Know Your Geography When Making a Will

Do you have assets in more than one country? If so, you have to be really careful when making your Will. You want to be sure which country your assets are in and whether your Will applies to your assets in that country.

The background

In a recent case, Mr Crowley-Milling, a distinguished physicist, died leaving substantial funds in Switzerland, Jersey and the Isle of Man. He had a bank account in Switzerland with over half a million pounds in it. He also had various offshore accounts mainly in the Isle of Man where he had over a £250,000 and in Jersey where he had over £600,000.

Mr Crowley-Milling had no immediate family as his wife had died before him and they both had no children. He did, however, have a niece, a grandniece and grandnephew. In spite of this, he chose to leave everything, aside from a few legacies, to a well-known charity, the Royal Society.

Mr Crowley-Milling chose to make two different Wills. First, he made a Will in Switzerland leaving all his Swiss assets to the Royal Society. There was never any question about the validity of that Will. So far, so good.

He later came to make another Will in England (“the English Will”). The wording in the Will said it would extend only to property of “mine situated at my death in the United Kingdom.”  Mr Crowley-Milling intended to leave the offshore accounts to the Royal Society in the Will. So did the English Will, which was expressed to apply to property in the UK, cover the offshore accounts in Jersey and the Isle of Man?

The English Will Problem

The problem is that the United Kingdom does not include the Channel Islands and the Isle of Man. This is a matter of geography and shows how important it is when making a will. The effect of this was that the English will could not apply to the offshore accounts. This meant that the gift to the Royal Society in the will could not take effect. This would have ended up in an intestacy (when a person dies without a will) in respect of the offshore accounts. The nieces and nephew, as his closest relatives would have got the money in the offshore accounts had things been left like that. The matter went to court.

The judgement

The judge in the case accepted the argument that a mistake was made in drawing up the will. He allowed external evidence that showed that Mr Crowley-Milling had intended all along to include those offshore accounts within the English will. He allowed the English will to take effect as if the offshore accounts, though outside the UK, had been included. The Royal Society was able to inherit the money in the offshore accounts.

Lessons from the case

What could have been done differently in drafting the wills? I have no problem with the Swiss will, which achieved the intended objective. I would have dealt with the English will differently though.

First, I would have wanted to establish whether it was just those particular offshore accounts that Mr Crowley-Milling wanted to give to the Royal Society. If yes, then I would have chosen to make a specific gift of the money in the offshore accounts to the Royal Society.

If Mr Crowley-Millings had told me he wanted to make a gift of everything he had (other than the few specific gifts in the will) to the Royal Society then I would have drafted the will differently. I would have said the will should apply to all his assets worldwide except the assets in Switzerland (since he already had a will to deal with the Swiss assets).

When drafting wills, I always keep the possibility that the client may have assets (even if not substantial) in other countries at the bank of my mind. Choosing to make the will of worldwide application allows you to scoop up assets the client might just happen to have in any other countries. I believe it is better to play safe in these situations. Especially when a place you think is in the UK turns out not to be the UK!

Get in touch with Remi Aiyela if you need expert advice for making your will, particularly if you have assets in more than one country.

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