Normally, the country where the Will is executed is the country the laws of which apply to the method of execution
We have had multiple sessions on “Understanding Wills” at Moneylife Foundation; all rather entertaining and instructive for everyone, including the conductors. The question & answers dealt with immediate personal problems. That is normal. Only a few had questions about multinational assets; but, with the growing diaspora, laws relating to other countries become important.
Ruled, as we are, by the system left behind by our colonial past, the clash of different laws with relation to the UK and the USA is minimal. Drawing up of Wills is not that intricate, if these two countries are involved. But Indians are moving far a field and different countries present different kettles of fish. This is more so in the case of rather isolated states, smaller kingdoms, fiefdoms, theocratic states and those removed from the Roman traditions.
Normally, the country where the Will is executed is the country the laws of which apply to the method of execution. For example, in India, a holographic Will, one written by hand in the testator’s own writing, needs two witnesses. The same is true in the UK. But, in the USA, which follows a system very similar to that of the other two nations, a holographic Will, not witnessed by even a single witness, is accepted as a valid document. Seems pretty reasonable, if the handwriting can be matched with another valid document. Consider a man, alone and dying, wishing his assets away. Where does he get his witnesses? To each his own.
Poland was recently in the news for such a conflict of laws. A man made his Will in England. Perfect in all respects; as per English laws. What was not foreseen was that inheritance laws are different in different countries, especially when it comes to land—immovable property, something that one cannot put in one’s pocket and walk away with. The issue at hand was a thousand acres. Not chickenfeed by any stretch of imagination; neither can it be simply be laughed at nor given away.
You be the judge.
The Will was made in England. It was perfectly executed. The English court had no difficulty in granting the probate. Reference was also made to the large estate in Poland, received lawfully by the testator from his father. The son of the testator, whom the testator obviously did not like, was left out. Would you give anything to the son?
This is where the conflict of laws steps in, a conflict invariably connected with land. If the land were in India, the son would have got none of it. He would have been left high and dry. Indian courts would have rejected his claims. But Poland is another country, another jurisdiction, another set of intricate laws. How does it work there?
Polish law takes into account the validity of the overseas probate but puts other conditions on the transfer of land. It insists that all the beneficiaries under the Will be made parties to the proceedings. To add to the goulash, it calls for ‘potential beneficiaries’ to be added.
‘Potential beneficiaries’ is a scary term. Where does the definition of ‘potential’ end? Brothers, sisters, parents, cousins, second cousins, spouses, children, et al? What if the ‘potential’ ones are known to exist, but cannot be traced? Will public notices be sufficient? Must one employ town criers in remote areas? Is there a waiting period? And will the wait not run afoul of natural justice that calls for immediate resolution, so that no land lies fallow?
This is an interesting contrast to the very country where the Will was executed. England has always been against division of ancestral property. It believes that fragmented holdings are uneconomical. Poland, on the other hand, believes in the adage, ‘the-more-the merrier’.
We will leave it at that and hope for another time to dissect the conundrum. Should one be confronted with such a situation, there is a simple recourse. Make two Wills, one for each country. Or more, one for each other country. By the way, the ‘disinherited son’ was entitled to a third of the property!
(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected])