One will per each country or one universal will?
International families, expats or elderly people who have moved to another country after retirement often have the choice as to under which country’s legal regime they wish to set up their Last Will & Testament (see here for mutual acknowledgement of Foreign Wills). In this article we compare the formal requirements of German, English and Scottish law (the latter being surprisingly different from English law, in spite of England and Scotland both being in the United Kingdom).
In Germany, a testator has two options to make a valid will: Either write the entire will in his or her own hand (so called holographic will) or make an appointment with a German notary (or German consular officer if the testator lives abroad) and have the will notarised. The latter alternative has one practical advantage: The heirs won’t have to obtain a German grant of probate (Erbschein or Testamentsvollstreckerzeugenis) later, because a German notarial will is accepted without such grant, i.e. in lieu of an Erbschein. This saves the German inheritors (beneficiaries) money and time. The German Supreme Court (Bundesgerichtshof) has even decided in a recent ruling of 5th April 2016 (BGH 5.4.2016, XI ZR 440/15), that the German heirs do not even need to obtain a German grant of probate if a holographic will is very clear and simple (see for example here). Up until then (and probably also for quite some time in the future, in spite of this recent ruling), German banks and insurance companies have always insisted on the heirs to produce a German grant to prove that they are entitled to the funds. More on German Wills and German Probate Procedure in the articles listed below.
England, Wales and Scotland use a very different approach to setting up a valid will. However, surprisingly, at least to a non British person, English and Scots Wills are quite different. Despite both being in the United Kingdom, Scotland and England retain their distinct differences in legal traditions. In fact, two entirely different legal systems exist in this small island, because Scots Law derives largely from principles akin to the Roman tradition and remains distinct from the English Common Law approach with heavier emphasis on precedent and equity. Thus, the law relating to wills, succession and probate proceedings is very different in England & Wales on the one hand and Scotland on the other hand side.
Formalities of Execution of the Will Document
As in the famous quote from “Pulp Fiction” it is the little differences: In Scotland, the will must be signed by the testator / testatrix on every single page and the last page must be signed before (at least) one witness.
In England, a signature by the testator is not required on every single page. However, the testator’s signature at the end of the will must be witnessed by two persons. If the “testing clause” in a Scots will does not give the date of execution, the will is invalid, whereas the absence of a date of signing on an English will is not that critical, because other evidence for the date of signing can be presented to the probate office. Surprisingly, in Scotland 12 year olds can make a valid will and a 16 year old can act as executor, while in England a valid will cannot be made until age eighteen is reached.
Thus, there is no such thing as a British or UK Will!
For more information on German-British probate matters and international will preparation see the below posts by the international succession law experts of Graf & Partners LLP:
- Most Germans die without a Will (German Intestacy Rules)
- The Perils of German IHT and Gift Tax
- Basics of German Inheritance and Succession Law
- Executors and Trustees in German Inheritance Law
- How to apply for a German Grant of Probate
- The Infamous German Community of Heirs – And how to avoid it
- International Wills and Estate Planning for British-German Families
- Prove German Wills for English Probate
- Disputed Wills and Contentious Probate in Germany
- Disinherit your no-good children? Not so easy 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 wish us to advise or represent you in a German or cross border inheritance case please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.