Cross-border inheritance and the form of a will on the example of a will made in England
Cross-border inheritance can raise a number of problems and complex legal questions. One of the important issues is the will and its form.
I will try to discuss the indicated problem on the example of a will drawn up in England upon legal provision that bind in Englad, which is to constitute the basis for a declaration of the acquisition of inheritance by a Polish court (as a real estate located in Poland is a part of inheritance).
The Polish court conducting an inheritance proceedings will apply the conflict of laws rules that are in force in the Polish legal system, i.e. REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (hereinafer referred to as: the EU Regulation).
The United Kingdom, within the meaning of the EU Regulation, remains a third country (it was a third country even when the UK was a member of the EU, and this is in accordance with point 82 of the Preamble to the EU Regulation).
The EU Regulation and the form of the will
Article 27 section 1 point a) of the The EU Regulation provides:
Formal validity of dispositions of property upon death made in writing
A disposition of property upon death made in writing shall be valid as regards form if its form complies with the law of the State in which the disposion was made or the agreement as to succession concluded.
However point (52) sentence no. 1. of the Preamble to the EU Regulation provides:
This Regulation should regulate the validity as to form of all dispositions of property upon death made in writing by way of rules which are consistent with those of the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.
And Article 75 section 1. of the EU Regulation provides:
Relationship with existing international conventions
This Regulation shall not affect the application of international conventions to which one or more Member States are party at the time of adoption of this Regulation and which concern matters covered by this Regulation.
In particular, Member States which are Contracting Parties to the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions shall continue to apply the provisions of that Convention instead of Article 27 of this Regulation with regard to the formal validity of wills and joint wills.
Thus, when assessing the validity of a will drawn up in England in terms of form, the Polish court must refer to the provisions of the above-mentioned Convention drawn up at The Hague on 5 October 1961, to which Poland and The United Kingdom are parties.
The Hague Convention
Article 1. of the Hague Convention provides among others in point a) that a testamentary disposition shall be valid as regards form if its form complies with the internal law of the place where the testator made it.
Therefore, the Polish court in the light of the Hague Convention may be required especially to assess the validity of the will in terms of form on the basis of the legislation being in force in England. In practice it may e.g. lead to a situation in which a Polish court will state the will as valid in terms of form according to law of England and Wales, despite the fact that under Polish law it would be invalid due to the requirements of Polish law as to the form.
More entries about cross-border inheritance cases
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