Foreign Wills - proving in England and Wales

(Laura Ruffell) #1

I’d be grateful if anybody is able to assist with a file I have at the moment please.

A client has died in England leaving a property and Will prepared in Tenerife (he lived in Tenerife for a number of years). The Will specifically states it is the law of England and Wales which applies and relates to all of his worldwide assets. The client was domiciled in the UK.

I am having difficulty finding the correct form of oath and affidavit to prove the foreign Will in England and Wales. I am presuming that I need an affidavit from a lawyer / notary specialising in Spanish law to confirm the validity of the Will and to lodge this with the appropriate oath to the Probate Registry?

Any thoughts would be much appreciated.

Laura Ruffell
Firm: Rudlings Wakelam

(andrew.goodman) #2

Yes, unless of course the will is formally valid under English law, in which case the affidavit may not be necessary.

Andrew Goodman
Osborne Clarke LLP

(Jason Tian) #3

Does UK law allow testator to designate applicable law to the will? In China, no! This can cause real trouble for clients.

Jason Tian
Shanghai Landing Law Office

(monika) #4

I use the services of Keith Biggs who is an ex registrar from Winchester for matters like this. He is ever so helpful and responds quickly. If you are interested in his details message me directly:

Monika Patel
QualitySolicitors Stapletons

(Paul Saunders) #5

I appreciate that the following does not address the question posed, but I would caution against referral to “UK Law”, as the relevant laws of the jurisdictions of England & Wales, Scotland and Northern Ireland differ in important aspects.

In the past I have had issues with a US lawyer who, whilst being careful to ensure that the appropriate state’s law was referenced, doggedly refused to accept that anything other than “UK” trust law was to govern the terms of the trust involved. This gave rise to an impasse and, I believe, the US lawyer was on the receiving end of a claim by the mutual client.

Paul Saunders

(Peter Harris, Barrister, Overseas Chambers ) #6

In support of Paul Saunders warning.

That plague or rather intellectual palsy has also spread to HMRC who also use, or rather abuse the term “UK Law” in responding to issues on s.43(2) ITA paragraph 2, in an area which generally defers to the property laws of each of the internal British jurisdictions as the law of any separate part of the United Kingdom. There appears to have been a form of internal “outlaw” directive to that effect which renders precise technical discussion entirely subjective and wrong as opposed to objectively correct.

The resulting waffle from compliance officers is totally incomprehensible from a logical legal perspective. It is incredible that in an area where jurisdictional competence is of the essence that a non-accountable administration can take it upon itself to attempt to unilaterally and incorrectly redefine such fundamental issues with no legal authority or basis whatsoever. I stress that there is no Minister in the UK Government’s website to whom HMRC are required to defer. In effect, until they are challenged in front of the courts compliance officers believe themselves to be accountable to no one in matters of jurisdiction and competence and scuttle off behind the vagaries of the Manuals which the Courts continually hold not to be statements of the law.

There are justifications in certain areas to refer to “UK law” when there is an Act of Parliament, or an EU measure passed in relation to the constituant elements of the United Kingdom, but not otherwise.

Peter Harris