Does your will deal with cross-border assets?19 Jan 2022 | Katie de Swarte
If you own assets in more than one country, it’s important to make a robust Will that deals effectively with your international assets as well as those in the UK.
The Private Client team has extensive experience in advising clients in the preparation of their Wills and also in dealing with estates where there are cross border assets located in Europe, and countries such as Australia, India, Brazil, the US and Hong Kong.
A recent ruling illustrates the danger of having a Will that does not deal with foreign assets or is not clear. The risk is that a partial intestacy arises, with the effect that those non-UK assets could pass on your death to someone you would not have chosen.
What’s the background?
Nicholas Rossiter was living in Russia when he died in July 2018. Under the terms of his will, his net estate was divided equally between his two children. The will made clear it was only to have effect in relation to his UK assets – but at the date of death Mr Rossiter was entitled to assets located in Jersey.
The question was: did his Will deal with the Jersey assets notwithstanding the wording of the Will? If it did not, his widow would automatically be entitled to them under the statutory rules of intestacy (unless the court decided to order that the will be rectified).
If the Will did deal with the Jersey assets, they would pass equally to his children.
An important consideration for the court was Mr Rossiter’s intention. For instance, he had drafted a Will himself ahead of it being professionally drawn up by his solicitors. In that draft, he said that on the one hand the Will was only to deal with his UK property but, on the other hand, he intended to make specific legacies of his Jersey assets.
As Lord Justice Lewison succinctly puts it: “The two are only rationally reconcilable on the basis that [Mr Rossiter] intended ‘the UK’ to include Jersey.”
The court also heard that just a few weeks before he died, he had written to his solicitors requesting additions to his Will to deal specifically with the Jersey assets. Unfortunately, he died before his instructions were implemented.
The Court of Appeal decided that the Will did deal with the Jersey assets. It ruled:
- Jersey is not an independent state under international law. Furthermore, Jersey is one of the British Islands as legally defined.
- There are previous cases where it has been held that in context, ‘UK’ did include the Channel Islands.
- The evidence was that Mr Rossiter’s objective intention was, without doubt, to make a will that dealt with his assets in Jersey
The ruling means that the Jersey assets pass to Mr Rossiter’s children under the terms of the will.
You can read the ruling in Partington v Rossiter 2021] EWCA Civ 1564 here
What does this mean?
Wills and probate disputes are expensive but usually avoidable if Wills are drafted clearly and unambiguously. If you own foreign assets, it would be prudent to consider reviewing any existing Will to ensure it is robust.
And if you don’t yet have a Will or your circumstances were to change, we suggest you make a new Will as matter of priority to protect your estate and your loved ones.
More Cross-Border Information
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