La Revue Squire

The recognition of international wills


Rédigé par Mark MILLER & Benjamin DESMURS le 19 Décembre 2006


The issue of the international recognition of wills is an obstacle that often applies to individuals with an estate across several countries.

Indeed, without an identical legal process between the jurisdictions concerned, the will runs the risk of being governed by a domestic law that does not recognize it.

The Washington Convention of 26 October 1973 had precisely this concern in mind. Its purpose is to create a new type of will, completing the current range existing under domestic law. It has been signed and ratified by France, so it is now an authorised will type in France.

This piece of legislation is not intended to replace national rules in international private law regarding the formal requirements of wills. Its aim is to complement it, facilitating international private relations, but it may also be used for purely domestic situations.

The originality of the Washington Convention resides in it not having recourse to the traditional method used by international private law instruments, i.e. the setting up of conflicts of law rules.

The Convention establishes a supranational rule, a uniform law which each Member State is bound to incorporate into its domestic legal system, making it a genuine internal provision.

The uniform law plans that the will shall be:

- made in writing ;

- not necessarily made by the testator himself ;

- in any language ;

- by hand or by any other process ; and

- before two witnesses and a person empowered to draw up a formal document (i.e. the notaire in France).

The testator signs and dates the will in the presence of the witnesses and the notary, who also sign it.

One signed original is meant for the testator, whilst the notary keeps the other one and proceeds with its registration.

In France, despite the fact that the uniform law entered into force on 1 December 1994, its implementation record is poor. The use of this complex will type remains confined to marginal cases.

Moreover, the main use of this type of will is very far from its primary purpose: it is at present mainly resorted to by the disabled, illiterates and foreigners who do not speak French and are not able to enter into a traditional will as the latter must be written, dated and signed by the testator himself.

It appears urgent to us that the Civil Code be modified, in order to confirm and to advertise that the international will is a valid will type alongside the more traditional forms. Its incorporation into the Civil Code would surely promote its use.

In the eleven other countries (Belgium, Bosnia-Herzegovina, Canada, Cyprus, Ecuador, Italy, Libya, Niger, Portugal, Slovenia, Yugoslavia) where the Washington Convention has been ratified and has entered into force, the international will is used very sparingly. Prominent Member States that have not yet ratified the Convention include the United States of America and the United Kingdom.

Yet, regarding those two countries, and many others, the Hague Convention of 5 October 1961 is enforceable. This latter Convention’s conflict of law rules give force to the domestic provisions of a signatory to the Washington Convention. Accordingly, use of the international will may be possible in a jurisdiction where the Washington Convention has been signed but has not yet entered into force.

But, a European Union legal instrument is currently in the pipelines. One can estimate that every year between 50.000 and 100.000 transnational successions arise in the EU, and obviously that number should now increase in view of the recent accession of ten new Member States.

The European Parliament therefore decided to vote on 15 November in favour of a report prepared by Italian MEP Giuseppe Gargani. The report suggests that the Commission prepare a piece of legislation on transborder inheritance rules, in order to reduce profound differences between Member States’ systems of private international law and their respective substantive law on successions and wills.

Unlike the uniform law system used by the Washington Convention, this EU legal instrument would harmonize the rules concerning jurisdiction, the applicable national law and the recognition and enforcement of judgments and public instruments issued abroad.

In addition, the European Parliament believes that the simplification of the procedures to be followed by heirs to obtain possession of the property comprised in the estate would be achieved by introducing a “European certificate of inheritance”. This tool, which would be usable in every Member State, would establish unless proven otherwise which law applies to the succession, the beneficiaries of the estate, the persons responsible for its administration, and the property comprising it.

If the European Commission follows the timeline proposed by the report, a legislative proposal should be drafted during the course of 2007.

The proposed piece of legislation may make recourse to the Washington Convention’s international will even rarer within the European Union’s borders.





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