Appointment of overseas Guardians

I have a H and W case whereby one is a Canadian National and the other is
an Italian National. They have both been in the UK since August 2016 and
just purchased a house. The mortgage is only in H’s name as the W is still
going through permanent residency application. They have 3 children – the
youngest is 3.

They do not have any overseas assets other than a joint investment in
shares in Jersey. I have suggested an English Will to cover their assets
including Jersey, as resealing the English grant is not too onerous. I
have suggested local Wills if they acquire any property abroad. Is this ok?

They wish to appoint Guardians who reside in Argentina – my question is –
what checks etc. do Social Workers have to carry out before the children
could be taken abroad – or is there no check and the Guardians simply come
over to the UK and take the children away?

If social services do carry our checks to ensure ‘safe environment for the
child’ do they link up with overseas agencies who would carry out the
checks etc. and during this period could the client appoint a temporary UK
based guardian in the Will. The clients are keen to get clarity on this
before making their Wills and I’m just not sure and can’t find anything
definitive on-line or in any of my Law books but surely it’s a situation
that must arise from time to time??

Any help appreciated as always.

Shanti Palmer

If the shares or the portfolio account in which they are comprised are in joint names then they pass by pure survivorship anyway under Jersey law which is the law applicable.

Peter Harris


Thanks Peter.

We would still need to make provision on second death?

Shanti Palmer

Yes, you would, once the first holder has died and the survivorship actually enacted on the register of shares.

May I suggest that you contact a Jersey lawyer for the correct form of will to be executed by the survivor over Jersey movable assets?

I would be cautious about using an English will over Jersey assets, it is best to have a separate Jersey will, as it can be administered speedily by a lawyer, and without necessary reference to an English executor.

Peter Harris
Overseas Chambers

1 Like

You have raised some interesting questions, but I have not had a problem with resealing an English Will in Jersey upon the second death, so I am cautious about the expenses of having a Jersey Will (it should be limited to just Jersey assets); and so a Will for the English assets should be thought about (and if this covers the Jersey assets, it should not be a problem in due time).

What you really do need to consider is Brussels IV for the making of the Will and its effect particularly upon any assets that might be inherited by the Italian Wife (forced heirship springs to mind).

Generally if the family acquire any foreign (from a UK perspective) assets then more complex planning should be considered such as a Trust, and certainly having any foreign assets in a company / partnership / LLC structure to avoid resealing costs etc in due time. Such matters of course should be considered on a case by case basis, especially if the Canadian husband inherits assets in Canada.

I cannot comment about guardianship as it is outside my experience, but why Argentina (there seems to be no connection). I would think the social services will be very interested in looking into the issue, and ensuring what is best for the children (where are grandparents living and are they able to help?) but hopefully the questions of guardianship will not arise as the children all become of the age of majority before the question becomes a reality.

Peter Double
Probate Resealing Services

I have a similar situation whereby the husband and wife live in the UK but wish to appoint guardians who live in Kashmir, as they have no family in the UK. The couple wish to appoint their parents and or brother and they are happy for the children to be relocated to Kashmir, if this is necessary. Did you come across any issues when dealing with the Guardianship clause? Did you use a special clause? I would have thought that the guardians would be able to take the children to Kashmir as they would have parental responsibiltity and therefore the process would be similar if the children were to move abroad with their parents.

Thank you in advance.

Pavinder Bahia
QualitySolicitors Davisons