It most likely is valid here.

We managed for years with DIY wills as our affairs are simple and it was unlikely they would be used.

To be honest, it was the power of attorney that got me in front of a brief. The older we get the more likely we are to be incapacitated for some time. Having a power of attorney for each other will make life so much simpler when that happens. There is also value in being sure that my will is watertight as it might be used before too long.

Why do you believe it won't be valid?

Mmmm we did ours before we left the UK with a lawyer....wasn't too expensive and the lawyer is holding, and the do dah what's its's all know where it is...
I wasn't so much worried about the money, well that too but what would happen to the children if the husband and I die and leave them in a foreign country. That's I wanted the lawyer- awkward family situations.

When we went to see a Canadian lawyer about house purchase (we own in Canada and UK) he said we did not need to make another will, although the UK one said yes and make sure neither cancel each other out. Anybody know who's right? Hopefully it's not a hijack of thread, hopefully more detail to it...

I seem to recall you saying that their would be problems doing this. A two minute search comes up with nothing useful so maybe I imagined it like when I thought you were in the Falklands shooting at the general belgrano.

I cannot imagine why it would be invalid. More problems are caused by having a "Canadian" will and an "English" one unless they are written very carefully and both lawyers know what they are doing.

Our lawyer, where we made our last will, is in Jersey, and he told us that in his opinion it is better to have a will in each country where you might have property as it makes it simpler all round.

Then I shall retract some of my earlier indignation.

I am not a lawyer but I quite often end up having to deal with wills, well written and not. I only get involved with the money and property side so I am not sure how it works with surviving minor children. I am sure AC knows this.

The "problem" is that institutions such as banks, pension funds and the land registry will only transfer money and property to you as executor if they are convinced you have the right to receive it. I.e. they want to see a probated will. *

The second "problem" is whether or not a court in, say, Ontario or New Brunswick will probate a will draw up in a foreign jurisdiction. The law in all the provinces of Canada except Quebec is derived from English common law so a will drawn up under English rules ** should conform to the rules in the ROC. For peace of mind you could ask a local lawyer to review the will. If I put my professional hat on for a moment I think reviewing your will on a periodic basic is a good idea in any case.

A second thought is who is the executor if you both die together? A friend or relative in the UK can do it, but it will be very onerous to ask them to gather your assets in Canada. It is much easier if the executor is resident in your province.

A third thought is that if you both die together does anyone in Canada know that you have wills in the UK and where to find them?

A forth thought is that if your estate is potentially subject to UK inheritance tax it is going to make it more difficult to argue that you are non-domiciled in the UK if you have maintained your will there.

As for having separate wills in all jurisdictions where you have property this gets over the "probating foreign wills" problem. It seems to make sense to me if you own property in, say, France because France has a different legal system and different rules regarding wills. However, as noted above, the wills need to be very carefully drafted because if they contradict each other in any way it may mean that neither will is probated and you end up applying to court to fix any discrepancies. A long, frustrating and expensive process.

* I am probably teaching you to suck eggs but, probate means submitting the will to court. The court examines it and, if all is well, stamps it and says, "yes, this is a valid will." For a fee, of course.

** As AC corrected me before, Scotland has a hybrid legal system so this is not necessarily true if you have a Scottish will.

Excellent post. Typo aside ., I don't disagree with anything JonboyE has stated.

I would, of course, suggest reviewing any will on a periodic basis, but that Alan2005 chap would simply accuse me of seeking work on behalf of lawyers

Hi


1. What we did with our wills is that we gave a copy to the executors in a sealed envelope outlining where the original was kept, where all our assets are, with the banks/trusts/credit unions with account numbers, also financial planner's contact with a list of mutual funds and their contacts. As well there is a power of attorney and a living will on our end life wishes.
2. It should give them a head start if we both "bite the biscuit" at the same time.

It really depends on your estate, this question comes up on here quite often but it really depends on the circumstances of the individual. Where are your tangible assets for example? Because if you've got tangible assets abroad (e.g. a rental home) then probate will probably need to be completed in that jurisdiction as well. Which means the wording of your Will becomes very important because you want to make sure that you've got a clear line between what goes into probate where you live and what goes into probate abroad (as little as possible usually).

Where is your pension? If you emigrated to Canada and still have a pension in a foreign country, what are the consequences to that pension when you die because the rules abroad are not necessarily the same as the rules in Canada. Does Canada have an estate tax treaty with that jurisdiction? What are the provisions of it? (Do not confuse estate tax treaties with income tax treaties). You can end up with dual taxation in some situations because Canada taxes estates using the deemed disposition rule but other countries can tax income from the estate, e.g. money coming out of a pension.

Who is your executor? Do they live in Canada? Provincial laws differ as well, for example in Alberta we have the Personal Directives Act which is a form of living Will for personal matters (e.g. you're in a coma), that has to be complied with.

Have you granted power of attorney if you are incapcitated, and if you have assets abroad, have you granted a power of attorney that complies with the laws of all the relevant jurisdictions?

Do you have children? Do the wishes concerning your children in your Will comply with the relevant laws, e.g. you may want to appoint a guardian who lives in another country - is that legal in both jurisdictions? The laws concerning family matters in Alberta are very different from the Children Act in the UK for example.

As I've said on here various times, this is a very complex subject and you should really talk to an expert, not a bunch of strangers on the internet. You just need to make sure you've got the right expert. I assume if you're on an expat forum you are an expat and soon as you get into - I've moved from country to country, things can get messy.

But just a tip - if you live in Alberta, I very strongly recommend you establish a personal directive and register under the Personal Directives Act. Personal Directives - Alberta Human Services - Government of Alberta

A very, very important point, there is caselaw on it.

Why does that matter if the person is dead?

Please explain to me how a testamentary appointment of guardianship is dealt with differently in England and Wales when compared with Alberta?

How do the provisions of the Children Act in England and Wales differ from those in Alberta, in the context being discussed?

My head hurts just reading all your posts. But the jist of it is we need a very carefully drafted will in both countries, and also a Canadian executor who is aware of the existence of the UK will and executors.

Our children at the moment will return to the married UK family friends appointed as guardians. We have a property which we rent out and both of us have NHS pensions plus UK insurance policies (we checked validity of living in Canada) which are still ongoing to provide for the children, plus policies to cover mortgage here too. I have to admit I didn't understand the bit about being non-domicile and tax inheritance.

I feel will procrastination coming on....sigh.

Domicile is a concept in UK tax. If you are domiciled in the UK then your world-wide estate is subject to UK inheritance tax when you die (if it is over the threshold).

A person generally has their domicile in the country they were born. To lose your domicile of birth you have to move to another country with the intention of living there until you die. Intention is very hard to prove, especially when you are dead. The advice often given is to buy a burial plot in Canada. That is a bit OTT in my opinion but if this a potential issue you should certainly organize your affairs to make it look like you are not going back. Every tie you retain with the UK allows HMRC to argue that your emigration was not intended to be permanent therefore you have not lost your domicile in the UK. They then hand your estate an inheritance tax bill. Having your one and only will in the UK makes it look as though your intention was to return.

I have used "you" because it was easier to write. These are general principles and not intended to refer to you specifically.