Dear Ade,
My wife and I have 90% of our assets in the UK.
We have just returned from Greece where we own a small holiday home, which we rent to holiday makers: and she, six years ago, inherited a flat from an uncle in South Africa.
What would you recommend, one will or separate wills for each country?
Thanks
Gershwin,
New Malden, Surrey
Dear Gershwin,
In the long ago, on the wireless, there was a story of some prolific criminal. The details of the convict or his offences scarce concern us here, which is just as well as they are beyond the fingertips of my memory. The newscaster related that the miscreant, convicted of several offences was condemned to serve his sentences concurrently. I thus enquired of my mama the meaning of concurrent sentences. She enlightened me by contrasting concurrent sentences with consecutive sentences.
Accidental Intestacy
Your question addresses accidental intestacy or partial intestacy. This special class of misfortune could befall people who own land and buildings both in this country and overseas. I jump up and down about land and buildings as most other assets are moveable, I am thus unable to see why you’d leave cash, or your Rolls Royce or your Rolex overseas.
Our difficulty arises not so much from property abroad, but from revocation clauses in wills.
Many with property abroad have found their way out of the maze of good intentions, and written wills to cover their overseas property.
Say, for instance you write a will in January, and the following summer while on your sojourn at your other property, write a will, of which the opening clause is something to the effect of ‘I revoke all former wills’.
By these four words, your family could be subject to several styles of headache arising from the small matter of your UK property being subject to the rules of intestacy. Even if you didn’t accidentally revoke the will that covered your UK estate, there is still a problem of consecutive sequencing.
Old Ways
Many draughtsmen write a single will covering all your property everywhere. Although it doused the flames of accidental revocation, a difficulty with such an arrangement was that it could be betrayed by delays at the probate offices of several nations.
And then, there was the risk of loss.
Consecutive, Not Concurrent
The will was taken to probate in the first jurisdiction. When probate was granted, the will was taken to the local consulate of the second country, where it was ‘sealed’. The process of applying for probate was initiated in the second country.
I’ve heard court officers of certain parts asked their palms be greased. It hardly requires a fertile imagination to envision strikes in courts and administration centres. And from bitter, personal experience, I vexedly recount the probate courts in these parts losing documents especially wills.
Every hold up was compounded, all delay was magnified, every setback inflated in significance.
Concurrent not Consecutive
I’ve a rather straightforward stratagem to subdue this palaver. The counter to this problem is so simple that the mere fact of it taking me this long to alight upon it verges on embarrassing.
Simply, I draught one will for each jurisdiction. Naturally, not all the documents could bear the legend last will and testament.
I write each document restricting its scope to the jurisdiction in which the property is held. That way the estate in one part of the world is not held ransom to occurrences in courts, tribunals and chanceries of other lands.
Taxation & Domicile
Of course, double taxation is quite a matter for another day.
Also, this solution to the problem of one will for each jurisdiction does not resolve the matter of your domicile, which in taking cudgels to the English language is distinct from your residence or even nationality, thus, the question of domicile is the matter for yet another day.
