Brexit will have many legal implications for us, not least for those who own a holiday home in the EU. Will the changes affect their wills?
In England, we have ‘testamentary freedom’, which means we can write our wills to leave our assets as we please. This has only been limited since 1975, when a law was enacted, amongst much publicity, to provide protection for both ‘wives and mistresses’, although it also protects other family and dependents.
The act allows certain disappointed persons to go to court to ask for a review of the will, but it doesn’t remove the basic freedom to write a will. Will terms remain valid unless successfully challenged.
It is the opposite in most other EU countries where ‘forced heirship’ applies, which operates so that effectively your will is largely written for you. For example, you may only have freedom to decide who gets one-third of your property, the rest being destined for family in fixed shares under the law.
Typically, under forced heirship, the foreign assets might all go to the children or there might be a right to enjoy property for life given to a surviving spouse, although rarely anything outright. Generally, spouses receive less protection in foreign countries than in England, whereas children from previous relationships receive far more protection and it’s often impossible to disinherit offspring.
Since 2015 it has been possible for carefully written wills to override forced heirship for English people in respect of their EU assets. Using that power needs consideration because overriding those rules, by itself, may cause other problems, eg tax.
Ownership of foreign assets is never simple and the price for that is often paid by the heirs. However, taking advantage of the 2015 EU regulation can enable owners of property in the EU to make life a lot easier for the heirs, especially spouses, civil partners or children from a second marriage.
Fortunately, the wording of the EU regulation means that this opportunity to avoid forced heirship in respect of your EU holiday home is not lost with Brexit but owners of EU property should ensure they take the necessary steps to take advantage of the regulation if they want to freely decide who gets their EU property on death.
To find out more, contact Bernadette O’Reilly on 01223 532763.
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