Another Example Of Why You MUST Make Your Foreign Will

I have said it before and it bears repeating “ALL ADULTS SHOULD MAKE A WILL”. Further, if you are domiciled in England and now own property abroad you should make a separate Will to be used in each Country where you own assets

I have been contacted this month on behalf of a young widow. She and her husband bought a house in France. Like many young adults with a young child neither of them had given a thought to the possibility of sudden death.

When the husband did die he had made no Will. In England in this case the inheritance rules operated to transfer his property to his widow. BUT- Please note that even in England this is not always the result. For example if a husband with substantial wealth dies in England without a Will then the amount that will pass to his Widow may be a very small percentage what he owned, if he leaves children parents or siblings living. Please read that last sentence again. Many people simply don’t believe it.

However, in France there is a rule that a parent who dies without a Will MUST leave a defined share for his child or children.

In this case the husband had brought the French house jointly with his wife. The law of France now means that the husband’s half share is split between the widow and his young daughter equally – even though the couple were by no means so sufficiently wealthy that the widow can now afford to give to the daughter a share in the house worth many thousands of pounds.

As if that was not bad enough – the further problem is that the daughter is a child and yet is the actual owner of a share of the house. This effectively means that the house cannot be sold.

The reason for this is that in English law an English child cannot own or buy or sell land or a share in land: however the land is in France and French law says that the English child does own land. French law has a procedure for dealing with this situation – if the child had been a French citizen or domiciled in France then a French Notaire could be appointed to sign papers on behalf of the child.

But a French Notary cannot act in this way on behalf of an English child. In England there is really no provision for this situation because as I say it is presumed in England that a child will not own land in the first place, so there is no need for a procedure to enable a child to sell land.

The choices therefore are first to accept that the property cannot be sold for many years until the Child is an adult. This means that the money value is locked up in the house which the Widow no longer wants to visit – it has therefore turned from an asset into an unwanted and deteriorating liability.

Another option is to make an application to the English High Court under the innate powers of the High Court to assist. Even in the event that a French Notaire co-operates with such an application it would likely cost in the region of £10,000 in Court and lawyers’ fees in England and France.

This situation is just one further example as to why every Notary says to clients – always make a Will and always make separate ones in respect of your assets in separate Countries.

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Divided by a Common Language – Part Two

I headed my Blog of 17th January “Divided By A Common Language” and of course it was about the different meanings that words have in “American English”, and “English English” – specifically, legal words.

Of course it is not only the words that differ, in fact the entire legal systems and cultures are completely dissimilar in the two Countries. In that blog I gave a rash promise to return to the topic in February. – So, nearly as good as my word in early March, here is Blog No Two.

One of the most common tasks facing a Notary is to witness and authenticate the execution of Deeds of Power of Attorney signed/executed in England for use in foreign Countries. In the case of land purchase or sale most countries have a legal system where qualified Lawyers control the land transfer process. In the USA however it seems that the process is largely in the hands of Realtors (Estate Agents) and Insurance Companies. There trained Lawyers get called in if things go wrong, but otherwise are unlikely to be involved.

I am beginning to suspect that when an English person tells their US Realtor that they need to execute their Deeds in England, whilst the Realtors know that a Power of Attorney is needed, they might not have the additional legal knowledge to draft a wording which is actually correct or appropriate. If you are a US based lawyer reading this and have a comment please let me know your views on this.
This year in respect of a straightforward sale in USA Tennessee the Power of Attorney wording emailed to me was headed SPECIFIC POWER (which means presumably, limited in scope to enable dealing with a single purpose) and was stated to relate to a specific sale of a specific plot of land.

Then later the wording said that the power of the Attorney was to include the sale proposed but was NOT limited to it. So a General Power of Attorney after all?
What seems even stranger is that the Deed then went on to declare itself a “Durable Power of Attorney” under the relevant Tennessee laws. Broadly speaking, what in England is an “Enduring” or “Lasting” Power of Attorney. Really? Does the Estate Agent truly wish to have the responsibility of this transaction in the event that the signatory should lose mental capacity and can no longer be contacted to give coherent instructions? I doubt it.
The Deed finished by stating that the terms of it would remain in force until formally revoked by the Donor such revocation to be recorded in the register offices of Knox County. The Realtor has made no provision for such revocation ever to be recorded, there is no intention that this will happen

My concerns?
1 that, according to my textbook, there should be two additional witnesses in the room when a Deed for Tennessee is executed before a foreign Notary. No suggestion was made by the Realtor that this should be done
2   that the wording of the Deed refers to the Attorney’s authority as including BUT NOT BEING LIMITED to the Realty work when in fact the client certainly did wish that authority to be so limited
3 That the client had earlier given much thought to the appointment of his Durable Attorney to look after his affairs in the event of becoming mentally incapable – now was being asked, for one simple sale, to grant a deed stated to be effective after mental capacity is lost. Query does this operate to revoke or supersede the earlier appointments? (If so, the earlier one would not be automatically reinstated by the eventual revocation of today’s deed)
4 The Deed states that it will remain in effect after the Realty purpose is completed, until formal revocation. This is not in accordance with the clients’ wishes or requirements.

Postscript – Since the case described above, I have seen a further deed, in this case for Florida and again prepared by an Estate Agent not a lawyer: – it is broadly similar, but this one states that it is irrevocable and that even the DEATH of the Donor would not revoke it. Life after death, by proxy. What is the saying – only in America?