Cross-border estates: understanding the Wills Act 1963 and its impact

In the first of a series of articles on the increasingly important subject of cross-border estates, Gavin Holt takes a look at the Wills Act 1963. 

There's rightly been much talk lately of a potential new Wills Act (see previous article here) so we wanted to take a look at an old and lesser known one – namely. the Wills Act 1963 (the "Act").  Unlike the Wills Act 1837, the Act is not currently the subject of proposals for modernisation and reform. 

Wills Act 1963

The Act deals with the formal validity of wills where there is a foreign connection. As a reminder, "formal' validity relates to the execution requirements, and not to other matters such as testamentary capacity.

The Act provides that a will is to be treated as valid in England and Wales "if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator's death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national". The Act is technically applicable in normal domestic situations, but there is little need to consider its terms in such situations.  The English will of an English deceased with no foreign connections will clearly meet the requirements of the Act.

The act in practice

It is cases with foreign connections that necessitate detailed consideration of the Act, as set out in the following example:

Juan was Spanish and, for his whole life, was resident and domiciled in Spain.  But he loved spending time in England and, when he died, he left assets here.  During one visit, he met with a solicitor and made an English will to deal with his English assets, which he left to a number of UK charities.  He executed the will in the solicitor's office in London.

Will the Probate Registry accept Juan's will as valid in England and Wales?  It's been properly made and executed according to English law, but that's only relevant if Juan can be connected to English law via the "tests" set out in the Act.  Both at the date of the will and at the date of his death, he was a Spanish national, and was resident and domiciled in Spain, so no English connections there.  He did execute the will on English soil though - at the solicitor's office in London - so a connection is established and English law can be applied.  The Probate Registry will therefore prove the will, assuming the application for the grant of representation is correct in all other respects. 

What if Juan had taken the will back to Spain and executed it there though?  That would mean none of the tests in the Act is met.  It doesn't mean the will is invalid, nor does it mean that the Probate Registry won't prove it.  What it means is that evidence of foreign law is required to establish whether the will is valid according to the law of a country that the deceased can be connected to via the tests in the Act.  In Juan's case, this of course means Spain.

In practice, Juan's executors would need to obtain a statement of Spanish law from a Spanish lawyer answering the question of whether his English will is valid according to Spanish law.  If it is then, on production of that evidence, the Probate Registry will prove the will.  If it is not then, unfortunately, the will is not valid in England and won't be proved by the Probate Registry, the result being that, sadly, the charities will not inherit Juan's English assets (an outcome for which the solicitor could, in theory, be liable in negligence).

This example, and indeed this article, focuses on one very narrow element of cross-border estates, which is a highly complex area.  As an illustration of the complexity, the charities are not guaranteed to inherit all of Juan's English assets even in the scenario where the English will under which they benefit is accepted as valid and proved by the Probate Registry.  Counter-intuitive as this may seem, it is theoretically possible that some of Juan's English estate could nevertheless be caught by Spanish restrictions on testamentary freedom (often referred to as "forced heirship" or "reserved shares" - prevalent in many civil law jurisdictions) meaning that his close relatives could have automatic entitlement to inherit a proportion of his estate. 

One of the biggest challenges with cross border estates is the inconsistency from country to country.  On this specific point though – that is, the formal validity of wills – there is in fact some (although not total) consistency around the globe.  That is because the Act started life as a Hague Convention in 1961, leading to many countries in Europe and beyond passing laws equivalent to the Act.

If we can help your charity with any issues relating to cross-border estates or legacy income from abroad, please don't hesitate to contact a member of our team below.