Even after Brexit?
In most cases, the answer is simply: yes! Any Last Will which is set up in accordance with the formal requirements of English or Scottish law is, in principle, recognised as a valid Will by German Probate Courts.
Within the European Union, this is nowadays exlicitly stated in Article 27 of the EU Succession Regulation, which, however, the UK has opted out of (even before Brexit):
Article 27: Formal validity of dispositions of property upon death made in writing
1. A disposition of property upon death made in writing shall be valid as regards form if its form complies with the law:
(a) of the State in which the disposition was made or the agreement as to succession concluded;
(b) of a State whose nationality the testator or at least one of the persons whose succession is concerned by an agreement as to succession possessed, either at the time when the disposition was made or the agreement concluded, or at the time of death;
(c) of a State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his domicile, either at the time when the disposition was made or the agreement concluded, or at the time of death;
(d) of the State in which the testator or at least one of the persons whose succession is concerned by an agreement as to succession had his habitual residence, either at the time when the disposition was made or the agreement concluded, or at the time of death; or
(e) in so far as immovable property is concerned, of the State in which that property is located.
The determination of the question whether or not the testator or any person whose succession is concerned by the agreement as to succession had his domicile in a particular State shall be governed by the law of that State.
2. Paragraph 1 shall also apply to dispositions of property upon death modifying or revoking an earlier disposition. The modification or revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under paragraph 1, the disposition of property upon death which has been modified or revoked was valid.
3. For the purposes of this Article, any provision of law which limits the permitted forms of dispositions of property upon death by reference to the age, nationality or other personal conditions of the testator or of the persons whose succession is concerned by an agreement as to succession shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications to be possessed by any witnesses required for the validity of a disposition of property upon death.
Why is the Regulation relevant if the UK has opted out?
There is no need to debate what the consequences of the British opting out of the EU regulation are, or even what Brexit means in this context, because German law in Article 25 of the INTRODUCTORY ACT TO THE CIVIL CODE (Einführungsgesetz zum BGB) rules:
Art. 25: Succession
Insofar as the succession doesn’t fall within the scope of application of Regulation (EU) No. 650/2012 chapter III of this Regulation shall apply mutatis mutandis.
In other words: The German legislator has decided that, even if the EU Succession Regulation does not apply (because, for example the UK has decided to opt out), it still does apply 🙂
These rules on formal validity and recognition of foreign wills are far from new, by the way. Pretty much the same principles have been agreed upon 55 years ago in the good old The Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions, which is still in place but has no practical relevance anymore for Germany due to the above. And English Law also applies these same principles in Section 1 Wills Act 1837 (more here).
Thus, formal validity of a foreign Will is hardly ever a problem, as long as that will is drafted and set up in accordance with the formal requirements of the testators home country or the country in which the Will is being executed.
But is the Content of the Will always accepted?
This is an entirely different matter and not at all certain. First of all, many English Wills do not deal with foreign (i.e. non UK) assets, because sometimes the scope of an English Will is restricted to dealing only with the British estate. But even if the English Will is silent on the matter or contains wording like “this Will deals with my estate wherever it may be situated”, then the content of the Will may be in conflict with mandatory German succession law, especially the famous “forced share” (Pflichtteilsrecht), which is explained here. Also, if the content of the (formally valid) Will violates core principles of German law, then the stipulations contained in said Will are not recognised.
For more information on German-British probate matters and international will preparation see the below posts by the international succession laws experts of Graf & Partners LLP
- How to challenge a Will in Germany
- Most Germans die without a Will (German Intestacy Rules)
- Formal Requirements to set up a valid Will in England, Scotland and Germany: What are the Differences?
- The Perils of German IHT and Gift Tax
- Basics of German Inheritance and Succession Law
- Executors and Trustees in German Inheritance Law
- How to apply for a German Grant of Probate
- The Infamous German Community of Heirs – And how to avoid it
- International Wills and Estate Planning for British-German Families
- Prove German Wills for English Probate
- Disputed Wills and Contentious Probate in Germany
- Disinherit your no-good children? Not so easy in Germany
- Don’t be afraid of Clients with Foreign Assets!
- Can foreign Taxes be set off against UK Inheritance Tax?
Or simply click on the “German Probate” section in the right column of this blog.
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The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German probate matters, including the representation of clients in contentious probate matters. If you wish us to advise or represent you in a German or cross border inheritance case please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.