Scope of Will Assets Only in E&W

Trusts Discussion
1

If a person only has assets in England and Wales, do you limit the scope of the will to assets in England and Wales only or to worldwide assets? Why?

2

I would only limit it to E&W if there is immovable property in a non-Brussels IV jurisdiction and the testator is not making a Brussels IV election. Or if the testator is domiciled outside E&W for succession purposes.

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You can if the client accepts the risks which are that he has forgotten the existence of a foreign asset or invests in one in future and dies without changing his will. A will which does not limit its scope in this way will apply to worldwide assets without saying so explicitly. Another risk is a too wide revocation clause if he has a will relating to assets outside E&W.

Jack Harper

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4

Thanks, Eddie. Am I right in thinking you are not worried about immovable property in a Brussels IV state, when a person is domiciled in E&W, because in that case E&W law would likely apply as it would likely be the law of the person’s habitual residence if the person is domiciled in E&W and has not made an election? Thanks for your wise advice on this.

My impression also seems to be that most practitioners are not concerned about movable assets in another jurisdiction. Is there not some risk that a foreign country would not recognise that an English will governs immovable assets, even of an English domiciled testator. Do you generally advise the client to seek advice on this?

5

Thanks for the kind help, Jack.

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“Is there not some risk that a foreign country would not recognise that an English will governs immovable assets, even of an English domiciled testator.”

Yes, an English grant of probate does not extend by itself to enable the executors to undertake the administration of foreign immovables outside the English jurisdiction.

Regulation (EU) 650/2014 attempts to provide a means whereby a European Court or notary can “import” it, and some insist on it rather than being guided to and even elying on the position prior to the Real Representatives Law 1897. Prior to the Real Representatives Law of 1897, the law of England and Wales was that the legatees and heirs of the deceased were directly seised of their realty (I will refer to these as immovables) by virtue of the decease. There was no requirement, prior to the 1897 legislation for the immovables whether at home or abroad to be administered. Both Dicey himself at the time, albeit in footnotes, and then Megarry stated that the administration requirement could not apply to foreign immovables - leaving the old English rule that the property passes automatically to the heirs/legatees intact. It is curious how English statutes are given « imperial » effect beyond their specifically defined territorial scope.
There is, is there not, a large gap there as who can police a foreign resident executor acting under a grant of probate issued out of the Probate Court who is purporting to act over an immovable outside the jurisdiction?