Tuesday, March 31, 2015


(a) The will shall be made in writing. It need not be written by the testator himself. It may be written in any language, by hand or by any other means.
(b) The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof. The testator need not inform the witnesses, or the authorized person, of the contents of the will.
(c) In the presence of the witnesses, and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.
(d) When the testator is unable to sign, the absence of his signature does not affect the validity of the international will if the testator indicates the reason for his inability to sign and the authorized person makes note thereof on the will. In these cases, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator to sign the testator’s name for him, if the authorized person makes note of this also on the will, but it is not required that any person sign the testator’s name for him.
(e) The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.
The five subsections of this section correspond in content to Articles 3 through 5 of the Annex to the 1973 Convention. Article 1, Section 1 makes it clear that compliance with all requirements listed in Articles 3 through 5 is necessary in order to achieve an international will. As re-organized for enactment in the United States, all mandatory requirements have been grouped in this section. Except for subsection (d), each of the sentences in the subsections corresponds exactly with a sentence in the Annex. Subsection (d), derived from Article 5, Section 2 of the Annex, was re-worded for the sake of clarity.
Mr. Plantard’s comments on the requirements are as follows:
“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.
“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 public 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.
“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. This 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 above-mentioned note made by the authorised person.” 

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