SECTION 2-1005. INTERNATIONAL WILL; CERTIFICATE. The authorized
person shall attach to the will a certificate to be signed by him establishing that the requirements
of this [part] for valid execution of an international will have been complied with. The
authorized person shall keep a copy of the certificate and deliver another to the testator. The
certificate shall be substantially in the following form:
CERTIFICATE (Convention of October 26, 1973)
CERTIFICATE (Convention of October 26, 1973)
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I, ____________________ (name, address and capacity), a person authorized to act in connection with
international wills
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Certify that on ________ (date) at __________ (place)
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(testator) ____________________ (name, address, date and place of birth) in my presence and that of
the witnesses
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(a)____________________ (name, address, date and place of birth)
(b)____________________ (name, address, date and place of birth) has declared that the attached document is his will and that he knows the contents thereof.
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I furthermore certify that:
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(a) in my presence and in that of the witnesses
(1) the testator has signed the will or has acknowledged his signature previously affixed.
*(2) following a declaration of the testator stating that he was unable to sign his will for the following reason _____
I have mentioned this declaration on the will
*the signature has been affixed by ____________________ (name, address)
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(b) the witnesses and I have signed the will;
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*(c) each page of the will has been signed by ____________ and numbered;
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(d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;
11. *(f) the testator has requested me to include the following statement concerning the safekeeping of his will:
_________________________
_________________________
*To be completed if appropriate12. PLACE
13. DATE
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14. SIGNATURE and, if necessary, SEAL
Comment
This section embodies the content of Articles 9, 10 and 11 of the Annex with only minor,
clarifying changes. Those familiar with the pre-proved will authorized by Uniform Probate Code
Section 2-504 should be comfortable with Sections 2-1005 and 2-1006 of this act. Indeed,
inclusion of these provisions in the Annex was the result of a concession by those familiar with
civil law approaches to problems of execution and proof of wills, to the English speaking
countries where will ceremonies are divided between those occurring as testator acts, and those
occurring later when the will is probated. Further, since English and Canadian practices reduce
post-mortem probate procedures down to little more than the presentation of the will to an
appropriate registry and so, approach civil law customs, the concession was largely to
accommodate American states where post-mortem probate procedures are very involved. Thus,
the primary purpose of the certificate, which provides conclusive proof of the formal validity of
the will, is to put wills executed before a civil law notary and wills executed in the American
tradition on a par; with the certificate, both are good without question insofar as formal
requirements are concerned.
It should be noted that Article III of the Convention binds countries becoming parties to recognize the capacity of an authorized person to act in relation to an international will, as conferred by the law of another country that is a party. This means that an international will coming into one of our states that has enacted the uniform law will be entirely good under local law, and that the certificate from abroad will provide conclusive proof of its validity.
May an international will be contested? The answer is clearly affirmative as to contests based on lack of capacity, fraud, undue influence, revocation or ineffectiveness based on the contents of the will or substantive restraints on testamentary power. Contests based on failure to follow mandatory requirements of execution are not precluded because the next section provides that the certificate is conclusive only “in the absence of evidence to the contrary”. However, the Convention becomes relevant when one asks whether a probate court may require additional proof of the genuineness of signatures by testators and witnesses. It provides:
Article VI 1. The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.
2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.
Presumably, the prohibition against legalization would not preclude additional proof of genuineness if evidence tending to show forgery is introduced, but without contrary proof, the certificate proves the will.
The authorized person is directed to attach the certificate to the will, and to keep a copy. The sense of “keep” intended by the draftsman is “continuously keep,” or “preserve.”
It should be noted that Article III of the Convention binds countries becoming parties to recognize the capacity of an authorized person to act in relation to an international will, as conferred by the law of another country that is a party. This means that an international will coming into one of our states that has enacted the uniform law will be entirely good under local law, and that the certificate from abroad will provide conclusive proof of its validity.
May an international will be contested? The answer is clearly affirmative as to contests based on lack of capacity, fraud, undue influence, revocation or ineffectiveness based on the contents of the will or substantive restraints on testamentary power. Contests based on failure to follow mandatory requirements of execution are not precluded because the next section provides that the certificate is conclusive only “in the absence of evidence to the contrary”. However, the Convention becomes relevant when one asks whether a probate court may require additional proof of the genuineness of signatures by testators and witnesses. It provides:
Article VI 1. The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.
2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.
Presumably, the prohibition against legalization would not preclude additional proof of genuineness if evidence tending to show forgery is introduced, but without contrary proof, the certificate proves the will.
The authorized person is directed to attach the certificate to the will, and to keep a copy. The sense of “keep” intended by the draftsman is “continuously keep,” or “preserve.”
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If the will with attached certificate is to be retained by the authorized person or otherwise
placed for safekeeping out of the possession of the testator, good practice would involve an
unexecuted copy of the will that could be given to the testator for disposition or retention as he
saw fit. It would seem that good practice in these cases also would involve attachment of the
testator’s copy of the certificate to testator’s copy of the will. The statute is silent on this point,
however.
Mr. Plantard’s commentary on the articles of the Annex that are pertinent to Section 2- 1005, are as follows:
“This provision specifies that the authorised person must attach to the international will a certificate drawn up in accordance with the form set out in Article 10, establishing that the Uniform Law’s provisions have been complied with. The term ‘joint au testament’ means that the certificate must be added to the will, that is, fixed thereto. The English text which uses the word ‘attach’ is perfectly clear on this point. Furthermore, it results from Article 11 that the certificate must be made out in three copies. This document, the contents of which are detailed in Article 10, is proof that the formalities required for the validity of the international will have been complied with. It also reveals the identity of the persons who participated in drawing up the document and may, in addition, contain a declaration by the testator as to the place where he intends his will to be kept. It should be stressed that the certificate is drawn up under the entire responsibility of the authorised person who is the only person to sign it.
“Article 10 sets out the form for the certificate. The authorised person must abide by it, in accordance with the provisions of Article 10 itself, laying down this or a substantially similar form. This last phrase could not be taken as authorising him to depart from this form: it only serves to allow for small changes of detail which might be useful in the interests of improving its comprehensibility or presentation, for example, the omission of the particulars marked with an asterisk indicating that they are to be completed where appropriate when in fact they do not need to be completed and thus become useless.
“Including the form of a certificate in one of the articles of a Uniform Law is unusual. Normally these appear in the annexes to Conventions. However, in this way, the authors of the Uniform Law underlined the importance of the certificate and its contents. Moreover, the Uniform Law already forms the Annex to the Convention itself.
“The 14 particulars indicated on the certificate are numbered. These numbers must be reproduced on each certificate, so as to facilitate its reading, especially when the reader speaks a foreign language, as they will help him to find the relevant details more easily: the name of the authorised person and the testator, addresses, etc.
“The certificate contains all the elements necessary for the identification of the authorized person, testator and witnesses. It expressly mentions all the formalities which have to be carried out in accordance with the provisions of the Uniform Law. Furthermore, the certificate contains all the information required for the will’s registration according to the system introduced by the Council of Europe Convention on the Establishment of a Scheme of Registration of Wills, signed at Basle on 16 May 1972.
Mr. Plantard’s commentary on the articles of the Annex that are pertinent to Section 2- 1005, are as follows:
“This provision specifies that the authorised person must attach to the international will a certificate drawn up in accordance with the form set out in Article 10, establishing that the Uniform Law’s provisions have been complied with. The term ‘joint au testament’ means that the certificate must be added to the will, that is, fixed thereto. The English text which uses the word ‘attach’ is perfectly clear on this point. Furthermore, it results from Article 11 that the certificate must be made out in three copies. This document, the contents of which are detailed in Article 10, is proof that the formalities required for the validity of the international will have been complied with. It also reveals the identity of the persons who participated in drawing up the document and may, in addition, contain a declaration by the testator as to the place where he intends his will to be kept. It should be stressed that the certificate is drawn up under the entire responsibility of the authorised person who is the only person to sign it.
“Article 10 sets out the form for the certificate. The authorised person must abide by it, in accordance with the provisions of Article 10 itself, laying down this or a substantially similar form. This last phrase could not be taken as authorising him to depart from this form: it only serves to allow for small changes of detail which might be useful in the interests of improving its comprehensibility or presentation, for example, the omission of the particulars marked with an asterisk indicating that they are to be completed where appropriate when in fact they do not need to be completed and thus become useless.
“Including the form of a certificate in one of the articles of a Uniform Law is unusual. Normally these appear in the annexes to Conventions. However, in this way, the authors of the Uniform Law underlined the importance of the certificate and its contents. Moreover, the Uniform Law already forms the Annex to the Convention itself.
“The 14 particulars indicated on the certificate are numbered. These numbers must be reproduced on each certificate, so as to facilitate its reading, especially when the reader speaks a foreign language, as they will help him to find the relevant details more easily: the name of the authorised person and the testator, addresses, etc.
“The certificate contains all the elements necessary for the identification of the authorized person, testator and witnesses. It expressly mentions all the formalities which have to be carried out in accordance with the provisions of the Uniform Law. Furthermore, the certificate contains all the information required for the will’s registration according to the system introduced by the Council of Europe Convention on the Establishment of a Scheme of Registration of Wills, signed at Basle on 16 May 1972.
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“The authorised person must keep a copy of the certificate and deliver one to the testator.
Seeing that another copy has to be attached to the will in accordance with Article 9, it may be
deduced that the authorised person must make out altogether three copies of the certificate.
These cannot be simple copies but have to be three signed originals. This provision is useful for
a number of reasons. The fact that the testator keeps a copy of the certificate is a useful reminder
for him, especially when his will is being kept by the authorised person or deposited with
someone designated by national law. Moreover, discovery of the certificate among the testators’
papers will inform his heirs of the existence of a will and will enable them to find it more easily.
The fact that the authorised person keeps a copy of the certificate enables him to inform the heirs
as well, if necessary. Lastly, the fact that there are several copies of the certificate is a guarantee
against changes being made to one of them and even, to a certain extent, against certain changes
to the will itself, for example as regards its date.”
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