Is My Cross-Border Will Valid?

One question I genuinely do get asked a lot (usually in a panic first thing on Monday morning or last thing on a Friday evening) is: ‘Is the will I made in Germany/Mexico/Outer Mongolia in 1983 valid?’.

Sadly I usually have to give them the standard lawyer’s answer – yes, but…

A ‘foreign’ will can usually be recognised as valid in England if it complies with the law of the country in which it was executed (which can be the country in which the testator was domicile or resident at the time or the country in which the testator owns immovable property). 

So, in the case of a German national who executes a will in accordance with the relevant local rules who then emigrates to the UK, then yes, his will can be recognised in England and Wales. 

Why a ‘Valid’ Will May Still Cause Problems

However, even if the will is recognised in England this only part of the picture. We also have to consider conflicts of law – in particular the different treatment of moveable and immoveable property, forced heirship regimes – and the different tax regimes. In addition, we will need to carefully consider the wording of the existing will to ensure that it is effective here as well as formally valid. 

For example, in many civil law jurisdictions they do not appoint executors which can cause something of a headache – or worse – when it comes to applying for probate in England. In certain countries the notary will painstakingly list the assets that are being distributed but not dispose of the ‘residuary estate’ in a way that we would recognise in England, which can in turn lead to a partial intestacy. Of course, there may be similar administrative issues in reverse in respect of a will executed in England where the testator owns property overseas. 

So, although the will is valid in the formal sense it is usually sensible to seek local advice in any jurisdictions in which you own property (particularly immoveable property).

If any of the issues discussed in this article affect either your estate or you as an executor, please contact Tom McInerney, at tmcinerney@se-solicitors.co.uk.