At the moment many Society members are often confused when it comes to dealing in matters which are in relation to Europe and how the area of succession is dealt with. At the current time we, as the Society of Will Writers, prefer that all of our members keep each jurisdictional Will free to deal with the properties in that area.
Although the wind for change has been an going problem, dating back to the Hague convention in 1961, there has now been a refocus in European Members to come up with some unified proposals on how matters will be judged by the creation of European Certificate of Succession.
This will be seen to be a welcome effort to ensure there will be simplified cross boarder decisions when it comes to dealing with the assets of couples who live in a globalised world. The Law Society have backed this and welcomed that there be some movement in dealing with this issue.
Although we are far away from any clear guidelines in regards to how the Regulation may actually turnout we can see the following points.
1) The path that Europe is trying to take us down is not to make 1 single law on this matter but rather it intends to provide a user criteria so it can be decided where the estate is to be dealt with and by what method of succession.
2) The main point of this regulation will be the ultimate benefit of being able to apply the same universal rule to both immovable (assets such as holiday homes) and moveable assets.
3) The biggest change of this potential legislation is the idea that the individual’s main residence on death will be one of the main indicators in determining how the succession will be dealt with.
The best way to look at how these changes could affect us is to consider a worked example.
If A lives in Spain, the law that applies currently to a succession is the Law of the nationality of the deceased however if this legislation is enacted then the law that will apply will be that of the country where the deceased was habitual resident. It is also a feature of this potential legislation that the testator can expressly choose his national law by stating so in his Will.
Another example is to take the case of a British man living permanently in Spain who has assets in both England and Spain. He makes a Spanish Will in the year 2000 leaving everything to his wife, or, if she fails to inherit, to 1 of their 3 children.
If this man passed away (when the regulation is not approved) his Will in principle will be perfectly valid and enforceable, as the applicable law would be the national law of the deceased/ testator (English Law), which allows him to leave all assets to his wife.
But if the same gentlemen passes away after the potential referred regulation is approved (if it is approved) the Will would not be directly enforceable, as in principle, the applicable Law to his succession would be the law of his habitual residence i.e. in this case Spanish Law, and according to this law, at least 2/3rds of the deceased’s assets should go to his children (and thus not to his wife).
In summary we advise you to review clients Wills regularly to see if they could be affected by these changes in Europe and please keep in mind that a proper Will drafted for each jurisdiction is the way forward till these reforms are published.
Going forward, in order to make sure that the national law will apply to a Will it must be expressly and correctly stated within the document.
Editors note: On our online will form use the gifts box to tell us if you have property abroard and we can write your will to cover assets in England/Wales only.
