Summer time and Will drafting ain’t easy!

 In Wills

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In the summer clients often want their Wills prepared in a hurry before they go on holiday. The poor Will draftsman has to drop everything but what if the crucial problem is not asking the right questions about the connection this client has with his destination of choice? Could it be that the client is actually legally or fiscally linked to the jurisdiction in which his holiday is to take place? The Will draftsman will forget the critical questions at his or her peril.

Taking instructions

It is essential to establish at the time of preparing the Will the client’s domicile, habitual residence and nationality and the location and type of his assets. Quite often, it will be necessary to obtain specialist local advice about the succession and taxation implications of other jurisdictions before considering the impact of any conflicts with the home jurisdiction’s tax and succession laws.

Armed with the knowledge that the client is British, domiciled in England and Wales and merely a regular but not habitual resident at the holiday home he owns here are a few drafting points for the English Will:

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Revocation Clause

Ensure any revocation clause does not revoke any overseas Will and caution a testator against permitting foreign advisers from doing likewise in preparing any subsequent Will in a jurisdiction outside the UK.

There are some anomalies. For example, in England we know that a later marriage or civil partnership will automatically revoke an earlier Will unless made in contemplation of that ceremony. It is possible for an English Will revoked by marriage or civil partnership to still be valid in relation to foreign immovables.

Subject to an exception, the question of whether a Will has been revoked depends on the law of the testator’s domicile at the date of the alleged act of revocation. The exception is that if the alleged act of revocation is the execution of a later Will or codicil, the question of whether the later instrument revokes the first depends on whether the second instrument is valid.

Applicable assets

Decide which assets are to be covered by your Will and which are not; then be as clear as possible which assets in which jurisdictions are affected or excluded. An English Will can cover English movables and immovables and in theory foreign movables (English private international law would say it could decide disputes affecting these items but then the law of the jurisdiction in which the movables are located might not look at it in the same way which could prove a problem if the English court had to ask for the foreign court’s help).

Applicable law

Make it clear which system of law is to be the applicable law should there be a dispute as to its construction.

Declarations of domicile etc.

Include a declaration as to the client’s domicile, habitual residence and nationality at the time of making the Will – whilst this is not conclusive for tax purposes it can be helpful for construction purposes and is at least indicative of the client’s intentions even if factual evidence will still be needed on death.

Declaration as to choice of law

A limited number of countries permit the making of a declaration as to the choice of succession law which should apply – under the Hague Conventions – so if available consider making such a declaration in your client’s Will.

Declaration of place of marriage/civil partnership

If your clients are married or civil partners consider who will benefit from any foreign matrimonial regime if their Wills are to be used for more than just English assets, consider making a declaration as to the place of the marriage or civil partnership’s registration ceremony.

Debts and foreign taxes

Discuss with the intending testator from where any foreign debts and taxes are to be paid. Is it the testator’s intention that they are to met from the English residuary estate? If so, then you need to say so as they are not deemed to be part of our favourite phrase “debts and testamentary expenses”, particularly if you have distinguished between the English Will and one made elsewhere.

Want to know more?

If you are regularly asked to prepare Wills for clients in these circumstances then you would benefit from my Course – Overseas Assets and Wills – which can be delivered in house. For more information on this and other courses available please click here.

© Gill Steel, LawSkills Ltd. 2009

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