Tuesday, March 31, 2015


SECTION 2-1002. Uniform Probate Code
(a) A 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, if it is made in the form of an international will complying with the requirements of this [part].
(b) The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.
(c) This [part] shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.
This section combines what appears in Articles 1 and 2 of the Annex into a single section. Except for the reference to later sections, the first sentence is identical to Article 1, Section 1 of the Annex, the second sentence is identical to Article 1, Section 2, and the third is identical to Article 2.
Mr. Plantard’s commentary that is pertinent to this section is as follows:
“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....

“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.
“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.
“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.” 

No comments: