In my earlier article “What killed the grandfather’s English will in Poland?” I highlighted the difference in requirements for a valid Will in Poland and England and recommended that it is best practice to leave Wills in both England and the foreign jurisdiction in which assets are held.
The number and nature of enquiries I received since publication of that article only served to confirm the anecdotal evidence I was receiving from my clients before – it is more common for persons who die owning assets in more than one country to leave only one Will. When such a Will is a foreign Will, made outside of England and Wales, can that Will be validly upheld in England?
The short answer is - Yes. In accordance with provisions of the Wills Act 1963, for all deaths occurring after 1 Jan 1964, a foreign Will may be considered valid in England and Wales if it was prepared in accordance with the requirements of the national law of the country in which it was executed or if it was prepared in accordance with the national law requirements of the country of which the testator, either at the time of execution of the Will or at the time of his death, was a national, had a habitual residence or domicile of. Accordingly, a Polish Will of a Polish national who lived and owned assets in England may be upheld as valid here, in England.
In practical terms, upholding the Will as valid means applying for an English Grant of Probate in respect of such a Will. Please read my related article on what this involves. To have a foreign Will admitted to probate in England, in addition to usual requirements, one will also need to provide an affidavit of evidence as to the relevant facts, including a detailed explanation as to the validity of the foreign Will in accordance with the requirements of the national law where the Will was made or the national law of the country of which the deceased was a national, depending what is applicable. In case of Polish Wills, the evidence of the Will having been prepared by a notary, who will attest it was prepared by him and recorded in his/her archives when it was made, or evidence that a Polish court already ordered disposition of Polish estate in accordance with the Will, thus upholding its validity, will usually be the evidence that the Probate Registry in England will be looking for.