Validity of Wills with Foreign Assets

When an estate consists of assets located in jurisdictions outside of England and Wales there are various elements to consider in relation to the devolution (i.e. transfer) of such assets upon death such as succession laws (i.e. how property passes upon death), tax and domicile. Therefore, advice should be taken in relation to the preparation of a Will (or multiple Wills).

When making a Will it is important to assess the type of assets that are owned, together with the location of such assets at death. It is important to note that certain types of assets will pass in accordance with the jurisdictional laws in which they are located. For example, English law separates movable (i.e. bank accounts etc.) and immovable assets (buildings and land). English law states that movable assets pass in accordance with the domicile status of the deceased, and immovable assets pass in accordance with the law in which the assets are located.

Further, if some assets are located in a foreign jurisdiction, consideration should be taken as to whether such assets can be dealt with under one Will, or if the assets in the foreign jurisdiction should be dealt with by an additional Will specific to jurisdiction in which they are located.

The laws of succession

This is because different jurisdictions have different laws of succession. In England and Wales there is ‘testamentary freedom’ (subject to any challenges), whilst in many other countries there is the concept of ‘forced heirship’, which is where certain family members are entitled to receive a prescribed share of an estate.

If there are assets within EU countries bound by the EU Succession Regulations (‘the Regulations’), this must also be considered. The Regulations were introduced with the main purpose of balancing the laws of succession applicable to an estate.

The general rule in accordance with the Regulations is that the law applicable to the worldwide succession is the law of the jurisdiction where the deceased was habitually resident at the date of their death.

If this is not suitable to the circumstances of the estate, it may be possible when preparing a Will to choose the law to govern the succession of an estate. It is important to note that the Regulations govern the laws of succession only. The assets and estate may still be subject to the taxation regime of the foreign jurisdiction. It is, therefore, important to obtain specialist tax advice to ensure that the Will(s) ensures that the estate passes as tax efficiently as possible, whilst achieving your wishes in relation to devolution of your assets upon death.

Legal advice should be obtained by lawyers in each relevant jurisdiction to advise on the interplay of the different jurisdictions and the suitability of either one or multiple Wills. The correct declarations and/or limitations must be stated in the Will(s).

In the instances of multiple Wills

If more than one Will is to be prepared, it is extremely important that the Wills do not revoke each other. Further, the preparation of the Will(s) must also be in accordance with the jurisdictional requirements for a valid Will. For example, in England and Wales a valid Will must be in writing, the testator (i.e. the person making the will) must have mental capacity when drafting and executing the same, and the Will must be signed in the presence of two witnesses over the age of 18 and signed by the two witnesses in your presence. If the Will was not executed as per English requirements, it does not necessarily mean that the Will is to be regarded as invalid. Additional affidavit evidence may be required to determine the validity of the Will in accordance with statutory requirements.

Further, if a valid English will is left to deal with the entire estate this should then be proved in the usual way and thereafter provided to a lawyer in the foreign jurisdiction to either reseal or extract the appropriate grant in such jurisdiction. Likewise, if an additional Will is prepared for the foreign assets, it will be for a lawyer in such jurisdiction to be instructed to prove the Will and administer the foreign estate in accordance with the Will.

Frequently Asked Questions

Can one Will cover assets in different countries?

Yes, in some cases a single Will can deal with worldwide assets. However, this depends on the type of assets involved, where they are located, and the succession laws of the relevant jurisdictions. In many situations, separate jurisdiction-specific Wills may be more appropriate.

What is the difference between movable and immovable assets?

Movable assets include items such as bank accounts, shares, and personal belongings, while immovable assets refer to land and buildings. Under English law, movable assets usually pass according to the deceased’s domicile, whereas immovable assets are governed by the law of the country where they are located.

What is forced heirship and how could it affect my Will?

Forced heirship is a legal principle in some countries that requires a fixed portion of an estate to pass to certain relatives, regardless of what a Will says. If you own assets in a forced heirship jurisdiction, your wishes under an English Will may be overridden unless appropriate planning is undertaken.

How do the EU Succession Regulations affect succession?

The EU Succession Regulations determine which country’s law applies to succession for assets in participating EU states, usually based on the deceased’s habitual residence at death. In certain circumstances, it is possible to choose the law of your nationality to govern succession, which should be clearly stated in the Will.

Will a Will made in England and Wales be recognised abroad?

Often yes, but not always automatically. Foreign jurisdictions may require the English grant of probate to be resealed or may require additional evidence to confirm the Will’s validity under local law.

Examples

Example A

UK-domiciled individual with a holiday home abroad

James is domiciled and resident in England and owns a holiday villa in Spain. Although his English Will leaves all assets to his spouse, Spanish forced heirship rules may apply to the Spanish property. Without appropriate planning or a Spanish Will, James’s wishes could be overridden for that asset.

Example B

One worldwide Will covering multiple countries

Emma lives in England and holds UK bank accounts, shares, and an investment property in France. After taking legal advice, she prepares a carefully drafted English Will that applies English succession law to her worldwide estate. However, separate advice is needed to address French formalities and potential inheritance tax exposure.