Tuesday, March 31, 2015


(a) The signatures shall be placed at the end of the will. If the will consists of several sheets, each sheet will be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.
(b) The date of the will shall be the date of its signature by the authorized person. That date shall be noted at the end of the will by the authorized person.
(c) The authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Section 2-1005.
(d) A will executed in compliance with Section 2-1003 shall not be invalid merely because it does not comply with this section.
Mr. Plantard’s commentary about Articles 6, 7 and 8 of the Annex [supra] relate to subsections (a), (b) and (c) respectively of this section. Subsections (a) and (b) are identical to Articles 6 and 7; subsection (c) is the same as Article 8 of the Annex except that the prefatory language “In the absence of any mandatory rule pertaining to the safekeeping of the will...” has been deleted because it is inappropriate for inclusion in a local statute designed for enactment by a state that has had no tradition or familiarity with mandatory rules regarding the safekeeping of the wills. Subsection (d) embodies the sense of Article 1, Section 1 of the Annex which states that compliance with Articles 2 to 5 is necessary and so indicates that compliance with the remaining articles prescribing formal steps is not necessary.
Mr. Plantard’s commentary is as follows:
“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 to 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.
“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.

“During the preparatory work it had 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 systems 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 authorised 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.” 

No comments: