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The Convention

Article I

This article imposes two obligations on Contracting States: the first is essentially that they must introduce into their respective national legislation the rules regarding the international will set out in the Annex to this Convention; the second is that they must submit to the Depositary Government–the United States Government–the text of the rules introduced in order to ensure reciprocal checking and information between the States party to the Convention, as the Depositary Government will then, in accordance with Article XVI (2) (d), give notice of this information to all signatory States.

Paragraph 2 indicates the way in which States must satisfy the first of these two obligations. The text of the Annex is mandatory as it stands in the 4 original languages of the Convention (English, French, Russian, Spanish). It can be translated from these original languages into any official language of the Contracting States. The strict nature of these solutions might seem excessive to some legal draftsmen, especially those who draft in one of the original languages as they cannot make the small changes in the presentation or vocabulary of the Uniform Law that might be justified by the traditions or customs of their drafting technique. The Conference, however, preferred to maintain this obligation in its strict form as guaranteeing a more perfect degree of unification. Moreover, it is to be hoped that States with a common official language other than one of the original languages will work towards a common translation, as has already been done once or twice in the past. n1

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n1 German-speaking countries have, for instance, prepared a common version of the 1930 and 1931 Uniform Laws on bills of exchange and promissory notes, and cheques.

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The small inconveniences of form that may result from the straightforward introduction of the Uniform Law into national legislation are tempered by two provisions.

One is contained in the Uniform Law itself. Article 15 recalls the international origin of the Law and recommends that this should be taken into account in its interpretation and application. Thus, should the inclusion of certain provisions of the Uniform Law in a particular legal system have an unusual effect, the explanation and justification for this could then be found in the text itself.

There is a further factor which lessens the strict nature of this rule. This is the possibility of adding supplementary provisions stipulated in paragraph 3 of Article I. Such provisions will enable States to introduce the Uniform Law more harmoniously and effectively into legal systems where a straightforward transplantation would prejudice the text’s clarity or elegance. This is, however, not the only aim of paragraph 3: it also enables national legislators to add to the actual text of the Uniform Law supplementary measures which are implied, such as the designation of persons authorised to act in connection with international wills or those it suggests or authorises, such as provisions relating to the safekeeping of the international will (see Art. 8 of the Uniform Law and the Resolution adopted by the Diplomatic Conference included as an Annex to the Final Act). Further clarifications may be supplied regarding the choice between the two procedures for signature of the will of a person who either does not know how to or is physically incapable of signing; this choice is left to each Contracting State by Article 5 of the Uniform Law. More generally according to the terms of paragraph 3, States may accompany the Uniform Law by “such further provisions as are necessary” to give “the Uniform Law’s provisions full effect in its territory”. This would even appear to cover provisions as to the payment of fees, rights or duties which may be demanded when a will is being drawn up. However, it is quite clear that the effect of these provisions could not be to impose added conditions or requirements as to form affecting in any way the validity of an international will.

Finally, it should be noted that the period of six months in which Contracting States may introduce the Uniform Law into their national legislation begins as from the date when the Convention comes into force in respect of the State under consideration. Now, under Article XI, the Convention normally comes into force six months after the instrument of ratification or accession has been deposited. The Contracting State will therefore have altogether one year as from the date of ratification or accession in which to introduce the Uniform Law into its national legislation. This is obviously the maximum time permitted: the Uniform Law will often be introduced simultaneously with ratification of the Convention, in some cases by the same statute. It is even possible that the Uniform Law might be introduced into municipal law before the Convention has been ratified.

Article II

Under this article, Contracting States must, at the same time as they introduce the form of the international will into their municipal law, designate the persons authorised to act in this connection. The United States Government is in charge of seeing that this designation is communicated to all the other Contracting States (Article XVI, (e)), which is vital for the validity of duly conferred authorisation to be recognised in all these States (Article III).

Contracting States are given complete discretion in designating the persons authorised to act in connection with international wills. This idea of a person who is authorised to act is in no way unusual in all Civil law countries, for in these countries there is already a special category of professional lawyers, notaries, whose intervention is required, subject to conditions laid down by national law, in drawing up many private deeds and, in particular, for certain types of will. It is, therefore, to be expected that in many countries these notaries will be designated as the persons authorised to act for the purposes of the Washington Convention. However, Contracting States may also designate, instead of or in addition to notaries, if such exist, any other person with the requisite qualification and, if need be, the holders of a position or office, for instance the registrar of a court or a judge, or the holder of an administrative post, a public officer, or the holder of a special office such as the Registry of Wills in Ireland.

In Common law countries where the office of notary, as it is known in Civil law countries, is generally unknown, the designation of persons authorised to act will give rise to certain problems but these ought to be solved without any great difficulty. n2 In England, for instance, solicitors are frequently involved in connection with wills, in particular with their drawing up and safekeeping. In the United States and in other federal states this point may be more delicate and may well lead to somewhat longer lists, but this would not cause any major difficulty. n3

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n2 See William F. Fratcher, op. cit., pp. 494-495.

n3 See Kurt H. Nadelmann, The Formal Validity of Wills and the Washington Convention 1973 providing the Form of an International Will, 22 Am. J. Comp. Law 365, 376-377 (1974).

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Article II also expressly stipulates the possibility for States to designate as persons authorised to act their diplomatic and consular agents abroad. This provision seems fully justified as the type of will with which we are concerned was specially intended for persons with a certain international mobility. Nationals of a State that has adopted this possibility may therefore, when in a foreign country–regardless of whether or not it is a Contracting State–use their consulate or embassy in drawing up their international wills. Naturally, this possibility only arises if the State where the consular or diplomatic authorities are resident is not opposed to such duties being given them on its territory. It seems that, in practice, Contracting States which wish to designate their diplomatic and consular agents as persons authorised to act in connection with international wills will have to do so by using a formula similar to the one in the second sentence of Article II, thus allowing for special agreements–particularly consular conventions–which sometimes contain special provisions on these so-called notarial duties of consuls.

Finally, we should point out that the person designated as being authorised to act may be given other tasks in connection with an international will than those of simply receiving and delivering the certificate stipulated by the Uniform Law. He may, in particular, be requested to ensure the safekeeping of the international will or in some cases to collect certain fees or duties, in connection with what has already been mentioned regarding Article I, paragraph 3.

Article III

The categories of persons authorised will obviously differ from State to State. The only aim of Article III is to express the intention of each Contracting State to recognise the competence as persons authorised to act of all the authorities designated by the national law of the other Contracting States, in accordance with the provisions of Article II. Except in the case of diplomatic or consular agents, authorised persons can, of course, only act within the territory of the State which conferred their authorisation. The phrase “in its territory” in Article II is perfectly clear in this respect. Article III cannot therefore be invoked to enable an authorised person to act outside the territory of his own country: his authorisation is to be recognised in all Contracting States, but his power to act as defined by this authorisation can only be exercised within the limits defined by this authorisation and these cannot overstep the territorial limits of his own country.

Article IV

The certificate made out in three copies by the authorised person is one of the most original aspects of the international will and probably one of its points of major interest.

Its main aim is to furnish proof of the observance of the requirements as to form laid down by the Uniform Law–and, in this way, proof of the validity of the international will itself (see Article 12 of the Uniform Law). Article IV of the Convention ensures the international effectiveness of these means of proof, recognised by all Contracting States. A certificate drawn up in a foreign country by a person authorised according to this foreign country’s national law will therefore be just as effective as a national certificate. The inclusion of a model for this certificate in Article 10 of the Uniform Law should remove any doubts as to its contents.

Article V

It did not appear possible to lay down in the Uniform Law unified rules on the conditions requisite to acting as a witness to an international will. The various legal systems contain different provisions on this subject and it would be unrealistic to try to derogate from these for the purposes of a piece of unification limited to the international will. The expression “conditions requisite” does not only refer to the general capacity required of witnesses, but also to any special limitation on those persons who may be witnesses–excluding, for example, close relatives or beneficiaries of legacies under the will.

On this point, the Convention, therefore, simply sets out a uniform conflict rule: the conditions requisite are those imposed by the law under which the authorised person was designated. This expression, which is often used in the Convention, indicates a link with what is sometimes called the “lex magistratus” n4, that is to say the law from which the officer acting in connection with the will derives his authority. For the international will, in the light of Article II of the Convention, this will always be the law of the State where the authorised person carries out his business and, therefore, the law of the place where the will was drawn up (lex loci actus)–unless the authorised person is a diplomatic or consular agent, in which case it could only be the law of the State which had sent the respective diplomatic or consular agent on mission. n5 The possibility of authorising diplomatic or consular agents is therefore the only reason why the “lex magistratus” was designated instead of the “lex loci actus”. As this is a uniform conflict rule, it could just as easily figure in the Uniform Law as in the Convention.

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n4 See von Overbreck, op. cit., p. 68.

n5 See Nadelmann, op. cit., p. 372.

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Paragraph 1 extends the rule for witnesses to interpreters. The Uniform Law does not, however, in any place stipulate the presence of interpreters. Their intervention may, nevertheless, be called for, in particular by the testator himself, to satisfy the requirements of the national law or of local customs which could, if necessary, be included among additional provisions of the Uniform Law, in accordance with Article I, paragraph 3.

Paragraph 2 aims at eliminating certain discriminations which exist and are difficult to justify, especially as regards the international will. In particular, it enables a testator abroad to choose compatriots as witnesses. Nevertheless, this provision is in no way contrary to certain legal systems which require that witnesses must be residents of the place in which they act.

Article VI

Certification of signatures, although required by some country’s national legislation, especially for documents drawn up in foreign countries, is often considered a cumbersome and not very effective formality. Following the example of a number of existing bilateral agreements and multilateral conventions n6, the Washington Convention dispenses with this formality, both for signatures appended to the will and for signatures appended to the certificate, as stipulated in Article 9 of the Uniform Law. This provision is in perfect harmony with the rest of the Convention which endeavours to eliminate any discriminations and differences between an international will made in the State where it is invoked and an international will made in another State. The words “like formality” refer to any other requirements equivalent to certification but known by another name. This expression is frequently to be found in similar provisions in other Conventions. n7 The addition of the certificate stipulated by the Convention abolishing the requirement of legalisation for foreign public documents, concluded at The Hague on 5 October 1961, certainly qualifies as a “like formality”. Article 3 of this Convention moreover specifies that the addition of this certificate cannot be required if there already exists an agreement dispensing with certification. A certificate could not therefore be required for an international will.

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n6 The main one of which is the Convention abolishing the requirement of Legalisation for Foreign Public Documents, concluded at The Hague on 5 October 1961 which, as at 15 November 1973, was in force between 19 States.

n7 For instance, inter alia, the Hague Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters talks, in the same way, of “equivalent formality”.

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This systematic dispensation with certification does not of course imply that the authenticity of signatures may not be checked when challenged. Paragraph 2 states this clearly, without, however, laying down any procedure for this purpose: the rules applicable in relations between the two States in question should be followed. The expression “the competent authorities” can refer either to administrative or judicial authorities, depending on the circumstances, and indicates that this check should be carried out by official channels, which is logical as what is involved is the checking of a document emanating from a person who received his authority under the law.

Article VII

Article VII lays down another conflict rule, as it was not found possible to establish a uniform system for the safekeeping of international wills. It should be remembered that the Washington Conference adopted a resolution annexed to the Final Act, which, in particular, encourages States to organise a system for the safekeeping, search and discovery of international wills. n8

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n8 See the end of this Report for a commentary of this Recommendation.

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The conflict rule that was adopted indicates the “lex magistratus” in the terms and for the reasons already set out above in relation to Article V.

Article VIII

Contracting States are not authorised to make reservations to either the Convention or its Annex. The principle embodied in this provision was criticised at the Diplomatic Conference by some delegations who considered that it interfered with States’ sovereignty. However, it was noted that none of the delegations participating in the Conference intended making reservations and, furthermore, that, in consideration of the structure and contents of the Convention, the making of reservations could well ruin the precise purpose of unification, which is the indispensable condition for the general recognition of the international will, in whatever country it may have been made. It was, therefore, considered wise to maintain the prohibition on reservations contained in Article VIII.

Articles IX-XVI

These Articles form the final clauses which are of a diplomatic nature. They conform for the most part with international practice on this subject and do not, therefore, call for any particular comments. One might, however, stress the liberal scope of Article IX which lays down no limitation or specification as to the States that may sign the Convention. Article XIII contains the traditional clause making it possible for a Contracting State to extend the Convention to the territories that it represents at the international level. This provision was criticised at the Diplomatic Conference but it was maintained in consideration of the fact that, although it concerns increasingly fewer States, it nevertheless continues to have a certain practical usefulness. Special notice should be taken of Articles XIV and XV, intended to provide the adjustments and details required to facilitate adoption of the international will in federal States or States whose territory is composed of different units, for which the Convention offers the additional advantage of internal unification. n9 These so-called “federal” clauses are similar to those contained in the Convention which came out of the 12th session of the Hague Conference on Private International Law in 1972. n10 Article XIV enables a State incorporating two or more legislatures, each with independent legislation on this subject, to ratify the Convention in such a way that it will only apply to those of its territorial units which are in favour of it, whereas those other territorial units which do not wish to benefit from it are left out. A provision of this kind facilitates the ratification of the Convention for federal States. As for Article XV, this simply provides for a reference to the constitutional law of the States in question when it is a question of determining what is meant in the framework of the legal system described above in connection with Article XIV by the terms “internal law” or “the law under which the authorised person has been appointed”, terms which are both used in the Convention.

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n9 See Nadelmann, op. cit., pp. 373-374.

n10 See, in particular, Articles 35 and 36 of the Convention concerning the International Administration of the Estates of Deceased Persons.

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Article XVI lays down a system whereby signatory States are kept informed by the United States Government. The International Institute for the Unification of Private Law is included among those to whom this information must be addressed. It would therefore fit in with the statutory activities of this Organisation for it to give a lead to the movement towards unification begun by this Convention, and to draw conclusions from its efforts in this direction.

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