Lost in Translation: Navigating Probate with Foreign Wills

Applying for probate can be a daunting task, especially when the original Will is in another language and located abroad. 

However, where assets in England and Wales need to be administered and a Grant taken out, there are steps to follow to navigate this complex situation more efficiently.

United Kingdom

Firstly, where the deceased dies domiciled in any of England, Wales, Scotland, or Northern Ireland, a Grant from any of these jurisdictions will be automatically recognised in another part of the United Kingdom, without any further Court formality, as long as the Grant states the deceased’s domicile.

Commonwealth countries

Secondly, a foreign Grant may be re-sealed in England and Wales, if the original Grant was made in a jurisdiction where the Colonial Probates Act 1892 applies, such as New Zealand – essentially old commonwealth counties whose common law jurisdictions are based on and similar to England and Wales. A notarial translation will be required if the Will is not in English, as part of the various requirements for this type of application. 

Civil law jurisdictions

When it comes to other jurisdictions, often civil-law jurisdictions, applications are more complex.  Consideration has to be given to the location and accessibility of the Will: if the location is known but the Will is not accessible (for example, where it is being proved by the foreign court and therefore temporarily unavailable), it is possible to apply for a Grant of Probate in the UK using a court-sealed or notarial copy of the Will. This means that, in contrast to when the original Will has been lost, there is no need to prove a copy or obtain an Order, which can be frustratingly time-consuming.

Applying with a foreign Will

Since there is a foreign Will, it is necessary to submit a paper application rather than using the online system. When it comes to submitting the Will, there are two options:

1. Submit an official copy of the Will that has been proved by the foreign court; or
2. Submit a copy of the Will that has been certified by a notary.

The choice of which option to use can be circumstantial, depending on if the foreign court has already proved the Will and provided an official copy or not.

If opting for the latter option, the document must be notarised in the country where the Will was created. For example, if the Will was made in France, it should be notarised in France. This notarisation process is a public official confirming the document is authentic in that jurisdiction.  

In some cases, an apostille from the government may also be required in addition to the notarisation to confirm the notary’s public official status on the notarised document. This allows the document to be readily recognised in other jurisdictions. Under the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, also known as “the Hague Convention”, if the Will has been apostilled in a country that is a party to the Hague Convention, it is considered a public document that has been certified as genuine in that country and can be used in the UK without additional legalisation by the country’s embassy. 

Likewise, where other countries require copies of a Will and Grant made in England and Wales, particularly civil-law jurisdictions, they will require an apostille from the Foreign, Commonwealth & Development Office. Some countries will also require embassy legalisation in order to recognise such documents. 

If applying for probate in England and Wales with a foreign Will, an English translation of the Will is also required. This translation needs to be verified by one of the following:

1. An English notary public;
2. A British Consul; or 
3. Someone fluent in both English and the language of the Will. 

If opting for option (3), an affidavit or witness statement by the translator will be needed, stating their qualifications and suitability to translate the Will. As opposed to options (1) and (2), the acceptance of this translation is at the discretion of the District Judge or Registrar.

The final key requirement for such applications will be an affidavit of law or a certificate of law from a notary practising in the relevant jurisdiction where the deceased was domiciled to determine the validity of the Will. 

Irwin Mitchell's specialist Will, Trust and Estates solicitors are available to assist with enquiries of this nature, providing expert guidance and support throughout the process.