In these days of easy travel, holidays abroad, comparative affluence, early retirement, armed conflicts and the globalisation of business, it is becoming increasingly common for people to own property, work and retire in countries other than those in which they were born. In these circumstances, consideration of how foreign factors can affect your will is becoming increasingly important.

MAKING A VALID WILL IF YOU ARE OUTSIDE ENGLAND AND WALES

The formalities that have to be followed to make a valid will if you are in England or Wales have been dealt with in Chapter 2. If you make a will without observing those formalities while you are abroad, English law will accept it as validly made if it is made

• in accordance with the formalities required by the state where it was made; or
• in accordance with the formalities required by the state where at the time the will was made or at your death you were domiciled or had your habitual residence or of which you were a national. The meaning of ‘domicile’ has been explained in Chapter 3.

If the will deals with immoveable property such as a holiday villa, it will also be recognised as valid by English law as regards that property if it complies with the formalities required by the law of the state in which the property is situated.

If you make your will on a ship or aircraft the will will also be treated as validly completed if its completion conforms to the law of the country with which the ship or aircraft has the closest connection.

An alternative provision to validate wills made abroad was provided by the Convention providing for a Uniform Law on the Form of an International Will. The provisions of this convention will be incorporated into English law by the section 28 of the Administration of Justice Act 1982 when the section is brought into force by a commencement order. Unfortunately, although the convention has been adopted by parts of Canada, by Ecuador, Libya, Niger, Portugal and the former Yugoslavia, and the Act was passed over 20 years ago, no commencement order appears to have been made. As mentioned in Chapter 1, such matters do not rank highly upon the political agenda.

For your will to be valid under the convention:

• The will must be made in writing.
• You must declare in front of an ‘authorised person’ and two other witnesses that the document is your will and that you are aware of its contents and you must sign the will at the end of the will or acknowledge your signature, in either case, in their presence.
• The authorised person and the witnesses must immediately sign at the end of the will in your presence to attest it.
• If the will consists of more than one page, each page must be numbered and signed by the authorised person and yourself.
• The authorised person must prepare a certificate in the prescribed form to the effect that the formalities have been complied with.

WILLS RELATING TO PROPERTY WHICH IS SITUATED OUTSIDE OF ENGLAND AND WALES

The previous section dealt with the formalities to be followed when making a will abroad if it is to be recognised as valid in English law, but in considering any property you may have which is situated abroad, you must also consider the foreign law relating to the property and the making of wills, even if the will is made in the United Kingdom. Some states have restrictions in relation to who can inherit property and the tax laws relating to property differ from those of English law. The procedure and formalities for making a will that is to be recognised by the foreign country as a valid document of title to the property are usually different from those of England and Wales. It is usually better to make a will in the country where the property is situated to deal with foreign property, or at least to obtain advice from a lawyer who practises in the law of the relevant country.

You can have several valid wills at the same time and separate wills dealing with different parts of your estate, e.g. a will covering your English property and a separate will covering your foreign property. If you do so, make sure that the foreign will does not contain a clause revoking your English will or any codicil, and similarly make sure that your English documents do not revoke the foreign will. A clause in the later will such as ‘I revoke all wills and testamentary documents previously made by me’ would revoke the other will. Take care in each will to make it clear that the English property/the foreign property/the will, as appropriate, is excluded from the revocation clause.