Tuesday, March 31, 2015



The purpose of the Washington Convention of 1973 concerning international wills is to provide testators with a way of making wills that will be valid as to form in all countries joining the Convention. As proposed by the Convention, the objective would be achieved through uniform local rules of form, rather than through local or international law that makes recognition of foreign wills turn on choice of law rules involving possible application of foreign law. The international will provisions, prepared for the National Conference of Commissioners on Uniform State Laws by the Joint Editorial Board for the Uniform Probate Code which has functioned as a special committee of the Conference for the project, should be enacted by all states, including those that have not accepted the Uniform Probate Code. To that end, this statute is framed both as a freestanding act and as an added part of the Uniform Probate Code. The bracketed headings and numbers fit the proposal into UPC; the others present the proposal as a free-standing act.
Uniform state enactment of these provisions will permit the Washington Convention of 1973 to be implemented through state legislation familiar to will draftsmen. Thus, local proof of foreign law and reliance on federal legislation regarding wills can be avoided when foreign wills come into our states to be implemented. Also, the citizens of all states will have a will form available that should greatly reduce perils of proof and risks of invalidity that attend proof of American wills abroad.
History of the International Will
Discussions about possible international accord on an acceptable form of will led the Governing Council of UNIDROIT (International Institute for the Unification of Private Law) in 1960 to appoint a small committee of experts from several countries to develop proposals. Following week-long meetings at the Institute’s quarters in Rome in 1963, and on two occasions in 1965, the Institute published and circulated a Draft Convention of December 1966 with an annexed uniform law that would be required to be enacted locally by those countries agreeing to the convention. The package and accompanying explanations were reviewed in this country by the Secretary of State’s Advisory Committee on Private International Law. In turn, it referred the proposal to a special committee of American probate specialists drawn from members of NCCUSL’s Special Committee on the Uniform Probate Code and its advisers and reporters. The resulting reports and recommendations were affirmative and urged the State Department to cooperate in continuing efforts to develop the 1966 Draft Convention, and to endeavor to interest other countries in the subject.
Encouraged by support for the project from this country and several others, UNIDROIT served as host for a 1971 meeting in Rome of an expanded group that included some of the original panel of experts and others from several countries that were not represented in the early drafting sessions. The result of this meeting was a revised draft of the proposed convention and
annexed uniform law and this, in turn, was the subject of study and discussion by many more persons in this country. In mid-1973, the proposal from UNIDROIT was discussed in a joint program of the Real Property Probate and Trust Law Section, and the Section of International Law at the American Bar Association’s annual meeting held that year in Washington, D.C. By late 1973, the list of published, scholarly discussions of the International Will proposals included Fratcher, “The Uniform Probate Code and the International Will”, 66 Mich. L. Rev. 469 (1968); Wellman, “Recent Unidroit Drafts on the International Will”, 6 The International Lawyer 205 (1973); and Wellman, “Proposed International Convention Concerning Wills”, 8/4 Real Property, Probate and Trust Journal 622 (1973).
In October 1973, pursuant to a commitment made earlier to UNIDROIT representatives that it would provide leadership for the international will proposal if sufficient interest from other countries became evident, the United States served as host for the diplomatic Conference on Wills which met in Washington from October 10 to 26, 1973. 42 governments were represented by delegations, 6 by observers. The United States delegation of 8 persons plus 2 Congressional advisers and 2 staff advisers, was headed by Ambassador Richard D. Kearney, Chairman of the Secretary of State’s Advisory Committee on Private International Law who also was selected president of the Conference. The result of the Conference was the Convention of October 26, 1973 Providing a Uniform Law on the Form of an International Will, an appended Annex, Uniform Law on the Form of an International Will, and a Resolution recommending establishment of state assisted systems for the safekeeping and discovery of wills. These three documents are reproduced at the end of these preliminary comments.
A more detailed account of the UNIDROIT project and the 1973 Convention, together with recommendations regarding United States implementation of the Convention, appears in Nadelmann, “The Formal Validity of Wills and the Washington Convention 1973 Providing the Form of an International Will”, XXII The American Journal of Comparative Law, 365 (1974).
Description of the Proposal
The 1973 Convention obligates countries becoming parties to make the annexed uniform law a part of their local law. The proposed uniform law contemplates the involvement in will executions under this law of a state-recognized expert who is referred to throughout the proposals as the “authorized person”. Hence, the local law called for by the Convention must designate authorized persons, and prescribe the formalities for an international will and the role of authorized persons relating thereto. The Convention binds parties to respect the authority of another party’s authorized persons and this obligation, coupled with local enactment of the common statute prescribing the role of such persons and according finality to their certificates regarding due execution of wills, assures recognition of international wills under local law in all countries joining the Convention.
The Convention and the annexed uniform law deal only with the formal validity of wills. Thus, the proposal is entirely neutral in relation to local laws dealing with revocation of wills, or those defining the scope of testamentary power, or regulating the probate, interpretation, and construction of wills, and the administration of decedents’ estates. The proposal describes a highly formal mode of will execution; one that is sufficiently protective against imposition and
mistake to command international approval as being safe enough. However, failure to meet the requirements of an international will does not necessarily result in invalidity, for the mode of execution described for an international will does not pre-empt or exclude other standards of testamentary validity.
The details of the prescribed mode of execution reflect a blend of common and civil law elements. Two attesting witnesses are required in the tradition of the English Statute of Wills of 1837 and its American counterparts. The authorized person whose participation in the ceremony of execution is required, and whose certificate makes the will self-proved, plays a role not unlike that of the civil law notary, though he is not required to retain custody of the will as is customary with European notaries.
The question of who should be given state recognition as authorized persons was resolved by designation of all licensed attorneys. The reasons for this can be seen in the observations about the role of Kurt H. Nadelmann, writing in The American Journal of Comparative Law:
The duties imposed by the Uniform Law upon the person doing the certifying go beyond legalization of signatures, the domain of the notary public. At least paralegal training is a necessity. Abroad, in countries with the law trained notary, the designation is likely to go to this class or at least to include it. Similarly, in countries with a closely supervised class of solicitors, their designation may be expected.
Attorneys are subject to training and licensing requirements everywhere in this country. The degree to which they are supervised after qualification varies considerably from state to state, but the trend is definitely in the direction of more rather than less supervision. Designation of attorneys in the uniform law permits a state to bring the statute into its local law books without undue delay.
Roles for Federal and State Law in Relation to International Will
Several alternatives are available for arranging federal and state laws on the subject of international wills. The 1973 Convention obligates nations becoming parties to introduce the annexed uniform law into their local law, and to recognize the authority, vis a vis will executions and certificates relating to wills, of persons designated as authorized by other parties to the Convention. But, the Convention includes a clause for federal states that may be used by the United States as it moves, through the process of Senate Advice and Consent, to accept the international compact. Through it, the federal government may limit the areas in this country to which the Convention will be applicable. Thus, Article XIV of the 1973 Convention provides:
1. If a state has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting another declaration at any time.
2. These declarations shall be notified to the Depositary Government and shall state
expressly the territorial units to which the Convention applies.
One alternative would be for the federal government to refrain from use of Article XIV and to accept the Convention as applicable to all areas of the country. The obligation to introduce the uniform law into local law then could be met by passage of a federal statute incorporating the uniform law and designating authorized persons who can assist testators desiring to use the international format, possibly leaving it open for state legislatures, if they wish, to designate other or additional groups of authorized persons. As to constitutionality, the federal statute on wills could be rested on the power of the federal government to bind the states by treaty and to implement a treaty obligation to bring agreed upon rules into local law by any appropriate method. Missouri v. Holland, 252 U.S. 416 (1920); Nadelmann, “The Formal Validity of Wills and the Washington Convention 1973 Providing the Form of An International Will”, XXII The Am. Jn’l of Comp. L. 365, 375 (1974). Prof. Nadelmann favors this approach, arguing that new risks of invalidity of wills would arise if the treaty were limited so as to be applicable only in designated areas of the country, presumably those where state enactment of the uniform law already had occurred.
One disadvantage of this approach is that it would place a potentially important method for validating wills in federal statutes where probate practitioners, long accustomed to finding the statutes pertinent to their specialty in state compilations, simply would not discover it. Another, of course, relates to more generalized concerns that would attend any move by the federal government into an area of law traditionally reserved to the states.
Alternatively, the federal government might accept the Convention and uniform law as applicable throughout the land, so that international wills executed with the aid of authorized persons of other countries would be good anywhere in this country, but refrain from any designation of authorized persons, other than possibly of some minimum federal cadre, or of those who could function within the District of Columbia, leaving the selection of more useful groups of authorized persons entirely to the states. One result would be to narrow greatly the advantage of international wills to American testators who wanted to execute their instruments at home. In probable consequence, there would be pressure on state legislatures to enact the uniform law so as to make the advantages of the system available to local testators. Assuming some state legislatures respond to the pressure affirmatively and others negatively, a crazy-quilt pattern of international will states would develop, leading possibly to some of the confusion and risk of illegality feared by Prof. Nadelmann. On the other hand, since execution of an international will involves use of an authorized person who derives authority from (on this assumption) state legislation, it seems somewhat unlikely that testators in states which have not designated authorized persons will be led to believe that they can make an international will unless they go to a state where authorized persons have been designated. Hence, the confusion may not be as great as if the Convention were inapplicable to portions of the country.
Finally, the federal government might use Article XIV as suggested earlier, and designate some but not all states as areas of the country in which the Convention applied. This seems the least desirable of all alternatives because it subjects international wills from abroad to the risk of non-recognition in some states, and offers the risk of confusion of American testators regarding the areas of the country where they can execute a will that will be received outside this country
as an international will.
Under any of the approaches, the desirability of widespread enactment of state statutes embodying the uniform law and designating authorized persons, seems clear, as does the necessity for this project of the National Conference of Commissioners on Uniform State Laws.
In preparing the International Will proposal, the special committee, after considerable discussion and consideration of alternatives, decided to stick as closely as possible to the wording of the Annex to the Convention of October 26, 1973. The Convention and its Annex were written in the English, French, Russian and Spanish languages, each version, as declared by Article XVI of the Convention, being equally authentic. Not surprisingly, the English version of the Annex has a style that is somewhat different than that to which the National Conference is accustomed. Nonetheless, from the view of those using languages other than English who may be reviewing our state statutes on the International Will to see if they adhere to the Annex, it is more important to stick with the agreed formulations than it is to re-style these expressions to suit our traditions. However, some changes from the Annex were made in the interests of clarity, and because some of the language of the Annex is plainly inappropriate in a local enactment. These changes are explained in the Comments.
Will Registration
A bracketed Section 10 [2-1010], is included in the International Will proposal to aid survivors in locating international and other wills that have been kept secret by testators during their lives. Differing from the Section 2-901 of the Uniform Probate Code and the many existing statutes from which Section 2-901 was derived which constitute the probate court as an agency for the safekeeping of wills deposited by living testators, the bracketed proposal is for a system of registering certain minimum information about wills, including where the instrument will be kept pending the death of the testator. It can be separated or omitted from the rest of the Act.
This provision for a state will registration system is derived from recommendations by the Council of Europe for common market countries. These recommendations were urged on the group that assembled in Rome in 1971, and were received with interest by representatives of United Kingdom, Canada and United States, where will-making laws and customs have not included any officially sanctioned system for safekeeping of wills or for locating information about wills, other than occasional statutes providing for ante-mortem deposit of wills with probate courts. Interest was expressed also by the notaries from civil law countries who have traditionally aided will-making both by formalizing execution and by being the source thereafter of official certificates about wills, the originals of which are retained with the official records of the notary and carefully protected and regulated by settled customs of the profession. All recognized that acceptance of the international will would tend to increase the frequency with which owners of property in several different countries relied on a single will to control all of their properties. This prospect, plus increasing mobility of persons between countries, indicates that new methods for safekeeping and locating wills after death should be developed. The Resolution adopted as the final act of the 1973 Conference on Wills shows that the problem also

attracted the interest and attention of that assembly.
Apart from problems of wills that may have effect in more than one country, Americans are moving from state to state with increasing frequency. As the international will statute becomes enacted in most if not all states, our laws will tend to induce persons to rely on a single will as sufficient even though they may own land in two or more states, and to refrain from making new wills when they change domicile from one state to another. The spread of the Uniform Probate Code, tending as it does to give wills the same meaning and procedural status in all states, will have a similar effect.
General enactment of the will registration section should lead to development of new state and interstate systems to meet the predictable needs of testators and survivors that will follow as the law of wills is detached from provincial restraints. It is offered with the international will provisions because both meet obvious needs of the times.
Documents from 1973 Convention
Three documents representing the work of the 1973 Convention are reproduced here for the convenience of members of the Conference. 

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