Probate & Trust Law Section Conference Manual ... - Minnesota CLE

3. Every country will apply the law of situs to real property.
Not necessarily.
Article 25 of the Introductory Act to the German Civil Code, states that “succession is governed by the
law of the country of which the deceased was a national.” But that, “[a]s to immovables located within
the country, the testator may, in the form of a testamentary disposition, choose German law.”
In a case with a US national, domiciled and having a habitual residence in Minnesota, having real
property located in Germany and with no testamentary disposition otherwise, German law would first
point to Minnesota, who may point back to German law as the situs. Laws like this illustrate renvoi.
“renvoi doctrine”
From Black’s Law Dictionary: The “doctrine of renvoi” is a doctrine under which court in resorting to
foreign law adopts rules of foreign law as to conflict of laws, which rules may in turn refer court back to
law of forum.
Recent changes in European Union law will, once fully implemented, allow for a testator to select the
law of their habitual residence to even real estate located in a member nation, under Regulation (EU)
No 650/2012.
As we’ll see below, the ability to get out of foreign law, may be advantageous to our clients.
4. A Minnesota court will not apply a foreign order that is in conflict with Minnesota’s own law.
Not necessarily.
In cases where a judgment arises from a probate action commenced in a foreign jurisdiction, comity
may call for its enforcement.
“comity”
“Comity is ‘[t]he principle in accordance with which the courts of one state or jurisdiction will give effect
to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and
respect.’ Black's Law Dictionary 242 (5th ed.1979).” Desjarlait v. Desjarlait, 379 N.W.2d 139, 144 (Minn.
App., 1985)
Under the Restatement (Second) of the Conflict of Laws, section 98, a “valid judgment rendered in a
foreign nation after a fair trial in a contested proceeding will be recognized in the United States so far as
the immediate parties and the underlying claim are concerned.” Under section 92, a judgment is valid if
the state in which it is rendered has jurisdiction, employs a reasonable method of notification and
affords a reasonable opportunity to be heard by affected persons, judgment is rendered by a competent
court, and there is compliance with such requirements of state of rendition as are necessary for the
valid exercise of power by the court.
New York courts have pointed out that the mere fact that the foreign law creates a result different than
its own law does not preclude its enforcement. “Recognition will not be withheld merely because the
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