Estate Planning Newsletter
The Convention on the Form of International Wills
The Convention on the Form of an International Will (the “Convention”) was drafted and presented to the international community in 1973. The Convention was signed and ratified by a number of countries, including Canada and Belgium, and signed but not immediately ratified by other countries, including the United States, China, Russia, the United Kingdom, and France.
The Convention was not ratified by the U.S. Senate until 1991. The Convention has been presented to the states for acceptance as the Uniform International Wills Act (the UIWA) and has been adopted by approximately one-fourth of the states, including California and Illinois. States and countries adopting the Convention agree to recognize the validity of wills executed in other states or countries that have adopted the Convention, provided the will complies with the requirements of the Convention.
Execution of Wills in Accordance with the UIWA
The UIWA states that a will that complies with its requirements is valid irrespective of where it is made, the location of the assets, or the nationality, domicile, or residence of the person creating the will (the “testator”). The UIWA does not, however, apply to “joint wills,” meaning those made by two or more persons in one document. Invalidity under the UIWA, however, does not affect validity as a will executed in compliance with state law; a will which is invalid under the UIWA may still be valid under state law.
UIWA requirements for a valid international will include:
- It is in writing (in any language) written by hand, typed or printed by other means; it need not be written by the testator personally.
- Testators must declare in the presence of two witnesses and a person authorized to act in connection with international wills that the document is their will and they know the contents of the will.
- The testator must sign in the presence of the witnesses and the authorized person or acknowledge (verify) a previous signature.
If the testator cannot sign, the reason for this inability must be noted on the will; it is permissible for any other person present to sign the will at the testator’s direction.
The witnesses and authorized person must then sign the will in their individual capacities in the presence of the testator.
Further Form Requirements for International Wills Under the UIWA
- Signatures must be placed at the end of the document and, if there is more than one page, each page must be numbered and signed by the testator or on the testator’s behalf.
- The date of the will must be the date of signing by (or on behalf of) the testator and this date must be noted at the end of the will by the authorized person.
- The authorized person must ask if the testator wants to make a declaration concerning safekeeping of the will, then note any such instruction on a certificate attached to the will.
The authorized person must sign and attach to the will a certificate stating that the requirements of the UIWA have been fulfilled. A copy of this certificate must be given to the testator and another copy retained by the authorized person. The UIWA provides a form certificate for the authorized person to complete.
In the absence of contrary evidence, this certificate may be conclusive proof of the validity of the will under the UIWA, but its absence does not automatically negate the validity of the will under the UIWA. The UIWA requires that the secretary of state for the adopting state establish a registry system for information regarding the execution of international wills, to be kept in strict confidence until the death of the testator. This information may include the name, Social Security number, date of birth, and address of the testator, plus the place of safekeeping of the will
Revocation of International Wills
When a testator invalidates a will, usually in anticipation of executing a new one, the law refers to this as a “revocation” of the old will. The UIWA specifies that international wills are “subject to the ordinary rules of revocation of wills.” The laws of the particular state will then define effective revocation, including of an international will. Often this requires destruction of the old will, coupled with clear indication that revocation is intended. Also, in many states, creation of a new will that disposes of all the property covered by the old will is deemed a revocation.
Treatment of International Wills in Non-UIWA Jurisdictions
When a testator dies, typically an heir, executor specified in the will, or other personal representative files the will with the local probate court. The will is then subject to objections and contests by various parties. In states that have adopted the UIWA, the international will is accepted or rejected based on compliance with the UIWA. In states that have not adopted the UIWA, international wills that comply with the UIWA can be accepted or rejected based upon compliance with local state law requirements governing the validity and execution of a will. Although state law requirements for a valid will vary, in many states, the local statutory requirements are the same or very similar to the requirements of the UIWA, making the international will acceptable.
When a testator dies in one jurisdiction, where most estate assets, heirs, etc. are located, a primary probate proceeding is usually opened there. If there is property located in another state as well, an “ancillary” probate may be opened where the property is located. To open an ancillary probate action, typically the will that was submitted (and accepted) in the main probate action is acceptable; the ancillary court will accept the judgment of the other court regarding the validity of the will, subject to objections. An international will already accepted as valid by a court in a UIWA jurisdiction will therefore be accepted by a non-UIWA jurisdiction without being subject to further scrutiny under local state law requirements.
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