Jurisdiction to deal with an English and foreign estate?

We have been instructed to act in connection with the English assets in an estate. The facts are as follows:

  • The deceased was born in Northern Ireland.

  • The deceased lived in German and owned a house there.

  • The deceased was diagnosed with dementia and had cancer. She was moved by family and friends from a care home in Germany to a care home in England where she died.

  • The deceased left a German will leaving her estate to her 3 children, no executors appointed.

We have been asked to deal with the bank accounts and shares held in England. There are other assets in the EU which we are not dealing with.

The deceased does not appear to have an English domicile; therefore, do we have the jurisdiction to deal with the assets in England and, if not, who does?

Sarah Walker

If the deceased had established a domicile of choice in Germany (using the UK definition), and they did not have capacity to decide on the move to England or to surrender their German domicile, they are probably still subject to the German succession laws.

My understanding is that the children named as beneficiaries in the will are entitled to a certificate of inheritance in Germany and it is this document that would give them the prior right to a grant in England, on an individual basis.

Accordingly, you will need to look to the children for any instructions.

Paul Saunders

I am curious as to what guidance if any, has been issued by the Probate Court as to the absolute or relative validity of a Regulation European Certificate of Succession issued under Part IV article 62. The certificate is not to be used in other Member States, and it remains to be adjudicated finally as to whether the UK or England can be considered a Member State for that purpose. To my mind there is no method yet of asserting the Certificate as an absolute grant in England without consideration as to the evidence etc by the Probate Court on a contentious basis.

Article 62
Creation of a European Certificate of Succession

  1. This Regulation creates a European Certificate of Succession (hereinafter referred to as ‘the Certificate’) which shall be issued for use in another Member State and shall produce the effects listed in Article 69.

It is also arguable that were the Children, beneficiaries under the will to appoint you as an executor of English assets that you could then act on a subsidiary basis using the Certificate as a documentary crutch. But Germany may not have the jurisdiction to issue a European Certificate under its own rules, as the German Court may not yet have asserted its jurisdiction as the Court having general jurisdiction under article 4, or the other provisions of that Part, if the deceased was not habitually resident there. Did she retain a home available to her there, and on what basis are the other EU assets being administered?.

However the deceased was apparently habitually resident albeit in a state of incapacity in England, as opposed to Northern Ireland, her effective domicile of origin, The mismatcj betyween habitual residnce and domiciliation may need to be analsyed carefully lose if the solution ends up in Germany, or as a matter of Regulation jurisdiction, in England.

You may need to make an application to the Probate Court for guidance or directions, given the Regulation is inapplicable but of judicial note in England, as she did die in England and the Regulation in fact is not sufficiently specific in this circumstance.

I would suggest that you ask the Beneficiaries under the German will to appoint you as executors by a deed, subject to German advice on whether forced heriship or similar rights under the German concept of succession are reduced to money’s worth under German law, or whether any forced heirship or similar rights attach to movable.

I am not sure that the matter is as clear cut as expressed. The closest connection with Germany, which can override the habitual residence test, may have been severed.on the facts.

This is academic, and it would be useful to know whether any other Forum Members have had practical experience of attempting to have a Certificate recognised before the Probate Court. However that may not be the solution to the issues here.

I would suggest that you consider asking for directions, otherwise the clash of jurisdictions will inevitably come up.

Peter Harris
Overseas Chambers