Do Make a Will For Use in Every Country Where You Have Money

Make a Will For Use in Every Country Where You Have Money

The advice I give is that everyone should have a separate Will, one per Country in which they hold assets. To quote Jack White, I have said it once before but it bears repeating.

Please read my other blogs for the reasons why. In this one, the point I wish to stress is that you would be very wise to have your foreign Will prepared for you by a Foreign Lawyer,

If you were to instruct an English Lawyer or Notary to draft your foreign Will for you in England, where presumably most of your assets are, and where you are domiciled and ordinarily resident in UK, then most countries would accept that the provisions of that UK will should apply but this is often subject to rules of forced succession. Some countries require that a share of assets must always go to certain heirs – spouse or children- whatever the Will might say to the contrary.

Even if the English Will would be applied word for word there are still logistic difficulties in only having one Will worldwide.

Does your English lawyer know the language of the Country concerned? In Austria, they use a version of German, in UAE they use Arabic – does your lawyer in England have the capability of writing your will in the necessary language?

Does the lawyer know how many originals to make? In England we make only one, but in Spain you make two duplicate originals, one for the Notary and one for the Registry

Does the lawyer know whether the foreign Country has a central wills register, or any of the many other small details and specifications that can arise? For example, Spain has – open wills – closed wills, holographic wills, oral wills and a Wills registry.

There may also be laws in the foreign country barring persons from giving advice for money as to preparation of wills. Perhaps only a National Lawyer or Notary can do this? I think it could be very dangerous for an English lawyer to undertake to prepare your foreign Will and indeed I suggest they would be uninsured to advise and prepare foreign Wills:- is that really part of what an English Solicitor does?

Many countries would require that if a Will is executed abroad, i.e. in England, then it must be executed both in accordance with the law of England – i.e. 2 witnesses and you, all three signing in the presence of all three – and also in accordance with their own requirements as to execution of Wills. Usually this includes being executed in the presence of a Notary – so in England, you plus three witnesses one of whom is a Notary – and probably in duplicate. The Notary then keeps one original whilst the other is Apostilled and perhaps further legalised at Consulate then forwarded to the host country.

So my strong suggestion to you is that your usual English lawyer should assist only to the extent of taking your instructions, and then finding lawyers abroad with whom they can work to advise as to the Will and checking that it works “holistically” with the English and any other Wills you have made worldwide, to minimise IHT and double taxations etc. and then find you a Notary to act as one of the witnesses and legalise thereafter.

Please do contact me whenever you need Notarial certification or Legalisation – at http://www.atkinsonnotary.com or phone me on 0113 816 0116 (internationally 0044 113 8160116)

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What a Notary DOESN’T DO

What a Notary does when you retire to live abroad?

Check your identity
Assist you in executing necessary Documents in England, in connection with your foreign property purchase
Assist you in witnessing your Will
Obtain necessary further legalisation stamps from the Embassy or Consulate of the foreign Country, or from the British Foreign and Commonwealth Office, as necessary

And just to be clear – What a Notary does NOT DO!

* Tell you all about the tax system of the foreign country [some countries have Wealth tax chargeable in respect of all your worldwide wealth after you have moved to live there]
* Tell you whether you will get medical care there and at what price and in what circumstances
* Tell you whether you have enough money saved to fund your new life
* Give you any advice as to future political changes abroad or in UK or tell the Future at all.

Nor can a Notary do anything about the fact that house values change.

For example in London house prices are now nearly 20 % above their 2007 peak whilst in the Spanish Costas prices remain as much as 60% below the 2007 peak.

So on those figures a person selling a London property of £1m in 2007 to buy a Spanish place for £1m probably got a much larger residence for the money. BUT – if they are now older and perhaps infirm and rather lonely and missing their English friends and family, – or maybe one partner has died or become ill – they might be faced with selling their Spanish home for only £400,000.00 today and finding that their equivalent London house now costs £1,200,000.00 –three times as much money as they possess.

I do urge anyone thinking of moving to the Sunshine, to take second and third thoughts and to take proper all-round advice from expert lawyers abroad. Sometimes the right advisor is hard to find. In the case of Spain, I do have a network of contacts whom I can recommend to you

Whoever you are, your Notarial work needs to be thorough, and your preparation needs to be thorough too. Contact me at http://www.atkinsonnotary.com +44 (0)113 816 0116

Hard cases – Bad Law. Let’s Have Certainty.

There is an expression known to Lawyers – “Hard Cases Make Bad Law”. This is sometimes misunderstood to mean that if a Court judgment results in hardship – for example somebody old and infirm loses their home because they cannot afford the rent – then that – being a “hard case” must be the result of “Bad Law”.

This is not the meaning of the expression as lawyers understand it.

The expression means rather the opposite, – that the application of leniency by the Court in a hard case will result in “bad law”. Because if all you have to do to live rent free is be old and impoverished, then the questions surely arise, how old, and how poor?

The consequence of hard cases making bad law is that nobody knows what the law of the country is! – does a tenant have to pay? How elderly and infirm do you have to be to be allowed to stay in your home rent free? Lawyers would be unable to tell clients what the law is or predict with any degree of certainty how a court case would pan out. Surely we must all agree that the results of court cases should not be left entirely to the generosity the judge is feeling on the day of the case.

It is therefore some relief that I have read of a Court of Appeal decision – Prophet v Huggett [2014] EWCA CiV 1013. The Court of Appeal has made a decision which is a return to a traditional, stricter interpretation of the law with the consequent result of a return to certainty.

At the lower level, in the High Court the Judges heard what they evidently considered to be a hard case deserving of their help.

The plaintiff Prophet Engineering had a former employee who had left their employment and gone into competition with them. They were software writers and Mr Huggett their former salesman had left and is now selling competitor software and presumably approaching his clients to whom he used to sell Prophet Software.

In his original Contract Mr Huggett had signed a clause of “restraint of trade” which debarred him from selling Prophet Software to clients of Prophet for 12 months after leaving the employment of Prophet.

Reading those words it is clear what Prophet thought had been agreed. But read them again, and –wow – the clause provides no restriction at all on Mr Huggett’s activities. The one thing he won’t be doing is selling Prophet Software – he doesn’t work there anymore.
The software package he is now selling is a competitor’s product aimed at the same market as the Prophet software. Clearly, that is exactly what the Lawyers who had drafted the restraint of trade agreement were trying to prohibit – but they had simply got it wrong. The effect of their clause was to say that Mr Huggett was restrained from selling software to which he no longer had any access in the first place.

The Judges at the High Court had felt that the intended meaning of the agreement had clearly been understood by both parties and therefore what should be enforced is the intended meaning and not the meaning written down.

This with hindsight could be seen to be viewed by the court of appeal as a hard case – that is to say providing hardship for Prophet Software and they therefore made a bad law decision effectively rewriting the words of the restraint agreement.

The Court of Appeal, I am happy to say, was having none of it and has thrown out the High Court’s injunction saying that the clause – however much it misrepresented the intention of the parties – was written in plain English – Prophet had “made its bed and must now lie on it”. The Court of Appeal said– “the meaning of the proviso is clear and there is no reason for interpreting it any differently”.

If I may say so, three cheers for that.

The message for Lawyers is that they must draft their clauses carefully. They cannot expect the Courts later to correct their mistakes for them. And surely that must be right.
The case could also be viewed as a timely reminder to Companies to review their existing contracts with their employees and to make sure that their restraint of trade clauses are properly written and do indeed deny the activity which they are intended to restrict.

Please do contact me whenever you need accurate documentation for use abroad. http://www.atkinsonnotary.com and 0113 816 0116

Home is Not Abroad. Abroad is Not Home

Foreign Countries are Foreign. To Stay Out of Jail – Do Not Assume Otherwise

Let me give just one example – In England, whilst there are certain exceptions, the general rule still is that in a public place, anyone may take a photo of anyone.

The result can go up to the Net, onto a blog or Facebook or other social media.
If you are passing by a television news reporter and camera film crew, you might see yourself on TV that night – and you cannot complain that this is a breach of your privacy [even if your Boss thought you were somewhere else!].

There are copyright laws in photographs, but in UK, generally speaking the copyright belongs to the Photographer, not the person photographed.

But be very careful, if you assume that the laws of England apply abroad.

In UAE in particular there are very strict laws about photography. You might legally visit a night club, and of course many are licensed to sell alcohol to non-Muslims. But do not take a photo of your friends with your drinks and post it on Facebook. Do not tag your friends.Not if you don’t have their permission IN WRITING.

You might go to Dubai and take a photo of your partner posing at the harbour in front of the sea and a skyscraper beyond. Big mistake if there is a Diplomatic mission working in that Building.

You might lean out of your car to take a photo of the view from the Khalifa Bridge.

Or on a long boat trip, what about posting onto Instagram a 15 second video of your friend asleep.

Each of those last four examples have resulted in arrest and imprisonment in the police cells pending trial.

This blog is about photos in one Country, but the principal extends in all directions and all countries – Abroad is Not Home. No-one should assume that things we may take for granted here are permitted in a foreign land, from photos, to having a small drink before driving, to holding hands in public with your partner.

How much more different from our own rules therefore, will be the property ownership, inheritance and tax laws abroad.

If you are entering into dealings with any Foreign Country you need advice. I have a wide network of contacts all around the World – Start with me – contact me at http://www.atkinsonnotary.com +44 (0)113 816 0116