Facts: Greek client habitually resident in the UK - has applied for British nationality. Has movables assets in the UK and an immovable one in Greece. Will a clause in his English will stating that English Law shall apply to all his estate whatever situate suffice to be applicable/valid in Greece? If so, which is the recommended clause wording please?
If such provision would not be sufficient would you please advise on options?
Marcela Pierabella
Forest Wills & Estate Planning Ltd
Is he resident in England and Wales? You will need to consider which legal system in the United Kingdom applies, both now and at the day of his decease.
The option will only work if he has British nationality, not if he has merely applied for it. The option could in theory be set aside by the family if not.
Peter Harris
www.overseaschambers.com
Hi Peter
Thank you for your reply. Sorry, client resides in England so it will be English law that will apply as a default if we say nothing in the Will - however I have read that it’s recommended that testator includes a choice of law in their Will if this is their preference?
I understand that the regulation can apply if testator is British at the time of death -as well as the time of making a will- in which case there is nothing to stop testator choosing that law in the current English Will - I am aware however that it wont work if his application for British Nationality is ultimately rejected and I will advise the client accordingly.
Is it therefore best to include the law of England and Wales to apply even with the caveat of a pending application for British nationality? And if so, would client also be required to obtain local advice as to whether this option will effectively work under Greek law?
That said, my further concern is that as UK has opted out of Reg 650/2012 it seems that PIL with the renvoi principle will govern succession of his real property in Greece rather than E&W domestic law? I have read that this is what has been applied by French practitioners in France. If so, won’t the introduction of a choice of English law in his English Will be futile for his matter?
Marcela Pierabella
Forest Wills & Estate Planning Ltd
No, the nationality option has to be included in the will or other testamentary disposition. You are referring to an answer to a different question as to wills signed prior to the Regulation coming into force.
I think that you might have a difficulty with a faslehood if the testator states he has British nationality when he does not at the tie of the will’s execution.
But, if you manage to get the nationality option, then any renvoi is excluded under article 34 (2).
Secondly, as I have posted previously, the actual process of transfer to heirs and legatees under article 23.2.(e) of the regulation is governed by English law viewed a a unitary system, it is only if a renvoi is needed and set out by the non EU law concerned that article 34 imposes one.
As English law in relation to property outside the jurisdiction is not subject to the English 1925 legislation, there is no appointment of an executor of personal representative available, and the old pre-1897 English rule of direct seisin, which remains unrepealed in that situation, applies so that the heirs and legatees take automatically. There is in fact no renvoi under English law to French law in a purely unitary environment such as teh Regulation, only where a duallist structure is required by the foiegn law. There is no authority to state that English law requires it. Certainly Dicey and Megarry both recognise that the 1897 and 1925 legislation have no sway over foreign land in an English succession.
There is little point in discusisng this on the page. if you need an opinion let me know, otherwise, explaining it to a Greek lawyer might take a little time and energy.
So, your chioce of law will not involve a renvboi to Greek law, and even if it was not available, there is authority for the rule that English law as the law of the habitual residence does not need a renvoi to vest the property directly in the heirs of legatees in Greece. There is no point in excluding such facilities out of a supposed assumed principle. There are times when it may suit to assert a duallist renvoi, but it is not an absolute under English law by any means in the unitary context imposed by the Regulation.
Peter Harris
www.overseaschambers.com