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.
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.
For more information on German-British will preparation and probate matters please see these posts provided by the international succession laws experts of Graf & Partners LLP
- How to apply for a German Grant of Probate
- International Wills and Estate Planning for British-German Families
- Prove German Wills for English Probate
- Disputed Wills and Contentious Probate in Germany
- Don’t be afraid of Clients with Foreign Assets!
- Can foreign Taxes be set off against UK Inheritance Tax?
Or simply click on the “German Probate” section in the right column of this blog.
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The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German probate matters, including the representation of clients in contentious probate matters. If you need legal advice or representation in a German or cross border inheritance case please don’t hesitate to contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.