Graf & Partners share their views on foreign wills in the UK.
In order to be valid, a Will must bear the signature of two witnesses, right? Well, in principle yes. Section 9 of the Wills Act 1837 (as amended) provides that a Will shall not be valid unless: (a) it is in writing and signed by the testator, or by some other person in his presence and by his direction; (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either: (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of the other witness), but no form of attestation shall be necessary.
However, if the testator has failed to satisfy section 9 of the Wills Act 1837, the Will may still be saved by coming within the terms of section 1 of the Wills Act 1963:
Formal Validity of a Will: A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.
Thus, if, for instance, a German national living in England writes a German style Will, i.e. a hand written (holographic) “eigenhändiges Testament” without involving any witnesses, said Will is still accepted as being valid both in England and in Germany, because German law has corresponding legislation in place which deals with the formal validity of foreign Wills. Note: Since August 2015 these matters are dealt with by the EU Succession Regulation (EU Nr. 650/2012), which – however – the UK has opted out of.
Another example: If an English national who works as an expat in Germany for a few years (and thus has his habitual residence in Germany) executes a German style Will without witnesses, that Will is still valid in the UK.
Be careful with terminology: Lawyers often refer to section 1 Wills Act 1963 as dealing with “Wills made outside England and Wales”. This definition of scope is too narrow and thus incorrect. Because, as we have seen above, such a “Foreign Will” is valid even if it was executed on English soil, for example if the testator was domiciled in Germany or a German national, while living in England.
These views are the views of the author and not those of the Law Society.