I am advising an Irish National who owns property both in the UK and France.
They are “habitually resident” in England so does English Law apply automatically?
If it does not I understand they cannot elect English law given they are not an English national. It also does not seem appropriate to elect Irish law given they hold no assets there.
As they are looking to avoid forced heirship, how do they go about electing a choice of law if they need to do so?
Under the EU regulation 650/2012 (Brussels IV), which is also recognised in England & Wales, they can elect their national law of succession to apply to their entire global assets.
This just needs to be stated clearly in their Will.
The UK (including of course The Province/Six Counties/Norn Iron) and Ireland and Denmark are not states in which Brussels IV applies. France is such a state and my understanding is that unless the law of nationality is chosen the default position is the law of the state in which the deceased was habitually resident. Exceptionally another law may apply if the deceased is manifestly more closely connected with another state. My understanding is therefore that France would apply a specific choice of English law. There is normally no renvoi under Brussels IV but an exception applies if the renvoi is to another convention member or a non-member third state which would accept jurisdiction.
I can only offer a view as to the law of England and Wales and its PIL. It is quite possible that the law of Ireland and its PIL may also have something to say. I think it unlikely that an English Court would not uphold an express choice of English law as governing the Will (formal validity and construction) and as regards immovable assets as governed by the lex situs. But the succession to French property as thus prescribed by English law will be displaced if France acknowledges a choice of English law as valid under Brussels IV.
So for example :“I choose the law of England and Wales to govern succession to my assets, rights and obligations as a whole, wherever situate, including any not disposed of by this will. I am a national of the Republic of Ireland who is habitually resident in and most closely connected with the jurisdiction of England and Wales.”
Irish law needs checking unless perhaps there are no assets in that jurisdiction. The position in France must be checked, in particular that France will cede jurisdiction over French assets to E&W so negating its own forced heirship rules. If so my expectation would be that an English court might accept that as a type of renvoi. However, the common law rule is that it will not (the Mozambique rule) so it might decline. After Brexit I am unsure that any statute would disapply or modify the rule. I am not a litigator and a definitive view must needs be given by one who is. Certainly it must be ascertained what process is necessary to obtain the equivalent of probate in France so that title can be properly transferred.
The succession in English law to movables is based on the law of domicile, which HMRC regard as “outdated”, but is alive and well in PIL. Brussels IV never applies to tax matters.
Jack Harper
Agree with Jacks analysis and comments above.
I deleted my post as the Irish position does need some thought and I’m unsure of it’s implications on E&W law.
Richard C. Bishop
I can confirm that, although England did not fully adopt the EU Regulation 650/2012, it does recognise Succession Regulation.
But Francesca will it accept succession jurisdiction over a French immovable even so?
Jack Harper
It accepts Italian immovable so it should accept most other EU situ.
Most illuminating. It is so helpful when contributors relate their own direct experience.
Jack Harper
Callum, There is no issue with writing a will opting for Irish law as being the law of nationality under the the EU regulation governing an immovable within the EU, in other words in France. The question is whether Irish law as such requires Irish probate to be granted or not and whether the French notaire dealing with the succession may require the will to be subjected to Irish Probate by way of authentification albeit in the absence of an Irish asset. If it is possible under Irish law to transfer the foreign immovable without an Irish grant of probate, that may be an option. It is technically possible still under English law despite gut reaction to the contrary (cf earlier editions of Dicey and Megarry on the 1890 Real Representatives law). There may be other ways of dealing with this outside the Succession regulation, such as a lifetime gift of the French nue-propriété - just to say that James Kessler KC’s recent publication tends to support my position on IHT issues.
Francesca, apologies I beg to differ in principle, although you have obviously experienced a different approach in Italy.
There is no English jurisdiction over a French immovable under the Administration of Estates Act 1925, only over movables by domicile, not by habitual residence. The English Court only accepts jurisdiction over foreign immovable, exceptionally, where all parties agree to it. It has always been a bone of contention leading to difficulty as Matthews J. as he then was faced in the Montenegro case. I am not surprised that there are differences between the Italian and the French application of the Regulation. What surprises me is the granting of English Probate over a foreign immovable in Italy within the non-contentious probate procedure. The executor has no statutory power under English law over the foreign immovable which is outside the English Court’s jurisdiction. That power has to be “extended” outside the jurisdiction by the Regulation, it has not been extended by English statute, yet.
Callum will need to work through exactly where probate will be granted on death and which courts will be able to adjudicate over it.
Callum might also need to bear in mind and consider the hiatus coming up between legal domicile in England and the incoming residence definition for IHT. If the testator is to be 'domiciled’ within the U.K. for the purposes of the Estate Duty Treaty with France on death, there may be situs matters to consider on French bank accounts etc. I understand that English Grants of Probate will still be issued on the basis of legal domicile, not the IHT definition- Neither HMRC nor the Treasury can have everything including the cake, the plate and the slicer.
The EU regulation mentioned only refers to the laws of succession.
Eg in Italy there is a forced heirship on residential property regardless of an Italian Will.
But both UK and Italian legal authorities have confirmed that, by electing this legislation within a UK Will, Italy will accept and allow the succession of the property to comply with the testator’s wishes in the UK Will as long as the UK recognises the legislation, which they currently do.