Since World War II, more and more people have engaged in what you might call international lives. At first, the numbers were small. Now they are huge.
‘International lives’ means living or working and owning property in several countries around the world. You may, for example, work for a bank or IT company that sends you off for two or three years at a time to work in Singapore, Dubai, Japan, Germany, New York, London etc. You may also have a holiday home and a main residence ‘back home’. Maybe in the course of all this travelling you meet and marry someone of a different nationality. You may have children born in any of the countries that you have visited.
If any of these things apply to you, you could find that you will need a Will that will be recognised and that can be acted upon in several countries.
The Washington Convention on the Form of International Wills
Recognising this need, in 1973 a number of countries signed an international convention – known as the Washington Convention aas it was signed in Washington, D.C. Its official title is “Convention Providing a Uniform Law on the Form of an International Will”. It is also often referred to as the Wills Convention 1973. It is relatively short and so may be worth reading. Read it here.
The thinking behind this convention is that, in almost every country in the world, there are pretty similar rules. It therefore shouldn’t be too complicated to come up with a document acceptable in most countries.
The requirements as to the form needed for a valid international Will are fairly simple and apply irrespective of the place where the Will was made, the place where any assets are located and the residence of the person who made the Will.
- It must be in writing
- It need not be written by the person who is making the Will – i.e. somebody else can write it down for them
- It may be written by hand or in any other way and can be in any language
- The person making the Will must declare in the presence of two witnesses and a ‘duly authorised person’ (usually a Notary or a lawyer) that the document is their will and that they know the contents of it
- The person making the Will must sign it (or acknowledge his earlier signature) in the presence of two witnesses and the authorised person
- The witnesses and the authorised person must then sign the Will in the presence of the person who made it
The authorised person then signs a certificate confirming that the rules have been complied with. They then keep a copy of that certificate and give another to the person who made the will.
All of this seems pretty simple. Unfortunately, very few countries (only 21) have accepted the convention. As a result, it is only in these countries that such a Will will be recognised.
Countries that have accepted the Washington Convention
- Bosnia Herzegovina
- Holy See (Vatican City)
- Russian Federation
- Sierra Leone
- United Kingdom
- United States of America
However, it’s important to note that – despite the fact that these countries have all signed and so accepted the Convention – there are several in which it is not yet enforced. These include The Holy See, Iran, Laos, Russian Federation and the United Kingdom.
In other words, for most people this is a pretty useless piece of legislation. As a result, in nearly 40 years working as a practising lawyer, I only ever prepared two or three international Wills – and only then at the specific request of a client.
Why are international Wills not a very good idea?
There are various reasons why the use of the international Will format is not a very good idea for most people.
It’s important to understand that, although the basics of a Will are pretty much the same in many countries, the contents tend to be very different. Therefore, even if you have a Will that has been prepared in a form that complies with the Washington Convention, the actual contents of that Will might be entirely inappropriate. At worst, they could deprive your heirs of the very inheritance that you want to pass on to them. At best, they could be grossly tax-inefficient or very expensive to implement.
The worst difficulties arise because, in many countries, local inheritance laws limit the people to whom you can pass on your assets when you die. The law may say, for example, that if you have children a fixed percentage of your assets must go to those children. If your Will – though in valid international form – does not comply with those rules, it will be invalid.
Other countries impose tax on an inheritance at rates based on who is inheriting the assets. For example, a gift to your spouse might be tax free; a gift to your children might be taxed at a very low rate but a gift to someone to whom you’re not relating could be taxed at 40, 50 or 60%. Again, the form of your international Will might be valid but it could give rise to enormous and distressing tax liabilities.
In fact, Wills do not just vary between country and country – their content can sometimes be usefully different in different parts of the same country: for example, in the different states of the United States or in the different regions of Spain.
Add to these problems two very practical difficulties:
- An international Will may be written in any language. This is fine when it comes to making the Will but can pose huge problems when it comes to implementing it. The authorities (who will almost certainly never have seen an international Will) will be deeply suspicious of it and won’t understand what it says. This is, at best, going to impose delay on the process of dealing with the inheritance. It will also add the significant cost of having the Will officially translated into the local language. The cost of the translation will usually be far greater than the cost of making the Will in the first place.
- The second problem is one of timing. Most countries will want to have the original signed will as the basis for taking action. They are usually not happy with the certificate signed by the Notary, especially if this is not how Wills are dealt with in their country. Again, this can impose significant delay on the whole process.
The alternative to an international Will
For most people the simplest and best solution is to make a separate Will in each of the countries where they have any assets or where they are going to be treated as residence for the purposes of inheritance tax.
This allows you to make a Will in each of those countries that makes the best of the local inheritance and tax laws.
For example, imagine that you lived in a country – such as the US – where there is a very large tax free allowance for inheritances and where that allowance can apply irrespective of who you leave the assets to. Imagine you have a holiday home in another country where gifts to your children are taxed at 5% but gifts to a stranger – including your unmarried partner – are taxed at 60%. It often makes sense to leave your assets in the second country directly to your children and to take care of the needs of your unmarried partner exclusively in the first country.
The flexibility created by having multiple Wills is completely lacking in an international will.
Making Wills, in most countries, is a relatively inexpensive process. As I’ve already said, it is often cheaper than the cost of translating your international Will and dealing with all the steps needed to give effect to it.
To find out how to make Wills in the various countries we deal with, see our country-specific guides.