Insights

With the Best Will in the World…


07/12/2011

… is how you should be armed, when you finally shuffle off this mortal coil. In these international times, will your Will be effective throughout the world? Your Will may be fully compliant with English law but it may fail because it conflicts with the laws of another country where you have assets. Has your Will dealt with your house abroad or the car parked outside it? What if you are a foreign national living in England?

Here are some examples of how cross-border issues can affect the operation of your Will.

  • Community of Property: Many European countries give part ownership of your assets to your spouse on marriage. You could find if you marry a foreign spouse abroad that you own less property than you think when it comes to making your Will.
  • Trusts: Perhaps in your will you create a trust over assets in a country that does not recognise trusts. This could give rise to a beneficial gift to your executors!
  • The Ultimate Nightmare: Worst of all, you may be a citizen of one country, habitually resident in another and domiciled in a third, with each country seeking to apply its conflicting laws to your Will. Result? One unholy mess.

However, the most common issue is forced heirship. Unlike England and Wales, the majority of European countries and many others have some sort of forced heirship laws requiring a person to pass a fixed portion (typically between a third and one half) of the estate to near relatives, usually children or a spouse. These cannot be overridden in a Will. However, they may not always apply to the estate of a foreign person, or at least to certain assets.

When it comes to your assets abroad, English courts apply English succession law to your movable assets (investments, cash, bank accounts, personal possessions etc.) but follow the succession law of the country where your immovable assets are (land and property).

As an illustration, what happens if an English domiciled person owning both land and investments in Spain, Portugal, Switzerland, Scotland and France makes a Will in England leaving everything throughout the world to the spouse only?

  • Spain and Portugal: Spanish and Portuguese nationals must leave certain portions of their estate to their children and other relatives but citizens of England and Wales may leave all their estate to whoever they like.
  • Switzerland: there are forced heirship requirements for Swiss nationals but, provided your Will contains wording that specifically applies the succession law of England and Wales, it will be effective in leaving everything in Switzerland to your surviving spouse.
  • Scotland: provided you are not domiciled in Scotland when you die, your Will should be valid to pass your entire estate to your spouse.
  • France: has forced heirship rules. Your moveable estate in France passes to your spouse entirely. Whatever your Will may say, your French property and land will not. A surviving husband or wife may be able to choose a life interest over the whole of your French property but will never be entitled to an absolute interest in all of it. Forced heirship can often be avoided either by buying French property through a Société Civile Immobilière or by owning the property En Tontine (similar to joint tenants in the UK). Alternatively, if there are no children from a previous relationship, a French Marriage Contract may be appropriate in certain circumstances.

Conversely, if you are a citizen of one of these countries but living in England when you die, having made a Will leaving your English assets including property and investments solely to your spouse, then the English courts apply foreign succession law to your movable assets but their own law to your English land and property.

  • Spain and Portugal: regardless of your Will, your children will be able to claim a fixed portion of your English movable property which English courts will recognise. However, your English land and property will pass entirely to your spouse. The Spanish and Portuguese courts will accept this (reluctantly).
  • Switzerland: your children are able to claim a fixed share over your movable property. They would have no claim against your English land however, as Swiss law recognises.
  • Scotland: if you were living in England but domiciled in Scotland then, regardless of your Will, your children will collectively be able to make a claim for a third of your movable assets.
  • France: a clash of laws! Your children can claim a fixed share of your English movable property. French law says they have a claim for some of your English land and property. However, English Courts will not recognise or enforce such a claim.

Making an additional Will abroad for foreign assets often eliminates language ambiguities and usually make it cheaper and quicker to deal with the administration of your estate. However, any foreign Will should not conflict with or revoke your English Will. Careful wording is often needed.

Legal advice also needs to be taken from foreign lawyers who specialise in the field of their own succession laws not only when making your Will but before you purchase property abroad. We here at Gordon Dadds practise English law, and we have long-standing and extensive relationships with a network of foreign lawyers and advisers, with whom we can liaise when we prepare your Will to ensure that you receive the best advice possible as to foreign succession law, property ownership structures and tax consequences.

So, have you got the best Will in the World?

Gordon Dadds