of another foreign related civil relationship, the people's court shall confirm the applicable law based on the nature of the preliminary issue." The characterization of civil relations refers to the court's classification of comprehensive legal relationships during the trial process. The confirmation of civil relations refers to the examination and confirmation of a specific civil relationship to ensure that its judgment complies with legal provisions. From this, it can be seen that when making a foreign-related will, it is necessary to first apply the relevant national laws on the personal and property relationship between husband and wife in accordance with Articles 23 and 24 of the Law on the Application of Law, conduct an analysis, and then impose sanctions. In the case, it is necessary to investigate German law regarding the personal and property relationships between spouses, analyze the property involved, and then proceed with testamentary disposition.
2. Regarding the identification of legalrelationships
(1) The selection and application ofArticles 32, 33, and 36 of the Law on the Application of Law. Although the property disposed of by a foreign-related will involves immovable property and the result of the disposal may result in a change in the property rights of the immovable property, in identifying the legal relationship in this case, it should be recognized as an inheritance relationship rather than a property rights relationship. Inheritance relationship is the reason for the change in the property rights relationship. In the case, the author believes that it is not appropriate to directly apply the law of the location of immovable property in Article 36, namely Chinese law, The choice of applicable law should be based on the conflict norms regarding foreign wills.
(2) The selection and application ofArticle 3, Article 32, and Article 33 of the Law on the Application of Law. Article 3 of the Law on the Application of Law stipulates that parties may explicitly choose the law applicable to foreign-related civil relations, but this article is a principle provision and has a prerequisite of "according to legal provisions". In the case, foreign-related wills first need to be identified as inheritance relationships, and then apply the law according to the guidelines of inheritance conflict norms. If the provisions of Article 3 are directly applied, it may lead to the parties abusing the autonomy of will rule and maliciously evading the application of the law.
3、 DifficultiesFaced
（1） The legalapplication provisions on foreign-related wills in the applicable law are relatively vague.
A valid will includes both formal andsubstantive elements, and the formal elements of a will in various countries are based on the principle of being most conducive to the establishment of the will, with a relatively broad legal application path. The substantive elements that affect a will include factors such as willpower, change and withdrawal of the will, and interpretation of the will. Currently, Article 33 of China's Law on the Application of Laws only provides for the general legal application of the validity of the will, without distinguishing the above elements, resulting in practical difficulties.
（2） The legalapplication rules on testamentary inheritance in the applicable law are not clear enough
The parties involved in foreign-relatedwills sign notarized wills with the aim of maximizing their purpose and hoping to provide certainty for their property inheritance through notarized wills. However, in current practice, there is a lack of clear legal provisions on the application of testamentary inheritance laws in applicable laws, and there are significant differences in the application rules of foreign-related testamentary inheritance laws in judicial practice. The cost of identifying foreign-related laws is relatively high. Causing the notary agency to fail to meet the legal service needs of the parties involved in the notarization of foreign-related wills.
4、 Suggestions
At present, most countries have reached ageneral consensus on the principle of private law autonomy and the most favorable principle for the implementation of wills. No matter what regulations are made on the application of laws related to foreign-related wills, it is impossible for everyone to be satisfied. The author advocates drawing on advanced foreign experience and using the autonomy of the will of the testator and the most favorable principle for the implementation of wills as the value guide to modify the legal application rules of foreign-related wills. Firstly, Refine the legal application rules that affect the substantive elements of a will; Secondly, clarify the applicable rules of testamentary inheritance law. Allow the testator to independently choose the law based on the premise of the closest connection; Thirdly, in judicial practice, respect the law chosen by the testator and make judgments based on the law chosen by the testator; Fourthly, do not distinguish between movable and immovable property to avoid the same will having different effects in different jurisdictions. Fifth, at the academic level, increase investment in foreign law research and improve the accessibility of foreign law identification.
5、 Conclusion
Foreign-related testament notarization is aprocess in which the parties concerned, based on their own considerations of foreign-related factors, are concerned about the uncertainty of inheritance after their death. They hope to arrange a property inheritance plan in advance through testament notarization to ensure that the property is inherited according to their wishes. And foreign-related wills not only involve the legal application of wills and testamentary inheritance, but also involve factors such as the personal and property relationships of spouses, parents, children, and women, and property relationships. It can be said that they encompass most of the legal application rules in the field of foreign-related family affairs.
At present, the supply of applicable laws for foreign-related civil relations in China is seriously lagging behind, unable to meet the needs of the parties involved. In practice, most notarized institutions only accept foreign-related wills involving immovable property in the mainland. It is also a shameful act to refer to the applicable rules of foreign-related legal inheritance laws in the absence of clear provisions in the applicable laws for testamentary inheritance. It is urgent to provide scientific and reasonable legislative support at the legislative level.