Frequently asked questions about Wills in an international context
This information has been prepared by Sykes Anderson Perry Limited as a general guide only and does not constitute advice on any specific matter. We strongly recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of any information or advice given or omitted.
1. If you have different Wills in different countries, which takes primacy? The latest one?
It depends on whether the Wills are limited to certain assets. If not, then yes, the latest one will be applied. However, generally, we advise clients to have say an English Will dealing with UK assets and a French Will dealing with French assets in which case each Will will apply only to the assets it is defined as dealing with.
2. Why should Will writing be a reserved legal activity anyway? What could possibly go wrong?
It is easy to make mistakes and have unintended consequences if a non-professional drafts a will. Most “will-writers” are not lawyers and are subject to less professional regulation and insurance. In particular “will-writers” will not have cross-border experience. The bottom line is if a solicitor makes a mistake they are professionally insured, which allows for compensation. In addition, a solicitor is able to provide advice in respect of how to leave assets, the tax consequences, the risk of claims against your estate and making sure that all your assets are disposed of by your will.
3. People moving from one country to another so what happens if someone has made Wills in different countries?
It depends how the Wills are drafted. It is worth getting proper advice as cross-border Wills are a highly specialist areas of law. It is important to consider that the concepts routinely dealt with in Wills in one country may not easily translate to another. Particular difficulties occur in respect of minor children inheriting assets, but these are not the only issues.
If all the Wills were drafted as “worldwide” wills, it is likely that the last Will will apply, even if it is then distorted by the law which applies to that person’s estate. Many countries do not have total testamentary freedom.
4. I named our solicitor as executor of my will but he's retired. Does it automatically pass to the solicitor who took over?
In an English Will, it depends how the Will was drafted. If the solicitor was named personally, it is that solicitor who is the executor personally. This is probably a bad idea if he or she has retired and is elderly. If the Will was drafted to refer to say the partners in a given firm, generally the solicitor who took over will be the executor.
5. If it's just my partner and I - won't the other inherit everything automatically if one of us dies?
This is probably the most dangerous misconception. If you do not leave a Will, there are rules governing how your estate will be distributed. In England, these are known as the intestacy rules which ignore partners completely. The spouse or civil partner is protected, but not an unmarried partner. In England, an unmarried partner gets nothing if there is no Will. Their only option is to bring a claim against the estate, which is not always possible and is certainly not desirable.
6. Do I have to leave everything to my children in a Will? Do I have to leave equal shares? Can they contest it?
This depends on which country’s law will apply to your estate. In many countries, if you have children, some or all of your estate must pass to them, the legislation will also define the shares in which your estate may be left. In England, this is not the case, but if your child is your dependent, they may be entitled to claim against your estate if you do not provide adequately for them.
If you have good reason for wanting to leave your estate in an unequal manner to your children, or to exclude your children, it is best to seek specialist advice.
Nicole Gallop Mildon, is able to advise on cross-border will-writing, which is one of her specialist areas of expertise.
Nicole Gallop Mildon
Solicitor and diplômée notaire
Telephone: + 44 (0)20 3178 3770