Roman considers the complex issue of foreign assets against the backdrop of a will or estate dispute and the potential impact of EU Regulation No 650/2012.
Increasingly, I am dealing with contested will, probate disputes and claims under the Inheritance (Provision for Family and Dependants) Act 1975 where a large proportion of the deceased’s assets are located abroad.
The rules surrounding foreign assets and their relationship with the law in England and Wales can be complex and varies depending on where the assets are located.
As a very general rule, in the majority of states within the EU, ‘movable’ assets such as cash, investments, stocks, shares and personal items are governed by, and will devolve (pass down) according to, the law of a person’s ‘deemed domicile’ at the date of their death. Conversely, ‘immovable’ assets, such as land and property, will usually devolve according to the lex situs i.e. the law of the country in which they are located.
Most countries have their own very distinct succession laws. For instance, in England and Wales the doctrine of testamentary freedom to dispose of your estate as you wish is a very important one.
Conversely, in France, a person may often dispose of a proportion of their assets as they wish, with the remainder passing under French ‘forced heirship’ rules. Next door, in Switzerland, how an estate is administered will depend upon whether there is a valid will or not as well as a person’s domicile. Paragraph 2 of Article 90 of the Federal Swiss Code on Private International Law states that foreign citizen may, by a last will or inheritance contract, subject their estate to the material law of their country of citizenship. As such, if a person died domiciled in England and Wales and made a will there dealing with their assets both in England and Wales and Switzerland then the Swiss Court would most likely accept the will as applying to the Swiss assets, subject to the precedence of matrimonial property rules.