Risk management

Wills and estates - foreign dimensionsLower property values, the strong pound, cheap foreign mortgages, international property roadshows, lawyers and estate agents with offices abroad - these are all factors that make it easy to buy foreign property.

What risks does this pose for probate practices?When they still lived in England, Chris and Emma made wills disposing of all their property.

Once their children grew up and left home, they retired to France, retaining property and investments in England.

This secured them a bolt hole and a place on the property ladder should they ever decide to return to the UK.Having received advice locally that French law applies to French land, they made new wills for their French property.

This prompted them to review their English wills.

Living in France they used the Internet to find an English firm of solicitors specialising in on-line wills.

Notes on the Web site made it clear that the service was only intended for those covered by the laws of England and Wales.

(Many are not so limited).

Chris and Emma decided to proceed.

After all, they said, we only want them to deal with our property and assets in England.Their new wills contained standard revocation clauses and revoked all former wills (that is, both their English and French wills).

The new wills purported to deal with all their property.

Having received no advice on the point, Chris and Emma assumed that these clauses only related to their earlier English wills and to English property and thought no more about it.A few years later, both died in a car crash.

Residuary charitable beneficiaries laid claim to the property in France under Emma's English will.

Resolving the conflict between English common law and French civil law was expensive.

Chris and Emma's children sued the English solicitors for their losses.

This is not an actual claim.

But it could be.

When taking instructions for new wills:l Check whether the testator has any interest in foreign property.l Check whether the testator has made wills in more than one jurisdiction.l Consider whether the standard revocation clause is appropriate.When taking those instructions on-line, always bear in mind the advice issued by the wills and equity committee of the Law Society (see [2000] Gazette, 8 June, 47).

In particular, think carefully before preparing a will on written instructions if you do not know the person well.It is all too easy to overlook the foreign element when taking instructions for wills and estates.

Do not let yourself be caught out.

l This column was prepared by the St.

Paul risk management team.