Over 5 million people may have left the UK to enjoy warmer weather. Therefore it’s become increasingly likely for them to have assets in one country and live in another,
Cases where two (or more) countries are involved can become complex, especially where the deceased failed to plan for this, and / or disputes arise between family members / dependents.
Addressing the Question of the Deceased’s Domicile First
Strictly speaking, a domicile is the country a person treats as their permanent home. English law deems this to be the father’s domicile at the time of their birth. Since each of us may only have one domicile at a time, it’s important to establish a timeline if a domicile of origin changes.
Matters become more complex where a deceased did not have a physical home. However, in this case the law will assume a domicile for them on the basis of their actions and perceived intentions before they died.
The Gazette cites a case where a deceased person was born in England, later moved to Belgium but worked in France. However he spent a few weeks every year in a home he owned in England. The court decided his English will was valid because he had retained his domicile of origin.
Next, the Validity of Wills and the Rules of Intestacy
An executor’s next task is either proving the validity of a will, or applying the rules of intestacy if there is none. According to The Gazette, a will made in England may hold good even if the deceased was living elsewhere, provided they maintained “a suitably close connection to the country”. If this cannot be proven, then the law of the country where they were living applies.
The European Union Succession Regulation
Britain has not ratified this legislation yet, and indeed it may never do so. Nonetheless our courts may still use it as input. The regulation first tests whether the will states which national law applies. If it does not, or there is no will then it applies the ‘habitual residence’ rule.
Obtaining a Grant of Probate for Someone Who Died Abroad
The situation can become even more complex if a person died abroad leaving property or assets in Wales or England. This is because UK banks and other financial institutions require an English grant of probate before they execute an administrator’s instructions and release funds.
Challenging a Will or the Distribution of Assets
Under English Law a person may leave their assets to whoever they wish. However, the Inheritance (Provision for Family and Dependants) Act 1975 allows others to challenge it after their death if:
- The will excluded them
- AND / OR They have not inherited as much as they need
- AND / OR They have not inherited at all
Therefore, by way of an example a person whom the deceased maintained before they died may claim part of the estate to compensate them. However, the Act prohibits a person domiciled abroad from doing so. They then have to depend on the laws of their domicile which may not be compatible with an English will.
Challenging a Will in Terms of Testamentary Capacity
A legal challenge may be instituted in England and Wales on the basis the deceased:
- Did not have testamentary capacity
- AND / OR Were subject to undue influence
- AND / OR Did not approve or understand the will
However the situation may be different in a foreign country, leading to deep resentment and disputes in families and relationships. Therefore a testator and their will-writer should carefully investigate all these matters, before they put pen to paper and sign.
