Features of succession law in foreign jurisdictions

By Tolley in association with Richard Frimston at Russell-Cooke Solicitors
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The following Trusts and Inheritance Tax guidance note by Tolley in association with Richard Frimston at Russell-Cooke Solicitors provides comprehensive and up to date tax information covering:

  • Features of succession law in foreign jurisdictions
  • Connecting factors
  • Unity / Division
  • Forced heirship
  • Matrimonial property regimes

Devolution of an individual’s estate on death is determined by the law of succession in the relevant jurisdiction. The question of which succession law applies is determined by the individual’s connection to the state. Different states use different connecting factors.

This guidance note highlights some of the differences in connecting factors and outlines some of the variable features of succession law in foreign jurisdictions.

The provisions of a Will made in one country may be precluded by features of the succession law in another, eg forced heirship. If no will exists or in the case of partial intestacy, it will be necessary to establish which intestacy law applies using the relevant connecting factor.

Connecting factors
Domicile

Domicile of the deceased is used as the connecting factor in the UK, Ireland, many Commonwealth Countries and USA, but the specific definitions of key aspects of domicile will often vary between the various jurisdictions.

For example, all the following are interpreted differently in the individual states and may result in divergent decisions being made:

  • domicile of origin
  • initial domicile
  • domicile of dependency
  • domicile of choice
  • questions as to legality of residence
  • whether a domicile of origin revives
  • how domicile applies to persons without mental capacity

The law in Scotland is different to that of the remainder of the United Kingdom.

Barlow Clowes International Limited and others v Henwood is a useful summary of the law of domicile in England and Wales.

Barlow Clowes International Limited and others v Henwood [2008] EWCA Civ 577 (subscription sensitive)

The Law Reform Commission of Hong Kong Report on Rules for Determining Domicile of April 2005 is an excellent summary of the law

More on Cross border estates: