بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
Even though an individual is residing in England and has executed a Will under English law the law that will apply to the Will if it goes to court may not necessarily be English law. For an individual domiciled in England English law will apply to his Will.
If a person is not domiciled in England or an individual domiciled in England with assets abroad then a number of factors have to be taken into consideration.
The domicile status of the individual determines the applicable law for succession. Domicile is distinct from nationality or residence and is determined by established legal principles, often based on precedent. It represents the country where one has their permanent or true home, with each individual having only one domicile at a time. Domicile can be categorized as origin, dependence, or choice. A person born in England can have a foreign domicile for the purposes of succession. For inheritance tax (IHT) purposes, one may be considered deemed domiciled in the UK, even if not under general law.
The doctrine of renvoi (French word meaning ‘send back’) may be applied by the law courts with respect to a Will and intestate succession. This means that more than one law may be applicable to a Will.
Under English law, the laws of the location of property, (lex loci rei sitae or lex situs, for short, meaning ‘law of the place where the property is situated’) govern the validity of the disposition of immovable property. This means an individual who had a foreign domicile at the time of his death, English law will apply to his real estate located in England and Wales. The disposition of moveable assets is governed by the jurisdiction in which the testator was domiciled (lex domicilli meaning ‘law of the domicile’) at the time of his death. This means that Sharīʿa law, if it is the deceased’s domiciled country law, will be applicable to moveable assets, investments, shares, jewellery etc., even though these assets are physically situated in England. A property owned through a company in the form of shares would be considered as moveable property.
The law of the deceased’s domicile country will prevail if it conflicts with the deceased’s Will. Note, in Islāmic law, both moveable and immovable property are treated identically.
If an individual has assets abroad, the Will may need to contain a governing law clause to clarify which law will apply to the overseas assets.
A clause of separability can be included stating that even if a part of the Will is determined to be invalid by the court, then the remaining parts of the Will still remain valid and enforceable
Related articles:
Islāmic Will and Inheritance Tax (IHT)