MESSAGE FROM THE PRESIDENT OF THE UNITED STATES
STATUS: PENDING: July 15, 1986. Convention was read the first time, and together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate TRANSMITTING THE CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL, ADOPTED AT A DIPLOMATIC CONFERENCE HELD IN WASHINGTON, D.C. FROM OCTOBER 16 to 26, 1973, AND SIGNED ON BEHALF OF THE UNITED STATES ON OCTOBER 27, 1973 TEXT: 99TH CONGRESS 2d Session, SENATE, LETTER OF TRANSMITTAL THE WHITE HOUSE, July 2, 1986. To the Senate of the United States: I transmit herewith, for the advice and consent of the Senate to ratification, the Convention Providing a Uniform Law on the Form of an International Will. I also transmit for the information of the Senate the report of the Department of State with respect to this Convention. The purpose of the Convention is to enable testators to make wills in a form that will be self-proving in all countries where the Convention is in force. The Convention does not abolish or modify existing laws on testamentary succession, nor does it attempt to unify the formal requirements for executing a will that already exist in the various systems of national law. Rather, it provides, alongside and in addition to the traditional forms, another new form that testators may use the “international will.” With the increasing mobility of persons and goods, there has been a growing awareness of the need for a form of will that will be widely accepted, regardless of where the testator may be domiciled or residing or where his property may be located at the time of his death. American probate law experts participated actively in the preparatory studies for the Convention, which was adopted at a diplomatic conference hosted by the United States at Washington in 1973. Ratification of the Convention by the United States has been recommended by the American College of Probate Counsel and the American Bar Association, as well as by the Secretary of State’s Advisory Committee on Private International Law, on which leading national legal organizations are represented. Countries ratifying or acceding to the Convention are required to introduce into their domestic law the rules regarding an international will that are set forth in an annex to the Convention. To give full effect to the Convention in the United States, implementing legislation will be required at the Federal level. Legislation will also be required in those States of the United States that wish to make it possible for testators to execute international wills in their jurisdiction. The distinctions between the two types of legislation are described in the accompanying report from the Department of State. As noted in that report, four States have already adopted the Uniform International Wills Act, in anticipation of United States ratification of the Convention, and it is expected that many more States will do so once ratification is assured. The United States instrument of ratification of the Convention will be deposited only after the necessary Federal legislation is enacted. I recommend that the Senate give early and favorable consideration to the Convention and give its advice and consent to ratification.
LETTER OF SUBMITTAL, DEPARTMENT OF STATE, Washington, June 4, 1986. The PRESIDENT, The White House. THE PRESIDENT: I have the honor to submit to you, with a view to its transmittal to the Senate for advice and consent to ratification, the Convention Providing a Uniform Law on the Form of an International Will. The Convention was adopted at a diplomatic conference held in Washington, D.C., from October 16 to 26, 1973, and was signed on behalf of the United States on October 27, 1973. It entered into force on February 9, 1978, six months after the date of deposit of the fifth instrument of ratification or accession. The purpose of the Convention Providing a Uniform Law on the Form of an International Will is neither to abolish or modify existing laws on testamentary succession nor to harmonize or unify the formal requirements for executing a will that already exist in the various systems of national law. Rather, the Convention simply provides, alongside and in addition to the traditional forms, another new form which testators may use–the “international will”. The tremendous increase in the mobility of persons and goods in recent decades has accentuated the need to give maximum assurance to the testator that his last wishes will be respected by enabling him to record those wishes in a form that will be widely accepted, regardless of where he may be domiciled or residing or where his movable or immovable property may be located at the time of his death. International efforts to promote that aim have a relatively long history. In 1961, the International Institute for the Unification of Private Law (UNIDROIT), an international organization located in Rome, convened a Working Committee to prepare a preliminary draft of a uniform law introducing a new form of will–the international will. After having been submitted for study and comment to the governments of member states of UNIDROIT, the preliminary draft was revised by a committee of governmental experts in 1971 and served as the basis for the work of the 1973 Washington diplomatic conference. Having become a member state of UNIDROIT in 1964, the United States played an active role in this area of UNIDROIT’s work in order to ensure that the resulting Convention would be of the greatest possible utility and benefit to American testators. The initiative of the United States Government in hosting the 1973 Washington conference stemmed from a realization that the American bar was quite supportive of cooperative efforts at state, national and international levels to reduce problems for testators that result from divergent laws concerning the form and proof of wills. For more than six years before the Washington conference the UNIDROIT proposal was the focus of preliminary study and discussion in the United States by advisory groups that included experts from the American Bar Association, the American College of Probate Counsel, and the National Conference of Commissioners on Uniform State Laws, as well as from the judiciary, the field of banking, and law schools. Since adoption of the final text of the Convention, support for its ratification by the United States has been expressed by the Secretary of State’s Advisory Committee on Private International Law and by leading professional organizations including the American Bar Association and the American College of Probate Counsel. Characteristics of an International Will A will is identified as an international will by a certificate, attached to the will, which is executed in the form prescribed in the Convention by a person authorized to act in connection with international wills in the jurisdiction where the will is executed (the “authorized person”). This certificate states that the required formalities have been complied with in the execution of the will. The form of the certificate was adopted by [*7] the wills conference on the basis of an exhaustive comparative study of the law of many countries. It is similar in most respects to the forms of attestation used in American wills. There are some innovations derived from other legal systems, but nothing that will be bewildering or confusing for American lawyers or testators. The signatures on the will and the attached certificate need not be legalized or otherwise authenticated. There are certain mandatory rules in the Convention and uniform law that must be observed to establish the formal validity of an international will. Failure to comply with any of these rules means that a will cannot be proved by use of the efficient procedures available with regard to international wills. However, a will that falls short of being an international will may well be valid and provable under other laws that are in effect independent of the legal regime for international wills. These mandatory rules are as follows: (a) An international will must be in writing, but it may be in any language and it may be written by hand or by any other means. It need not be written by the testator himself. (b) The testator must declare in the presence of two witnessesand of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof, but the testator need not inform the witnesses or the “authorized person” of the contents of the will. (c) The testator must sign the will or, if he has previously signed it, acknowledge his signature in the presence of the witnesses and of the authorized person. When the testator is unable to sign, the absence of his signature does not affect the validity of the international will if he indicates the reason for his inability to sign to the authorized person and that person makes note thereof on the will. (d) The witnesses and the authorized person must attest the will by signing in the presence of the testator. In addition to these mandatory requirements for an international will, the uniform law contains a number of additional formalities which the authorized person has responsibility to observe, but which are not indispensable to the validity of an international will. These include the provisions that signatures are to be placed at the end of the will; that, if the will consists of several sheets, each sheet is to be signed by the testator and numbered; and that the date of the will is to be the date of its signature by the authorized person, who is to note the date at the end of the will. Moreover, the authorized person is to ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so, and at the express request of the testator, the place where he intended to have his will kept is to be mentioned in the certificate which is attached to the will. Form and Effect of the Convention and Implementing Legislation Article I of the Convention requires each Contracting Party to introduce into its law the rules regarding the form of an international will. Those rules are set out in the uniform law, annexed to the Convention, which gives effect to the two key features of the Convention. One feature is to enable testators in jurisdictions where the Convention and uniform law are in force to make an international will. The other is to ensure the recognition of a properly executed international will in all Contracting States as a matter of local law; the uniform law provides that an international will shall be valid as regards form, “irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator.” While a convention that provides for a uniform law cannot work if every party state is able to change the law as it pleases, the Convention nevertheless allows certain legislative variations from jurisdiction to jurisdiction. Article I(3) of the Convention provides that each Contracting Party “may introduce into its law such further provisions as are necessary to give the provisions of the Annex full effect in its territory.” Such additional provisions are necessary, in particular, to designate the persons who are authorized to act in connection with international wills (the “authorized person”); there may also be provisions on such matters as qualifications of witnesses and interpreters, and on registration or safekeeping of wills. Use of the Federal-State Clause The Convention includes the so-called federal-state clause which is customary in conventions of this nature. It provides in Article XIV that if a State has two or more territorial units in which different systems of law apply, it may declare that the Convention shall extend to all its territorial units or only to one or more of them. What is envisaged for giving full effect to the Convention in the United States is a two-tiered body of legislation–both a federally-enacted International Will Act and the Uniform International Wills Act. The latter is to be enacted by each State of the United States either as independent legislation or, in States which have adopted the Uniform Probate Code, as an amendment to the latter. (“State” in this context includes the District of Columbia, the Commonwealth of Puerto Rico and territories of the United States.) The reasons for this proposed two-tiered approach are set forth below. Article XIV of the Convention is necessary to enable states such as Canada, which has a constitutional apportionment of power between the national government and the provinces/territories different from that between the federal government and the States in the United States, to become a party to the Convention and have it apply only in those provinces or territories that have adopted the uniform law. To date, the Convention is in force in Alberta, Manitoba, Newfoundland, Ontario, and Saskatchewan. An international will that was made, for example, in Belgium, which is a party to the Convention, would be recognized on the basis of the Convention only in those provinces; correspondingly, international wills can be executed by Canadian testators only in those provinces. For the United States, different considerations apply. In view of the international content of the subject matter, there is no constitutional impediment to bringing the Convention into force throughout the United States through use of the treaty power and federal implementing legislation. Thus, ratification of the Convention and adoption of the proposed implementing legislation will entitle an international will originating in a foreign country which has become a party to the Convention to acceptance as an international will in any part of the United States. It would be undesirable, however, to rely exclusively on federal legislation to bring both aspects of the Convention–the execution of international wills as well as their recognition–into force. Our testators and their attorneys are not accustomed to consulting federal statutes for guidance on the formalities for making wills; they should continue to be able to place primary reliance on the laws of their States, rather than on federal law, for this purpose. What is therefore to be recommended to the Congress and the several State legislatures, is that the making of international wills within the United States be governed by State legislation, with each State free to decide whether it wishes to make it possible for testators to execute wills in its jurisdiction in this new form. To facilitate uniformity in this regard, the National Conference of Commissioners on Uniform State Laws (NCCUSL) prepared the Uniform International Wills Act, which incorporates the rules for making an international will that are contained in the uniform law annexed to the Convention. After the NCCUSL in 1977 approved the Uniform Act and recommended it for enactment in all the States, the House of Delegates of the American Bar Association also endorsed the Act. Four States–California, Minnesota, North Dakota, and Oregon–have already adopted the Uniform International Wills Act. Other States are expected to do so once the Federal government acts to bring the Convention into force for the United States. To complement this series of State laws and complete the system, federal implementing legislation–the proposed International Will Act–has been drafted and will presently be submitted to the Congress for its consideration. That Act would also contain the rules from the uniform law annexed to the Convention, but it would govern the making of international wills only in those instances where American citizens wish to make a will while abroad and request a United States diplomatic or consular officer to serve as the “authorized person.” The more important purpose of the federal legislation would be to provide for the recognition of international wills throughout the United States. Failure of the United States to accept the obligation under the Convention to ensure the recognition of international wills throughout the country as a whole would defeat one of the major purposes of the Convention, which is to enable testators to make a single will which they can be reasonably assured will be accepted as formally valid wherever it may eventually need to be probated. Universal application of this feature of the Convention to wills in the form of international wills emanating from any of our States as well as from foreign countries that adhere to the Convention would reduce the necessity for testators to arrange expensive and possibly misdirected research into the laws of the various jurisdictions which might ultimately be involved. Universal application would also obviate the need for making different wills to comply with the formalities of different jurisdictions or making a new will or codicil when after-acquired property is located in a foreign country or a different State of the United States. These benefits would accrue to a foreign testator who had assets anywhere in the United States, assuming he made an international will in a country that was a party to the Convention. The same broad protection would be available to American testators. An American residing or sojourning abroad might make an international will (either with the assistance of an American diplomatic or consular officer or, if the foreign country were a party to the Convention, under the law of that country) with assurance that it would be accepted as valid throughout the United States as well as in any other contracting state in which he might have assets at the time of his death. Equally important, an American residing in a State of the United States which had adopted the Uniform International Wills Act could be assured that a single international will made in that State would, on the basis of the Convention and the federal International Will Act, be recognized as formally valid throughout the United States, as well as in all foreign countries party to the Convention. The experts and the national legal organizations whom the Department has consulted all favor this approach to the implementation in the United States of the obligations established by the Convention. Indeed, this approach has evolved largely in response to the interests of probate lawyers who deal regularly with clients whose affairs may subject their wills to a wide range of variant laws governing the wills in other States and in foreign countries. Hence, the proposal involves a use of federal law to achieve results desired at the State level which cannot be achieved without federal assistance–a will form that, in time, may be valid everywhere. This approach has been endorsed by the Secretary of State’s Advisory Committee on Private International Law on which eleven national legal organizations are now represented, and adoption of the draft federal International Will Act has been recommended by the Board of Regents of the American College of Probate Counsel and by the Board of Governors of the American Bar Association. Designation of the “Authorized Person” Given the differing national practices and traditions with regard to the preparation of wills, the framers of the Convention left it to each individual state becoming party to the Convention to decide whom to designate as its “authorized person”–the person who ensures that the formal requirements of the Convention are met and executes and attaches to the will a certificate to that effect. The basis for designating an authorized person whose certification will be broadly recognized is found in the practice in civil law countries where there is already a special category of legally-trained professional persons–notaries (not to be confused with the American notary public)–whose intervention is required in drawing up many private deeds and certain types of wills. Civil law countries are thus likely to designate notaries as the persons authorized to act in connection with international wills. The British Parliament, in preparation for the United Kingdom’s ratification of the Convention, has enacted legislation designating both solicitors and notaries public as authorized persons. The consensus among probate experts in the United States is that, as a matter of both convenience and logic, the function would best be performed in the United States by licensed practicing attorneys. Though not government officials, such attorneys are considered officers of the court; moreover, most wills prepared in the United States–certainly those with significant international aspects–already involve the services of an attorney. Under the Uniform International Wills Act, therefore, all attorneys licensed to practice in the jurisdiction concerned are designated as “authorized persons” to act in connection with the execution of international wills. Assigning this role to attorneys will make it unnecessary to involve any additional officials in the preparation of international wills in the United States. (As noted above, United States diplomatic and consular agents will be empowered to perform the function of authorized person for wills executed by United States citizens abroad.) There will simply be added to the traditional role of the attorney who prepares a will the obligation to comply with the requirements for an international will and to complete and attach a certificate, will which the testator wishes to make acceptable in other jurisdictions as an international will. Registration of International Will Information An optional provision which has been included in both the draft federal International Will Act and the Uniform International Wills Act provides for the establishment of central information centers in which authorized persons may register information regarding the execution of international wills. The Convention itself contains no provisions on this subject. At the conclusion of the 1973 Washington Diplomatic Conference at which the Convention was adopted, however, the Conference also adopted a resolution recommending that parties to the Convention establish internal systems for facilitating the “safekeeping, search and discovery of an international will” and for facilitating the international exchange of information concerning the existence of international wills. In some countries, requirements already exist for depositing wills for safekeeping with notaries or other officials. There is much to recommend a system for registering information toensure fulfillment of the testator’s expectation that his international will be discovered and probated upon his death. Because the establishment of a registry system is not an integral part of the Convention, the details may be reserved for examination by the Congress in connection with its consideration of the proposed International Will Act. In broad outline, the proposal in the draft International Will Act is that the central information center be established in the Department of State; the Uniform International Wills Act leaves it to each State to determine the location of the center for that State. Use of the center would be entirely optional; the authorized person would file information concerning the existence of a will only if the testator wished him to do so. The central information center would receive no information about the content of the will; the authorized person would report only the name and address and other identifying data concerning the testator and the intended place of deposit or safekeeping of the will. The information would be kept in confidence until the death of the testator and would then be made available to persons desiring information about a will who presented satisfactory evidence of the testator’s death. If requested by the authorized person, the central information center would transmit the information about execution of an international will to the registry system of another jurisdiction identified by the testator. Section-by-Section Analysis of the Convention and Annex The Washington Diplomatic Conference at which the Convention was adopted chose Mr. Jean-Pierre Plantard, Deputy Secretary-General of UNIDROIT, as Rapporteur for the purpose of writing a final report on the Convention. Mr. Plantard’s Explanatory Report contains a thorough section-by-section analysis of the Convention and the annexed uniform law. It is customary for UNIDROIT to prepare such reports and distribute them to states that participated at conferences and states adhering to UNIDROIT conventions, and they are widely accepted as a basis for interpretation of such conventions. The availability of such a report is particularly important in view of Article 15 of the uniform law, which provides that “In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.” Mr. Plantard’s section-by-section commentary on the Convention and its Annex is submitted as an accompaniment to this message. Conclusion Along with the text of the Convention and its Annex and the Plantard Explanatory Report, I enclose for the information of the Senate a copy of the text of the Resolution of the 1973 conference recommending the establishment of a system to facilitate the safekeeping, search and discovery of international wills. As noted above, ratification of the Convention by the United States and adoption by the Congress of the International Will Act enjoy wide support among American probate experts and in the legal profession in general. Resolutions of support have been issued by the Board of Regents of the American College of Probate Counsel and the Board of Governors of the American Bar Association. As of this date the Convention is in force in Belgium, Canada (in the provinces of Alberta, Manitoba, Newfoundland, Ontario, and Saskatchewan), Cyprus, Ecuador, Libya, Niger, Portugal and Yugoslavia. The United Kingdom has enacted the necessary implementing legislation for the Convention but has not yet determined the date for depositing its instrument of ratification. Given the leading role of the United States in hosting and presiding over the diplomatic conference at which the Convention was adopted, early ratification by the United States will encourage ratification or accession by other countries; ten others, including the United States, have signed but not yet ratified. Ratification will also encourage the States of the United States which have not yet done so to adopt the Uniform International Wills Act, in order to make the full benefits of the Convention available to persons executing will in their jurisdiction. I recommend, therefore, that you transmit the Convention Providing a Uniform Law on the Form of an International Will to the Senate for its advice and consent to ratification. Respectfully submitted,
Enclosures: 1. Plantard section-by-section commentary. 2. Resolution on safekeeping adopted by Conference. EXPLANATORY REPORT ON THE CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL By Mr. Jean-Pierre Plantard, Deputy Secretary-General of the International Institute for the Unification of Private Law (UNIDROIT) COMMENTARY ON THE ARTICLES OF THE CONVENTION AND OF THE UNIFORM LAW FORMING ITS ANNEX * The Washington Convention is in the form of a text of 16 articles stating the obligations accepted by Contracting States: the most important of these is to introduce the Uniform Law annexed to the Convention into their respective national legislation. This Uniform Law provides 15 articles governing the form of the international will. – – – – – – – – – – – – – – – – – notes- – – – – – – – – – – – – – – – – – * The present report was drawn up in accordance with a decision taken by the Washington Conference in its Final Act. However, it reflects the personal opinions of the author and does not constitute an authoritative instrument of interpretation of the text of the Convention. – – – – – – – – – – – – – – – – -End notes- – – – – – – – – – – – – – – – – The technique used–Convention and annexed Uniform Law–allows for a high degree of international unification. It has already been used for several international instruments and in particular in the Geneva Conventions of 1930 and 1931 on bills of exchange and cheques and in the Hague Convention of 1964 on international sale.