## Facts

- Max Cohn and Hedwig Cohn, German nationals domiciled in Germany, executed a joint will in Germany (1918) leaving the entire estate, after the survivor’s death, equally to their three children: Gerda Oppenheimer, Else Freudenthal, and Siegfried Cohn.
- Max predeceased Hedwig, making Hedwig the surviving testator under the joint will.
- In 1940, Hedwig and her daughter Gerda were both killed in London during the same air-raid explosion; the order of deaths could not be proved.
- Letters of administration (with a translation of the will) were granted to the Public Trustee, who sought directions on which law governed succession to Hedwig’s movable property and how the survivorship uncertainty affected distribution.
- If English law applied, the older (Hedwig) would be deemed to have died first, treating Gerda as the survivor and thus entitled; if German law applied, Hedwig and Gerda would be treated as dying simultaneously, preventing Gerda from taking under Hedwig’s succession.

## Issues

1. Whether succession to the movable property of a decedent domiciled abroad is governed by English law (including the English statutory simultaneous-death presumption) or by the law of the domicile.
2. Whether survivorship, when it determines entitlement to inherit, is a procedural/evidentiary question governed by the forum or a substantive succession question governed by the law applicable to succession.

## Decision

- The court held that German law, as the law of Hedwig’s domicile, governed succession to her movable property.
- The court held that the survivorship question, insofar as it determines whether an heir was living when succession opened, is part of substantive succession law, not merely procedure or evidence.
- Applying German law, Hedwig and Gerda were treated as having died simultaneously; Gerda was therefore not treated as living when Hedwig’s succession opened and took nothing under Hedwig’s will.
- Hedwig’s movable estate passed to the two remaining children, Else Freudenthal and Siegfried Cohn, in equal shares.

## Legal Principles

- Succession to movable property is governed by the law of the decedent’s domicile at death (lex domicilii).
- Where survivorship determines capacity to inherit, it is characterized as a substantive question within the applicable succession law, not a forum-controlled evidentiary presumption.
- The English statutory presumption for uncertain order of death applies only when English law governs the devolution; it does not override the foreign law designated by choice-of-law rules.

## Conclusion

The court applied the decedent’s domicile law to succession of movables and treated survivorship as a substantive succession question, resulting in a distribution that excluded a beneficiary who, under that foreign law, was not deemed to have survived to the opening of the succession.


In re Cohn, [1945] 1 Ch. 5 (Ch. 1944)