Kurtz and Letushinsky v Kirschen

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Supreme Court sitting as a Court of Civil Appeal.
Kurtz and Letushinsky
and
Kirschen.

The individual in international law Nationality Statelessness Testamentary dispositions of stateless person Lack of national law to serve as personal law International Convention Regulating Status of Stateless Persons, 1954 (Article 12 (1)) Geneva Convention relating to Legal Status of Refugees, 1951 Effect of international convention Provision generally recognized in international law The law of residence applied The law of Israel.

Summary.A testator who died in 1965 was a Jew and stateless person who had been resident in Germany. Ten years previously he had executed a document in his place of residence, which the respondent claimed was his last and effective will. The deceased having left property in Israel, the respondent claimed probate of this will. At first instance, the question of which law governed the validity of the will was taken first and the court held that German law should apply.

The Supreme Court, in dismissing the appeal against this decision, observed that there was no express statutory provision by which to determine the personal law of a foreign stateless person, the rule being that in such a case the person had no national law which could serve as his personal law. In the present instance the provisions of Article 12 (1) of the Convention Regulating the Status of Stateless Persons, 1954, to which Israel had acceded, could be applied. Although it had been previously held that an international convention as such was not binding on the court unless and to the extent that it or the rights and duties flowing therefrom had been adopted as binding law, that was so only where the convention did not accord with domestic law nor reflect international law as accepted by the majority of States.

The following is the text of the judgment:

Per Cohn J.:

1. The deceased, David Melman, was a stateless Jew, resident in Germany. He died in Germany in 1965. Some ten years before his death he executed a document there, and the respondent claims that this document is the last and valid will of the deceased. Since the deceased left property in Israel, the respondent has applied for probate of this will in the Tel-Aviv District Court. The appellants, who are the heirs at law of the deceased, opposed the grant of probate. By consent of the parties, the learned judge dealt first with the question of which law is determinative of the validity of the will in point of form; the appellants now appeal against his...

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