What Happens When the Will Is Made Abroad (Part 3 of 3)
This blog follows on from our second of three (blogs) dealing with the issues arising where a Will which is made abroad, is subject to a potential Will dispute or Will contest claim. Our comments below are for general consumption only and offer a guide to what one has to consider when a Will is made abroad. The most important issue for us is whether any claims arising can be dealt with in the English and Welsh courts.
Can claims arising where a Will is made abroad be dealt with in the English and Welsh Courts
In general, a challenge to a Will made abroad can be dealt with in the English and Welsh Courts. In our previous blog, we gave the example of the Wills Act 1963 Section 1, which provides “A will shall be treated as properly executed 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.”
We discussed how the question of whether the property disposed of by the deceased’s Will was “movable” or “immovable” and its’ location would be taken into account by the Court. However, the Court will also look at the domicile of the deceased.
In the estate of Fuld (No 3)  P 675 the testator, whose domicile of origin was Germany, studied in England, acquired Canadian nationality, and from 1946 until his death in 1962, resided in London and in Germany. He died in Germany, leaving an estate valued at approximately £6M, of which about 1/6 was in England. A probate action relating to his will and 4 codicils (the second of which was executed in England and the other 3 in Germany) raised as issues (i) the domicile at death; (ii) the choice of law applicable; (iii) the scope of the German conflict of laws rule; and (iv) whether any of the 5 instruments were entitled to be admitted to probate in England (challenged on the grounds of undue influence and lacked testamentary capacity). Scarman J held that:
i) The deceased retained his German domicile of origin (726G, 733H);
ii) Subject to Section 2 Wills Act, 1861, the formal validity of each of the testamentary instruments propounded depended upon whether it complied with German law, but that
questions of the admissibility and weight of evidence and of inferences to be drawn from the evidence were to be determined in accordance with English law (734D–E, 737A); as the testator was a Canadian national and therefore a British subject, section 2 of the Wills Act, 1861, made the will and first codicil formally valid (741A–B, 743B–C): the other 3 codicils depended for their formal validity upon German law and were by that law invalid.
iii) The law relating to testamentary capacity was in substance the same in German as in English law, the English Court, if conducting its inquiry de novo and not merely giving effect to a foreign probate, must in all matters of burden of proof follow scrupulously its own lex fori (735G–H, 737D); both German and English substantive law required a valid will to express the real intentions of the testator, but that the English rule of knowledge and approval was evidential in character and to be applied by the English court as part of its lex fori.
The following passages of Scarman J’s judgment are of assistance:
i) At 734 “Formal validity is a question of substantive law and would, in the absence of statutory provision, fall to be determined by the law of the domicile”;
ii) At 735 “Testamentary capacity. The general rule is clear. The capacity of a testator is to be determined by the law of his domicile; … I know of no distinction drawn between lack of capacity due to immaturity or status and incapacity arising from ill health, and I have not been referred to any English case which the distinction has had to be considered. It is, however, clear that the German law of succession will treat a will as void if the testator, through mental weakness or disturbance of consciousness, is unable to understand its contents…
Were it necessary to make a choice I would think it correct in principle to accept and apply the German concept of testamentary capacity. It is, however, essentially the same as the English. But this leaves open the question whether, if there be a difference between the two systems as to burden of proof, I should apply the German or English rule. For reasons which I give more fully in succeeding paragraphs, I have come to the conclusion that the English Probate Court, if conducting its inquiry de novo and not merely giving effect to a probate, or its equivalent, already granted abroad, must in all matters of burden of proof follow scrupulously its own lex fori.”
The above suggests the court will consider the jurisdiction issue and which legal principles are to be applied and apply them.
If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.