Select Committee on European Union Minutes of Evidence

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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