Where there’s a will, there’s a way

Date: 22/02/1996

By Rory Watson

PERSONAL circumstances which stray into legal battles are never pleasant. They become even more complex and distressing when that encounter involves a clash of legal cultures and backgrounds.

Paradoxically, the likelihood of being unwittingly entangled in such a Kafkaesque web increases as the single market becomes a fact of daily life, and more and more people take advantage of the opportunity to live and work in another EU country.

Few people seem aware of the need to take on board the new legal climate in which they are living. Either for reasons of optimism or prevarication, or simply an inbuilt distaste for the idea, few expatriates adjust their wills to new circumstances, or have a will in the first place.

Lawyers are now developing an expanding market as they give advice to clients, who may be living abroad temporarily or permanently, on issues as varied as wills, property, children, trusts, separation and divorce. All are personal matters and all are prime areas for conflicts.

In a way, the legal profession is following a parallel path to that of the growing band of personal financial analysts who seek to advise expatriate communities on how best to handle their disposable incomes.

Adrian Gifford, of Newcastle-based solicitors Dickinson Dees, is gradually expanding his circle of Brussels clients as the firm explores ways of developing its services on the continent.

The company has already an office in Brussels under the name Legal Resources Group. “We aim to look after people who are involved in both English law and continental law. The English legal system, which is fairly easy going, is so alien to continental law such as Belgian civil law, which is stricter and tends to tell you what to do,” he explains.

From his trips to Brussels, Gifford admits: “I am absolutely amazed at the naïveté of people here over wills. They have never given it any thought.

“Wills are the first thing to think of, especially if you have young children and a Belgian property. Then you could face major problems.”

The unexpected obstacles that arise are many and varied. Among the most distressing is the situation whereby both parents of young children are killed in an accident without leaving wills. Gifford's fellow solicitor Helen Gibson sketches the scenario.

“The most immediate problem is who will look after the children. As neither has made a will, no guardian has been appointed. Both sets of grandparents fly over to Belgium from the UK to collect the children. While the authorities argue about their domicile, all their assets are frozen, including their children's passports and personal possessions.

“Guardians cannot be appointed until a juge de paix nominates three members of the maternal family and three members of the paternal family to form the conseil de famille together with the judge. Only then will a tuteur or guardian be appointed.

“Had they made wills and appointed guardians, these problems would have been dealt with in hours. Now it may take weeks. Until it is resolved, the children do not know what is going to happen to them.”

Even if just one parent dies without a will, complications still arise, especially if the deceased owned a house or flat in Belgium.

Under Belgian law, the surviving parent and the deceased are deemed to have had an equal share in property and the children automatically inherit a share in the property when one parent dies.

Inheritance tax up to a maximum of 30&percent; of the value of the house may even have to be paid by the surviving family. If there are no close relatives, this rate could be as high as 80&percent;.

Even with a will, Belgian law protects certain close relatives, giving children the highest priority. This makes it impossible, as may occur in England, to prevent or restrict offspring from inheriting a share of the estate.

The situation is different for EU officials. They are covered by the Protocol on the Privileges and Immunities of the European Community. This stipulates that they retain their country of domicile (provided it is an EU member state), regardless of where they actually live. This protection also covers most dependants.

The protocol ensures that the personal possessions (wherever they are situated) and moveable property (money and shares) of officials from France or the UK, for example, be distributed according to French, English or Scottish law.

“Commission officials and others protected under the protocol can rest easy that, when they die, their family will not face long and complex battles over domicile and tax payments. But if they die without a will, a whole host of other problems awaits them,” warns Gifford.

Further complications may arise for people who not only own property in Belgium and their country of domicile, but also have a holiday home elsewhere in France, Spain or Italy.

Equally, new problems emerge if a couple, particularly of different nationalities, decides to divorce. Which jurisdiction should they use? Would it be wise, for instance, to start proceedings in Belgium, but handle a financial settlement through English courts?

Gifford refuses to generalise. “Each case is different and people should stand back rather than plunge in. The important thing is that they should get advice from someone who knows about both systems, the advantages and disadvantages of each,” he explains.