Our team: Helena Luckhurst
This article is taken from Helena Luckhurst’s blog The Wealth Lawyer UK
With the summer holiday season upon us, it’s time to dust down those dreams of owning a bolthole in your favourite part of the world, where summer means summer and the sky is always blue. It’s not uncommon for Brits to own assets outside the UK these days and not just the infamous holiday home in the sun. In acquiring assets abroad, though, the last thing usually considered is what happens to those assets on death and is an English Will any use in getting them sorted out?
An English Will which declares itself to be the last testament, revoking all previous testamentary documents, and which does not expressly limit its scope to assets in a certain territory will, if the will-maker is UK domiciled, be regarded as governing the worldwide assets of the will-maker as a matter of English law. Earlier foreign Wills can be accidentally revoked undr English law by a later English Will purporting to deal with worldwide assets. However, it is dangerous to assume that the English Will will definitely be recognised in the foreign jurisdiction in which the asset is based, or that it will be allowed to have the intended effect, particularly in civil law jurisdictions that recognise concepts of community of property and forced heirship which may override the terms of the Will. The concept of the personal representative is also alien to civil law countries and so trying to operate an English Will naming an executor or a trustee in a jurisdiction which doesn’t recognise either may be asking for trouble as well.
As a general rule, therefore, it may help the foreign estate to be administered more quickly if a local Will is put in place, limited in scope to assets situated in that jurisdiction. Local advice must be sought to check if this general rule holds good, though. Not all jurisdictions have a tradition of Will writing.
Even getting Wills in place for different jurisdictions is no guarantee of success, as was evident in the (pre EU Succession Regulation) estate of Bernard Matthews, the well-known Norfolk turkey farmer who died in 2010 and whose estate was the subject of a court case (Scarfe v Matthews ). In that case, Bernard’s French Will leaving his French villa to his mistress was not enough to override the French forced heirship rights of his three adopted children from his marriage to his estranged wife, who refused to relinquish their rights to a share of the villa under the forced heirship rules despite Bernard’s clearly expressed wishes to the contrary. The case concerned the correct construction of the English Will as to who should bear the French tax on the French villa, in light of a provision in the English Will providing that his English executors should pay all death duties, including French tax. You may be relieved to hear that the adopted children were made to pay it.
Helena Luckhurst, Partner, Fladgate LLP (firstname.lastname@example.org)