What Can Be Left in Your Will?
General Prinicples
The law as to whether or not you can leave moveable property (i.e. anything other than land, which includes non-portable buildings on land) by your will is decided by the law of the state in which you are domiciled, i.e. the state which is considered to be your permanent home at the date of your death. The law as to whether or not you can leave immoveable property by your will is the law of the state in which the land is situated.
At birth you have the same domicile as your mother if you are illegitimate or your father is dead, otherwise the domicile of your father. This is known as your domicile of origin. You can exchange your domicile of origin for what is known as a domicile of choice by abandoning your ties with the state in which you have your domicile of origin and moving to live in another state with the intention of making it your permanent home. A new domicile of choice can be acquired as frequently as you wish, but you can only have one domicile at any given time. Those who are mentally incapable or under the age of 16 have the domicile of the person upon whom they are dependent and their domicile will follow any change in that person's domicile. This is known as a domicile of dependency. A woman who married before 1 January 1974 acquired her husband's domicile by virtue of the marriage, but after that date she can change it and her domicile is no longer dependent upon her husband. There are exceptions to the above rules for inheritance tax purposes, in that for those purposes,
- you are deemed to retain your domicile in the relevant part of the United Kingdom for three years after leaving it and
- you are deemed to be domiciled here if you have been resident here for any part of 17 or more of the 20 preceding tax years.
The word 'state' is used in connection with domicile rather than 'country' because domicile is defined not by national boundaries but by places which have their own indepen dent system of law.
If your domicile is England and Wales you can dispose by will of anything in England and Wales and any moveable property which you have abroad and you can dispose of it to whom you wish and to the exclusion of your family unless
- you have restricted yourself by contract, e.g. by entering into an agreement to create and not revoke mutual wills; or
- it is something which does not pass to your personal representative on your death, e.g. jointly owned property held as joint tenants; or
- it is a contract in which your personality is an essential element, e.g. a contract to paint a portrait or to write a book; or
- it is property you do not own (e.g. assurance policies taken out by you on trust for another) and over which you have not been given a power of appointment; or
- the property has been 'nominated' and the nomination has not been revoked; or
- it is property the disposal of which is restricted by its nature, e.g. some rights in immoveable property such as a personal licence or permission to use or cross the land of another, or shares in some small companies; or
- it is your body; or
- statute law restricts your right to dispose of it in the way you wish.
