Formal Validity of a Will and foreign property
It was thought at one time that the formal requirements for validity were those of the law of the country where the testator was domiciled at the date of his death. The Wills Act 1963, which applies to the Wills of testators 1 January 1964, provides in section 1 that “a will shall be treated as properly executed” if its execution conforms with the internal law in force in any one of the following territories:
1. The territory where the will was executed (this is so irrespective of the duration of the testator’s visit to the territory; or
2. The territory where the testator was domiciled either at the time of making the will or at death;
3. The territory where the testator was habitually resident either at the time of making the will or at death; or the state of which the testator, either at the time of making the will or at death, was a national.
Following the UK’s ratification of the Washington Convention on International Wills (1973) a will is formally valid in all the contracting states if it complies with the formalities provided for by the convention. The domicile and nationality of the testator are no longer relevant, nor is the place where the will was made, nor the location of the assets in the estate. Under the Convention the will must be made in writing and the main formalities are that it must be signed and acknowledged by the testator in the presence of two witnesses and an ‘authorised person’. The authorised person (a solicitor or notary public if the will is made in England) must complete a form of certificate authenticating the will and confirming it has been properly executed. The certificate is then annexed to the will.
This rarely, if ever, happens when a will is made in England and Wales. Administration of Justice Act 1982, sections 27 and 28 dealing with the provisions relating to international wills have yet to be brought into force in the United Kingdom.
Essential Validity
Issues of “essential validity” include whether or not a gift to an attesting witness is valid; whether a gift infringes rules on perpetuity periods; and whether the testator has fulfilled a requirement to leave part of his property to his wife and children. Whether or not a gift or will has ‘essential validity’ or ‘material validity’ depends on whether or not the testator has complied with all the requirements of the relevant law.
In respect of moveable property, the ‘relevant law’ is that of the country in which the testator is domiciled at the time of his death.
Mere compliance with the formalities required by the Wills Act 1963 does not necessarily make valid either individual gifts or the whole will/ That Act only provides proof that the document in question is a will and therefore admissible to probate. An obvious example of this distinction is where the testator is a British subject who dies domiciled in France, having made a will in England according to English law. Probate will be granted provided the formalities of English law have been complied with when executing the will. But under French law the testator would be required to make provision for his spouse, children and remoter kin from his estate, and if the will does not contain such a provision some or all of it may be ineffective. The will would take effect subject to French law, which may result in intestacy. If only part of the estate fails, then the remainder may pass under the will, although any bequest would be reduced pro rata.
