We have no doubt become more European. Our families become more international and we no doubt move abroad more often. This is all very positive, but brings about more surprises to our lives than we like to think.
My good friend’s grandfather made a Will and passed away peacefully, convinced he left all matters in order, just like a responsible man of the house should do. Sadly, he did not take into account that the 1 000 acres of land he inherited from his father in Poland will not be dealt with as per his English will. His son, whom he considered so irresponsible and unworthy, will get a 1/3 share of it. How is that possible?
When a person dies leaving assets abroad, this can lead to all sorts of complicated situations which may need several years and thousands of pounds to resolve. This is because inheritance laws are different in different countries.
Requirements for preparation of a valid English will are not complicated. The will must be prepared in writing, but may be written in ink, pencil or typed. The will must be signed. It would be most recommendable if the signature was the usual signature of the person making the will. However, in cases when the person making a will is e.g. unable to hold the pen, the will may be signed by someone else, as long as the person making the will is present (also mentally) at the signature and directs the signatory to sign on his/her behalf.
The signature must take place in the presence of two witnesses who will later sign the will to confirm they saw the testator signing. The witnesses need not read the will or even realise the document that is being signed is in fact a will. Although it is a good practice to date the will, the will need not be dated unless it appoints a guardian of a person under the age of 18. Though it is highly recommendable, especially today when challenges as to the validity of wills are common, one does not need a solicitor for preparation of their own will. A person may write their own will, use a will writing pack available in many stationers or use a non-legal will writing expert.
Requirements for preparation of a Polish will are different. Most frequently wills are prepared in the form of a notarial act. It is highly recommendable that wills take this form as it is most secure and least prone to challenges as to the will’s validity. It is however possible to make one’s own will without involvement of any legal profession. A self-made will must be written in its entirety with the handwriting of the person making the will. A typed will will be invalid! The will must be signed by the person making it, best with their full name and surname. The will ought to be dated, but lack of date will not immediately lead to the will’s invalidity.
So, what went wrong with the grandfather’s will? It was typed in England, so it did not comply with requirements of Polish law. This is however not what “killed it”. Under Polish law a will prepared in England, as long as it complies with formalities of English law, will be valid in Poland. What killed the grandfather’s English will in Poland was the difference in how Polish and English laws allow one to define the various gifts.
As a general rule, a person entitled to assets that are not land, but which are located in Poland will be able to claim ownership of those assets as per the English will. They need original English Grant of Probate with attached will, both bearing an apostille (a special court confirmation that the documents are authentic). Matters get however more complicated when we deal with land located in Poland. In order to get ownership of such property, the person inheriting it under English will, needs to start proceedings before Polish courts. Polish court needs to formally order that the person is entitled to the Polish land. Such proceedings are complex as Polish inheritance law gives the possibility of inheriting a share in estate, but not particular items. All beneficiaries under the will and all other potential beneficiaries must therefore be made parties to such proceedings. Some of them may be difficult to trace. These complexities tend to mean proceedings are lengthy and costly (though for deaths occurring after 15 August 2015 the procedure should be somewhat simpler) and just like in the grandfather’s case need not be successful.
What should the grandfather have done? The most secure way of making sure one’s will will be adhered is preparation of two wills: Polish will dealing with Polish property and English will dealing with all the other assets. Care is needed when drafting such wills to make sure that one does not revoke the other.