I would be grateful for members’ thoughts on this topic.
If I have a testator who is neither resident nor domiciled in England & Wales, and who is not a British national, but who owns real estate and a bank account here, then my thoughts are that:
- English law applies to succession to the testator’s English real estate. The laws of the country of his domicile apply to succession to the bank account.
- Ordinarily, a will should therefore be drawn up under English law to deal with the real estate, whilst the bank account should be dealt with in the testator’s will in his country of domicile.
- If we do that, then after the testator’s death, we would have a grant of probate issued to the executors of the English will covering immoveable assets in E&W, and would need a further grant dealing with moveable assets, issued to the heirs/administrators of the foreign estate (as appropriate).
- In most cases the testator’s bank account in E&W is modest, but can be above the level at which the bank will pay out without sight of a grant of probate. We wish to avoid unnecessary cost when administering the E&W estate. For this reason, the preference is to include moveable assets in E&W within the scope of the English will so that only a single grant is required.
- Under s.1 Wills Act 1963, a will is formally valid if “its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.”
- Under s.2(1)(b) Wills Act 1963, a will is also formally valid “so far as it disposes of immovable property, if its execution conformed to the internal law in force in the territory where the property was situated”.
- For this testator, a will that deals only with immoveable assets in E&W can be executed in accordance with English law anywhere in the world, under s2(1)(b)WA63.
- If the will is drawn up to cover both moveable and immoveable assets in E&W then the will must be executed in E&W to be formally valid (see s.1WA63).
- Substantive validity remains an issue; even if the will is executed in E&W and therefore formally valid under English law in respect of both moveables and immoveables, any provisions relating to moveable assets must confirm with the substantive laws of the country of the testator’s domicile.
- It is judged that given the modest value of the bank account, the practical risk of inconsistencies between English law and the laws of the testator’s domicile are usually minimal.
Do members agree that the above is the correct analysis of the law and a pragmatic approach to dealing with these circumstances?
Trowers & Hamlins LLP