Sale of foreign property where minor is one of the beneficiaries


(Remi Aiyela) #1

I have a case with a UK resident minor beneficiary who has inherited foreign property under a Will made in that country. The other beneficiaries would like to sell. The foreign jurisdiction require some kind of UK “court document” to confirm authorisation to sell the minor’s interest. I expect a court order is what is expected. What kind of application should be made to court here in the UK to confirm or enable the property to be sold?

Remi Aiyela
gunnercooke


(John Cartlidge) #2

Not my area but I’m thinking a notarised affidavit as to parentage, ref Children Act - perhaps with birth certificate exhibited - such affidavit then legalised for the particular country. I’d be interested in other comments.

http://www.legislation.gov.uk/ukpga/1989/41/section/3

John Cartlidge
Campion Solicitors


(Charlotte Oliver) #3

It is feasible that an application might have to be made in the courts of the country where the property is situated. That means a power of attorney granted to a lawyer in that jurisdiction. I am comparing your query to what might happen in the case of property left under a will in Italy. It is true that one Notary who is overseeing the sale of property may have a different view from another.

For example, if English law was applicable to the estate, then by the rules of renvoi this would refer to Italian law as far as property is situated there. So the Italian Notary may want an order from the “giudice tutelare” consenting to the sale of the proeprty on behalf of the minor.

Alternatively a Notary might accept a declaration from the Exececutor that English law applies to the whole worldwide estate (this is more likely in a post Succession Regulation case where there was a choice of English law in the will). If English law applies a Notary should accept that the Executor has the power to sell the property in his or her name.

Charlotte Oliver
Oliver & Partners, Rome


(Remi Aiyela) #4

Thanks very much John. Unfortunately the notary wants more than that. They want something from the court that confirms the authority of the parents to make decisions on behalf of the child in relation to the sale of the property.

Remi Aiyela
gunnercooke


(Remi Aiyela) #5

Thanks Charlotte. They are quite clear that they need something from an English court but I have found in another case that the notary (in that case in Spain) was not prepared to accept a declaration from the Executor. It does seem that they need something more than that. In the other case I mention, we were asked to confirm that there were no other beneficiaries in the UK entitled to the property in Spain. I think nothing short of an application to court will satisfy the notary but what sort of application to make is the question?
Remi Aiyela
gunnercooke


(John Cartlidge) #6

I am wondering if we are slightly at cross purposes;

Your reference to notary appears to be the lawyer in the other jurisdiction.

My reference is to a UK affidavit sworn with a UK Notary and then legalised via the Foreign Office by the UK Notary for use in the jurisdiction.

Affidavit citing parentage and Childrens Act, parental responsibility with registrar copy birth certificate attached – the UK Notary if necessary can usually arrange translation if required.

Children Act 1989
c. 41Part I
Section 3

3 Meaning of “parental responsibility”.

(1)In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

(2)It also includes the rights, powers and duties which a guardian of the child’s estate (appointed, before the commencement of section 5, to act generally) would have had in relation to the child and his property.

(3)The rights referred to in subsection (2) include, in particular, the right of the guardian to receive or recover in his own name, for the benefit of the child, property of whatever description and wherever situated which the child is entitled to receive or recover.

I should imagine the UK Notary fees would be around £300 and the legalisation / delivery about the same or a little less.

John Cartlidge
Campion Solicitors


(jgarriga) #7

In the case of Spain there is an specific process of “authorisation of disposal of assets belonging to minors or disabled”. Basically the point is to avoid either conflict of interest situations or just parents/custodians taking advantage. Public attorney checks stuff and judge orders/denies such authorisation.

So the Notary should clarify whether governing law should be UK and this particular should also be under such scope. As Charlotte said, renvoi and immovables should pose an issue, once you try to prove the content of the applicable foreign law.

Jose Garriga

Jose Garriga Abogados