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Foreign will accidentally invalidates English will - how to resolve?

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  • Foreign will accidentally invalidates English will - how to resolve?

    Mrs F died in 2021 leaving estates in England and South Africa. She had separate wills for the two countries with separate executors. The English will was made first and included a clause to restrict its scope to the English estate only. The South African estate was settled quickly and bequests were paid out, but when the executor of the English will applied for probate it was rejected by the Probate Office because the South African will apparently was written some time after the English will and did not include a clause to limit the scope of that will to the South African estate. This was, at the least careless, and it is clear that it was Mrs F's intention to keep the two estates completely separate and she did not intend the South African will to invalidate the English will. What course of action should the executor of the English will take?
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  • #2
    There is an article at murraybeith.co.uk about 2 wills in two countries.
    The situation has been complicated by the SA will not limiting the scope to SA estate.
    Probably best to speak to a specialist solicitor. Try MurrayBeith

    Comment


    • #3
      What sort of things does the UK estate comprise?
      Lawyer (solicitor) - retired from practice, now in academia. I do not advise by private message.

      Litigants in Person should download and read this: https://www.judiciary.uk/wp-content/..._in_Person.pdf

      Comment


      • #4
        Murray Beith are a Scottish law firm and may not be willing to advise on English probate law so you might be better finding a specialist law firm in England.
        All opinions expressed are based on my personal experience. I am not a lawyer and do not hold any legal qualifications.

        Comment


        • #5
          Originally posted by atticus View Post
          What sort of things does the UK estate comprise?
          A flat and cash savings. Value below the IHT threshold of 325k. Ordinarily, it would be very simple to execute the English will. It worries me that the estate seems to be in limbo when there is a property involved and no-one is able to accept responsibility for its maintenance.

          Comment


          • #6
            You will need to investigate how the executors of the South African will can demonstrate title to deal with the UK assets, in accordance with that will.
            Lawyer (solicitor) - retired from practice, now in academia. I do not advise by private message.

            Litigants in Person should download and read this: https://www.judiciary.uk/wp-content/..._in_Person.pdf

            Comment


            • #7
              Originally posted by atticus View Post
              You will need to investigate how the executors of the South African will can demonstrate title to deal with the UK assets, in accordance with that will.
              Thanks, Atticus. I would be grateful if you can elaborate on this, given the following information. The first clause of the SA will says "[name] hereby revoke all wills, codicils and other testamentary writings previously made by me and declare the following to be my last will and testament." Unfortunately, this will was signed in 2015, about two years after she had signed an English will which properly limited its scope to her English assets.

              The second clause of the SA will details all the bequests.

              Subsequent clauses in the SA will define the powers of the executors, but make no reference to country. A financial services company is nominated as executor "of my estate and of any trust created in this Will" (there are no trusts). It is signed and dated (14 May 2015).

              I am sure the SA executor would not have agreed to take on the role if they had known it would involve assets outside SA. It is possible that, at the time the will was written, the SA executor was not even aware that there were assets in England. The executor of the SA will has completed the distribution of funds from the SA estate and is unlikely to be willing to take any responsibility for additional assets in the UK. Two significant hurdles would be obtaining probate in the UK in relation to the SA will, and disposing of a property in the UK.

              Does this will, by implication, demonstrate title to deal with the UK assets? Your thoughts on this would be appreciated.

              Comment


              • #8
                This is not my area of expertise. You probably need to take specialist professional advice.
                Lawyer (solicitor) - retired from practice, now in academia. I do not advise by private message.

                Litigants in Person should download and read this: https://www.judiciary.uk/wp-content/..._in_Person.pdf

                Comment


                • #9
                  Originally posted by atticus View Post
                  This is not my area of expertise. You probably need to take specialist professional advice.
                  Thanks, you've given me a bit of food for thought.

                  Comment

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