What is Forced Heirship and How will my Foreign Property be dealt with on my Death?

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With the ownership of foreign holiday homes being more widespread than ever and the ease with which we can now move around the globe to live and work it is becoming increasingly common for our Inheritance Dispute team to be asked about contesting estates and wills abroad.

Contesting a will in England can be difficult enough, but when there is an overseas dimension it adds an additional layer of complexity and, inevitably, expense.

Avoiding Cross Border Headaches

As with many things, prevention is better than cure. Whenever people move abroad or buy foreign property we urge them to consider what will happen in the event of death. While none of us want to be morbid, it is vital that these issues are tackled head on and planned for at an early stage to avoid nasty surprises arising that could lead to great deal of emotional and financial distress.

One particularly important point to consider is whether you need to update your English will and/or make a will in the new jurisdiction. Generally speaking it’s a good idea to make a will in the jurisdiction in which your assets are held so that you and your nearest and dearest are clear about what will happen in the event of your death. However, it is important that your foreign will doesn’t conflict with your English one. A common mistake is to include a revocation clause that will nullify a previous will in another jurisdiction.

It is essential to be clear about the jurisdiction that will apply in the event of your death. Will it be English law that applies, or the foreign jurisdiction?

Forced Heirship

Some countries that are popular destinations for English people such as France are governed by different inheritance rules that can differ significantly from our own. Many involve the doctrine of ‘forced heirship’. This means that the laws of the country dictate how an estate is distributed, rather than the deceased specifying who they want to inherit in their will. So you could find that a fixed percentage of your foreign estate (perhaps as much as 50%) passes automatically to close family who you may not wish to benefit. The forced heirship requirements in French estate we dealt with left the widow in serious financial difficulty, the worst of which could have been avoided with some specialist advice and relatively simple estate planning.

Domicile

The answer to the question ‘which country’s law will apply?’ is generally decided by reference to the legal concept known as ‘domicile’.

Under English law, if you are domiciled here in England and leave an English will, then your land and property here together with any ‘moveable’ assets (such as personal possessions, bank accounts and investments) wherever they are located, will be dealt with under the terms of your English will.

However, the position may be different so far as any foreign land or property is concerned, and it is necessary to look at these on a case by case basis as complications can arise.

Even the question of where a person is domiciled can be disputed. In most instances your domicile is where you are born: This is known as ‘domicile of origin’. However there is also ‘domicile of choice’, and this can arise when someone adopts another country to live in, permanently or indefinitely. Disputes can arise as to whether the domicile of a deceased person was their country of origin, or whether they have given up that country and chosen another. When courts deal with these cases they will focus on how permanent/indefinite the new arrangements are.

The differing approach to inheritance around the world can lead to situations arising where the laws of the countries concerned conflict.

If you are involved in a cross jurisdictional inheritance dispute then call our Inheritance Dispute helpline on Freephone 0808 139 1606