How to Challenge a Will With Overseas Assets

Challenging a will can be legally complex in any context. When the deceased owned assets overseas - such as property, bank accounts, investments, pensions or business interests located outside England and Wales - additional legal and practical issues arise. This article explains how overseas assets affect will disputes, what laws determine how foreign assets are treated on death, what legal rights and remedies exist for potential challengers, and what steps can be taken to protect an interest in a cross‑border estate. The focus is on clear, practical explanations for members of the public, students, and solicitors alike.

Understanding Overseas Assets and Wills

A person who dies leaving a will that includes overseas assets may face cross‑border succession questions. Succession law - the rules about how assets pass on death - differs between countries. English law may govern some aspects, but foreign law can also apply, particularly to property located in that foreign jurisdiction. 

What Counts as Overseas Assets?

Overseas assets typically include:

• Property or land outside England and Wales.
• Bank accounts held in foreign countries.
• Foreign investments or businesses.
• Pension rights based overseas.
• Trust interests or offshore holdings. 

Estate administration becomes more complicated where foreign movable assets (money, investments, personal property) and foreign immovable assets (land or buildings) are affected because different legal systems may govern succession. 

Applicable Laws: Domicile, Situs and Succession

A central legal concept is domicile - the country that a person treats as their permanent home. Domicile is not the same as nationality or residence and can influence which legal system governs the succession of world‑wide assets. The law of the deceased's domicile often determines how moveable assets pass on death. By contrast, the law of the country where immovable property is situated (its situs) usually governs succession to that property. 

This means that:

• A person domiciled in England and Wales may have their overseas bank accounts and investments subject to English succession rules.
• A holiday home in Spain, for example, may be governed by Spanish succession law when the owner dies, even if the owner was domiciled in England and Wales at death. 

The interaction of these rules makes overseas assets a common source of dispute in contested estates.

Why Overseas Elements Matter in Will Challenges

Where a will includes overseas assets, disputes can arise for several reasons:

• Validity of wills in foreign jurisdictions: A UK will that is valid in England and Wales may not be recognised abroad unless it satisfies local formal requirements. Some jurisdictions require local formalities beyond those of English law. 
• Forced heirship and compulsory succession law: Certain countries, especially civil law jurisdictions, operate forced heirship rules that give fixed shares to family members regardless of a will's terms. These foreign rules can override a testator's stated wishes. 
• Tax liabilities and double taxation: Overseas assets may attract inheritance or estate taxes in the country where they are located as well as Inheritance Tax due in the UK. Double taxation treaties may help but can add complexity. 
• Multiple probate processes: Courts abroad may require their own form of probate (or equivalent) to deal with local assets. This can delay estate administration and create grounds for disputes if executors take actions perceived as prejudicial to beneficiaries' interests. 

These factors can complicate challenges to a will and create territorial, procedural and substantive legal questions.

Legal Grounds to Challenge a Will with Overseas Assets

When overseas assets form part of an estate, the basic legal frameworks to challenge a will in England and Wales remain the same as for purely domestic estates, but with cross‑border nuances.

1. Validity Challenges

A will may be contested as invalid if it fails to meet legal requirements. These grounds include:

• Lack of testamentary capacity: The testator did not have the mental capacity required by law to make or alter a will when it was executed. 
• Lack of knowledge and approval: The deceased did not know or approve the contents of the will at the time it was signed.
• Undue influence or duress: Evidence suggests the testator signed the will under pressure or coercion.
• Improper execution: The will did not comply with the formal requirements of the relevant law. Under the Wills Act 1963, a foreign will may still be treated as valid in England and Wales if it was valid under the law of the place where it was executed, the law of the testator's domicile, or the law applicable to the assets in question. 

If a will is declared invalid, how overseas assets are treated depends on which competing law applies: English law, the law of the location of the asset, or potentially both.

2. Inheritance (Provision for Family and Dependants) Act 1975 Claims

Even a valid will can be challenged on the basis that it fails to make reasonable provision for certain close relatives or dependants. Under the Inheritance (Provision for Family and Dependants) Act 1975, eligible claimants can ask the court to redistribute estate assets to make reasonable financial provision. This claim applies only under English law and only if the deceased was domiciled in England and Wales. 

A 1975 Act claim might be relevant where a deceased person's estate includes overseas assets that form part of their English law estate, but time limits are strict and must be observed.

Procedural Steps for a Will Challenge Involving Overseas Assets

Establish Jurisdiction and Applicable Law

Determine where the deceased was domiciled at death and where the overseas assets are located. This will help clarify which succession laws and courts have authority over different parts of the estate.

Obtain Probate or Equivalent Grants

In many cases, executors need a Grant of Probate in England and Wales to deal with UK assets, and separate probate or equivalent documentation may be required in foreign jurisdictions before those assets can be administered, sold, or transferred. The UK grant may be “resealed” in some Commonwealth jurisdictions to be accepted abroad. 

Preserve Rights Early

A person considering a challenge should assess their legal standing and preserve any potential claim as soon as possible. This may include:

• Requesting information from the executor about the estate and foreign holdings.
• Applying for necessary evidence such as medical records or correspondence.
• Acting before estate assets are distributed. English deadlines for contesting wills still apply even if some assets are overseas. 

Engage Local and Foreign Legal Advice

Because foreign laws may apply directly to certain assets, challengers often need legal advice in both jurisdictions. Local counsel can clarify foreign succession rules and requirements for valid wills abroad, including forced heirship and formalities that might affect enforceability.

Risks and Challenges in Cross‑Border Will Disputes

Challenging a will that involves overseas assets is inherently complex:

• Multiple legal systems: Conflicting rules between England and the jurisdiction of the foreign asset can complicate claims and enforceability.
• Time and cost: Costs are typically higher for international estate disputes due to translation, foreign counsel fees, additional probate, and travel.
• Evidence barriers: Obtaining documents and evidence from abroad may be slow and difficult.
• Tax and financial complexity: Foreign tax liabilities and anti‑money‑laundering requirements can affect timing and distribution of assets. 

These challenges make specialist legal guidance important at an early stage.

Common Questions

Do UK courts have jurisdiction over overseas assets?
UK courts can govern the succession of an overseas asset if the deceased was domiciled in England and Wales, particularly for moveable assets governed by domicile law. Real property is generally governed by the law where the property is located. 

What if the will is not valid in the foreign country?
If a UK will is not recognised abroad, local succession laws or forced heirship rules may apply to those assets. Beneficiaries or challengers may need to pursue local legal processes to establish rights to foreign assets. 

Can time limits differ between countries?
Yes. Time limits for contesting a will can vary by jurisdiction. In England and Wales, time limits for statutory claims such as under the 1975 Act are strict. Foreign jurisdictions may have their own deadlines for challenging wills covering local assets.

Key Takeaways

Challenging a will that includes overseas assets involves understanding how different legal systems interact. Key factors include the domicile of the deceased, the location and type of foreign assets, and applicable foreign succession laws. Disputes may raise questions of validity, forced heirship, testamentary freedom and statutory claims under English law. Procedural complexities, multiple probate processes and foreign inheritance rules add layers to a challenge. Early assessment of legal standing, prompt action, and coordinated advice from specialists in both England and the jurisdictions where assets are held are essential to protect interests and navigate this complex area of succession law.