What Happens When the Will Is Made Abroad (Part 2 of 3)

This blog follows on from our first of three (blogs) dealing with the issues arising where a Will which is made abroad, is subject to a potential Will dispute or Will contest claim. Our comments below are for general consumption only and offer a guide to what one has to consider when a Will is made abroad. The most important issue for us is whether any claims arising can be dealt with in the English and Welsh courts.

Can claims arising where a Will is made abroad be dealt with in the English and Welsh Courts

In general, a challenge to a Will made abroad can be dealt with in the English and Welsh Courts. For example the Wills Act 1963 Section 1 provides “A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.” Thus a Will of movables or immovables will be treated as properly executed if its execution conformed to any of the following laws:

(i) the internal law in force in the territory where it was executed; or

(ii) the internal law in force in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence; or

(iii) the internal law in force in a state of which, either at the time of its execution or of the testator’s death, he was a national.

See http://www.legislation.gov.uk/ukpga/1963/44/section/1

This then clearly suggests that the English and Welsh Courts have jurisdiction in determining whether a Will made abroad has ben properly executed. However this is also governed by the question of whether the property the Will disposes of is “movable” or “immovable”.

The material or essential validity of a Will of movables is governed by the law of the testator’s domicile at date of death – Whicker v Hume (1858) 7 HL Cas 124; Re Priest, Belfield v Duncan [1944] 1 All ER 51; Philipson-Stow v IRC [1961] AC 727, Re Levick’s Will Trust, Ffennell v IRC [1963] 1 All ER 95. In Dellar v Zivy [2007] EWHC 2266 Kitchen J addressed the legal principles as to interpretation at paragraphs 21 to 31 held (he was not asked to consider challenge to the validity) and held “23. Second, once a will has been interpreted it may, however, be necessary to consider its material or essential validity. In the case of movables, this question is governed by the law of the testator’s domicile at the date of his death.”

The material or essential validity of a Will of immovables is governed by the law of their location (“lex situs”) – Philipson-Stow v IRC [1961] AC 727; Re Levick’s Will Trusts, Ffennell v IRC [1963] 1 All ER 95. In Philipson-Stow v IRC [1960] AC 727 (pre the 1963 Act), the House of Lords (Lord Radcliffe dissenting) held that succession to movables was regulated by the law of the domicile of the deceased, and that succession to immovables was regulated by the lex situs. Lord Denning held that 763:

“Take next the case where there is a disposition of immovable property by will by means of a direct devise and not a trust for sale. There is no doubt that the proper law regulating the disposition is the law of the country where the property is situate and not the law of the testator’s domicile: see Freke v. Lord Carbery,55 In re Moses.56 There is, perhaps, again an exception in regard to the construction of his will: for if a question should arise as to the interpretation of the will, it will normally fall to be construed according to the law of his domicile at the time when he made his will. But this interpretation would itself be subject to the overriding requirement that it must in no way conflict with the law of the country in which the property is situate: for if the disposition is not one which is permitted or recognised by the lex situs, it cannot be given effect: see Earl Nelson v. Lord Bridport,57In re Miller.58 … for in construing a will, so as to see what a testator meant, every civilised country looks to see what he intended — and for this purpose you may legitimately look at the law he had in mind — but you only do this as a guide to find his meaning. You do not do it so as to find out the law which regulates his dispositions. He has no choice about that. Apart from this one question of construction, the succession to movables is regulated by the law of his domicile: and the succession to immovables is regulated by the lex situs.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.