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The Uniform law

Article 1

The Uniform Law is intended to be introduced into the legal system of each Contracting State. Article 1, therefore, introduces into the internal law of each Contracting State the new, basic principle according to which the international will is valid irrespective of the country in which it was made, the nationality, domicile or residence of the testator and the place where the assets forming the estate are located.

The scope of the Uniform Law is thus defined in the first sentence. As was mentioned above, the idea behind it was to establish a new type of will, the form of which would be the same in all countries. The Law obviously does not affect the subsistence of all the other forms of will known under each national law.

The Uniform Law gives no definition of the term will. n11 The preamble of the Convention also uses the expression “last wills”. The material contents of the document are of little importance as the Uniform Law governs only its form. There is, therefore, nothing to prevent this form being used to register last wishes that do not involve the naming of an heir and which in some legal systems are called by a special name, such as “Kodizill” in Austrian Law (ABGB § 553).

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n11 On this subject see von Overbeck, op. cit., pp. 93-94.

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Although it is given the qualification “international”, the will dealt with by the Uniform Law can easily be used for a situation without any international element, for example, by a testator disposing in his own country of his assets, all of which are situated in that same country. The adjective “international”, therefore, only indicates what was had in mind at the time when this new will was conceived. Moreover, it would have been practically impossible to define a satisfactory sphere of application, had one intended to restrict its use to certain situations with an international element. Such an element could only be assessed by reference to several factors (nationality, residence, domicile of the testator, place where the will was drawn up, place where the assets are situated) and, moreover, these might vary considerably between when the will was drawn up and the beginning of the inheritance proceedings.

Use of the international will should, therefore, be open to all testators who decide they want to use it. Nothing should prevent it from competing with the traditional forms if it offers advantages of convenience and simplicity over the other forms and guarantees the necessary certainty.

Some of the provisions relating to form laid down by the Uniform Law are considered essential. Violation of these provisions is sanctioned by the invalidity of the will as an international will. These are: that the will must be made in writing, the presence of two witnesses and of the authorised person, signature by the testator and by the persons involved (witnesses and authorised person) and the prohibition of joint wills. The other formalities, such as the position of the signature and date, the delivery and form of the certificate, are laid down for reasons of convenience and uniformity but do not affect the validity of the international will.

Lastly, even when the international will is declared invalid because one of the essential provisions contained in Articles 2 to 5 has not been observed, it is not necessarily deprived of all effect. Paragraph 2 of Article 1 specifies that it may still be valid as a will of another kind, if it conforms with the requirements of the applicable national law. Thus, for example, a will written dated and signed by the testator but handed over to an authorised person in the absence of witnesses or without the signature of the witnesses and the authorised person could quite easily be considered a valid holograph will. Similarly, an international will produced in the presence of a person who is not duly authorised might be valid as a will witnessed in accordance with Common law rules.

However, in these circumstances, one could no longer speak of an international will and the validity of the document would have to be assessed on the basis of the rules of internal law or of private international law.

Article 2

A joint will cannot be drawn up in the form of an international will. This is the meaning of Article 2 of the Uniform Law which does not give an opinion as to whether this prohibition on joint wills, which exists in many legal systems, is connected with its form or its substance. n12

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n12 See VON OVERBECK, op. cit., pp. 98 to 101.

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A will made in this international form by several people together in the same document would, therefore, be invalid as an international will but could possibly be valid as another kind of will, in accordance with Article 1, paragraph 2 of the Uniform Law.

The terminology used in Article 2 is in harmony with that used in Article 4 of The Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.

Article 3

Paragraph 1 of Article 3 lays down an essential condition for a will’s validity as an international will: it must be made in writing.

The Uniform Law does not explain what is meant by “writing”. This is a word of everyday language which, in the opinion of the Law’s authors, does not call for any definition but which covers any form of expression made by signs on a durable substance.

Paragraphs 2 and 3 show the very liberal approach of the draft.

Under paragraph 2, the will does not necessarily have to be written by the testator himself. This provision marks a moving away from the holograph will toward the other types of will: the public will or the mystic will and especially the Common law will. The latter, which is often very long, is only in exceptional cases written in the hand of the testator, who is virtually obliged to use a lawyer, in order to use the technical formulae necessary to give effect to his wishes. This is all the more so as wills frequently involve inter vivos family arrangements, and fiscal considerations play a very important part in this matter.

This provision also allows for the will of illiterate persons, or persons who, for some other reason, cannot write themselves, for example paralysed or blind persons.

According to paragraph 3, a will may be written in any language. This provision is in contrast with the rules accepted in various countries as regards public wills. It will be noted that the Uniform Law does not even require the will to be written in a language known by the testator. The latter is, therefore, quite free to choose according to whichever suits him best: it is to be expected that he will usually choose his own language but, if he thinks it is better, he will sometimes also choose the language of the place where the will is drawn up or that of the place where the will is mainly to be carried out. The important point is that he have full knowledge of the contents of his will, as is guaranteed by Articles 4 and 10.

Lastly, a will may be written by hand or by any other method. This provision is the corollary of paragraph 2. What is mainly had in mind is a typewriter, especially in the case of a will drawn up by a lawyer advising the testator.

Article 4

The liberal nature of the principles set out in Article 3 calls for certain guarantees on the other hand. These are provided by the presence of three persons, already referred to in the context of Articles III and V of the Convention, that is to say, the authorised person and the two witnesses. It is evident that these three persons must all be simultaneously present with the testator during the carrying out of the formalities laid down in Articles 4 and 5.

Paragraph 1 of Article 4 requires, first of all, that the testator declare, in the presence of these persons, that the document produced by him is his will and that he knows the contents thereof. The word “declares” covers any unequivocal expression of intention, by way of words as well as by gestures or signs, as, for example, in the case of a testator who is dumb. This declaration must be made on pain of the international will being invalid. This is justified by the fact that the will produced by the testator might have been materially drawn up by a person other than the testator and even, in theory, in a language which is not his own.

Paragraph 2 of the article specifies that this declaration is sufficient: the testator does not need to “inform” the witnesses or the authorised person “of the contents of the will”. This rule makes the international will differ from the pubic will and brings it closer to the other types of will: the holograph will and especially the mystic will and the Common law will.

The testator can, of course, always ask for the will to be read, a precaution which can be particularly useful if the testator is unable to read himself. The paragraph under consideration does not in any way prohibit this; it only aims at ensuring respect for secrecy, if the testator should so wish. The international will can therefore be a secret will without being a closed will.

Article 5

The declaration made by the testator under Article 4 is not sufficient: under Article 5, paragraph 1, he must also sign his will. However, the authors of the Uniform Law presumed that, in certain cases, the testator might already have signed the document forming his will before producing it. To require a second signature would be evidence of an exaggerated formalism and a will containing two signatures by the testator would be rather strange. That is why the same paragraph provides that, when he has already signed the will, the testator can merely acknowledge it. This acknowledgement is completely informal and is normally done by a simple declaration in the presence of the authorised person and witnesses.

The Uniform Law does not explain what is meant by “signature”. This is once more a word drawn from everyday language, the meaning of which is usually the same in the various legal systems. The presence of the authorised person, who will necessarily be a practising lawyer will certainly guarantee that there is a genuine signature correctly affixed.

Paragraph 2 was designed to give persons incapable of signing the possibility of making an international will. All they have to do is indicate their incapacity and the reason therefor to the authorised person. The authorised person must then note this declaration on the will which will then be valid, even though it has not been signed by the testator. Indication of the reason for incapacity is an additional guarantee as it can be checked. The certificate drawn up by the authorised person in the form prescribed in Article 10 again reproduces this declaration.

The authors of the Uniform Law were also conscious of the fact that in some legal systems–for example, English law–persons who are incapable of signing can name someone to sign in their place. Although this procedure is completely unknown to other systems in which a signature is exclusively personal, it was accepted that the testator can ask another person to sign in his name, if this is permitted under the law from which the authorised person derives his authority. This amounts to nothing more than giving satisfaction to the practice of certain legal systems, as the authorised person must, in any case, indicate on the will that the testator declared that he could not sign, and give the reason therefor. The indication is sufficient to make the will valid. There will, therefore, simply be a signature affixed by a third person instead of that of the testator. Although there is nothing stipulating this in the Uniform Law, one can expect the authorised person to explain the source of this signature on the document, all the more so as the signature of this substitute for the testator must also appear on the other pages of the will, by virtue of Article 6.

This method, over which there were some differences of opinion at the Diplomatic Conference, should not however interfere in any way with the legal systems which do not admit a signature in the name of someone else. Besides, its use is limited to the legal systems which admit it already and it is now implicitly accepted by the others when they recognise the validity of a foreign document drawn up according to this method. However, this situation can be expected to arise but rarely, as an international will made by a person who is incapable of signing it will certainly be a rare event.

Lastly, Article 5 requires that the witnesses and authorised person also sign the will there and then in the presence of the testator. By using the words, “attest the will by signing”, when only the word “sign” had been used when referring to the testator, the authors of the Uniform Law intended to make a distinction between the person acknowledging the contents of a document and those who have only to affix their signature in order to certify their participation and presence.

In conclusion, the international will will normally contain four signatures: that of the testator, that of the authorised person and those of the two witnesses. The signature of the testator might be missing: in this case, the will must contain a note made by the authorised person indicating that the testator was incapable of signing, adding his reason. All these signatures and notes must be made on pain of invalidity. Finally, if the signature of the testator is missing, the will could contain the signature of a person designated by the testator to sign in his name, in addition to the abovementioned note made by the authorised person.

Article 6

The provisions of Article 6 and those of the following articles are not imposed on pain of invalidity. They are nevertheless compulsory legal provisions which can involve sanctions, for example, the professional, civil and even criminal liability of the authorised person, according to the provisions of the law from which he derives his authority.

The first paragraph, to guarantee a uniform presentation for international wills, simply indicates that signatures shall be placed at the end of international wills, that is, at the end of the text.

Paragraph 2 provides for the frequent case in which the will consists of several sheets. Each sheet has to be signed by the testator, to guarantee its authenticity and to avoid substitutions. The use of the word “signed” seems to imply that the signature must be in the same form as that at the end of the will. However, in the legal systems which merely require that the individual sheets be paraphed, usually by means of initials, this would certainly have the same value as signature, as a signature itself could simply consist of initials.

The need for a signature on each sheet, for the purpose of authentifying each such sheet, led to the introduction of a special system for the case when the testator is incapable of signing. In this case it will generally be the authorised person who will sign each sheet in his place, unless, in accordance with Article 5, paragraph 2, the testator has designated another person to sign in his name. In this case, it will of course be this person who will sign each sheet.

Lastly, it is prescribed that the sheets shall be numbered. Although no further details are given on this subject, it will in practice be up to the authorised person to check if they have already been numbered and, if not, to number them or ask the testator to do so.

The aim of this provision is obviously to guarantee the orderliness of the document and to avoid losses, subtractions or substitutions.

Article 7

The date is an essential element of the will and its importance is quite clear in the case of successive wills. Paragraph 1 of Article 7 indicates that the date of the will in the case of an international will is the date on which it was signed by the authorised person, this being the last of the formalities prescribed by the Uniform Law on pain of invalidity (Article 5, paragraph 3). It is, therefore, from the moment of this signature that the international will is valid.

Paragraph 2 stipulates that the date shall be noted at the end of the will by the authorised person. Although this is compulsory for the authorised person, this formality is not sanctioned by the invalidity of the will which, as is the case in many legal systems such as English, German and Austrian law, remains fully valid even if it is not dated or is wrongly dated. The date will then have to be proved by some other means. It can happen that the will has two dates, that of its drawing up and the date on which it was signed by the authorised person as a result of which it became an international will. Evidently only this last date is to be taken into consideration.

Article 8

During the preparatory work it has been intended to organise the safekeeping of the international will and to entrust its care to the authorised person. This plan caused serious difficulties both for the countries which do not have the notary as he is known in Civil law system and for the countries in which wills must be deposited with a public authority, as is the case, for example, in the Federal Republic of Germany, where wills must be deposited with a court.

The authors of the Uniform Law therefore abandoned the idea of introducing a unified system for the safekeeping of international wills. However, where a legal system already has rules on this subject, these rules of course also apply to the international will as well as to other types of will. Finally, the Washington Conference adopted, at the same time as the Convention, a resolution recommending States, in particular, to organise a system facilitating the safekeeping of international wills (see the commentary on this resolution, at the end of this Report). It should lastly be underlined that States desiring to give testators an additional guarantee as regards the international will will organise its safekeeping by providing, for example, that it shall be deposited with the authorised person or with a public officer. Complementary legislation of this kind could be admitted within the framework of paragraph 3 of Article 1 of the Convention, as was mentioned in our commentary on that article.

These considerations explain why Article 8 starts by stipulating that it only applies “in the absence of any mandatory rule pertaining to the safekeeping of the will”. If there happens to be such a rule in the national law from which the authorized person derives his authority this rule shall govern the safekeeping of the will. If there is no such rule, Article 8 requires the authorised person to ask the testator whether he wishes to make a declaration in this regard. In this way, the authors of the Uniform Law sought to reconcile the advantage of exact information so as to facilitate the discovery of the will after the death of the testator, on the one hand, and respect for the secrecy which the testator may want as regards the place where his will is kept, on the other hand. The testator is therefore quite free to make or not to make a declaration in this regard, but his attention is nevertheless drawn to the possibility left open to him, and particularly to the opportunity he has, if he expressly asks for it, to have the details he thinks appropriate in this regard mentioned on the certificate provided for in Article 9. It will thus be easier to find the will again at the proper time, by means of the certificate made out in three copies, one of which remains in the hands of the authorised person.

Article 9

This provision specifies that the authorised person must attach to the international will a certificate drawn up in accordance with the form set out in Article 10, establishing that the Uniform Law’s provisions have been complied with. The term “joint au testament” means that the certificate must be added to the will, that is, fixed thereto. The English text which uses the word “attach” is perfectly clear on this point. Furthermore, it results from Article 11 that the certificate must be made out in three copies. This document, the contents of which are detailed in Article 10, is proof that the formalities required for the validity of the international will have been complied with. It also reveals the identity of the persons who participated in drawing up the document and may, in addition, contain a declaration by the testator as to the place where he intends his will to be kept. It should be stressed that the certificate is drawn up under the entire responsibility of the authorised person who is the only person to sign it.

Article 10

Article 10 sets out the form for the certificate. The authorised person must abide by it, in accordance with the provisions of Article 10 itself, laying down this or a substantially similar form. This last phrase could not be taken as authorising him to depart from this form: it only serves to allow for small changes of detail which might be useful in the interests of improving its comprehensibility or presentation, forexample, the omission of the particulars marked with an asterisk indicating that they are to be completed where appropriate when in fact they do not need to be completed and thus become useless.

Including the form of a certificate in one of the articles of a Uniform Law is unusual. Normally these appear in the annexes to Conventions. n13 However, in this way, the authors of the Uniform Law underlined the importance of the certificate and its contents. Moreover, the Uniform Law already forms the Annex to the Convention itself.

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n13 For example: The Hague Convention Abolishing the Requirement of Legalisation of Foreign Public Documents, concluded on 5 October 1961; the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, concluded on 15 November 1965; the Hague Convention concerning the International Administration of the Estates of Deceased Persons, adopted at the XIIth session of the Hague Conference.

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The 14 particulars indicated on the certificate are numbered. These numbers must be reproduced on each certificate, so as to facilitate its reading, especially when the reader speaks a foreign language, as they will help him to find the relevant details more easily: the name of the authorised person and the testator, addresses, etc.

The certificate contains all the elements necessary for the identification of the authorised person, testator and witnesses. It expressly mentions all the formalities which have to be carried out in accordance with the provisions of the Uniform Law. Furthermore, the certificate contains all the information required for the will’s registration according to the system introduced by the Council of Europe Convention on the Establishment of a Scheme of Registration of Wills, signed at Basle on 16 May 1972.

Article 11

The authorised person must keep a copy of the certificate and deliver one to the testator. Seeing that another copy has to be attached to the will in accordance with Article 9, it may be deduced that the authorised person must make out altogether three copies of the certificate. These cannot be simple copies but have to be three signed originals. This provision is useful for a number of reasons. The fact that the testator keeps a copy of the certificate is a useful reminder for him, especially when his will is being kept by the authorised person or deposited with someone designated by national law. Moreover, discovery of the certificate among the testators’ papers will inform his heirs of the existence of a will and enable them to find it more easily. The fact that the authorised person keeps a copy of the certificate enables him to inform the heirs as well, if necessary. Lastly, the fact that there are several copies of the certificate is a guarantee against changes being made to one of them and even, to a certain extent, against certain changes to the will itself, for example as regards its date.

Article 12

Article 12 states that the certificate is conclusive of the formal validity of the international will. It is therefore a kind of proof supplied in advance.

This provision is only really understandable in those legal systems, like the United States, where a will can only take effect after it has been subjected to a preliminary procedure of verification (“Probate” (n14)) designed to check on its validity. The mere presentation of the certificate should suffice to satisfy the requirements of this procedure.

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n14 See William F. Fratcher, op. cit., Richard W. Wellman, Recent UNIDROIT Drafts on the International Will, International Lawyer, 1973, pp. 205-219.

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However, the certificate is not always irrefutable as proof, as is indicated by the words “in the absence of evidence to the contrary”. If it is challenged, then the ensuing litigation will be solved in accordance with the legal procedure applicable in the Contracting State where the will and certificate are presented.

Article 13

The principle set out in Article 13 is already implied by Article 1, as only the provisions of Articles 2 to 5 are prescribed on pain of invalidity. Besides, it is perfectly logical that the absence of or irregularities in a certificate should not affect the formal validity of the will, as the certificate is a document serving essentially for purposes of proof drawn up by the authorised person, without the testator taking any part either in drawing it up or in checking it. This provision is in perfect harmony with Article 12 which by the terms “in the absence of evidence to the contrary” means that one can challenge what is stated in the certificate.

In consideration of the fact that the authorised person will be a practising lawyer officially designated by each Contracting State, it is difficult to imagine him omitting or neglecting to draw up the certificate provided for by the national law to which he is subject. Besides, he would lay himself open to an action based on his professional and civil liability. He could even expose himself to sanctions laid down by his national law.

However, the international will subsists, even if, by some quirk, the certificate which is a means of proof but not necessarily the only one, should be missing, be incomplete or contain particulars which are manifestly erroneous. In these undoubtedly very rare circumstances, proof that the formalities prescribed on pain of invalidity have been carried out will have to be produced in accordance with the legal procedures applicable in each State which has adopted the Uniform Law.

Article 14

The authors of the Uniform Law did not intend to deal with the subject of the revocation of wills. There is indeed no reason why the international will should be submitted to a regime different from that of other kinds of will. Article 14 therefore merely gives expression to this idea. Whether or not there has been revocation–for example, by a subsequent will is to be assessed in accordance with the law of each State which has adopted the Uniform Law, by virtue of Article 14. Besides, this is a question mainly concerning rules of substance which would thus overstep the scope of the Uniform Law.

Article 15

This Article contains a provision which is to be found in a similar form in several conventions or draft Uniform Laws. n15 It seeks to avoid practising lawyers interpreting the Uniform Law solely in terms of the principles of their respective internal law, as this would prejudice the international unification being sought after. It requests judges to take the international character of the Uniform Law into consideration and to work towards elaborating a sort of common case-law, taking account of the foreign legal systems which provided the foundation for the Uniform Law and the decisions handed down on the same text by the courts of other countries. The effort towards unification must not be limited to just bringing about the Law’s adoption, but should be carried on into the process of putting it into operation.

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n15 See in particular: Article 17 of the draft Uniform Law on International Sale as revised by UNCITRAL; Article 7 of the Convention on Prescription in International Sales of Goods; Article 10 of the draft UNIDROIT Convention on Agency of an International Character in the Sale and Purchase of Goods.

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THE RESOLUTION ADOPTED BY THE CONFERENCE

The Resolution adopted by the Washington Conference and annexed to its Final Act encourages States which adopt the Uniform Law to make additional provisions for the registering and safekeeping of the international will. The authors of the Uniform Law considered that it was not possible to lay down uniform rules on this subject on account of the differences in tradition and outlook, but several times, both during the preparatory work and during the final diplomatic phase, they underlined the importance of States making such provisions.

The Resolution recommends organising a system enabling . . . “the safekeeping, search and discovery of an international will as well as the accompanying certificate” . . .

Indeed lawyers know that many wills are never carried out because the very existence of the will itself remains unknown or because the will is never found or is never produced. It would be quite possible to organise a register or index which would enable one to know after the death of a person whether he had drawn up a will. Some countries have already done something in this field, for example, Quebec, Spain, the Federal Republic of Germany, where this service is connected with the Registry of Births, Marriages and Deaths. Such a system could perfectly well be fashioned so as to ensure respect for the legitimate wish of testators to keep the very existence of their will secret.

The Washington Conference also underlined that there is already an International Convention on this subject, namely the Council of Europe Convention on the Establishment of a Scheme of Registration of Wills, concluded at Basle on 16 May 1972, to which States which are not members of the Council of Europe may accede. n16

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n16 Article 13 of the Convention.

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In this Convention the Contracting States simply undertake to create an internal system for registering wills. The Convention stipulates the categories of will which should be registered, in terms which include the international will n17. Apart from national bodies in charge of registration, the Convention also provides for the designation by each Contracting State of a national body which must remain in contact with the national bodies of other States and communicate registrations and any information asked for. The Convention specifies that registration must remain secret during the life of the testator n18. This system, which will come into force between a number of European States in the near future, interested the authors of the Convention, even if they do not accede to it. The last paragraph of the Resolution follows the pattern of the Basle Convention by recommending, in the interests of facilitating an international exchange of information on this matter, the designation in each State of authorities or services to handle such exchanges.

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n17 Article 4 of the Convention.

n18 Article 8 of the Convention.

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As for the organisation of the safekeeping of international wills, the resolution merely underlines the importance of this, without making any specific suggestions in this regard. This problem has already been discussed in connec

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