Good point, Malcolm, that is why I suggest that two wills are necessary, one for assets situated within the UK, and the other for assets elsewhere. Assets elsewhere in the EU are regulated by Regulation (EU) n° 650/2012, which has in fact changed the game by the interplay of competence and jurisdiction.
I understand that Terry Hill’s initial question may not have been specifically aimed at France, but I leave it to the mediator to decide whether the technical issues raised are worth the friendly powder.
The French Treaty does make the distinction between the United Kingdom and Great Britain at article 1:
(b ) the term “United Kingdom” means Great Britain and Northern Ireland;
( c ) the term “Great Britain” means England, Wales and Scotland, and does not include the Channel Islands and the Isle of Man;
Perhaps I should explain my thinking, for what it may be worth:
When you say “governed by”, that is not the same as “regulated by”. The first refers to a steering rudder, steering oar or a helmsman - gubernator, in other words steering principles; the second refers to the application of rules by virtue of being “steered”. Not the same thing, in this context.
The two terms have separate meanings; although I agree that a Latin A level is needed to be able to describe the difference in the terms’ anglicisation and that neither Counsels’ nor the House of Lords’ collective Latin in Philipson-Stow appeared to be up to being definitive about the difference, which in any event was stated by their Lordships not to be crucial there. In this context, it is. I have yet to see an English law will saying that it is regulated by the laws of England and Wales, most content themselves with merely being governed by English law.
Putting linguistics to one side; they are important but only reflect the substance of what is dispositive in any part of the United Kingdom and what is not.
The actual “disposition” only takes effect on the grant of probate within the UK over the UK assets. A will without probate has no effect. I would say that “devolution” refers to an intestacy, not to the Regulation’s process. I would also say that the 1963 Estate Duty Treaty was drafted by reference to the prior, and ever present common law jurisdiction over assets. I would suggest that the “ disposition or devolution ” in question relate more to the classification issue between movables and immovables involving trusts and that the phrase is designed to catch cases like re Berchtold which relied upon PIL classification, rather than the later deployment of the EU Regulation in the following millennium. The Estate Duty technicalities of situs and taxation were decided upon or regulated under the common law, not under fictional bases, saving for settlements. The UK opted out of the EU Succession Regulation, and it is not part of United Kingdom law. Brussels I is, and that includes the dispositive authentic instrument, the certificat de notoriété issued by a notaire which entitles those gratified to take their shares, governed and regulated by French law. I have recently given HMRC a rude awakening as to the extent of the effect of EU service of such an Authentic Instrument in English law. HMRC appear not to be aware of the full “scope” of the term “law” and of its effect on the interpretation and implementation of the tax acts which it is called upon to apply.
Note that article 23.1. and 2. of the Regulation as to the scope of the law applicable to the succession state " The scope of the applicable law
- The law determined pursuant to Article 21 or Article 22 shall govern the succession as a whole.
- That law shall govern in particular: …"
It does not say “regulate”. That is left to the law of the jurisdiction implementing the disposition. English law may govern the will, but does not regulate it in the EU. The acte implementing the provisions of the will in France does “regulate” the succession and is inescapably French.
Article V(1) of the Estate Duty Treaty uses the term “regulate”. HMRC cannot therefore use that provision to claim IHT on transfers of value under the French succession when English law does not regulate the French transfer.
As the overseas will, albeit opting for the law of the nationality -British- is effectively governed but also de facto regulated by the Regulation (not, I stress a mere directive), it need not be placed upon the altar of the Probate Court to obtain a Grant to render it effective say in France. I will not go any further into the relative simplicity of rendering an English law will effective in France under the Regulation, but it does not involve any form of Probate or the appointment of an executor or, in the case of an intestacy a Personal Representative. That is dealt with by the Regulation, which is not part of the law of any part of the United Kingdom. The dispositive document by which the disposition referred to in Article V(1) of the Estate Duty Treaty of 1963 is effected is not the EU will, it is the certificat de notoriété, which is a French, not a “GB” disposition. The Will is not “regulated” in the sense of the Treaty by English law, but, now, by the Regulation, which is now part of French law by virtue of direct effect and direct applicability. The overseas will (EU will) itself does not go through the administration provided for in the Administration of Estates Act 1925, and is not “regulated” by it. The Will would be under the jurisdiction of here the putative French court and is implemented by the heirs and legatees under French principles.
I do not think that Article 1 of the Regulation can be used as a unique shield against HMRC or the lack of dispositive jurisdiction of Probate Court, but it is worth setting out:
“1. This Regulation shall apply to succession to the estates of deceased persons. It shall not apply to revenue, customs or administrative matters.”
Where Regulation (EU) n°650/2012 is useful is that its article 4 lays down the general jurisdiction of the Court in the EU which rules on (i.e. regulates) the succession:
The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.” All article 22 does is to enable a choice of governing law of the nationality of the testator.
In other terms, if the deceased was habitually resident in France at the time of his death, he satisfies both the French fiscal definition, the Treaty tie-breaker clause, and the jurisdictional requirement of the Regulation. Whilst the French succession and the French Courts will apply the law of the nationality if a valid option is exercised , it does so within its jurisdiction, not within that of England and Wales, as you appear to be implying.
Articles 6 and 7 do not apply as the UK is no longer a Member State and it is arguable that they never did.
Put in simple terms, if properly documented, it is the French court that deals with the succession under the Regulation, including the effective disposition or devolution, not the English Courts. HMRC will simply not get within sniffing distance of being able to assert jurisdiction under article V(1).
This is not an opinion. If you wish it to to be made into one, please let me know.