Laws applicable in foreign cases
25 November 2021
You will often come across situations where you are dealing with the administration of a deceased who has lived abroad. This raises all sorts of issues such as where do you apply for probate? is the will valid? what tax laws apply? What this blog focuses on are the succession laws that apply. Not only that it deals with the succession laws that apply with respect to Irish assets held by a person who has died abroad. Further, not only that, it deals with how the Irish courts will deal with Irish assets of a person who dies abroad.
The reason why the positioning of the blog is framed in this way is that the term “foreign element” of probate administration can have such varied meanings depending on what hat you have on. For example, you could have a French will, of a French deceased with an Irish asset. You could have a Dutch deceased with an Irish asset but a will made in the UK. So it is difficult to apply a one size fits all analysis of a foreign case. That is what makes these cases more complex and more interesting from an administration point of view.
In relation to the theme of this blog, we are focused on what laws apply to Irish assets where a person dies abroad. The main item here is that Irish law determines rules based on the domicile of the deceased. This is sometimes called the connecting factor. Therefore you need to understand the concept of domicile under Irish law before one can go to the next step. That is outside of the scope of this blog. However, once you have established the domicile of the deceased the application of succession laws is relatively straightforward in Ireland. The Irish courts will apply Irish succession laws to real property assets located in Ireland and will apply the succession laws of the country of domicile in relation to immovables. This is often referred to as the lex situs and the lex domicili.
So this has important practical consequences. So take the example of a French domiciled testator who dies in France and is survived by his spouse in France and makes a will in France, leaving everything to his children and nothing to his spouse. At the time of death, the French deceased owned in his sole name a house in Belmullet and €200,000 in an AIB account. In this case, the surviving spouse can enforce her legal right share in relation to the holiday home but not with respect to the bank account. So as is often the case in legal practice seemingly ethereal concepts can have real-world consequences.
Hope this helps and if you need any assistance or advice on probate, will drafting, tax, or estate litigation please email me at email@example.com