See Peter's short
warning as to the position of Channel Islanders and
incidentally Manxmen as to choices of law and habitual residence
issues under the EU Succession Regulation 650/2012, which is now
effective within Europe for assets situated there in the event of a
decease.
There is no doubt that each testamentary disposition made prior
to 17th August, 2015 needs checking and that any testamentary
disposition involving assets within the European Union needs
careful preparation given the change in the law applicable to each
succession.
You may also need to refer to Peter's outline of the dispositions regulating the
Crown Dependencies' Constutional position in relation to the EU,
which is now of direct relevance to the allocation of nationalities
under the Regulation and as to whether we remain within the
umbrella of the United Kingdom or not for the purposes of the
Regulation.
Peter's position on the applicability of the Regulation is that
in relation to it, Jersey is a third state both in relation to the
EU and what is more in relation to the United Kingdom, which has
opted out of the Regulation. The Crown Dependencies are not
within the UK's internal allocation rules under article 36 of the
Regulation, for habitual residence purposes, as they are not part
of the Member State. However those allocation rules do apply where
the deceased has opted for their suucession to be governed by the
laws of their nationality, and there is an EU asset in question.
In that case, article 36.2. allocates the law of the
British nationality to the jurisdiction with which the testator was
most closely connected, in this case, at the date of the execution
of the testamentary disposition containing the option, whether
resident there or not.
Issues will arise in implentaing this where a deceased has
opeted for his nationality to govern his entire succession and dies
habitually resident, and, for the purposes of this example,
domiciled outside the EU but within a counrry which allocates the
law governing the succession by reference to domicile. Each
case needs to be reviewed separately. Therefore changes in
residence and domicle need to be carefully monitored and wills
updated where these changes affect an EU asset.
Why? Prioto Brexit, British citizens, including "Channel
Islanders and Manxment", were citizens of the European Union under
the non discrimination and nationality provisions of the TFEU, see
articles 18 and 20 in particular, irrespectve of the Third Protocol
Arrangements, which have been overtaken by the subsequent TFEU. The
consequence of having the TFEU citizenship right to reside meant
that Channel Islanders and Manxmen had the right to acquire and
dispose of immovable residences and movable assets in Europe as
citizens, under the protection of the Succession Regulation and
other EU dispositions of a similar impact.
Hence the need to update the current lack of Golf club barstool
wisdom and discernment.