At present, an international Estate (one where assets are situated in more than one country) can be governed by several countries’ private international law rules. Estates are often dealt with in a piecemeal basis between jurisdictions where issues of domicile, residence and nationality overlap. This can be a costly and time-consuming process for executors of international Estates.
From 17 August 2015, a European regulation known as Brussels IV aims to unify European succession law by allowing individuals to elect the law (based on their habitual residence or nationality) which will apply to their Will. In default of an election, the deceased’s habitual residence will be the governing jurisdiction in succession matters.
The UK has not opted into Brussels IV due to practical reasons. However, that does not necessarily mean that Brussels IV will be irrelevant for UK testators. It should be possible for a UK testator to elect for English law to apply to their Will circumventing forced heirship rules (whereby certain family members must receive a fixed share of the estate, potentially resulting in additional unnecessary tax exposure) which have often frustrated those with property in mainland Europe.
However, this is unexplored territory. As there is also uncertainty as to whether England is a member state or a third state (under the definition of the Regulation) renvoi rules (rules which deal with the conflict of international laws) may still apply.
We would advise clients with assets abroad to review their existing Wills to ensure that they are compliant with the new rules. For some clients, an express election in their Will may be desirable.