Including foreign assets in a will

Yes, a will made in England and Wales can include assets held abroad. There is no legal prohibition on referring to foreign assets in an English will. However, the practical position is more nuanced than it might first appear, and the approach you take matters a great deal.

Legal position:

Under English law, a testator is free to dispose of any assets they own, wherever those assets are situated, through their will. An English will can therefore cover property, bank accounts, investments, and other assets located in other countries.

The complication arises because whether the English will is actually recognised and given effect in the country where the asset is located depends on the law of that country. Most jurisdictions distinguish between movable property (such as money, shares, and personal possessions) and immovable property (such as land and buildings). The general conflict of laws position in England is as follows:

1. Movable property is governed by the law of the testator's domicile at the date of death.
2. Immovable property is governed by the law of the country where the property is situated (the lex situs).

This means that even if your English will purports to deal with foreign land, the foreign jurisdiction may not recognise or give effect to the English will, or may apply its own succession rules, including forced heirship provisions that override the testator's wishes.

Practical considerations:

Some people choose to make a separate will in each country where they hold significant assets, particularly immovable property. This has practical advantages because a local will drafted in the local language and compliant with local formalities can make the administration of the estate in that country much smoother and quicker.

If you do make separate wills, it is essential that they are carefully coordinated so that the foreign will does not inadvertently revoke the English will, or vice versa. The revocation clause in each will needs to be precisely drafted. A common approach is for each will to state that it applies only to assets in a specified jurisdiction and does not revoke any will relating to assets elsewhere.

The Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (1961) provides that a will is formally valid if it complies with the law of any one of several connecting factors, including the place where it was executed, the testator's nationality, domicile, or habitual residence. England has given effect to this through the Wills Act 1963. This broadens the chances of an English will being formally valid in another signatory country, but it does not override substantive succession rules in the foreign jurisdiction.

Forced heirship is a significant issue. Many civil law countries, including France, Spain, Germany, and much of South America, reserve a fixed share of the estate for certain family members regardless of the testator's wishes. EU Regulation 650/2012 (the Brussels IV Regulation) governs succession in most EU member states and allows a person to elect the law of their nationality to govern their succession, but the UK was never bound by this regulation and it does not apply directly in England and Wales. Nevertheless, it may be relevant to how a foreign jurisdiction treats assets situated there.

Practical next steps:

1. Identify which countries hold significant assets and what type of assets they are.
2. Take advice in each relevant jurisdiction on whether a local will is advisable and whether forced heirship rules apply.
3. If separate wills are made, ensure the revocation clauses are carefully limited so they do not conflict.
4. Consider inheritance tax implications in England and Wales, because if you are domiciled or deemed domiciled here, HMRC will charge inheritance tax on your worldwide estate, and double taxation agreements or unilateral relief may be relevant to avoid being taxed twice.
5. Keep all wills together in a safe place and ensure your executors know about each one.

In short, including foreign assets in an English will is perfectly lawful, but whether it is the best approach depends on the type and location of the assets and the legal requirements of the foreign jurisdiction involved.