Getting a grant where the deceased died domiciled abroad

Posted by Laura Harper on
It is widely accepted that estates with 'foreign elements' present some of the most burdensome, time consuming (and, perhaps, interesting) problems in today’s probate practice.

This article focuses on just one important part of the puzzle: extracting an English grant of representation where it has been established that the deceased died domiciled abroad.

Proving the Will

Before thinking about who is entitled to take a grant, one must consider whether any Will is admissible to proof in England. If a Will is admissible, it will be proved, irrespective of what effect (if any) it might have on entitlement to a grant and other administration and succession issues. This invariably takes us to the Wills Act 1963, under which a Will is admissible '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'.

The Wills Act 1963 is particularly helpful where there is a Will in English form (i.e. properly executed in accordance with the Wills Act 1837) and the deceased, despite dying domiciled abroad, had some connection with England. In these cases, one has several chances to establish an appropriate connection. Generally, all the Probate Registry requires is a line in the oath confirming that, for example, the Will was executed while the deceased was physically present in England. This is often corroborated by features present in the Will itself, such as the addresses of the witnesses. When relying on British nationality, it is necessary to go an extra step and demonstrate that, of the various systems of law in operation in Britain, the deceased was most closely connected to that of England and Wales. In such cases, the Probate Registry usually requires a separate affidavit to establish the connection.

When faced with a Will that does not conform to the Wills Act 1837 (or perhaps it does, but it has not been possible to attach English law), one must consider foreign law. Most likely is that the deceased's Will was made in accordance with the law of his domicile. In such cases, one must satisfy the Probate Registry that the Will is valid in accordance with that law. If it has already been proved by the court of domicile, the Probate Registry will accept, as proof of validity, a copy of the Will and probate duly sealed and certified by the foreign court. In other cases, one must obtain evidence of the law of domicile confirming that the Will is (or, perhaps, is not) valid under that law. There are no strict rules on who can provide such evidence, but, in practice, it is often a notary or other suitably qualified lawyer practising in the jurisdiction.

Once one has established that a Will is admissible, next comes the question of what physical document will actually be proved. If the original Will is available, it will of course be that. However, in many cases, it will not be available. If the original is in the custody of a foreign court or official, and cannot be released (e.g. following the granting of probate), a copy sealed and certified by that court or official will normally be proved. If the Will is not in the English language, formal translations are necessary. The Probate Registry has discretion over what form of translation it can accept, but a translation verified by a notary is the safest course. The grant, when issued, will annex a copy of the translation; however, it is the version in the original language that is technically 'proved'.

There are examples of rarer and more complex situations, such as the deceased who dies domiciled in Russia, but leaving a French Will. In such a case, the Will might be invalid by the law of domicile, but still be admissible in England under the Wills Act 1963, due to the deceased's having a sufficient connection with France (perhaps habitual residence). Then there are the cases in which the deceased made multiple (and, often, inconsistent) Wills in multiple jurisdictions. All of these things require very careful analysis and consideration before one can apply for a grant.

Title to the grant

Once it has been established that a Will is admissible, or that the deceased died intestate, one must consider who is entitled to take a grant. This takes us to rule 30 of the Non Contentious Probate Rules 1987. The rules are currently under review, but changes are not expected to take effect until at least 2014. In any event, it is unlikely that the substance of rule 30 will be affected.

Rule 30(3)(b) provides a helpful means of avoiding the application of foreign law to the grant application, irrespective of whether or not there is a Will. The rule states that 'where the whole or substantially the whole of the estate in England and Wales consists of immovable property, a grant in respect of the whole estate may be made in accordance with [English law]'. It is therefore always worth considering the make up of the English estate early on. If, for example, the only asset in England is a house, then one can file the grant application as if the deceased died domiciled in England. In such cases, the oath must recite the correct domicile and include a statement confirming that the whole estate consists of immovable property. Regarding what constitutes 'substantially' the whole estate, it is advisable to seek directions from the Probate Registry before preparing papers. The required proportion would most likely be very high, particularly in a large estate. In an estate worth £1m, of which 95% is immovable, it would be surprising to see the Probate Registry operate this rule.

Rule 30(3)(a) provides a similarly helpful means where there is a Will in the English (or Welsh) language appointing an executor. In such cases, a grant of probate can be issued to the executor without reference to foreign law. It is important to note that the Probate Registry will not recognise any term in a foreign language purporting to mean 'executor', even if it appears on a translation. If a Will is in a foreign language, the Probate Registry will only accept that an executor has been appointed if the wording sufficiently sets out the duties of an executor (e.g. 'I appoint X to call in and administer all of my estate'). In such cases, there is said to be an 'appointment of executor according to the tenor', and rule 30(3)(a) can therefore apply.

Where neither of the aforementioned rules applies, it is necessary to obtain an order from the Probate Registry before a grant can be issued. In practice, the applications for the order and the grant can be combined in one extended oath.

If the court in the place of the deceased's domicile has entrusted someone with the administration of the estate (i.e. issued an equivalent to a grant of representation), the Probate Registry will make an order under rule 30(1)(a) directing that a grant be issued to the person so entrusted. To obtain such an order, the application should be accompanied by a sealed and certified copy of the entrusting document and any Will (with translations, if appropriate). There is often confusion over what constitutes an 'entrusting document'. Courts all over the world issue documents relating to the estates of deceased persons, but many are concerned purely with succession, and do not entrust anyone with the administration. In Europe, entrusting documents are rare, as most European countries do not have an equivalent to the English 'personal representative'.

Where there is no entrusting document, the Probate Registry will make an order under rule 30(1)(b) directing that a grant be issued to the person beneficially entitled to the estate by the law of domicile. This requires evidence of foreign law, even if there is a Will. The aforementioned non-entrusting documents are often ideal for this purpose. Such documents are usually called 'certificates of succession' or similar. If no such document is available, one must obtain sworn evidence, usually from a notary or other suitably qualified lawyer in the jurisdiction. The evidence (and translations, if appropriate) should be filed with the application for the order.

Conclusion

This article only scratches the surface of this expansive subject. I have intentionally avoided colonial reseals and the various inheritance tax forms, as these perhaps warrant articles of their own. No two foreign domicile cases are the same, and, in my experience, thorough examination and analysis of all documentation is the key to preparing a successful grant application.

About the Author

Laura advises on a range of private client issues specialising in tax and succession planning for individuals and families based in the UK and with foreign assets.

Laura Harper
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