Does Your Will Deal With Cross-border Assets?

• Published date: 17 March 2022
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Osbornes Law
• Author: 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...