Wills. You should Make a Will. Further Thoughts. And Brussels IV.
I think I have blogged many times and often to implore all adult persons to make a Will. But a thing worth saying is worth repeating. So, You really should make your Will you know.
And the old advice was, if you have property in more than one Country, you should make a Will in every Country where you have assets. Seems to make sense, that if you have a few millions, or a few pounds, in England make an English Will, then if you also have a villa in Spain, or a small sum in a Bank there, make a Spanish Will.
That way each jurisdiction can be getting on with the formalities of putting the terms of your Will into effect as soon as possible after you pass on, with no need for Spain to wait until the English Probate Registry and Tax man have finished with your papers here.
There were good reasons to do this, but the preferred opinion now is that there is not as much need or purpose in making one Will for each jurisdiction, as there used to be.
The European Succession Regulation No.650/2012 (or “Brussels IV”) came into force last year and although England is not a signatory to it, [and neither are Ireland or Denmark] its effect will make things simpler for English citizens with property in the other Countries of Europe. Basically, you can now say in your English Will that it should dispose of all your Assets, both in England and Europe and that the Laws of Succession of England should apply.
The reason this is good news, is that under the Laws of Succession of England, you can leave your belongings to whoever you choose in your Will. There is no requirement in England, as there is in other Countries [including Scotland even] that certain persons – usually spouse and /or children – should take a share of your estate as a matter of law.
So if you are English, make your Will in England and elect English Succession law, then Brussels IV will tell the French or Spanish or wherever, that they must not seek to impose their own usual forced heirships upon your wishes.
Fine and dandy that, but there will always be room for problems to arise. There are many legal issues arising from scenarios involving unusual combinations of place of residence, country of citizenship, and country of domicile, from which scope for long argument and expense can be identified.
But those are more often than not the stuff of academic argument and exam questions than of a Notary’s day to day work.
Much more likely are the more mundane issues of dealing with foreign jurisdictions and seeking to explain to them that the European Law now says that the terms of an English Will must be applied in accordance with the Laws of England.
Imagine the property you own is in England and Hungary. Hungary has forced inheritances which you do not want to apply. Brussels IV say s- look at your election that English Law should apply. Fine, it will. The Hungarian lawyer says, “OOer, I’ve never dealt with this before. And the Will is in English. I can’t read English. And what is the Probate Registry of Leeds and what are its powers?”
The first thing you will need to prove to the Hungarian lawyer, is that your Will was validly made in England. He will not so much be impressed by the fact that the Will is stated to have been signed in the presence of two witnesses, [the English way of making a Will] as alarmed by the fact that it does not have any Notary stamp or certificate – which is the Hungarian way.
There are likely to be other areas of “mismatch” when seeking to persuade a foreign jurisdiction to accept that a Will is valid. As a Notary I have seen many instances that, after a change in the Law, the foreign jurisdiction just doesn’t “get it”. It is similar to the Indian position where even after eleven years, lawyers there are still asking for Consular legalisation of English notary certificates.
And some foreign requirements as to wills seem very sensible. In the Philippines, a blind person cannot make a valid Will unless “Article 808. If the testator is blind, the Will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged” (Civil Code of the Philippines).
In Ireland, a blind person can make a Will but it cannot be admitted to Probate unless one of the witnesses gives a sworn statement about what took place. So again, problems can be envisaged in such a case where the Will maker has outlived his witnesses and no such sworn statement was made.
There is no advantage to Brussels IV if invoking its terms will cost more in Court applications and hassle wasting both time and money than the old system of making a valid Will in each country.
My own conclusion therefore is that the new Law does create new problems for those who now choose to follow the old thinking of – one will for each jurisdiction. BUT – it is a new law, it will take time to bed in and become part of the consciousness of lawyers around Europe.
In the meantime, I think it would be wise for anyone with assets in more than one country in Europe, or in England and a European country or countries, to make an English Will, under Brussels IV. BUT ALSO, to inform your lawyers in each of those other Countries what you have done. Give your lawyers the opportunity of raising all and any of their concerns as to the validity and effect of your Will now, whilst you are alive, and can speak with them and ensure that they and your English lawyers are on the “same page”.
If you do that, I do believe you will benefit from Brussels IV as the lawmakers intended, rather than have your estate pay a large proportion of its value upon lawyerly argument and Court applications arising from a, wholly to be expected, fuss and palaver on the part of foreign jurisdictions and lawyers who are afraid of being negligent by recognising an English Will.
And one final point, is to bear in mind that in most European Countries, the Notary Public is central to the Will making process. So, consider having an English Notary present when you make your English Will, to prepare a certification which will be understood and appreciated abroad.
This week’s song? Here.
As always, whenever you require any help with Notarisations and foreign legal documents, please do not hesitate to contact me or Christopher Atkinson here at AtkinsonNotary [0113 816 0116 or firstname.lastname@example.org] where we shall be more than happy to assist further.