In the event that the client dies resident in England but domiciled in Italy with an Italian Will which appoints no executors, an application to a District Judge or Registrar will be required to obtain a Grant of Probate in England.
The application would have to first be made by the person who is entrusted with the administration of the estate in Italy. Where there is no such person, then the beneficiaries will be entitled to apply for the grant.
If the Will was written in English and appointed executors, or if the Will referred to someone and described their role in the capacity of an Executor, this would enable a Grant of Probate to be obtained without an application to the Court. In addition, where the whole or substantially the whole of the English estate consists of immovable property, a Grant in respect of the whole estate may be made in accordance with law which would have been applicable if the deceased had died domiciled in England and Wales.
By virtue of S.1 Wills Act 1967, “a will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.”
It is normally necessary that the will should dispose of an estate in England and Wales or contain a valid appointment of an executor. This would suggest that providing the English estate is specifically disposed of in the Will itself, it is not essential that the Will appoints an executor.
The procedure for making grants where the deceased died domiciled out of England and Wales, is governed by the Non-Contentious Probate Rules 1987 – Rule 30. This provision is copied out below.
Rule 30 sets out two main circumstances in which the Grant of Probate will be issued.
The first involves an application to the Court in which a District Judge or Registrar may order that a Grant be issued to a number of people.
The first eligible person is the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled. A Grant in this capacity is made only where there is a Grant, Decree or other Order of a court clothing some person with authority substantially similar to that conferred upon an English Personal Representative, ie empowering him to collect in and administer the estate. A decree or order merely declaring who are the heirs of the deceased is not normally accepted as sufficient to enable such persons to be treated as entrusted with administration.
An Order which simply declares who are the heirs may however be sufficient to show who are the persons beneficially entitled to the estate.
Under Rule 30(1)(b), where there is no person in authority, the Grant may be issued to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if there is more than one person so entitled, to such of them as the District Judge or Registrar may direct. Therefore, the beneficiaries under the Will may well be in a position to apply for the Grant.
The alternative position under Rule 30 does not involve an application to the Court. Instead, Probate of any will which is admissible in proof may be granted to the executor named if the will is in English. However, Probate would still be granted “if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person” (Rule 30(3)(a)(ii). Therefore, the provision of person in an executor-type role in the Italian will would make the application for a grant of probate on the client’s death an easier one.
As regards the procedure required for the Court application, the original Grant or Decree issued by the court of domicile, or an officially certified copy of it, including an official copy of the will, if any, should be lodged and this will be retained in the registry. If the document is in a foreign language, a notarial or other sufficient translation is also required. The translation must be identifiable with the document translated and usually is annexed to the foreign documents. The translation should, if possible, be verified by the certificate of an English notary public or a British consul.
Please note that the Grant is in all cases one of letters of administration, with or without will as the case may be, and consequently the usual rule is that the Grant may not issue to a single individual if a life or minority interest arises under the law of the domicile.
Non Contentious Probate Rules
Rule 30 Grants where deceased died domiciled outside England and Wales
(1) Subject to paragraph (3) below, where the deceased died domiciled outside England and Wales, a distribute judge or registrar may order that a grant, limited in such way as the distribute judge or registrar may direct, do issue to any of the following persons-
(a) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled; or
(b) where there is no person so entrusted, to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if there is more than one person so entitled, to such of them as the district judge or registrar may direct; or
(c) if in the opinion of the district judge or registrar the circumstances so require, to such person as the district judge or registrar may direct.
(2) A grant made under paragraph (1)(a) or (b) above may be issued jointly with such person as the distribute judge or registrar may direct if the grant is required to be made to not less than two administrators.
(3) Without any order made under paragraph (1) above –
(a) probate of any will which is admissible to proof may be granted -
(i) if the will is in the English or Welsh language, to the executor named therein; or
(ii) if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person; or
(b) where the whole or substantially the whole of the estate in England and Wales consists of immovable property, a grant in respect of the whole estate may be made in accordance with the law which would have been applicable if the deceased had died domiciled in England and Wales.
Druces LLP 22.05.13
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