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 [2012]). 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. 
