Unexpected Death in the Times of Covid 19: – Estates with U.K. as well as International Focus

05 May

Regardless of whether you previously read books on pandemics, were fully au fait with the Spanish flu of 1918, and/or at least broadly knew that epidemics on a grand scale occur about once every 100 years, the Corona Virus has shocked the world in its speed of spread and truly terrible consequences. The death toll as of this writing is almost 29,000 for the U.K. and 250,000 worldwide.

 

The most obvious consequence is that huge numbers of people have died unexpectedly. And despite the steady stream of adverts on Facebook and elsewhere for and by will writers, and articles by lawyers addressing the difficulties of, inter alia, obtaining instructions and executing wills in accordance with the Wills Act 1837 (as amended), it may be anticipated that very many people will die intestate or with wills which they thought were revoked, or should have been. This article considers how this can happen and the particular issues which may arise where the deceased had international connections including homes and households abroad.

 

Section 9 of the Wills Act 1837 states that a valid will must be in writing, signed by the testator, or by some other person in his presence and by his direction, it must appear that the testator by signing intended to give effect to the will, and the will must be witnessed by two witnesses who attest that they were present when the testator signed. They must also themselves sign the will in the presence of the testator, but not necessarily in the presence of the other witness.


Complying with the above formalities requires specific care. As set out above, a will can be executed in one of two ways: – either by personally signing, or directing someone else to do it. If relying on someone else, it has to be more than just signing on the testator’s behalf. There should be evidence of an instruction to do so – a detailed attestation. The issue of valid execution was raised in Barrett v Bem [2012] EWCA Civ 52, where it was noted that heretofore there had been no modern authority on the signing of wills other than the Northern Irish case of Fulton v Kee [1961] NI 1 where the testator had a severe physical disability which made movement difficult if not impossible. He was attended at hospital by his solicitor, instructions were taken, a will drawn up, the testator acknowledged it, and then the solicitor took the will and the pen and he “backed the pen against his fingers and I (the solicitor) made the mark”. The pen was in contact with the testator’s hand the whole time. It was found that the actual signature was validly executed, but if it hadn’t, it was still a valid signature by direction (though it was not attested to as such).


The facts in Barrett v Bem itself were considerably more problematic: – on the day of the testator’s death in hospital, the testator had received the assistance of his sister, who was the sole beneficiary, in executing his will. The crucial finding was that the sister “stepped in, took the pen, and signed the … will on [the testator’s] behalf”. But there was no finding (no evidence) that the testator asked her to, or that she had inquired if she could. It was not enough to assert that it was what the testator had wanted, and that he had tried to execute the will himself but could not. Moreover, as noted by the trial judge and Court of Appeal, it was “plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity; and that Parliament should consider changing the law to ensure that this cannot happen in the future”.


In 2017, the Law Commission undertook a public consultation on reforming the law of wills to, inter alia, consider whether to reduce or eliminate formalities for a will where there is clear evidence that it is what the deceased wanted. To date, however, there has been no relaxation of the formal requirements of the Wills Act 1837(as amended).

 

It may be anticipated that many a will in the times of Corona will fall, for formal as well as well as substantial validity reasons with the result that pronouncement may be sought in respect to earlier wills if not revoked because of, for example, marriage.


Alternatively, the deceased may be found to have died intestate. If he is domiciled in England (domicile is decided under English law), there will likely be no question but that the English rules of intestacy apply and a grant of administration may be made even in an instance where there is no property in this country (there may be good reasons to do so, for example, in order to bring or defend proceedings in England, or maybe to get an English grant to assist in obtaining a foreign grant).


Alternatively, as has become so common, the position may be less clear. The deceased may have been born abroad, moved many times, and/or been visiting family in England, or attending to his business, or he may have homes here, and abroad, wives abroad, and under the English laws of domicile may be considered to be domiciled in another country even he resides mainly in England. If domiciled abroad, however, the court may still exercise its jurisdiction to make a grant to administer the estate where the deceased had immovable (real) property in England.


The applicable law is the law of the situs where the property is located – in England, the English laws of intestacy [Administration of Estates Act 1925 (as amended) s 46]. Under current intestacy laws, the surviving spouse or civil partner takes the entire estate- if there are no issue. If the deceased died with a spouse or civil partner and children, the surviving spouse or partner receives a statutory legacy, now £270,00 as of 6th February 2020, one half of the residue, and all personal chattels. But what happens when there are multiple spouses? That is precisely what happened in the unusual case of Official Solicitor to the Senior Courts v Yemoh and others [2010] EWCH 3727 (Ch). The deceased had died intestate and domiciled in Ghana, owning immovable property and various other assets in England. He was survived by 8 wives and numerous children. All of the wives were recognised as “the surviving spouse”- the marriages were validly celebrated in Ghana, and they were entitled to an equal share of the statutory legacy and collectively a life interest in half of the residue – the law on amount of entitlement has since changed.


For movable property, the law of the country of the deceased’s domicile at the time of his death will generally apply. Succession will be based on the laws of that country regardless of the location of the assets – see Baindail v Baindail [1946] P. 122 – domicile in India, succession to personal property in England governed by Indian law. English courts will generally follow decisions of the court of domicile, exercising an ancillary rather than primary jurisdiction. Considerations regarding evidence and procedure, however, are still governed by English law – the lex fori, which will also apply to will challenges.


There are separate and additional considerations which arise in relation to jurisdiction and laws on substantial validity of wills and will construction. Under the Wills Act 1963 s 1, any will of a person who died after 1963 will be deemed validly executed if it was valid in the country of execution, or the law of the country of nationality, domicile or habitual residence either at the date the will was executed or the date of death. This applies for immovables and movables. Additionally, if the will contains gifts of immovable property, it will be treated as validly executed if the execution complies with the “internal law” of the lex situs [Wills Act 1963 s 2]. By contrast, for immovables and movables it is the law of the deceased’s domicile at the date of the will which generally applies in respect to will construction disputes regarding the property, though other substantive issues will be governed by the law of domicile at death (for movables) or lex situs (immovables).


As to claims under the Inheritance (Provision for Family and Dependants) Act 2975 – the law is quite clear – the deceased must have died domiciled in England. The facts, of course, may well be less transparent, particularly in larger estates.

 

Undoubtedly, we are living in interesting times.


Article by Helene Pines Richman – Nothing in this article is intended to be legal advice. Readers may contact clerks@stourchambers.co.uk should they wish formal legal advice on their particular circumstances.

This set comes recommended for its members' expertise in children and matrimonial finance matters. The children cases range across both public and private law work, and include those concerning non-accidental injury, sexual abuse and fabricated illness. On the financial side, the set's barristers demonstrate the ability to act in substantial financial remedies cases as well as Schedule 1 and TOLATA matters.

~ Chambers UK Bar Guide 2020

Specialising in matrimonial finance and children matters. Members appear in the regional courts as well as the High Court and the Court of Appeal. They often act in financial remedy proceedings relating to farms, companies, properties and other assets. In addition they are adept at dealing with serious child care allegations including physical abuse and death.

~ Chambers UK Bar Guide 2019

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