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Will disputes and the law of the land

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Posted by Martin Oliver on 30 June 2014

Martin Oliver Partner

Many UK residents dream of retiring or moving abroad to a warmer climate in the hope of a better life for themselves and their family. It’s an experience many people find fulfilling and rewarding: they settle into their new life with renewed vigour and enjoy the sunshine and variety a new country and culture can offer.

However, in pursuit of those dreams, people often forget about the potential consequences for their family if they die abroad and fail to make adequate plans for their estate and finances. Families facing the prospect of contesting a will in a foreign jurisdiction can find the process complex and difficult to negotiate.

There are a few key points expats need to be aware of to avoid any issues. Will disputes often arise when a person, having made an English will, then moves abroad without updating that will to take account of the new jurisdiction in which they live. The question then arises: is the deceased’s estate to be distributed in accordance with English law or in accordance with the law of the land in which he lived at the time of his death? 

Martin Oliver, Contentious Probate Solicitor with Wright Hassall explains “Some countries such as Spain, Italy and France have fixed rules as to how estates are distributed with specific shares being distributed amongst family members.  This may not accord with the English will and therefore result in a dispute. The key issue is to determine where the deceased was domiciled as this will impact substantially upon which law applies as to how the estate is to be distributed.”

English law states that if a person is domiciled in England and they leave an English will, property in England and Wales and moveable assets, where ever they are located are distributed in accordance with the English will.  Foreign properties are often distributed in accordance with the law of the land in which they are located.  This can be a complex area of the law and advice should be obtained from a solicitor from the outset to minimise the risk of a dispute.

One of our successful cases Morris v. Davies highlights the issues faced by those who move abroad. In this case, Mr Davies was an Englishman who had moved to Belgium. He shared a residence with his Belgian girlfriend in Belgium, but would spend the working week in Paris. He still retained property in England, but spent only 6 weeks there over a 3 year period. He also retained a British passport and driving licence. When he died, it was argued that he had adopted Belgium as his place of residence and that Belgium law should apply to his estate. It was eventually ruled that Mr Davies had retained his domicile in England and that the English will should prevail. The case considered a number of important issues that help to establish where someone is domiciled.

Origin of domicile

The question of where someone is domiciled can usually be resolved by where they live. Everyone has an origin of domicile, which is where they are born, and many people will retain this residence throughout their lifetime. However, it is possible to adopt or choose a new place of domicile.

The test for whether someone has successfully adopted another country is whether they resided there with the intention of remaining permanently or indefinitely.

Place of residence

For someone to be domiciled in a country they must reside within it. This doesn’t mean that they must permanently live in the country. The test is not where they spend most of their time, but where they consider their permanent home to be. If a person has moved their entire life abroad, it is likely to be established that a new domicile has been adopted and therefore the laws of the land will apply when distributing their estate.

Intention to permanently or indefinitely remain

It can be very difficult in legal terms to show that someone intended to remain within a country permanently or indefinitely. Many people move because of work commitments and have an idea of when (or if) they will return to their home country. However, not all these people originally intended to move abroad permanently and in many cases this intention only develops over time. When establishing whether the intention has been formed a number of factors can be taken into account.

Alternatively, showing that someone still has strong ties to their country of origin may show that they did not intend to become domiciled elsewhere. A court may also consider the reason why someone lives in a particular country and the degree of permanence that this motivation confers. For instance, a retired British man who moves to Cyprus specifically to retire there may be considered domiciled in Cyprus.

The courts also seem to consider the extent to which someone has assimilated into the country they are now residing in. For instance, in our case with Mr Davies, he always described himself as a British man living in Belgium, he retained his British passport and driving licence and only considered getting married in England. Mr Davies never learned Flemish, never purchased and Belgian property and his only Belgian asset was a bank account. The Judge concluded that he remained ‘at heart an Englishman abroad and never developed an attachment to Belgium such that he lost his domicile of origin’.

What happens if I haven’t adopted a new domicile?

Everyone must be domiciled somewhere, even if they intend to keep travelling and not to settle in any particular country. If someone moves from their domicile of origin, but never adopts another country as their new domicile, they will retain their domicile of origin. The domicile can be retained even if the individual has no intention of ever returning to their home country. The relationship between citizens and their country of birth is a strong one that can only be overridden by that person manifesting the desire to reside permanently in another country.

About the author

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

Martin Oliver

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

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