X died domiciled in E&W, owning a property in E&W. He made a holograph will in Italy which is valid under Italian law. This is the only will X made. In this will, X bequeathed his E&W property to my deceased client, who predeceased him. There is no gift-over provision and the will is silent on which law is to apply to his estate on death.
The executors on the one hand are of the view that they must apply the law of E&W (lex situs) to the passing of the property and therefore apply Italian law, as it is an Italian will. They have legal opinion from Italy that confirms where the property passes.
There is also an argument proffered that as E&W law applies, there is a partial intestacy here so the property passes in the usual way under those rules.
Any views on who is correct?
May I ask you where X was habitually resident, and whether he left real estate in Italy? If he died habitually resident in Italy, I could understand why the Italian legal opinion (presumably) finds that Italian law applies. But if he died habitually resident in England & Wales I’m struggling to see how any law other than that of E&W applies, and the partial intestacy you’ve outlined at the end. I’ll be interested to know other views on this.
Unless the will includes a declaration under the European Succession Directive that Italian Law applies to the whole estate, I would expect the law of the deceased’s domicile (E&W) to apply other than to the Italian Property. This would mean the estate outside of Italy being administered under intestacy according to E&W Law.
I believe that under Italian Law the executors of the Italian will are treated as the beneficiaries of the Italian property and death duties assessable by reference to their relationship to the deceased. Further gift tax may be payable upon a transfer by the executors to the eventual beneficiaries. I wonder if it might be appropriate for the executors of the Italian will to consider renouncing with a view to these entitled to the property under Italian succession law dealing with the property themselves?
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Based on my years of practice in South Africa and rubbing up against international law from time to time I would say that as the deceased was domiciled in England and Wales and the property is here, the law of the lex situs of the property applies ie England and Wales. The property should devolve in terms of the laws of intestacy of E & W as the Italian will is silent on the matter.
I am interested to see other contributions.
The property does not pass under the Will if the beneficiary predeceased and there are no substitute provisions. It passes under intestacy. The rule on intestacy is that England applies English law to English immovables. The EU Succession Regulation has no effect in England. The English intestacy rules therefore apply.
Happy to help further if required.