Legal or Valid Last Will

Updated: Jul 10, 2018

Customized guide for Canada, USA, UK, Australia, India & China


Legal or Valid Last Will

When the Will becomes invalid?.

You may consider following in regards to Will which can turn part of entire Will to be invalid.


Witness requirements

In countries like Canada or USA, there are only two witnesses required and if you move out to another country where the witness requirement is three or more then your Will become invalid. So it is better to have three or more witness signing the Will to ensure it gets covered in multiple countries, provinces, states or territories.


Executor requirements

In majority of countries, there is one minimum executor is required, in other words; Will does not exist in case executor does not exist. Say you have created Will with one executor and due to some reason, if you move out to another country where the executor requirement is different (i.e. two or more) then your Will become invalid. So it is better to have two or more executor signing the Will to ensure it gets covered in multiple countries, provinces, states or territories.


Legal or Valid Will Chart

Language 

If you have estates in the country where the spoken and written language is not english then the english Will must be translated or followed rules of the country to comply the english written Will to be valid.


Contradictions

Another reason to turn the Will to be invalid is the texts or sentences in the Will which can contradicts with the law of country where the Will is going to be executed. It may not turn invalidations for entire Will but may be part of the Will.


Lawyer or Notary requirement

Majority countries do not have the lawyer or notary requirement for creating valid or legal Will, however if you are creating International Will then the Will has to be witnessed and signed by Authorized person and so, the Will created without lawyer turns your Will to be invalid.


Forced heirship clause

Majority countries do not have the forced heirship clause for Will, however countries like Italy, Germany or France do have the forced heirship which may not be supported by countries like USA, Canada, UK, Australia, India, China etc. It should not be issue as long as there is no conflicts of laws between countries where your Will is created vs the countries where your estates are.


Is Will valid in case if someone dies other than natural death?

The Wills is always valid document if made as per the rules of country of residence, it does not matter whether person dies in car accident, disaster or committing suicide. 


Country Wide Wills to be Legal & Valid

The Basic idea remains the same in country to country or province to province except few changes. Most of the countries and provinces (also, states and territories) agrees on following requirements for the Wills to be legal or valid,

  1. Age; Minimum age for testator starts at 18 years.

  2. Mental capacity: Testator must be in full mental capacity for writing Will.

  3. Witnesses: Minimum two witnesses are required.

  4. Executors; Minimum one executor should be on the Will.

  5. Format: It must be written by hand or prepared in computer.

  6. Signing: Will must be signed by Testator and two witnesses at a minimum and must be present at the same location while signing the Will.


International Wills to be Legal & Valid

If you have estates in multiple countries then one of the best choice is to create the one International Will for all countries where your estates are. Making an international Will is only possible when the countries where the Will is applied (and where the your estates are), must be part of the UNIDROIT.ORG signatory. The main difference between the Country wide will and International Will is; the International will has the CERTIFICATE which will be signed by Testator, two witnesses and and authorized person. The authorized person in most countries are lawyer or lawyer association firm approved by UNIDROIT.ORG. So in order to have the International Will to be legal and valid, it must be witnessed and signed by the Authorized person. In summary, the requirements for International Wills are...

  1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter (Ref. Article 1).

  2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind (Ref. Article 1).

  3. This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument (Ref. Article 2).

  4. The will shall be made in writing (Ref. Article 3).

  5. It need not be written by the testator himself (Ref. Article 3).

  6. It may be written in any language, by hand or by any other means (Ref. Article 3).

  7. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof (Ref. Article 4).

  8. The testator need not inform the witnesses, or the authorized person, of the contents of the will (Ref. Article 4).

  9. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature (Ref. Article 5).

  10. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designed to direct another person to sign on his behalf (Ref. Article 5).

  11.  The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator (Ref. Article 5).

  12. The signatures shall be placed at the end of the will (Ref. Article 6).

  13. If the will consists of several sheets, each sheet shall 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 (Ref. Article 6).

  14. The date of the will shall be the date of its signature by the authorized person (Ref. Article 7).

  15. This date shall be noted at the end of the will by the authorized person (Ref. Article 7).

  16. The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with (Ref. Article 9)

Multi-Jurisdictional Will to be Legal & Valid

If you have estates in multiple countries (provinces, states or territories) and your country is not part of the International Will Convention by UNIDROIT.ORG then only choice left for you is to create Multi-Jurisdictional Will i.e. separate Wills for each jurisdictions.  Different jurisdictions may be country to country or province to province jurisdictions. Similar to country wide Will, the Multi-Jurisdictional Will does not require lawyer, However, It does require an extra care on drafting such Will in terms of revoking statements of the Will, language of the Will, Conflict of Laws between different jurisdictions. So it is alway recommended to use lawyer for drafting such Will. In over the requirements for the Wills to be Legal or valid are as follows;

  1. Age; Minimum age for testator starts at 18 years.

  2. Mental capacity: Testator must be in full mental capacity for writing Will.

  3. Witnesses: Minimum two witnesses are required.

  4. Executors; Minimum one executor should be on the Will.

  5. Format: It must be written by hand or prepared in computer.

  6. Signing: Will must be signed by Testator and two witnesses at a minimum and must be present at the same location while signing the Will.

References

  1. Refer to Blog "Succession Laws & Acts Worldwide references".

  2. UNIDROIT.ORG website -International Institute for the unification of the private law. Go to Successions under Instruments for more information. For latest status on which countries are part of convention, visit UNIDROIT.ORG, Go to status-successions. For Article 1 to 10, visit UNIDROIT.ORG, Go to Succession under Instruments.

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