I have a client whose partner died leaving a Portuguese Will. He was born in the UK but lived for the past 27 years in Portugal. He has no assets in Portugal (although an equivalent of Probate has been granted in Portugal) and his only asset in the UK is a life insurance with Phoenix life worth £23,000. I am therefore assuming UK domicile?
Phoenix Life are insisting on a UK grant of probate. I have the Portuguese Will which leaves everything to my client but does not specifically mention her as an Executrix.
Does this mean I am able to simply apply for a UK grant of Probate of the Portuguese Will or will I need evidence of it’s validity in Portugal. If so would the Portuguese Grant of representation suffice?
Dear Paul,
You have an interesting problem. Assuming the Portuguese Will is valid, You will have to apply in England for a Grant of Letter of Administration. You will have to deal with the failure of the Portuguese Will to appoint an Executrix (but you imply there is a Portuguese Executrix but such Executrix is not your client). Also, is there a Notarial Act obtained in Portugal because if so it will establish its validity (you imply this has been obtained, so you can expect that the local Probate Registry will want to see the original).
If there is a Portuguese Executrix, then such person will have to appoint (probably yourself) under a Power of Attorney to act in England to obtain the English Grant.
I doubt that you can in the circumstances establish English domicile, so IHT 400; 401 and 406 will have to be completed.
Yours sincerely
Peter Double
Probate Resealing Services
tel: 01638 713 288
The Portuguese Will will be valid if it meets the conditions set out in the Wills Act 1963. Recite this in the PA1P. You will need a certified translation of the Will.
The domicile of the deceased will determine who is entitled to take out the Grant in the absence of executors (rule 20 for dom, rule 30 for non-dom).
Rule 19 sets out the evidence of foreign law that the Probate Registry will accept.
There is insufficient information to determine the deceased’s domicile at the date of death.
As is well known length of time residing outside the UK is not, per se, a determinant of a loss of UK domicile status. However, it is one fact to take into account. A Portuguese will is a helpful factor re possible non-UK domicile as is the lack of UK property including lack of a house/flat and no UK bank accounts.
Were the deceased’s parents both UK domiciled at the time of his birth?
Why are there no Portuguese assets?
Is the deceased’s partner a Portuguese national?
Were the partners married or in a civil partnership?
Were was he buried?
The acquisition of a non-UK domicile (ie Portuguese) does not seem unreasonable.