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Form of Testamentary Dispositions Act

LAWS OF TONGA

CHAPTER 17

FORM OF TESTAMENTARY DISPOSITIONS

Act 32 of 1978

AN ACT TO BRING INTO FORCE WITHIN THE KINGDOM OF TONGA, THE CONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM OF TESTAMENTARY DISPOSITION DONE AT THE HAGUE ON 5 OCTOBER 1961

Commencement [31st October, 1979]

Short title.

1. This Act may be cited as the Form of Testamentary Dispositions Act.

Convention to come into force.

2. This Act shall bring into force within the Kingdom of Tonga the provisions of the Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions done at the Hague, on 5 October 1961, which are specified in the First Schedule hereto.

Reservation to the Convention.

3. The provisions specified in the First Schedule shall be read and construed subject to the reservation in the Second Schedule hereto.

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FIRST SCHEDULE

CONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM OF TESTAMENTARY DISPOSITIONS DONE AT THE HAGUE, ON 5 OCTOBER 1961

Article 1

A testamentary disposition shall be valid as regards form if its form complies with the internal law:

(a) of the place where the testator made it, or

(b) of a nationality possessed by the testator, either at the time when he made the disposition, or the time of his death, or

(c) of a nationality possessed by the testator had his domicile either at the time when he made the disposition, or at the time of his death, or

(d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or

(e) so far as immovables are concerned, of the place where they are situated

For the purposes of the present Convention, if a national law consists of a non-unified system, the law to be applied shall be determined by the rules in force in that system and, failing any such rules, by the most real connection which the testator had with any one of the various laws within that system.

The determination of whether or not the testator had his domicile in a particular place shall be governed by the law of that place.

Article 2

Article 1 shall apply to testamentary dispositions revoking an earlier testamentary disposition.

The revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under Article 1, the testamentary disposition that has been revoked was valid.

Article 3

The present Convention shall not affect any existing or future rules of law in contracting States which recognize testamentary dispositions made in compliance with the formal requirements of a law other than a law referred to in the preceding Articles.

Article 4

The present Convention shall also apply to the form of testamentary dispositions made by 2 or more persons in one document.

Article 5

For the purposes of the present Convention, any provision of law which limits the permitted forms of testamentary dispositions by reference to the age, nationality or other personal conditions of the testator shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications that must be possessed by witnesses required for the validity of a testamentary disposition.

Article 6

The application of the rules of conflicts laid down in the present Convention shall be independent of any requirement of reciprocity. The Convention shall apply even if the nationality of the persons involved or the law to be applied by virtue of the foregoing Articles is not that of a contracting State.

Article 7

The application of any of the laws declared applicable by the present Convention may be refused only when it is manifestly contrary to “ordre public”.

Article 8

The present Convention shall be applied in all cases where the testator dies after its entry into force.

Article 9

Each contracting State may reserve the right, in derogation of paragraph (c) of Article 1, to determine in accordance with the lex fori the place where the testator had his domicile.

Article 10

Each contracting State may reserve the right not to recognize testamentary dispositions made orally, save in exceptional circumstances, by one of its nationals possessing no other nationality.

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SECOND SCHEDULE

RESERVATIONS TO THE CONVENTION

1. The domicile of a testator shall be determined in accordance with the laws applicable in the Kingdom of Tonga.

2. No testamentary disposition made orally by a Tongan national possessing no other nationality shall be recognized in any court of law save in exceptional circumstances.

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