I start this discussion with an honest answer to that question, in stating that it is not yet clear how the new Regulation will work in relation to the UK.
The main reason for this is because the Regulation, which came into force on 17 August 2015, has not been ratified by the UK (or by Ireland or Denmark). It is not clear therefore if these countries will be considered “member states” or “third party states”, and it will be some time before this is determined i.e. it will be a matter which needs to be considered by the Courts.
The Regulation does not change internal succession law, but may determine which jurisdiction governs an estate. In most cases, the place where the testator dies “habitually resident” will dictate which law of succession applies to the deceased’s estate (Article 21). But this only applies to someone who dies within a “member state”.
The Regulation also introduces a “choice of law” rule (Article 22). If the testator wishes, they can choose the law of their nationality to apply as the relevant succession law across their entire estate. The testator can separately make a choice of law in relation to the formal validity of their Will (but otherwise current laws will continue to determine this, including the 1961 Hague Convention on the validity of Wills). Note though that the only choice available is that of nationality: the testator cannot choose the succession law of a country where they are “habitually resident” or otherwise closely connected.
Careful consideration should be given before making such a choice. For example, someone not domiciled in the UK would not usually be subject to the Inheritance (Provision for Family and Dependants) Act 1975. If a testator has opted for English law, it potentially means that this Act can also be brought into consideration. Tax consequences will also be a factor before making such a choice of law. Remember though that this is just an example, as the choice of law option is only available where the country of nationality is a “member state” (and it is not clear whether the UK will be viewed as such).
Where there is an existing choice of law in a Will, then that continues to be valid after 17 August. Where there is no express choice of law, Article 83 may apply a deemed choice of law.
Finally, it is also worth noting that the Regulation does not apply to non-succession matters. This includes for example the appointment of guardians, property passing automatically to a joint owner by survivorship and the matrimonial property regime. These matters will need to be determined first i.e. to establish the extent and ownership of the estate.
It will be interesting to see the practical developments and changes this brings (if any!)
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