With international mobility on the rise, it is increasingly common for our clients to have connections with many other countries. Those wishing to make an English Will are often confronted with a long list of foreign considerations which they and their advisors must take into account as part of the Will-making process. With 193 countries currently recognised by the United Nations, most with their own unique legal framework, tax rules and practical considerations, this can be a daunting process.
This article is intended only to scratch the surface of the iceberg, by addressing some of the key questions that we often discuss with our clients.
1. One Will or multiple Wills?
This is often the first question we are asked by clients who hold assets in more than one state. Most jurisdictions will recognise the validity of an English Will (though it is important to check the rules of each state in question) and it is often possible for a client to create an English Will to govern the succession of their entire worldwide estate. Whether this is advisable will depend on the client’s particular circumstances, and the location and nature of their offshore assets.
The main attraction of making a single Will is that the process is usually simpler and quicker, and many clients prefer to use a single document to set out their testamentary wishes. Having only one Will also avoids any possibility for conflict and contradiction between Wills. There have been many cases where a Will made in, say, England unintentionally revokes a previous Will made in a foreign country (or vice versa) causing the client to be unknowingly partially intestate.
The main disadvantage of having a single Will is that it can complicate and lengthen the process of administering an estate after death. The Will needs to be proved by the courts in each state where assets are located (especially where the client holds land), which usually means that the foreign court processes can only begin once the English probate has been granted. This process often requires translations, and foreign courts and lawyers may raise difficulties when asked to implement unfamiliar English-style Wills, and interpret English legal concepts. For instance, many jurisdictions do not have any concept of executors or of trusts, and the inclusion of these in the worldwide Will can produce unexpected outcomes. By contrast, if separate local Wills are in place for each jurisdiction, it is usually possible for the administration to proceed in each state simultaneously and more smoothly.
2. Does the Will have to be signed in England?
Traditionally most clients visit their solicitor to sign their Will but, whilst this is still common, we are now often asked to post a Will to a client to sign at home. This is especially true in the modern age of video-meetings where many clients may never physically visit their solicitor’s office.
Special considerations apply if the testator is not going to sign the Will in England, because a Will executed abroad will only be valid for use in England if it is prepared in accordance with the law of:
the territory where the testator was domiciled, either at the time of its execution or at the time of their death, or the territory where the testator had their habitual residence either at the time of its execution or at the time of their death, or a state of which, either at the time of its execution or at the time of their death, they were a national.
If the Will is prepared so as to comply with foreign law, it will be necessary to take local advice to ensure the Will is valid. After death, the English court will require evidence that the Will is indeed valid under the rules of the relevant foreign state.
Concepts of domicile and habitual residence (as well as UK ‘statutory residence’) are worthy of articles in themselves (and indeed many books have been devoted to these topics alone). We often advise on these concepts as they will have a major impact on (a) the law applicable to the succession of a person’s estate, and (b) tax.
3. Which country’s laws will apply to my estate?
Choice of law is a separate question to validity of a Will. It is possible (and quite common) for a foreign court to accept an English Will as being valid, but nevertheless to apply their own local law to govern how the Will is implemented. This may have a very significant impact – many states have mandatory “forced heirship” provisions which restrict the choices available to testators regarding the distribution of their estates, usually stipulating certain minimum sums or percentages that must pass to a surviving spouse and children. If local forced heirship laws apply, then any contradictory provisions in a Will will be disapplied.
The law applicable to a Will will often also determine the law applicable to govern any trust created by the Will. Since many states do not recognise trusts, this is often a crucial question.
English law does not allow testators to choose which law applies to govern their Will. Instead, the succession of English immovable property (i.e. land and buildings) will always be governed by English law, where the succession of movables (including most other types of asset) will be governed by the law of the state in which the testator was domiciled at the date of their death.
By contrast, most European states follow the EU Succession Regulation which allows testators to choose the law of any state in which they are a national to govern the succession of their entire estate. If the English Will is intended to cover assets in an EU state, then it is common to include a choice of law clause.
This article is from the autumn 2021 issue of Private Lives, our newsletter covering the key legal and tax issues that individuals face. To download the latest issue, please visit the newsletter section of our website.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.