Wills Act 1963 UK (2026): Formal Validity of Foreign Wills and International Wills in England and Wales

The Wills Act 1963 is the primary UK statute governing the FORMAL VALIDITY of wills that have an international element — wills made by foreign nationals, wills made abroad, or wills dealing with property in multiple countries: (1) WHAT IS 'FORMAL VALIDITY': formal validity concerns the outward FORM of the will — whether it was made in writing, signed, and witnessed in the manner required by law. It is distinguished from essential validity (or capacity), which concerns whether the testator had the mental and legal capacity to make the will and the dispositive effect of the will (e.g. whether a particular gift is enforceable). The Wills Act 1963 deals ONLY with formal validity; (2) WHEN THE 1963 ACT APPLIES: the Wills Act 1963 applies in any case where a will is brought before the courts or the probate registry in England and Wales and there is a question about whether the will is formally valid by reason of its international connection. The main situations are: (a) a person who lived abroad or was a foreign national made a will that does not comply with the formal requirements of English law; (b) a person made a will in one country but owned property in England; (c) a person was an expatriate who made a will in a foreign jurisdiction and later returned to England; (d) a person made multiple wills in different countries and there is a question about whether each is valid; (3) THE PROBLEM BEFORE THE 1963 ACT: before the Wills Act 1963, the English common law rules on formal validity of foreign wills were restrictive — a will had to comply with the law of the testator's domicile at death. This meant that a will that was perfectly valid where it was made could be invalid in England if it did not match English law or the law of the final domicile; (4) THE 1963 ACT'S REFORM: the 1963 Act implemented the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (1961) and dramatically widened the range of legal systems whose formal requirements can validate a will.

Under Wills Act 1963 s.1, a will is formally valid if it complies with the INTERNAL LAW of any of the following: (1) THE PLACE OF EXECUTION: the law of the country where the will was executed (made and signed). If the testator signed the will in France, and the will complies with French formal requirements (written instrument; signature; two witnesses), it is formally valid in England regardless of whether it would comply with English law; (2) THE TESTATOR'S DOMICILE: (a) the law of the country where the testator was domiciled AT THE TIME they executed the will; OR (b) the law of the country where the testator was domiciled AT THE DATE OF DEATH. Note: 'domicile' in the private international law sense — the country the testator regarded as their permanent home; (3) THE TESTATOR'S HABITUAL RESIDENCE: the law of the country where the testator was HABITUALLY RESIDENT at the time of execution OR at the date of death. Habitual residence is generally the place where the testator had their settled routine of daily life; (4) THE TESTATOR'S NATIONALITY: the law of the country of which the testator was a NATIONAL at the time of execution OR at the date of death. A German national making a will in England can rely on German formal requirements; (5) IMMOVABLE PROPERTY — SPECIAL RULE (s.2(1)(b)): for a will dealing with IMMOVABLE property (land and buildings), formal validity can also be determined by the law of the place where the property is situated (the lex situs). A will made by a French national disposing of a house in Tuscany may be formally valid under Italian property law; (6) THE PRACTICAL EFFECT — ANY ONE CONNECTING FACTOR IS SUFFICIENT: the great advantage of the 1963 Act is that a will needs only to satisfy ONE of these many connecting factors to be formally valid. If a will is valid under any one of: the law of the place of execution; the domicile at execution; the domicile at death; habitual residence at execution; habitual residence at death; nationality at execution; nationality at death; or (for land) the lex situs — then it is formally valid in England.

A formally valid foreign will does not automatically entitle the executor to act in England — a separate grant of representation is usually required: (1) RESEALING OF FOREIGN GRANTS: where the deceased's estate includes assets in England and the PR holds a grant of probate obtained in a Commonwealth country (listed in the Colonial Probates Act 1892), the grant can be 'resealed' by the Senior Courts in England. Resealing gives the grant legal effect in England without the need for a fresh application; (2) SECTION 30 GRANT — FOREIGN COUNTRY GRANTS (NON-COMMONWEALTH): where the grant was obtained in a non-Commonwealth country, the PR must generally apply to the Probate Registry in England for a fresh grant based on the foreign will. The Probate Registry will examine whether the will is formally valid under the Wills Act 1963; (3) MULTIPLE WILLS IN DIFFERENT COUNTRIES: it is common for internationally mobile individuals to have separate wills in different countries: (a) one will dealing with assets in their country of residence or domicile; (b) a separate will dealing with assets in England; (c) possibly a third dealing with assets in a third country. Multiple wills can coexist validly provided each is carefully drafted to deal only with property in its jurisdiction. The most dangerous drafting error is a revocation clause — 'I revoke all previous wills' — in one will that accidentally revokes a valid foreign will. Each will in an international estate plan should be limited to property in its jurisdiction and should not contain a general revocation clause; (4) THE INTERACTION WITH CAPACITY AND ESSENTIAL VALIDITY: even a formally valid will may not be given effect in England if the testator lacked the necessary testamentary capacity (governed by the law of domicile at death) or if the gifts in the will are contrary to essential validity rules (governed by the lex situs for land; law of domicile for movables).

For deaths that occurred after 17 August 2015, EU Regulation 650/2012 (Brussels IV) introduced a unified EU framework for cross-border succession — but the UK's relationship with this Regulation has changed: (1) THE UK'S POSITION AFTER BREXIT: the UK never applied Brussels IV fully (it opted out), and after Brexit, it does not apply to UK estates at all. The Wills Act 1963 and English private international law rules continue to apply to determine the formal and substantive validity of wills in English courts; (2) BRUSSELS IV AND EU MEMBER STATES: Brussels IV applies in all EU member states (except Denmark, Ireland and the UK). Its key provisions are: (a) the default applicable law is the law of the state of habitual residence at death; (b) a national of an EU member state can make an express choice of the law of their nationality to govern their succession; (c) a 'European Certificate of Succession' can be used to prove the right to administer an estate across EU member states; (3) PRACTICAL IMPLICATIONS FOR BRITONS WITH EUROPEAN ASSETS: a UK national who owns property in France, Spain, or Italy should take specialist cross-border estate planning advice. Key considerations: (a) Brussels IV allows an EU national to choose their national law — meaning an Italian property owner who chooses Italian law under Brussels IV can avoid forced heirship rules that might otherwise apply; (b) the UK national owning EU property cannot make a Brussels IV choice of law — English law does not provide a Brussels IV election; (c) the formal validity of the will in each EU jurisdiction is governed by that EU state's implementation of Brussels IV plus their domestic law (often consistent with the 1961 Hague Convention on which the Wills Act 1963 is based); (4) THE WILLS ACT 1963 IN PRACTICE: in almost all practical cases involving English estates with an international element, the Wills Act 1963's broad connecting factors mean that a will that was properly made in any major common law or civil law jurisdiction will be formally valid in England — provided it was witnessed and signed.

Internationally mobile individuals with multi-jurisdictional assets need careful estate planning to ensure their will is recognised everywhere it matters: (1) TAKE ADVICE IN EACH JURISDICTION: the tax, forced heirship, and succession laws in each country where assets are held vary enormously. A single global will may not be the most tax-efficient approach. In particular: (a) many EU civil law countries have forced heirship rules (réserve héréditaire in France; legítima in Spain) that override testamentary freedom; (b) the US has its own state-by-state probate rules; (c) offshore financial centres (Jersey, Isle of Man, Cayman) have their own succession laws; (2) CONSIDER JURISDICTION-SPECIFIC WILLS: for larger international estates, the common approach is to have a will in each country dealing with property in that country. Each will must: (a) be expressly limited to assets in its jurisdiction; (b) NOT contain a general revocation clause (use 'I revoke all previous wills relating to my assets in [country X]' instead); (c) be formally valid under the law of the country in question AND under the Wills Act 1963 connecting factors; (3) ENSURE THE ENGLISH WILL IS UP TO DATE: the English will should address: (a) all assets in England and Wales (including bank accounts, investments, property, business interests); (b) any assets in Scotland (Scottish succession law is different — Scots law has 'prior rights' for spouses and children); (c) digital assets and cryptocurrency with no clear territorial location; (4) REGISTER WILLS WHERE POSSIBLE: some countries (Germany, France, Spain) have central will registers. The UK does not have a compulsory central register, but voluntary registration with the National Will Register (Certainty) provides peace of mind; (5) REVIEW AFTER SIGNIFICANT LIFE EVENTS: review the will any time the testator: acquires property abroad; changes domicile or habitual residence; gains or relinquishes nationality; marries or divorces in a foreign jurisdiction (which may automatically revoke an English will in some circumstances).