Examination of Witnesses (Questions 40-47)
Professor Jonathan Harris and Mr Paul Hughes
10 OCTOBER 2007
Q40 Lord Bowness: What about mutual
recognition of personal representatives?
Professor Harris: Speaking entirely personally,
I think it would be beneficial to have a system of mutual recognition
of personal representatives. Whether that system gives them priority
rights to apply, as suggested by some responses, to be made personal
representative in England or goes further and automatically entitles
them to that status I think is moot. I think I would be willing
to accept that there would be situations where the representative
would be totally unacceptable. One can think of examples which
would be contrary to English public policy but otherwise I think
it is desirable. What I do not think we can get into is the actual
process of administering estates. If a foreign law directly vests
the property in beneficiaries, I do not think we can accept that
at this stage.
Q41 Lord Burnett: You touched on
this in your answer to Lord Bowness's question. What would be
the respondents' views on a European Union-wide system of registration
of wills?
Professor Harris: It is very clear from the
responses that different people interpreted the proposal in very
different ways. Some interpreted it as a list of wills that exist
but with no access to content of those wills. Others interpreted
it as a list of wills that exist but also access to the content
and that produced very strong negative reactions. Others again
thought you might have access to both but only on the death of
the testator. Until one knows exactly what system is contemplated—
Q42 Lord Burnett: Are we talking
about lifetime registration of wills?
Professor Harris: My understanding, my Lord
Chairman, of what the Commission has in mind is that it would
just be a register of wills that exist, such as, for example,
the will of Fred Smith.
Q43 Lord Burnett: During his lifetime?
Mr Hughes: Yes, I think that is right. It is
finding the missing will.
Q44 Lord Burnett: What did your respondents
think about that? Did they think it was a good idea that if you
made a will, you had to register it somewhere?
Professor Harris: I do not think there was a
single response in favour of compulsory registration.
Q45 Lord Burnett: I am not surprised
but I am nevertheless interested to hear.
Professor Harris: Some of the responses said
it was impractical, some of them made points about the possibility
of undue influence if one knew that a particular person, family
member, had left a will but was unsure about its content, others
said that there had been no pressing need established for such
a register. Almost every respondent said there was nothing to
be said against an optional system. They were quite happy to have
that but I do not think there was any support for anything mandatory.
Chairman: Professor Harris,
I think we have now covered one way or another all the matters
that we were anxious to get your help on. Unless any other members
of the Committee have any other questions for you, it remains
for me to thank you once again.
Q46 Baroness Kingsmill: Can I just
ask one further question? Are you aware of the extent of objections
from other Member States, the extent to which other countries
have major objections?
Mr Hughes: On the majority of the topics we
have talked about, from the summary of responses published, most
Member States do not have as many problems as we have. There is
considerable support for a wide scope in the range of PIL, there
is considerable support for wide scope as in the sense of succession
administration and wide support for the European certificate of
inheritance, to just pick three of the principal topics we have
touched on.
Q47 Baroness Kingsmill: We are being
difficult again, are we?
Mr Hughes: No. We just start from a different
place. We have to have our legitimate interests protected.
Professor Harris: I would add in that respect
that it is interesting that other Member States have not baulked,
as one might have expected, about the possibility of a regulation
of a very broad scope that would require them to recognize trusts.
Almost all of them have shunned the Hague Trusts Convention but
almost none have said, so far as I know, that they are not prepared
to recognize, even register in some cases, English testamentary
trusts and there is a view—I hope I do not misrepresent
the view—I think the Law Society certainly may take this
view—that a wide regulation would actually give us quite
a lot to gain because we will be exporting our trusts to these
jurisdictions, and if the price is having to register the odd
usufruct or tontine, it may be a price worth paying; but it does
lead to an odd schism between the broad recognition of trusts
on death and inter vivos, which I think is not justifiable.
I think the Hague Trusts Convention is the way to recognize trusts,
not this regulation.
Chairman: These are deep
and difficult questions. Thank you very much indeed.
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