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Wills - Diplomatic Conference, Washington, D.C. - Report of Australian Delegation


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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

1974—Parliamentary Paper No. 317

DIPLOMATIC CONFERENCE ON WILLS

Washington D.C., 16-26 October 1973

REPORT OF THE AUSTRALIAN DELEGATION

Presented by Command 12 November 1974 Ordered to be printed 3 December 1974

GOVERNMENT PRINTER OF AUSTRALIA CANBERRA 1975

Printed by Austral Printing & Publishing Co. 125 Hawke Street, West Melbourne, Victoria

CONTENTS

Paragraph Nos

Introductory Remarks . . . . . . . 1 - 1 6

Article by Article Consideration of the Convention . . . 17—127

General Observations . . . . . . . 128—130

A nnexes Annex A A Convention providing a Uniform Law on the Form of an

International Will, adopted on 26 October 1973 Annex B The Final Act of the Diplomatic Conference on Wills, October 1973 Annex C UNIDROIT: Draft Convention providing a Uniform Law on the Form of the International Will

Annex D 1972 Convention on the Establishment of a Scheme of Registration of Wills Annex E 1961 Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions

Contents of Article by Article consideration in Detail

Article Nos Paragraph Nos Article Nos Paragraph Nos

I . . 17- 22 1 . 5 8 - 72

II . . 2 3 - 29 2 . 73

Ill . 3 0 - 32 3 . 7 4 - 79

IV . 3 3 - 35 4 . 8 0 - 85

V . . 3 6 - 42 5 . 8 6 - 94

VI . 4 3 - 47 6 . 9 5 - 98

VII . 48 7 . 99-102

VIII . 49 8 . 103-107

IX -X II 50 9 -1 0 108-112

XIII . 51 11 . v 113 —115

XIV . 5 2 - 53 12 . 116-122

XV . 5 4 - 56 13 . 123

XVI . 57 14 . 124-126

15 . 127

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The United States of America convened a Diplomatic Conference in Washington D.C. between 16-26 October 1973 to consider the UNIDROIT Draft Convention providing a Uniform Law on the Form of the International Will. UNIDROIT (the International Institute for the Unification of Private Law) prepared the Draft Convention during the period 1961-1972. The Honourable G. H. Aldrich, Acting

Legal Adviser, U.S. Department of State, in delivering the welcoming address of the Conference, stated the reason for convening a conference on this matter as follows: ‘In a world in which modern means of transportation have resulted in numerous persons spending substantial periods of time in two or more countries, a growing number of

situations arise in which it is necessary to prepare wills disposing of property located in more than one country. Individuals who must make a will in a foreign country . . . frequently find themselves confronted with conflicting and unfamiliar legal rules

concerning the formal requirements for such a will. From a practical point of view, it seems desirable that testators who find themselves in such a position be afforded a method to reduce to a minimum the uncertainty as to the formal validity of a will for the disposal of their property.’

2. Delegations from the following participated in the Conference: Australia, Belgium, Brazil, Canada, Taiwan, Czechoslovakia, Ecuador, France, Federal Republic of Germany, Greece, Guatemala, Holy See, Honduras, Iran, Iraq, Ireland, Italy, Ivory Coast, Japan, Jordan, Khmer Republic, Laos, Mexico, Netherlands, Nicaragua, Panama, Paraguay, Philippines, Poland, Portugal, San Marino, Senegal,

Sierra Leone, Spain, Sweden, Switzerland, Thailand, U.S.S.R., United Kingdom, U.S.A., Yugoslavia, Zaire.

3. Six States sent observers. They were Argentina, Denmark, Jamaica, South Africa, Trinidad and the Republic of Vietnam. As well, observers attended from the following intergovernmental organisations: Council of Europe, Hague Conference on Private International Law, UNIDROIT and the United Nations. Observers from the

Latin Notaries were also present at the Conference.

4. The Australian delegation consisted of Mr A. G. Hartnell, Senior Assistant Secretary, Attorney-General’s Department, as Representative and Mr M. Hughes, First Secretary, Australian Embassy, Washington, as Alternate Representative. Australia was represented at all sessions of the Conference.

5. The Conference elected Ambassador Richard D. Kearney, leader of the U.S. delegation, as President of the Conference. Vice-Presidents for the Conference were Attorney-General L. A. M. Brewah (Sierra Leone), Professor Elliseo Perez Cadalso (Honduras), Minister Toshio Yamazaki (Japan), Mr Jonkheer T. Von Sasse Yan

Ysselt (Netherlands), and First Deputy Minister of Justice Aleksandre J. Sukharev (U.S.S.R.). The Secretary-General for this Conference was Mr Francis J. Seidner, and the Deputy Secretary-General was Mr Jean-Pierre Plantard. Mr Plantard, of the UNIDROIT Secretariat, was requested by the Conference to write a report on the

final instrument produced.

6. The Conference established a Credentials Committee and a Drafting Committee. Australia was a member of the Credentials Committee, which was chaired by Professor Roberto N6nuz Escalante (Mexico). The Drafting Committee was chaired by Professor Pierre La Live (Switzerland) and had members from Brazil, Canada,

France, Federal Republic of Germany, Iran, Ivory Coast, Japan, Mexico, Nicaragua, Philippines, Spain, U.S.S.R., U.K. and U.S.A.

7. The Conference considered each of the articles of the Convention in turn. A vote was taken only if a general consensus did not emerge.

8. The basic working documents for the Conference were:

e the Draft Convention providing a Uniform Law on the Form of the Inter­ national Will, as prepared by UNIDROIT (hereinafter referred to as the UNIDROIT Draft Convention), with an Explanatory Report; and • Comments of Governments on the UNIDROIT Draft Convention.

9. The Conference adopted Ά Convention providing a Uniform Law on the Form o f an International Will’ on 26 October 1973. The Convention is divided into two parts; the first part contains the formal and implementing articles and the second part contains the uniform law.

10. The present signatories to the Convention are Belgium, Ecuador, Holy See, Iran, Laos, Sierra Leone, Taiwan and U.S.A.

11. The following documents are annexed to this report — the Convention adopted on 26 October 1973 (Annex A), the Final Act of the Diplomatic Conference on Wills, October 1973 (Annex B), the UNIDROIT Draft Convention (Annex C), the 1972 Convention on the Establishment of a Scheme of Registration of Wills (Annex D) and the 1961 Convention on the Conflict of Laws relating to the Form of Testamentary Dispositions (Annex E).

12. Under the Convention, each Contracting State undertakes to introduce an additional form of will, the international will, into its law. Each State also undertakes to recognise the validity of the form of any properly-made international will — irrespective of the country where it is made, the domicile of the testator and so on.

Despite the use of the word ‘international’, the Convention envisages that the ‘inter­ national will’ would also be available for purely domestic use within Contracting States.

13. In order for the international will to be valid as to form, it needs only to comply with the requirements set out in the Convention. These are: • that the will be in writing (in any language; not necessarily written by the testator himself), and

• that, in the presence of two witnesses and ‘the authorised person’, the testator declares that the document is his will and that he knows the contents thereof; he then signs the will and ‘there and then’ the witnesses and the authorised person also sign the will (the testator need not disclose the contents of his will to the witnesses or the authorised person). .

The ‘authorised person’ is a person appointed by a Contracting State to act in connection with wills made under the Convention. He can only act in respect of wills within the territory of the Contracting State which appoints him.

14. There are also other requirements laid down by the Convention as to the form of the will, but failure to observe these does not invalidate the will as to form. Briefly, these requirements are that signatures are to be placed at the end of the will, that the pages of the will be numbered, and that a certificate be attached to the will setting out a record of the proceedings of the execution of the will. This certificate will constitute evidence of the validity of the will in any Court of a Contracting State.

15. The Convention will remain open for signature until 31 December 1974, signature being subject to ratification. The Convention is open indefinitely for accession. The Government of the United States of America is to be the Depositary Government. The Convention will enter into force six months after the date of deposit of the fifth instrument of ratification or accession.

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16. What follows is a detailed, article by article, consideration of both parts of the Convention. After this consideration the delegation makes some general observa­ tions on the Convention and its appropriateness for Australia.

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CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL

Preamble

The States signatory to the present Convention, DESIRING to provide to a greater extent for the respecting of last wills by estab­ lishing an additional form of will hereinafter to be called an ‘international will’ which, if employed, would dispense to some extent with the search for the applicable law;

HA VE RESOL VED to conclude a Convention for this purpose and have agreed upon the following provisions:

ARTICLE I

Sub-article 1

1. Each Contracting Party undertakes that not later than six months after the date of entry into force of this Convention in respect of that Party it shall introduce into its law the rules regarding an international will set out in the Annex to this Convention.

17. This sub-article, apart from minor drafting changes, remains the same as sub­ article 1(1) of the UNIDROIT Draft Convention.

18. In Australia, implementing legislation would be required for the Convention to have effect, and ratification or accession would not usually take place until imple­ menting legislation had been enacted. It has been common practice in the past for such legislation to come into force, after the Convention has been ratified or acceded to, at the moment the Convention enters into force for Australia (see, for example, clause 2, Arbitration (Foreign Awards and Agreements) Bill 1974).

19. A problem arises from the specific reference in this sub-article to the rules set out in the Annex, without any reference to the substantive law rules set out in the Convention itself (e.g. Articles V and VI). The understanding of the delegation is that it is not intended thereby that a Contracting State need not implement the substantive rules in the Convention itself. Rather it was intended that implementation of the Convention itself should be left to the general law on the implementation of treaties.

Sub-article 2

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2. Each Contracting Party may introduce the provisions of the Annex into its law either by reproducing the actual text, or by translating it into its official language or languages.

20. This sub-article is the same as sub-article 1(2) of the UNIDROIT Draft Convention. Its basic intention is to promote international uniformity by ensuring that the actual words of the annex are incorporated into domestic law, not an inter­ pretation placed on those words by a particular Contracting State. The Greek delega­ tion proposed deleting the sub-article, taking the view that it would recognise the language of every country ratifying as being an official text of the Convention. This was supported by the U.K. delegation. However it was pointed out, correctly in the view of the Australian delegation, that the official texts of the Convention were not

affected by this provision, as sub-article 1(2) referred to the spoken language of each State and not to the official texts of the Convention, which are only English, French, Russian and Spanish.

Sub-article 3 3. Each Contracting Party may introduce into its law such further provisions as are necessary to give the provisions of the Annex full effect in its territory.

21. This sub-article does not appear in the UNIDROIT Draft Convention. It was proposed by the U.K. and supported by the Conference out of abundant caution that, in particular states, having regard to local law, further provisions would be needed to give full effect to the matters contained in the annex. It is, of course, a detraction from the philosophy of sub-articles 1(1) and 1(2) but it is clear that additional provisions are envisaged, not alternative expressions of the rules contained in the Annex.

Sub-article 4 4. Each Contracting Party shall submit to the Depositary Government the text of the rules introduced into its national law in order to implement the provisions of this Convention.

22. This is a common provision in Conventions.

ARTICLE II

Sub-article (1) 1. Each Contracting Party shall implement the provisions of the Annex in its law, within the period provided for in the preceding article, by designating the persons who, in its territory, shall be authorised to act in connection with international wills. It may also designate as a person authorised to act with regard to its nationals its diplomatic or consular agents abroad insofar as the local law does not prohibit it.

23. The first sentence of this sub-article is the same as sub-article 11(1) of the UNIDROIT Draft Convention. Its purport is to require a Contracting State to designate, within six months of the Convention entering into force in that State, who are to be the ‘authorised persons’ to act in connection with international wills. The

authorised persons, broadly speaking, are the persons before whom international wills are signed and who attach certificates to the wills recording certain matters.

24. * An important qualification in the first sentence is that the authorised person only has authority to act in the territory of the State which appoints him. Therefore, for example, a person authorised to act in Australia (assuming it is a Contracting State) cannot act for international wills in the U.S.A. It is irrelevant whether or not

the U.S.A. is a Contracting State or whether or not the maker of the will in the U.S.A. is an Australian.

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25. It was envisaged by the Conference that designation could be of individual persons, or of classes of persons, or both, in the discretion of Contracting States.

26. The second sentence of this sub-article does not appear in the UNIDROIT Draft. It was proposed by Belgium and allows a Contracting State to designate diplomatic or consular agents abroad to act as authorised persons for the purposes of the Convention, but only with regard to its own nationals.

27. These persons cannot act if the ‘local law’ prohibits them from doing so. The ‘local law’ would seem to be a reference to the law of the place where the diplomatic or consular agent is stationed. Whether the local law permits or prohibits a diplomatic

or consular agent from so acting would commonly arise out of an agreement between the countries. A similar provision exists for the solemnisation of marriage (see section 54 of the Marriage Act 1961-1973).

28. The sentence speaks of a diplomatic or consular agent being ‘abroad’. No distinction is made between his being in a Contracting State and a non-Contracting State.

Sub-article (2) 2. The Party shall notify such designation, as well as any modifications thereof, to the Depositary Government.

29. This sub-article is self-explanatory.

ARTICLE III

The capacity of the authorized person to act in connection with an international will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the territory of the other Contracting Parties.

30. This provision does not differ, in substance, from sub-article III(l) of the UNIDROIT Draft Convention. It provides for recognition, in Contracting States, of the capacity of persons appointed as authorised persons by other Contracting States. Without such a provision, it would have been open to a Contracting State to interpret the Convention so as to only recognise authorised persons appointed under its laws and not those appointed under the laws of other Contracting States.

31. Article III needs to be read in conjunction with Article II. Accordingly, the recognition of capacity which is required by Article III would only extend to acts of the authorised person in the territory of the designating Contracting State, or abroad,. to acts of the designated diplomatic or consular agents with regard to its own nationals insofar as the local law does not prohibit it.

32. Sub-article 111(2) of the UNIDROIT Draft Convention provided for the recognition of wills made in non-Contracting States. Such wills would have been recognised in Contracting States if made in the form of an international will before ‘a person qualified to receive wills’ in that State. The U.S.A. and Sweden proposed retaining this sub-article in the Convention with minor amendments. However the sub-article was not incorporated into the Convention because it was felt that recognising wills made in non-Contracting States was an undue extension of the scope of the Convention. It was also felt that it may cause real confusion in Contracting States. It therefore seems that wills made in non-Contracting States will not be inter­ national wills within the meaning of the Convention unless made before a diplomatic

or consular agent as provided under Article II. However, this does not preclude a national of a non-Contracting State from making an international will in a Contracting State.

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ARTICLE IV

The effectiveness of the certificate provided for in Article 10 of the Annex shall be recognized in the territories of all Contracting Parties.

33. This article, with consequential amendments, is similar to Article IV of the UNIDROIT Draft Convention. The article was adopted without real discussion at the Conference.

34. The reference to ‘effectiveness of the certificate’ must be taken as a reference to Article 12 of the Uniform Law which provides that, contrary evidence absent, the certificate of the authorised person shall be conclusive of the formal validity of the instrument.

35. Article IV is complementary to Article III. Contracting States are required to recognise certificates made in other Contracting States. Without such a provision it would be possible for a Contracting State not to give effect to certificates made under the laws of another Contracting State.

ARTICLE V

Sub-article (1) 1. The conditions requisite to acting as a witness of an international will shall be governed by the law under which the authorized person was designated. The same rule shall apply as regards an interpreter who is called upon to act.

36. The corresponding sub-article in the UNI DROIT Draft Convention (Article V( 1)) provided that the conditions requisite for acting as a witness were to be governed by the law of the place where the will was eventually received. The above sub-article, however, changes the test of the governing law to be the law under which

the authorised person is designated. This amendment was proposed by Belgium and seems preferable to the UNIDROIT Draft because the validity of the will is deter­ mined at the time it is made and there can be no subsequent invalidating factors. Under the Draft, the situation may have arisen that a will which was valid at the time

of making under the laws where the authorised person was designated (which will usually be where the will is made), became invalid because it was received in a Contracting State with different laws as to witnesses than the laws of the State where

the authorised person was designated.

37. The phrase ‘conditions requisite’ refers to the common law concept of capacity of a person to act as a witness. At common law, for example, a blind person cannot witness a will {In the Estate o f Gibson [1949] P. 434). In order to establish that the formal requirements of an international will have been fulfilled, inter alia, the testator

must sign the will in the presence of witnesses. If the persons purporting to be witnesses are not, in fact, witnesses (e.g. lack capacity), the requirements of the Convention as to form are not complied with. Ordinarily, in a court, evidence of the capacity of witnesses can be given by the witnesses. But, in cases where a valid

certificate (Article 10) is attached, the certificate can be used as evidence of this fact (see clause 10 of Article 10 above, under Article III, and Article 12).

38. Yugoslavia was concerned that no provision existed in the UNIDROIT Draft as to the law that is to govern the appointment of interpreters in the making of inter­ national wills. Accordingly, the second sentence to the above sub-article was added. The capacity of interpreters is also to be governed by the law of the place that . designates the authorised person.

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39. If a non-English speaking migrant, for example, wishes to make an inter­ national will before an authorised person in Australia, an interpreter will be needed to translate the will to the testator, if it is made in English, because under Article 4(1) of

the Annex the testator must know the contents of the will. Under sub-article V(l) this interpreter must meet the ‘conditions requisite’ under Australian law to act as an interpreter. The capacity of a person to act as an interpreter for these purposes under Australian law is governed by whether or not that person was sufficiently skilled to act as such. In the ordinary course a Court in Australia would have to decide this issue after receiving evidence on the matter.

40. However, the Convention has effectively side-stepped the requirement of Article V that interpreters meet the ‘conditions requisite’ under Australian law by providing:

(a) in Article 12 of the Annex, that in the absence of contrary evidence the certificate of the authorised person is conclusive of the formal validity of the will, and (b) in Article 10 of the Annex, providing the form of the certificate, that the

authorised person declare that the ‘testator knows of the contents’ of the will.

The authorised person is not required to disclose any use of an interpreter in his certificate and, given the fact that the certificate will most commonly be used in foreign states, the qualifications of an interpreter would seem to come into question only in rare situations.

Sub-article (2) 2. Nonetheless no one shall be disqualified to act as a witness of an international will solely because he is an alien.

41. Comment was made at the Conference that the UNIDROIT Draft of this sub­ article had not been accurately translated from French into English. Accordingly, it was retranslated and the final language adopted is as retranslated.

42. In some jurisdictions, aliens cannot act as witnesses. Because of the inter­ national character of this Convention, this disability is to be removed. In Australian law, there is no such restriction that aliens cannot act as witnesses (see generally Williams on Wills, 3rd Ed. p. 71).

ARTICLE VI

Sub-article (1) 1. The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.

43. This sub-article is substantially sub-article VI(1) of the UNIDROIT Draft Convention. It provides that signatures shall be exempt from ‘legalisation or like formality’. This refers to the formality of notarisation required for validation of wills in civil law countries and accordingly a civil law country may not refuse to recognise an international will on the basis that it has not been notarised. The Convention is silent as to what constitutes a ‘signature’. At common law a signature need not be the full name of the person signing; it may be a mark or initials (see generally Williams on

Wills, 3rd Ed. pp. 64-65 on the meaning o f ‘signature’ at common law). These will be established, no doubt, by precedents.

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Sub-article (2) 2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.

44. It is a requirement for the formal validity of an international will that it be signed by the testator, the authorised person and the witnesses (see Annex, Articles 3 to 5). In introducing the international will in a Court, evidence would ordinarily be required that the signatures on the will are, in fact, those of the testator, the authorised person and the witnesses.

45. Articles 10 and 12 of the Annex attempt to dispense with the requirement of formal proof of most signatures by use of a certificate signed by the authorised person. Clearly it is necessary, for this certificate to have its intended effect, that the signature of the authorised person be authentic. Sub-article VI(2) is an express

provision allowing competent authorities to satisfy themselves of such authenticity. It was inserted out of caution, to prevent any implication that the certificate was to be regarded as conclusive of the authenticity of the signature of the authorised person.

46. Sub-article VI(2) is not to be read as overriding the principle expressed in Article 12 of the Annex that evidence may be introduced to show that the instrument is not formally valid. No implication is to be drawn, from the fact that sub-article VI(2) only mentions the authorised person, that competent authorities cannot, in appropriate cases, enquire into the authenticity of other signatures.

47. If the certificate is not attached to the will, or if it is not valid, then it is arguable that the effect of sub-article VI(2) is that none of the signatures, other than that of the authorised person, needs to be authenticated. The sub-article was not intended to be read in this way, which would open up the possibility of forged signatures being forced

on a court. Where a certificate has not been attached, or it is defective, a party must still prove all signatures.

ARTICLE VII

The safekeeping of an international will shall be governed by the law under which the authorized person was designated.

48. This article appeared as Article 8 of the Annex to the UNIDROIT Draft Convention. The Conference felt that it should be included in the first part of the Convention. It should be read in conjunction with the new Article 8 of the Annex (see the discussion under that Article). In Australia there are no laws which require that wills be kept in certain places or registered for safekeeping. There are, however,

provisions which permit wills to be deposited (e.g. deeds registration legislation in N.S.W. and Victoria, also section 32 of the Wills Ordinance (A.C.T.) permitting the deposit of wills for safe custody with the Registrar of Probates).

ARTICLE VIII

No reservation shall be admitted to this Convention or to its Annex.

49t Switzerland argued that an article such as this infringed the sovereignity of States and should be deleted from the Convention. This, however, did not meet with the support of other countries and the article was retained in the form it appeared in • Article VII of the UNIDROIT Draft Convention. Deletion would have meant that

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any State not a party to the Vienna Convention on the Law of Treaties could make any reservation it desired on the basis of reciprocity. This would obviously detract from the international uniformity of the law.

ARTICLE IX

1. The present Convention shall be open for signature at Washington from 26 October 1973 until 31 December 1974.

2. The Convention shall be subject to ratification.

3. Instruments of ratification shall be deposited with the Government of the United States of America, which shall be the Depositary Government.

ARTICLE X

1. The Convention shall be open indefinitely for accession. "

2. Instruments of accession shall be deposited with the Depositary Government.

ARTICLE XI

1. The present Convention shall enter into force six months after the date of deposit of the fifth instrument of ratification or accession with the Depositary Government.

2. In the case of each State which ratifies this Convention or accedes to it after the fifth instrument of ratification or accession has been deposited, this Convention shall enter into force six months after the deposit of its own instrument of ratification or accession.

ARTICLE XII

1. Any Contracting Party may denounce this Convention by written notification to the Depositary Government.

2. Such denunciation shall take effect twelve months from the date on which the Depositary Government has received the notification, but such, denunciation shall not affect the validity of any will made during the period that the Convention was in effect for the denouncing State.

50. Articles IX to XII are the formal articles relating to signature, ratification or accession, depositary, entry into force and denunciation. They did not give rise to debate at the Conference.

ARTICLE XIII

1. Any State may, when it deposits its instrument of ratification or accession or at any time thereafter, declare, by a notice addressed to the Depositary Government, that this Convention shall apply to all or part of the territories for the international relations of which it is responsible.

2. Such declaration shall have effect six months after the date on which the Depositary Government shall have received notice thereof or, if at the end of such period the Convention has not yet come into force, from the date of its entry into force.

3. Each Contracting Party which has made a declaration in accordance with paragraph 1 of this Article may, in accordance with Article XII, denounce the Convention in relation to all or Dart of the territories concerned.

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51. This is the colonial clause. It allows Australia to extend the Convention to external territories for which it is responsible, such as Norfolk Island. The U.S.S.R. unsuccessfully sought deletion of this article as unnecessary and in conflict with U.N. resolutions relating to self-determination or independence for non self-governing territories.

ARTICLE XIV

1. If a State has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting

another declaration at any time.

2. These declarations shall be notified to the Depositary Government and shall state expressly the territorial units to which the Convention applies.

52. This is the federal clause. The clause in the UNIDROIT Draft Convention followed the precedent of the 1958 U.N. Convention on the Recognition and Enforcement of Arbitral Awards. Canada felt that this form of federal clause gave it real problems, but made it clear that it needed some form of federal clause as, without

it, Canada would not be able to ratify or accede to the Convention. Canada pointed out that the form of an international will fell within the jurisdiction of the Canadian Provinces. Short of full agreement from its Provinces, it could not legally implement

the Convention. Accordingly, Canada introduced the above text of a federal clause.

53. The Australian delegation pointed out in Plenary that it was against the adoption of any form of a federal clause. The delegation argued that federal clauses were discriminatory in that they resulted in lesser obligations being imposed on federal States than on unitary States. However, the Conference was disposed to agree with Canada and adopted the Canadian text.

ARTICLE XV

If a Contracting Party has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, any reference to the internal law of the place where the will is made or to the law under which the authorized person has been appointed to act in connection with international wills shall be construed in accordance with the constitutional system of the Party concerned.

54. This article is ancillary to the federal clause. Its aim is to make clearer how the articles of the Convention are to operate in the case of non-unitary States. The purport of the article is to allow non-unitary States to determine conflict of law questions in accordance with their own constitutional system.

55. The original Canadian proposal read: ‘In the application of this Convention to a Contracting State having two or more territorial units in which different systems of law apply in relation to the matters respecting the form of wills:

1. Any reference to the internal law of the place where the will is received be construed as referring to the internal law of the particular territorial unit where the will is received; and 2. Any reference to the authorized person to act in connection with the international

will or to receive the will shall be construed as referring to the authorized person . designated by the internal law of the particular territorial unit where the will is received.’

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56. Australia and Ireland suggested the following addition to the Canadian clause to deal with the situation where this Convention was implemented, in a federal state, by the federal authority: ‘In the application of this Convention to a Contracting State having two or more

territorial units in which different systems of law apply in relation to matters respecting the form of wills, but not the form of the international will:

1. Any reference to the internal law of the place where the international will is made shall be construed as referring to the federal law of the Contracting State; and 2. Any reference to the authorized person to act in connection with the international will shall be construed as referring to the authorized person designated by the federal law

of the Contracting State.’ Canada could not accept the Australian proposed addition and the text finally adopted was a compromise solution.

ARTICLE XVI

1. The original of the present Convention, in the English, French, Russian and Spanish languages, each version being equally authentic, shall be deposited with the Government of the United States of America, which shall transmit certified copies thereof to each of the signatory and acceding States and to the International Institute for the Unification of Private Law.

2. The Depositary Government shall give notice to the signatory and acceding States, and to the International Institute for the Unification of Private Law, of:

(a) any signature; (b) the deposit of any instrument of ratification or accession; (c) any date on which this Convention enters into force in accordance with Article XI; (d) any communication received in accordance with Article I, paragraph 4; (e) any notice received in accordance with Article II, paragraph 2; (f) any declaration received in accordance with Article XIII, paragraph 2, and the date

on which such declaration takes effect; (g) any denunciation received in accordance with Article XII, paragraph!, or Article XIII, paragraph 3, and the date on which the denunciation takes effect; (h) any declaration received in accordance with Article XIV, paragraph 2, and the date

on which the declaration takes effect.

IN W ITN ESS WHEREOF, the undersigned Plenipotentiaries, being duly authorised to that effect, have signed the present Convention.

DONE at Washington this twenty-sixth day of October, one thousand nine hundred and seventy-three.

57. These are familiar clauses in any Convention. The reference to UNIDROIT in sub-article XVI(2) is, of course, reflective of the prominent part played by that organisation in the development of this Convention.

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ANNEX

UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL

ARTICLE 1

Sub-article (1) 1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions

set out in Articles 2 to 5 hereinafter.

58. This sub-article generally follows sub-article 1(1) of the Annex to the UNIDROIT Draft Convention. However the draft was amended by the addition of the word ‘particularly’ after the first ‘irrespective’, by the addition ‘of the location of the assets’ after the words ‘where it is made’, by the deletion of the second ‘irrespec­

tive’ and by the substitution o f‘Articles 2 to 5’ instead o f‘Articles 2 to 4’.

59. With the exception of the addition of the word ‘particularly’, none of the amendments made to the sub-article really affect its substance. The Greek delegation was concerned that the wording of the draft UNIDROIT sub-article left it open for other factors (such as the location of the assets) to affect the validity of the form of the will. It proposed the addition of the words ‘or any other factor’. The Drafting Com­

mittee preferred, instead, the use of the word ‘particularly’. This makes it clear that the matters listed in the sub-article are not the only factors to be disregarded in look­ ing at the validity of the will.

60. One of the amending proposals rejected was the deletion of the words ‘irrespec­ tive of the place where it is made and irrespective of the nationality, domicile or residence of the testator’, which were seen as superfluous by some delegations (par­ ticularly the Belgian). Other delegations (e.g. the Swiss) considered these words were

helpful to emphasise the basic aim of the uniform law and supported their retention. The amendment was finally withdrawn.

61. The basic function of this sub-article is to set out what requirements must be complied with in order for a will to be in the form of an international will. In this respect, it states that the will must comply with articles 2-5 of the Annex. This raises the question of the function of the other articles to the Annex. For example Article 6

states that the signature must be placed at the end of the will. It would follow from sub-article 1(1) that failure to put the signature at the end of the wHl will not in­ validate it as to form. This matter is discussed later, in connection with Article 6.

62. The sub-article purports to make the place where the international will is made irrelevant to its validity as regards form. Despite the use of this broad language it is misleading, since Articles 4 and 5 of the Annex require the presence of an authorised person for certain acts of the testator which are necessary to make the will valid. Ar­

ticle II of the Convention provides that authorised persons can only act within the territory of the Contracting State which appoints them or, in the case of diplomatic or consular agents, (where local law permits) for nationals of the designating State in foreign countries. This has effectively limited the places where the will can be made.

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63. If the Convention is only to affect the form of the will, the question arises as to what law determines such issues as the testator’s capacity, the essential validity, con­ struction or revocation of the will. Revocation is dealt with by Article 14 of the Annex (see the discussion under that article), but the Convention is silent on all other matters. It was intended that the relevant law of the particular Contracting State will determine such matters. Depending on the testator’s domicile at death or at the time of execution of the will, or where his property is located, to find the relevant substan­ tive law to cover the matters mentioned above as not being covered by this Conven­ tion a Contracting State would need to apply its own conflicts rules to other than purely ‘domestic’ international wills (see Nygh, Conflict o f Laws, 2nd edn, pp. 686­ 688; Sykes, Australian Conflict o f Laws, 1972, pp. 470-488).

Sub-article (2) 2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.

64. At the Conference, two proposals were made to bring out more clearly the prin­ ciple of sub-article 1(2) of the UNIDROIT Draft. The first proposal was put forward by Greece, which wanted the following wording for the sub-article: ‘Failure to observe any such provision shall not by itself affect the validity of the will as

regards form, if that is valid under the law applicable in accordance with the rules of private international law of the country concerned (forum).’

65. The second proposal was put forward by the U.S.S.R. which wanted the follow­ ing wording: ‘Non observance of any such rules does not affect the validity of any will of another kind, made in accordance with the requirements of domestic law including the rules

governing choice of law. ’

66. Both proposals were referred to the Drafting Committee which formulated the above wording. This was accepted unanimously by the Conference.

67. The sub-article ensures that a will, which may not be valid as an international will because it has not complied with the Convention, can still be valid by reason of the operation of other rules of the domestic law of a Contracting State. The sub­ article is therefore a saving provision.

68. In this respect, three sets of conflicts rules exist in Australia to decide which law determines whether a will is valid as to form. First, in the A.C.T. and N.S.W. validity, is governed by the common law. At common law, the formal validity of a will as to

movables is governed by the law of the testator’s domicile at the time of death. No ac­ count is taken of the place of execution of the will or of the testator’s nationality. In the case of immovables, the will must conform with the lex situs (see Nygh, Conflict o f Laws, 2nd edn, pp. 688-9).

69. Second, in the Northern Territory and Queensland, Lord Kingsdown’s Act (English Wills Act 1861) has been adopted with local modifications. Using the Northern Territory as an example ( Wills Ordinance, N.T. (1968-1969), section 13, 14), a testator who makes his will outside the territory, in relation to ‘personality’ (note ‘movable’ is not used), has a choice as to its form. He can choose to comply

with: • the law of the place of execution, • the law of the domicile of the testator at the time of execution, or • the law of that part of the British Empire in which the testator had his

domicile of origin.

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70. These provisions do not affect the operation of the common law rules in the territory which, as was said above, apply to N.S.W. and the A.C.T. With respect to immovables, the common law applies (lex situs; see generally Nygh, op. cit., pp. 689­ 691).

71. Third, in Victoria, South Australia, Western Australia and Tasmania, the Hague Convention of 1960 on the Conflict of Laws Relating to the Form of Testamentary Dispositions (appended to this report) has been given effect to. Under the legislation, regardless of where the will was made, or whether it relates to

movables or immovables, it will be valid (inter alia) if execution conforms with the law of any of the following: -

• the place where the will was executed; e the place where, at the time of execution of the will, the testator was domicil­ ed; • the place where, at the time of death, the testator was domiciled (see generally Wills (Formal Validity) Act, 1964 (Vic); Nygh, op. cit., pp. 691-695).

72. Given the fact that a number of Australian States have enacted the provisions of the Hague Convention of 1960 on the Form of Testamentary Dispositions, it may be desirable that the Australian Government accede to that Convention, giving effect to its provisions uniformly throughout Australia. Since there is no Federal State clause

in the Convention, accession cannot take place extending the Convention only to Australian States which have implemented the Convention (c.f. article 17 of that Convention).

ARTICLE 2

This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

73. It was generally accepted at the Conference that the Convention was to apply to wills made by one person only. However, some doubt was cast on whether the draft Convention made this clear. It was decided to include an express clause to put the point beyond doubt. The 1960 Hague Convention on the Form of Testamentary

Dispositions, unlike this Convention, applies to wills made by one or more persons (article 4).

ARTICLE 3

1. The will shall be made in writing. 2. It need not be written by the testator himself. 3. It may be written in any language, by hand or by any other means.

74. Apart from the renumbering of sub-articles, this is the same as article 2 of the Annex to the UNIDROIT Draft. Two amendments, one by Spain and the other by Iran, were proposed unsuccessfully.

75. * The Spanish amendment related to sub-article (3) of the article. Spain proposed that it read: ‘It may be written in any language known to the testator by hand or by any other means.’

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The reason for adding the underlined words was to overcome the possibility of fraud where the testator may not be aware of the contents of the will because he did not understand its language. But it was pointed out that such an amendment was not needed because article 4 of the Convention covered the situation. Article 4 provides that the testator must declare that he knows the contents of the will.

76. The Iran delegation proposed inserting a definition of an international will. Its amendment stated: ‘From the stand-point of this uniform law, the “international will” is the written manifestation of the last wishes of the deceased in the forms prescribed by this uniform

law, whether it is written by the hand of the testator himself or by another person or by any other means and in any case in any language.’ Reservations were expressed for the need of such definitions in the Convention. Definitions, it was said, would undermine the simplicity of the uniform law. This view found the clear support of the Conference.

77. The article clearly excludes the making of oral wills. This would be so whether the will is spoken to someone or whether the testator’s voice is sound recorded by some mechanical means. The will can be written in any language and there is no restriction as to what alphabet can be used. This would allow migrants to Australia to

make wills in their native alphabets and languages. This should not cause difficulties for the authorised person as he need not know the contents of the will (Article 4(2)).

78. The fact that the will need not be written by the testator himself is in accord with the way wills are commonly drawn up in Australia. Commonly a solicitor draws up the will to be executed by the testator in accordance with domestic law. The will can

be written by hand or by any other means such as a typewriter or even a computer. The fact that it is written in pencil, ink or paint will not affect its validity. Nor will the size of the material it is written on. The reference in Article 4 to a ‘document’ would imply that the testator is limited as to the materials he can use on which to write the will (note the definition given to the word ‘document’ in various Australian evidence Acts, e.g. (Vic.) Evidence Act (1958), Section 3; (A.C.T.) Evidence Ordinance 1971, Section 6).

79. Merely because the testator writes out the will in his own handwriting and signs it will not constitute an international will under the Convention. This is in contrast to the holograph will recognised in some jurisdictions (see Williams on Wills, 3rd edn, pp. 57-8). .

ARTICLE 4

Sub-article (1) 1. The testator shall declare in the presence of two witnesses and of a person authoriz­ ed to act in connection with international wills that the document is his will and that he knows the contents thereof.

80. This sub-article is unchanged from sub-article 3(1) of the Annex of the UNIDROIT Draft Convention. Greece, Japan and Brazil moved unsuccessfully for amendments to the sub-article. The Greek proposal was to add the words ‘and ap­ proves’ after the words ‘and that he knows’. It was pointed out that the suggested words were not needed as they applied to the essential validity of a will and not to its

form, which is the only matter the Convention deals with.

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81. Japan proposed adding ‘orally or in script’ after ‘the testator shall’ in the sub­ article. This proposal found little support as it was felt to be already implied. The Brazilian amendment was to add the words ‘who understands his language’ after the words ‘two witnesses’. The Brazilian delegation did not speak to this amendment in plenary and consequently the amendment lapsed. At the final Plenary the sub-article was accepted by all except Brazil. The Brazilian delegation stated its opposition to the

sub-article.

82. The sub-article does not state that the declaration by the testator has to take any particular form. He can make the declaration orally, or if he is mute, he can write it down or he can declare it holding a Bible and so on. The certificate in article 10 (see clause 4) will be proof of the fact that a declaration in accordance with sub-article 4(1)

has been made. In situations where the will is subsequently impeached on the basis that the testator did not know its contents, difficulties of proof may exist. These dif­ ficulties, however, are not any greater than those which exist under the present laws governing the form of wills where more than one legal system is involved.

83. The testator has to make the declaration in the presence of two witnesses and of the authorised person. Some argument may be raised that these persons need not all be present at the same time. It was, however, the intention of the conference that all persons be present at the same time and in the opinion of this delegation the wording

of the sub-article has achieved this end. Note particularly the function of the word ‘and’ in the phrase. This interpretation is also borne out by the certificate in article 10 (clause 3) which states ‘in my presence and that of the witnesses’ the testator made the declaration.

84. As to the capacity of the witnesses, see the earlier discussions on Article V of the Convention. As to the capacity of the authorised person, see the discussions on Ar­ ticle III of the Convention,

Sub-article (2) 2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

85. This sub-article is the same as sub-article 3(2) of the Annex to the UNIDROIT Draft. No amendments were proposed to it but Japan did move for the addition of a sub-article (3) to the Article. Its proposal was to read: ‘3. The witnesses shall satisfy the requirements needed according to the internal law of

the place where the will is received.’

The Chairman pointed out that this point was already covered in sub-article V(l) of the Convention and it was not pressed.

ARTICLE 5

Sub-article (1)

1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.

86. This is the same as sub-article 4(1) of the Annex of the UNIDROIT Draft. It requires the testator to sign the will or if he has previously signed it, to acknowledge his signature.

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87. Iran unsuccessfully proposed an amendment to the sub-article, to add the words ‘in writing on the instrument itself or, if the case should arise, on the sealed envelope containing the will, his prior signature’ after the word ‘acknowledge’ and to delete ‘his signature’. The reason for the proposed amendment was to allow secret wills to be made. Under the proposal the witnesses needed to sign only the envelope containing the will. It was accepted that the amendment was not needed as the Convention en­

visaged secret wills under sub-article 4(2). By virtue of that sub-article, the testator can take steps to cover the body of the will when it is being executed.

88. As to what constitutes a signature, see the discussion above under Article VI of the Convention. The testator must sign the will (or acknowledge it) in the presence of the authorised person and the witnesses. Similar to the position with respect to the declaration under Article 4 of the Annex, this implies that they all be present at the same time. The fact that the witnesses must be present at the same time is in line with our domestic law (see, for example, section 7, Wills A ct 1958, Vic.).

89. In line with our domestic law, a testator is permitted to ‘acknowledge’ his signature where he has previously signed his will. The Convention does not outline what amounts to an ‘acknowledgment’. At common law an acknowledgment may be made by gesture, or in answer to a question. Even an express reference to the signature may not be necessary — a mere statement by the testator that the instru­ ment is his will, or a request of the witnesses to sign the document, may be sufficient.

90. Clause 6 of the certificate given under Article 10 of the Annex is proof of signature or acknowledgment by the testator. Reference has already been made to dif­ ficulties of proof if there is no certificate or if it is defective.

Sub-article (2) 2. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.

91. This sub-article did not appear in the UNIDROIT Draft Convention. It was proposed by Brazil. Its aim is to allow illiterate and incapacitated persons to make in­ ternational wills. The U.S.S.R. and the Observer from the Latin Notaries also put forward similar proposals.

92. The sub-article gives rise to several issues. Firstly, unlike our law, the sub-article allows wills to be made where neither the testator nor someone on his behalf has sign­ ed it. It allows a will to be valid if it has a notation, made by the authorised person, as to why the testator was unable to sign. This raises the question of what disabilities courts are to recognise as justifying non-signature, i.e. what satisfies the test of ‘unable to sign’. Since the article was introduced to assist illiterate persons, this should be a disability that is acceptable. Presumably physical disabilities would also be sufficient to justify non-signature. The authorised person must place the statement of reason on the certificate (see clause 6(2) of the certificate).

93. Secondly, the precise meaning of the second sentence of sub-article 5(2) is un­ clear, particularly as to whether the testator may look to local law for the ability to direct another person to sign only if the testator himself is unable to sign, or whether the testator may direct another person to sign whenever local law would permit him to so do. For example, under Australian law a testator may direct another person to sign irrespective of whether the testator is under a disability. In the view of the Australian delegation, the intention of the conference was to allow local law full operation on this

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matter and the question of whether or not the testator is under a disability will only be relevant if it is relevant to local law. (Note, with regard to Australian law, that the testator must be present when the directed person signs the will in the presence of the witnesses, e.g. Wills A ct 1958 (Vic.), section 7.)

Sub-article (3) 3. The witnesses and the authorized person shall there and then attest the will by sign­ ing in the presence of the testator.

94. This sub-article corresponds with sub-article 4(2) of the UNIDROIT Draft. Ireland proposed amending the sub-article to make it clear that the testator and witnesses need to sign at the same time and in the presence of each other. In view of the wording of the clause, and of Article 5(1), Ireland did not press for the amend­

ment (see under article 5(1) above).

ARTICLE 6

1. The signatures shall be placed at the end of the will.

2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf, or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.

95. The forerunner to this article was article 5 of the Annex to the UNIDROIT Draft. Apart from consequential amendments, the only substantive amendment made was the deletion of the words ‘unless the sheets follow each other as a whole’ from the draft. This amendment was proposed by Australia because of doubts about the mean­

ing of the expression ‘follow each other as a whole’. For example, to comply with this description was it necessary that the sheets be physically fixed together by some means or would consecutively numbered separate sheets be sufficient?

96. The most important point about this article, read in conjunction with sub­ article 1(1), is that failure to comply with it does not render the will invalid as to form. The reason why the Annex makes a distinction between articles 1 to 5 (which are es­ sential to the validity as to form of the international will) and the other Articles of the

Annex (which do not affect validity as to form) was that the conference felt that the former were essential safeguards whilst the latter should not be so regarded, but were useful rules which might assist international uniformity of practice. It was felt that the benefits of the certificate would be so obvious as to induce testators to have them drawn up.

97. The fact that article 6 is not essential to the validity of the form of the will, in effect, means that it is not useful in preventing frauds and forgeries in cases of wills which are more than one page long. If a testator is required to sign all pages, fraud and forgeries are minimised because of the difficulty of reproducing a person’s

signature. However, where he has an election to sign all pages, even if he does so, pages could later be inserted without his signature being put on them. Since it is not a necessary requirement that each page be signed and numbered, a court can hardly declare a will invalid merely because one of its pages is not signed or numbered.

98. Each page of the will can be signed by the testator, by someone acting on his behalf, or by the authorised person. The last two mentioned persons can only sign when the testator is ‘unable to sign’ and the authorised person can only sign if there is ' no person signing on behalf of the testator.

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ARTICLE 7

Sub-article (1) 1. The date of the will shall be the date of its signature by the authorized person.

99. Sub-article 6(1) of the UNIDROIT Draft stated that the date of the will ‘is the date of its reception’. The meaning of the phrase ‘its reception’ caused difficulties for many countries, including Australia, because of its obscure meaning. Canada and the U.K. put forward proposals that the phrase be deleted and consequently the Drafting Committee proposed the above draft, which was adopted unanimously.

100. The date on a will is important in the event of the existence of another will by the testator or in the event of marriage. In the former case, a later will revokes and prevails over an earlier will. Marriage, if it occurs after a will is executed, revokes the will (e.g. section 16, Wills A ct 1958 (Vic.)). However, as noted previously, the Convention does not make the inclusion of a date a mandatory requirement. This is in line with Australian domestic law where a date is usual practice but is not a mandatory requirement.

101. If proof of the date of the will becomes an issue, the question of how it can be proved in a court of law arises. The certificate in Article 10 does have a clause relating to the date the will is signed by the testator in accordance with the Convention (clause 2). However, Article 12 only allows the certificate to be conclusive of the

‘formal validity’ of the will. The date is not part of the formal validity of the will by virtue of Article 1(1). The date would need to be proved according to the ordinary rules of evidence. In this regard the certificate may possibly be used as documentary evidence of the date, provided it comes within an exception to the hearsay rule (e.g. Evidence Act 1958 (Vic.), section 55).

Sub-article (2) 2. This date shall be noted at the end of the Will by the authorized person.

102. This was sub-article 6(2) of the UNIDROIT Draft. In view of the deletion of ‘its reception’ in the previous sub-article, consequential amendments were made to this sub-article. These consequential amendments also included the deletion of sub­ article 6(3) of the UNIDROIT Draft which related to disputes about the date of reception.

ARTICLE 8

In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9.

103. This is a new article in the Convention. Article 8 of the Draft Convention, which provided that the safekeeping of the will was to be governed by the internal law of the place where the will is received, was deleted from the uniform law and inserted as Article VII of the Convention, with the change of the reference to the law under which the authorised person was designated. The present Article 8 was proposed by

France, to deal with the situation (such as in Australia) where Contracting States have no mandatory internal law about the safekeeping of wills. The article allows the testator to make a declaration as to where the will is to be kept. It was accepted by the Conference unanimously.

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104. It is to be noted that the article does not require the authorised person to take action to ensure that the will is kept in the place where the testator declares it shall be kept. Therefore the procedure is purely for information.

105. If the testator makes a declaration and after his death the will is not in that place (note that the authorised person has a copy of the certificate — Article 11), the question arises as to whether an inference can be drawn that the will has been destroyed and therefore the testator has died intestate. This will be a matter for the

courts, but it would seem that searches should be made, not only in that place, but also in other places where the testator could have reasonably deposited his will before such an inference could be drawn.

106. The Netherlands proposed the creation of a central Registry of Wills to be kept by each Convention country. There was general agreement that this proposal had merit, but difficulties were seen in putting such a requirement in the Convention at such a late stage. It was finally decided that the Conference would resolve to

recommend to participating States that they establish such a registry, for the inter­ national will particularly, along the lines of the 1972 Convention on the Establish­ ment of a Scheme of Registration of Wills (see the Annex to this report for the text of that Convention). The resolution, which was attached to the Final Act of the Conference, read as follows:

‘Considering the importance of measures to permit safeguarding of wills and to find them after the death of the testator; Emphasizing the special interest in such measures with respect to the international will, which is often made by the testator far from his home;

Recommends to States that participated in the present Conference — that they establish an internal system, centralized or not, to facilitate the safe­ keeping, search and discovery of an international will as well as the accompanying certificate following, for example, the lines of the 1972 Convention on the Establish­

ment of a Scheme of Registration of Wills concluded at Basel on May 16, 1972; — that they facilitate the international exchange of information in these matters and, to this effect, that they designate in each State an authority or a service to handle such exchanges.’

107. It is to be noted that this resolution does not request States to accede to the 1972 Convention, but merely to follow it as an example. Article 12 of the 1972 Convention provides that the Convention is only open to signature and ratification by member States of the Council of Europe. Article 13 does, however, permit the Committee of Ministers of the Council of Europe to invite non-member States to

accede to the Convention, after it has entered into force.

ARTICLE 9

The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with.

ARTICLE 10

The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form:

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CERTIFICATE

(Convention of October 26, 1973)

1. I, ..............................................................................(name, address and capacity),

a person authorized to act in connection with international wills 2. Certify that on ........................... (date) at ................................................ (place)

3. (testator) ......................................................................... (name, address, date and

place of birth) in my presence and that of the witnesses 4. (a) ...........................................................(name, address, date and place of birth)

(b) ................................... ....................... (name, address, date and place of birth)

has declared that the attached document is his will and that he knows the contents thereof.

5. I furthermore certify that:

6. (a) in my presence and in that of the witnesses (1) the testator has signed the will or has acknowledged his signature previously affixed. (2) following a declaration of the testator stating that he was unable to sign

his will for the following reason ...............................................................

I have mentioned this declaration on the will *— the signature has been affixed b y ........................................................

................................................................................... (name, address)

7. (b) the witnesses and I have signed the will. ,

8. *(c) each page of the will has been signed by ..........................................................

and numbered.

9. (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above. 10. (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting.

1 l.*(fj the testator has requested me to include the following statement concerning the safekeeping of his will .................................................................................

12. PLACE

13. DATE

14. SIGNATURE, and if necessary,

SEAL

* To be completed if appropriate.

108. Articles 9 and 10 replace sub-article 7(1) of the UNIDROIT Draft. The UNIDROIT Draft did not contain the form the certificate was to take, but only listed the matters it was to contain. In considering sub-article 7(1) at the Conference, two issues emerged. Firstly, some countries felt the approach of Draft sub-article 7( 1) was the proper approach, but felt that the certificate should contain more matters than those listed in the sub-article (paragraphs (a) to (e)). Brazil wanted to make provision in paragraph (b) for illiterate persons. Iran wanted to delete paragraph (e) and add a new paragraph (e) as follows: .

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‘(e) the witness satisfied the requirements needed according to the internal law of the place where the will is received to the extent that it was possible to determine on the basis of the identity documents and the responses to the necessary legal questions addressed to the witness by the authorized person.’ ·

Secondly, some countries wanted to annex a form of a certificate to the.Convention.

109. The Conference finally decided not to follow the approach of Draft sub­ article 7(1) but to incorporate into the uniform law a form of certificate (above), containing the details of paragraphs (a) to (e) of the draft sub-article 7(1) and also including the Brazilian proposals. The Iranian proposal was not adopted (see also Article V of the Convention, above). The first part of draft sub-article 7(1) became Article 9 and the certificate became Article 10. Although Article 9 is in mandatory terms (‘shall’), by virtue of sub-article 1(1) and Article 13 of the Annex, failure to

attach the certificate will not affect the validity of the will as an international will. It would be advisable, for reasons of facility of proof, for a testator to attach this certificate but the Convention does not envisage that he be forced to do so.

110. In Article 9, the precise function of the phrase ‘establishing that the obliga­ tions of this law have been complied with’ is obscure. The function of the certificate is outlined by Article 12 but, as will be seen, Article 12 is limited to situations where there is no contrary evidence. The form of the certificate is prescribed in Article 10 and the phrase ‘establishing that the obligations of this law have been complied with’ would not seem to authorise the use of a different form. In the view of the Australian delegation the phrase is superfluous.

111.. In relation to Article 10, the certificate must be ‘drawn up’ by the authorised person. It would be reading this too strictly to suggest that he must write the entire certificate out in his own handwriting or type it himself. Query whether all that would

be required is that the authorised person be aware of what is stated therein.

112. The certificate need not be identical to that set out in Article 10. It need only be in ‘substantially similar form’. However, the operative word in this phrase is ‘form’. There can be no departure as to substance. The substance of each of the matters listed in the certificate in Article 10 must be contained in any certificate that is given, if that

certificate is to be valid. ‘Substantially similar form’ would seem only to allow certificates which, for example, may be in a different type-face, or the contents in a different order, to that of the certificate in Article 10.

ARTICLE 11

The authorized person shall keep a copy of the certificate and deliver another to the testator.

113. This is the same as sub-article 7(2) of the UNIDROIT Draft. The Observer from the Latin Notaries proposed that the sub-article be amended to read: ‘The authorized person shall deliver a copy of the certificate to the testator.’ This was suggested because there was ambiguity, under the text, as to the number of copies that were to be made. The Conference did not see that the argument had

substance.

114. It would appear that the original of the certificate should be attached to the will, whilst the authorised person has his own copy and delivers a further copy to the testator. Questions may arise as to the period of time that the authorised person

should keep his copy of the certificate and whether he should be obliged to show that

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copy to any person after the testator’s death. The Convention is silent on these matters, but it was felt that the authorised person would keep the copy appropriately secure and it would be available in case the original became detached from the will and lost.

115. The Convention gives no guidance as to whether the copies of the certificate need to be signed or whether it is sufficient merely to sign the original.

ARTICLE 12

In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this law.

116. This sub-article is, in substance, sub-article 7(4) of the UNIDROIT Draft. Reference has been made throughout this report to the certificate and its use to prove the formal validity of the will. Although the article speaks of ‘conclusive’ proof, it is not in terms that such a certificate is beyond challenge (see e.g. section 177, Income

Tax Assessment Act 1936-1973 (Cwlth)). In the absence of challenge, a court must accept the certificate and the court is not given an inherent discretion to refuse to accept the certificate even if it is not challenged.

117. The question arises as to the effect of Article 12 when the certificate is attacked for being filled out defectively, or for not being in ‘substantially similar form’. It would seem clear that a court would conclude that a certificate which is not in ‘substantially similar form’ is not a certificate within the meaning of the Convention and therefore Article 12 is not of assistance to prove conclusively the matters related to formal validity which are stated in the document. The certificate which is not in ‘substantially similar form’ would only be of use to prove the facts stated therein if it were admissible under the rules relating to documentary evidence in the relevant domestic law (e.g. see section 55, Evidence Act 1958 (Vic.)).

118. The situation where the certificate is defective, either because it inaccurately states a matter required to be stated by Article 10 or because it omits a requirement of Article 10, is not clear.

119. Article 12 obviously contemplates inaccurate statements in the certificate, by its reference to evidence to the contrary. It is therefore suggested that, with respect to the facts related to formal validity which are not under attack, Article 12 would operate to deem these facts conclusively proved.

120. The situation where there has been an omission of a requirement of Article 10 is even less clear. The basic question is when an omission renders a certificate not to be a certificate within the meaning of the Convention, or not to be a certificate in ‘substantially similar form’. A strict interpretation, which in the view of the Australian delegation was intended to be taken (particularly having regard to the reference in Article 13 to ‘irregularity’), would be that any omission rendered a certificate not to be a certificate within the meaning of the Convention, having the result that Article 12 would not have any operation whatsoever (an identical position to the certificate not being in ‘substantially similar form’). A more liberal inter­ pretation would be that Article 12 would still apply to those facts which are contained within the irregular certificate and are not impeached. This would, at least, have some symmetry with the position suggested above where there has been an inaccurate statement in the certificate.

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121. Article 12 does not clearly and expressly solve the problem of how it is proved that a person who signs a certificate as an authorised person is, in fact, an authorised person. The article, in fact, expressly creates this problem by reference to ‘the certificate o f the authorized person', thus giving rise to an inference that the fact that

the certificate has been signed by an authorised person must be shown independently.

122. The intention of the Conference, unfortunately not expressed clearly in the resulting text, was that a certificate which purports to be a certificate of an authorised person is to be accepted as such a certificate in the absence of evidence to the contrary. This was the reason why clause 1 of the certificate states that the person

giving the certificate is a person authorised to act in connection.with international wills.

ARTICLE 13

The absence or irregularity of a certificate shall not affect the formal validity of a will under this law.

123. This is sub-article 7(3) of the UNIDROIT Draft. It states what is already implied from sub-article 1(1) of the Annex, that the validity of the will as to form does not depend on the existence of a certificate. A party can prove matters of formal validity without relying on the certificate. In the opinion of the Australian delegation

the article is unnecessary in light of sub-article 1(1).

ARTICLE 14

The international will shall be subject to the ordinary rules of revocation of wills.

124. This article did not appear in the UNIDROIT Draft. There was considerable debate on the question of revocation, with support for the view that unless the Convention said something on revocation there may be confusion as to the method of revoking an international will. Unfortunately the chosen text is, itself, far from clear.

125. What ‘ordinary rules of revocation’ are referred to? Presumably they are domestic rules of law, relevant to revocation of domestic wills, but of which jurisdic­ tion? A court will have to apply its own conflicts rules to answer this question, for the

Convention is of no help.

126. Under Australian law a will can be revoked intentionally by the testator or by operation of law (see Nygh, Conflict o f Laws, 2nd edn, pp. 708-712; Wills Act 1958 (Vic.), section 13, section 17, sections 18-20). One of the matters that needs to be proved on an application for Probate is that the will has not been revoked (e.g. R.S.C.

(A.C.T.) order 72/rule 6).

ARTICLE 15

In interpreting and applying the provisions of this law, regard shall be had to its inter­ national origin and to the need for uniformity in its interpretation.

127. This did not appear in the UNIDROIT Draft. It was introduced by the U.S. and supported by Australia. For the purpose of formulating legislation implementing this Convention in Australia, regard should be had to whether or not express reference in the legislation is necessary to deal with rules of its interpretation, including the

taking into account of decisions of foreign courts on the Convention.

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GENERAL OBSERVATIONS

128. The basic objective of this Convention is to introduce a new form of will which, in respect of form, will avoid conflicts of laws problems. These conflicts problems are accentuated by the increasing number of persons who, in this age of advanced transportation and population movement, leave assets in more than one State. The Convention has been generally successful in this regard, although some problems (discussed earlier) still remain. It does avoid exercises particularly into the meaning of ‘domicile’ and ‘nationality’ and the difference between movables and immovables. More importantly, it ensures that Renvoi problems will not occur in relation to the form of an international will.

129. There is no doubt that the field covered by the Convention is a narrow one. It only deals with ‘form’ and consequently leaves issues of revocation, construction and so on to be resolved by existing domestic laws. These laws will continue to give rise to a number of conflicts of law problems. However, the Convention is a step in the direction of uniformity, and depending on the countries which finally ratify or accede to it, could be of considerable help to Australians with property overseas. Bearing in mind that the Convention merely adds to the forms of will which are available and does not detract in any way from existing forms of will, the Australian delegation recommends that Australia become a party to this Convention.

130. In implementing this Convention, regard should also be had to the desirability of Australia becoming a party to the 1960 Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (see discussion under Article 1 of the Annex, above).

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ANNEX A

CONVENTION PROVIDING A UNIFORM LAW ON FORM OF AN INTERNATIONAL WILL

DIPLOMATIC CONFERENCE ON WILLS WASHINGTON, D.C., OCTOBER 16-26, 1973

CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL

The States signatory to the present Convention, DESIRING to provide to a greater extent for the respecting of last wills by establishing an additional form of will hereinafter to be called an “ international will" which, if employed, would dispense to some extent with the search for the applicable

law; HAVE RESOLVED to conclude a Convention for this purpose and have agreed upon the following provisions:

ARTICLE I

1. Each Contracting Party undertakes that not later than six months after the date of entry into force of this Convention in respect of that Party it shall introduce into its law the rules regarding an international will set out in the Annex to this Convention.

2. Each Contracting Party may introduce the provisions of the Annex into its law either by reproducing the actual text, or by translating it into its official language or languages.

3. Each Contracting Party may introduce into its law such further provisions as are necessary to give the provisions of the Annex full effect in its territory.

4. Each Contracting Party shall submit to the Depositary Government the text of the rules introduced into its national law in order to implement the provisions of this Convention.

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A R TIC LE II

1. Each Contracting Party shall implement the provisions of the Annex in its law, within the period provided for in the preceding article, by designating the persons who, in its territory, shall be authorized to act in connection with international wills. It may also designate as a person authorized to act with regard to its nationals its diplomatic or consular agents abroad insofar as the local law does not prohibit it.

2. The Party shall notify such designation, as well as any modifications thereof, to the Depositary Government.

ARTICLE III

The capacity of the authorized person to act in connection with an international will, if conferred in accordance with the law of a Contracting Party, shall be recognized in the territory of the other Contracting Parties.

ARTICLE IV

The effectiveness of the certificate provided for in Article 10 of the Annex shall be recognized in the territories of all Contracting Parties.

ARTICLE V

1. The conditions requisite to acting as a witness of an international will shall be governed by the law under which the authorized person was designated. The same rule shall apply as regards an interpreter who is called upon to act.

2. Nonetheless no one shall be disqualified to act as a witness of an international will solely because he is an alien.

ARTICLE VI

1. The signature of the testator, of the authorized person, and of the witnesses to an international will, whether on the will or on the certificate, shall be exempt from any legalization or like formality.

2. Nonetheless, the competent authorities of any Contracting Party may, if necessary, satisfy themselves as to the authenticity of the signature of the authorized person.

ARTICLE VII

The safekeeping of an international will shall be governed by the law under which the authorized person was designated.

ARTICLE VIII

No reservation shall be admitted to this Convention or to its Annex.

ARTICLE IX

1. The present Convention shall be open for signature at Washington from October 26, 1973, until December 31, 1974.

2 The Convention shall be subject to ratification.

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3. Instruments of ratification shall be deposited with the Government of the United States of America, which shall be the Depositary Government.

ARTICLE X

1. The Convention shall be open indefinitely for accession.

2. Instruments of accession shall be deposited with the Depositary Government.

ARTICLE XI

1. The present Convention shall enter into force six months after, the date of deposit of the fifth instrument of ratification or accession with the Depositary Government.

2. In the case of each State which ratifies this Convention or accedes to it after the fifth instrument of ratification or accession has been deposited, this Convention shall enter into force six months after the deposit of its own instrument of ratification or accession.

ARTICLE XII

1. Any Contracting Party may denounce this Convention by written notification to the Depositary Government.

2. Such denunciation shall take effect twelve months from the date on which the Depositary Government has received the notification, but such denunciation shall not affect the validity of any will made during the period that the Convention was in effect for the denouncing State.

ARTICLE XIII

1. Any State may, when it deposits its instrument of ratification or accession or at any time thereafter, declare, by a notice addressed to the Depositary Government, that this Convention shall apply to all or part of the territories for the international

relations of which it is responsible.

2. Such declaration shall have effect six months after the date on which the Depositary Government shall have received notice thereof or, if at the end of such period the Convention has not yet come into force, from the date of its entry into force.

3. Each Contracting Party which has made a declaration in accordance with paragraph 1 of this Article may, in accordance with Article XII, denounce this Convention in relation to all or part of the territories concerned.

ARTICLE XIV

1. If a State has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting

another declaration at any time.

2. These declarations shall be notified to the Depositary Government and shall state expressly the territorial units to which the Convention applies.

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ARTICLE XV

If a Contracting Party has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, any reference to the internal law of the place where the will is made or to the law under which the authorized person has been appointed to act in connection with international wills shall be construed in accordance with the constitutional system of the Party concerned.

ARTICLE XVI

1. The original of the present Convention, in the English, French, Russian and Spanish languages, each version being equally authentic, shall be deposited with the Government of the United States of America, which shall transmit certified copies thereof to each of the signatory and acceding States and to the International Institute

for the Unification of Private Law.

2. The Depositary Government shall give notice to the signatory and acceding States, and to the International Institute for the Unification of Private Law, of:

(a) any signature; (b) the deposit of any instrument of ratification or accession:

(c) any date on which this Convention enters into force in accordance with Article XI; (d) any communication received in accordance with Article I. paragraph 4; (e) any notice received in accordance with Article II, paragraph 2; (f) any declaration received in accordance with Article XIII, paragraph 2, and

the date on which such declaration takes effect; (g) any denunciation received in accordance with Article XII, paragraph I, or Article XIII, paragraphs, and the date on which the denunciation takes effect; (h) any declaration received in accordance with Article XIV. paragraph 2, and the

date on which the declaration takes effect.

IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized to that effect, have signed the present Convention.

DONE at Washington this twenty-sixth day of October, one thousand nine hundred and seventy-three. .

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ANNEX

UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL

ARTICLE 1

1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter.

2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.

ARTICLE 2

This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

ARTICLE 3

1. The will shall be made in writing.

2. It need not be written by the testator himself.

3. It may be written in any language, by hand or by any other means.

ARTICLE 4

1. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.

2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

ARTICLE 5

1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.

2. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.

3. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

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A R TIC LE 6

1. The signatures shall be placed at the end of the will.

2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.

ARTICLE 7

1. The date of the will shall be the date of its signature by the authorized person.

2. This date shall be noted at the end of the will by the authorized person.

ARTICLE 8

In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9.

ARTICLE 9

The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with.

ARTICLE 10

The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form:

CERTIFICATE (Convention of October 26, 1973)

1. I, .............................................................................(name, address and capacity),

a person authorized to act in connection with international wills 2. Certify that on ........................... (date) at ............................. ................ (place)

3. (testator) ................................................ (name, address, date and place of birth)

in my presence and that of the witnesses 4. (a) ........................................................ (name, address, date and place of birth)

(b) ........................................................ (name, address, date and place of birth)

has declared that the attached document is his will and that he knows the contents thereof.

5. I furthermore certify that: 6. (a) in my presence and in that of the witnesses (1) the testator has signed the will or has acknowledged his signature previously affixed.

*(2) following a declaration of the testator stating that he was unable to sign his will for the following reason ................................................................

............................... .. · — I have mentioned this declaration on the will

*— the signature has been affixed by ......................................... .. (name, address)

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7. (b) the witnesses and I have signed the will; 8. *(c) each page of the will has been signed by ..........................................................

and numbered;

9. (d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above; 10. (e) the witnesses met the conditions requisite to act as such according to the law under which I am acting;

11. *(f) the testator has requested me to include the following statement concerning the safekeeping of his w ill:.................................................................................

12. PLACE

13. DATE

14. SIGNATURE and, if necessary, SEAL

* To be completed if appropriate.

ARTICLE 11

The authorized person shall keep a copy of the certificate and deliver another to the testator.

ARTICLE 12

In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this Law.

ARTICLE 13

The absence or irregularity of a certificate shall not affect the formal validity of a will under this Law.

ARTICLE 14

The international will shall be subject to the ordinary rules of revocation of wills.

ARTICLE 15

In interpreting and applying the provisions of this law, regard shall be had to its inter­ national origin and to the need for uniformity in its interpretation.

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ANNEX B

THE FINAL ACT OF THE DIPLOMATIC CONFERENCE ON WILLS, OCTOBER 1973

DIPLOMATIC CONFERENCE ON WILLS WASHINGTON, D.C. OCTOBER 16-26, 1973

FINAL ACT OF THE DIPLOMATIC CONFERENCE ON WILLS The Diplomatic Conference on the Uniform Law governing the Form of the International Will met at Washington, D.C., from 16 to 26 October 1973 at the invitation of the Government of the United States of America.

The Governments of the following 42 States were presented at the Conference:

Australia Belgium Brazil Canada China, Republic of

Czechoslovakia Ecuador France Germany, Federal Republic of

Greece Guatemala Holy See Honduras

Iran Iraq Ireland Italy Ivory Coast Japan Jordan

Khmer Republic Laos

Mexico Netherlands Nicaragua Panama Paraguay Philippines Poland Portugal San Marino Senegal Sierra Leone Spain Sweden Switzerland Thailand

Union of Soviet Socialist Republics United Kingdom of Great Britain and Northern Ireland United States of America Yugoslavia Zaire

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The Governments of the following six States were represented by observers at the Conference:

Observers from the following intergovernmental organizations were present at the Conference:

Council of Europe Hague Conference on Private International Law International Institute for the Unification of Private Law (LJNIDROIT) United Nations

Observers from the International Union of Latin Notaries were also present at the Conference.

The Conference elected the Honorable Richard D. Kearney (U.S.A.) as President.

The Conference elected Attorney General L. A.M. Brewah (Sierra Leone), Professor Elliseo Perez Cadalso (Honduras), Minister Toshio Yamazaki (Japan), Mr. Jonkheer T. Van Sasse Van Ysselt (Netherlands), and First Deputy Minister of Justice Aleksandre J. Sukharev (U.S.S.R.) as Vice-Presidents.

The Secretary General of the Conference was Mr. Francis J. Seidner, and the Deputy Secretary General was Mr. Jean-Pierre Plantard.

The Conference had before it:

(1) the draft of a Uniform Law on the Form of the International Will, text prepared by the Committee of Governmental Experts, convened by UNIDROIT, with Explanatory Report; (2) the Observations presented by various Governments relating to the draft of a

Uniform Law on the Form of the International Will; (3) a Draft Convention providing a Uniform Law on the Form of the International Will prepared for the Conference by the Committee of Governmental Experts, convened by UNIDROIT, with Explanatory Report.

The Conference also had before it other documentation prepared by the Secretariat.

The Conference set up the following Committees:

Credentials Committee:

Chairman: Professor Roberto Nunez Escalante (Mexico) Members: Australia

Argentina Denmark Jamaica

South Africa Trinidad and Tobago Viet-Nam, Republic of

Italy Poland Sierra Leone

Drafting Committee: Chairman: Professor Pierre Lalive (Switzerland) Members: Brazil Canada

France Germany, Federal Republic of

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Iran Ivory Coast Japan Mexico

Nicaragua Philippines Spain United Kingdom of Great Britain and

Northern Ireland Union of Soviet Socialist Republics United States of America

In addition, the Conference decided that a Rapporteur should be chosen to write a final report on the Convention and the Uniform Law. The Conference elected Mr. Jean-Pierre Plantard as Rapporteur.

As the result of its deliberations as recorded in the records of the Plenaries and the records of the Committees, the Conference has drawn up the following Convention: Convention providing a Uniform Law on the Form of the International Will, with Annex.

The foregoing Convention was opened for signature on October 26, 1973, at the Department of State of the United States of America.

In addition, the Conference adopted a Resolution concerning the safekeeping and registration of wills, annexed to this Final Act.

IN WITNESS WHEREOF the undersigned representatives have signed this Final Act.

DONE at Washington, D.C., this twenty-sixth day of October one thousand nine hundred and seventy-three, in the French, English, Russian and Spanish languages, each text being equally authentic. The original of this Final Act shall be deposited with the Government of the United States of America.

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DIPLOMATIC CONFERENCE ON WILLS WASHINGTON, D.C. OCTOBER 16-26, 1973

THE ENCLOSED RESOLUTION WAS INADVERTENTLY NOT ATTACHED TO THE COPY OF THE FINAL ACT DISTRIBUTED OCTOBER 26,1973

RESOLUTION

The Conference Considering the importance of measures to permit the safeguarding of wills and to find them after the death of the testator; Emphasizing the special interest in such measures with respect to the international will, which is often made by the testator far from his home;

RECOMMENDS to the States that participated in the present Conference — that they establish an internal system, centralized or not, to facilitate the safekeeping, search and discovery of an international will as well as the accompanying certificate, following, for example, the lines of the Convention on

the Establishment of a Scheme of Registration of Wills, concluded at Basel on May 16, 1972; — that they facilitate the international exchange of information in these matters and, to this effect, that they designate in each state an authority or a service to

handle such exchanges.

ANNEX C

UNIDROIT: DRAFT CONVENTION PROVIDING A UNIFORM LAW ON THE FORM OF THE INTERNATIONAL WILL

The States signatory to the present Convention, Desirous to provide to a greater extent for the respecting of last wills by establishing a form of will henceforth to be called an “ international will” which, if employed, would dispense with the search for the applicable law and dispense with the examination of formalities prescribed by such law;

Have resolved to conclude a Convention for this purpose and have agreed upon the following provisions:

37

1. Each Contracting Party undertakes that within six months of the date of entry into force of this Convention in respect of that Party it shall introduce into its law the rules regarding an international will set out in the Annex to this Convention. . Each Contracting Party may introduce the provisions of the Annex into its law either by reproducing

the actual text, or by translating it into its official language or languages.

ARTICLE II

1. Each Contracting Party shall complete and implement the provisions of the Annex in its law, within the period provided for in the preceding article, by designating the persons who, in its territory, shall be authorized to act in connexion with international wills.

2. The Party shall notify such designation, as well as any other later modification thereof, to .......................................................................................................................

A R TIC LE I

ARTICLE III

1. A will made in the form of an international will in the territory of a Contracting Party shall, in the territories of the other Contracting Parties, be considered as having been made in the presence of a person authorized to act in connexion with it whenever such person is so authorized according to the law of the Contracting Party in whose territory the will was made.

2. A will made in the form of an international will in the territory of a State which is not a Contracting Party shall, in the territories of the Contracting Parties, be considered as having been made in the presence of an authorized person whenever, in accordance with the law of such State, it has been received by a person qualified to

receive wills.

ARTICLE IV

The effectiveness of the certificate provided for in Article 8 of the Annex shall be recognized in the territories of all Contracting Parties.

ARTICLE V

1. The conditions to be a witness of an international will shall be governed by the internal law of the place where the will is received.

2. Nevertheless an alien may act as a witness of an international will.

ARTICLE VI

1. The signature of the testator, of the person qualified to receive the will and of the witnesses of an international will shall be exempt from any legalisation.

2. Nevertheless, the competent authorities of the Contracting Parties may verify the authenticity of such signatures.

ARTICLE VII

No reservation shall be admitted to this Convention or to its Annex.

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1. This Convention shall be open for signature from ................................................

to ..................................................................................... ...............................................

2. This Convention shall be ratified.

3. Instruments of ratification shall be deposited with ................................................

ARTICLE IX

1. This Convention shall be open to accession by ................................................

2. Instruments of accession shall be deposited with ..................................................

ARTICLE X

1. This Convention shall come into force six months after the date on which the fifth instrument of ratification or accession has been deposited.

2. In the case of each State which ratifies this Convention or accedes to it after the fifth instrument of ratification or accession has been deposited, this Convention shall come into force six months after the deposit of its own instrument of ratification or accession.

A R TIC LE V III

ARTICLE XI

1. Each Contracting Party may denounce this Convention by a notice addressed to ....................................................................................................................................

2. Such denunciation shall take effect twelve months from the date on which the .................................................. ........................................ has received notice thereof.

ARTICLE XII

1. Each State may, when it deposits its instrument of ratification or accession or at any time thereafter, declare, by a notice addressed t o ..................................................

....................................................................... , that this Convention shall apply to all

or part of the territories for whose international relations it is responsible.

2. Such declaration shall have effect six months after the date on which the shall have received notice thereof or, if at the

end of such period the Convention has not yet come into force, from the date of its entry into force.

3. Each Contracting Party which has made a declaration in accordance with paragraph 1 of this Article may, in accordance with Article XI, denounce this Con­ vention in relation to all or part of the territories concerned.

ARTICLE XIII

The ...........................................................................................shall give notice to the

signatory or acceding States, and to the International Institute for the Unification of Private Law, of:

(a) any signature;

39

(b) the deposit of any instrument of ratification or accession; (c) any date on which this Convention enters into force in accordance with Article X; (d) any notice received in accordance with Article II, paragraph 2; (e) any declaration received in accordance with Article XII, paragraph 2 and the

date on which such declaration takes effect; (f) any denunciation received in accordance with Article XI, paragraph 1, or Article XII, paragraph 3, and the date on which the denunciation takes effect.

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto, have signed this Convention.

DONE a t ........ ................................... , the

in ........................................................ , the

texts being equally authoritative.

The original of this Convention shall be deposited w ith ............ ...............................

who shall transmit certified copies thereof to each of the signatories and acceding States and to the International Institute for the Unification of Private Law.

CLAUSE CONCERNING FEDERAL AND NON-UNITARY STATES (for possible insertion)

ARTICLE . . .

(a) With respect to those articles of this Convention and its Annex that come within the legislative jurisdiction of the federal authority, the obligations of the federal Government shall to that extent be the same as those of Contracting States which are not federal States;

(b) With respect to those articles of this Convention and its Annex that come within the legislative jurisdiction of constituent States or provinces which are not under the constitutional system of the federation, bound to take legislative action the federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent States or provinces at the earliest possible moment;

(c) It shall also be the duty of the federal Government to notify the designation of persons qualified to receive international wills, in accordance with Article II, paragraph 2, and also any designation made by constituent States or provinces.

40

ANNEX

UNIFORM LAW ON THE FORM OF THE INTERNATIONAL WILL

ARTICLE 1

1. A will shall be valid as regards form, irrespective of the place where it is made and irrespective of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in articles 2 to 4 hereafter.

2. Failure to observe any such provision shall not by itself affect the validity of the document as a will of another kind.

ARTICLE 2

1. The will shall be made in writing.

2. It may be written in any language, by hand or by any other means.

3. It need not be written by the testator himself.

ARTICLE 3

1. The testator shall declare in the presence of two witnesses and of a person authorized to act in connexion with international wills that the document is his will and that he knows the contents thereof.

2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

ARTICLE 4

1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.

2. The witnesses and the authorized person shall there and then sign the will in the presence of the testator.

ARTICLE 5

1. The signature of the testator shall be placed at the end of the will.

2. If the will consists of several sheets, each sheet shall also be signed by the testator, unless the sheets follow each other and form a whole.

ARTICLE 6

1. The date of the will is the date of its reception.

2. The date of the reception shall be affixed to the will by the authorized person.

3. In case of dispute the date of the reception may be established by any means.

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A R TIC LE 7

1. The authorized person shall add to the will a certificate stating that:

(a) the testator, in his presence and in that of the witnesses, has declared that the document is his will and that he knows the contents thereof; (b) the testator, in his presence and in that of the witnesses, has signed the will or has acknowledged his signature previously affixed; (c) the witnesses have then signed it;

(d) the authorized person has satisfied himself of the identity of the testator and of the witnesses; (e) the witnesses satisfied the requirements needed according to the internal law of the place where the will is received.

The authorized person shall also state his identity and those of the testator and of the witnesses. He shall date and sign the certificate.

2. The authorized person shall keep a copy of the certificate and deliver one to the testator.

3. The fact that the certificate has not been established does not affect the validity of the will.

4. Unless impeached by competent proof, the foregoing certificate of the authorized person shall be accepted as sufficient proof in any cause or proceeding of all facts necessary to the due execution of the instruments as an international will.

ARTICLE 8

The authorized person has the duty to ensure the safekeeping of the will in accordance with the internal law of the place where the will is received, particularly by under­ taking any official deposit or registration required by that law.

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ANNEX D

1972 CONVENTION ON THE ESTABLISHMENT OF A SCHEME OF REGISTRATION OF WILLS

CONVENTION ON THE ESTABLISHMENT OF A SCHEME OF REGISTRATION OF WILLS

The member States of the Council of Europe, signatory hereto, Considering that the aim of the Council of Europe is to achieve a greater unity between its Members; Wishing to provide for a registration scheme enabling a testator to register his will

in order to reduce the risk of the will remaining unknown or being found belatedly, and to facilitate the discovery of the existence of this will after the death of the testator; Convinced that such a system would facilitate in particular the finding of wills

made abroad, Have agreed as follows:

ARTICLE 1

The Contracting States undertake to establish, in accordance with the provisions of this Convention, a scheme of registration of wills, with a view to facilitating, after the death of the testator, the discovery of the existence of the will.

ARTICLE 2

In order to implement the provisions of this Convention, each Contracting State shall establish or appoint one or more bodies responsible for the registration provided for by the Convention and for answering requests for information made in accordance with Article 8, paragraph 2.

ARTICLE 3

1. With a view to facilitating international co-operation, each Contracting State shall appoint a national body which shall, without any intermediary: (a) arrange for registration in other Contracting States as provided for in Article 6;

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(b) receive requests for information arriving from the national bodies of other Contracting States, and answer them under the conditions set out in Article 8.

2. Each Contracting State shall communicate to the Secretary General of the Council of Europe the name and address of the national body appointed in accordance with the preceding paragraph.

ARTICLE 4

1. The following shall be registered in a Contracting State:

(a) Formal wills declared to a notary, a public authority or any person authorised by the law of that State to record them, as well as other wills deposited with an authority or a person authorised by law to accept such deposit, with a formal act of deposit having been established; (b) Holographic wills which have been deposited with a notary, a public authority

or any person authorised by the law of that State to accept them, without a formal act of deposit having been established, subject to that law permitting such deposit. The testator may oppose registration if the said law does not prohibit such opposition.

2. Withdrawals, revocations and other modifications of the wills registered according to this article shall also be registered if they are established in a form which would make registration compulsory according to the preceding paragraph.

3. Any Contracting State may exclude from the application of the present article wills deposited with authorities of the armed forces.

ARTICLE 5

1. Registration shall be made at the request of the notary, the public authority or the person referred to in Article 4, paragraph 1.

2. Any Contracting State may, however, in special cases determined and under the conditions specified by its national law, provide for the request for registration to be made by the testator.

ARTICLE 6

1. Registration shall not be subject to conditions of nationality or residence of the testator.

2. At the request of the testator, the notary, public authority or person referred to in Article 4, may request registration not only in the State where the will is made or deposited, but also, through the intermediary of the national bodies, in other Con­ tracting States.

ARTICLE 7

1. The request for registration shall contain the following information at least:

(a) Family name and first name(s) of testator or author of deed (and maiden name, where applicable); (b) Date and place (or, if this is not known, country) of birth; (c) Address or domicile, as declared; (d) Nature and date of deed of which registration is requested;

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(e) Name and address of the notary, public authority or person who received the deed or with whom it is deposited.

2. This information must be contained in the register, in the form stipulated by each Contracting State.

3. The duration of registration may be determined by each Contracting State.

ARTICLE 8

1. Registration shall be secret during the lifetime of the testator.

2. On the death of the testator any person may obtain the information mentioned in Article 7 on presentation of an extract of the death certificate or of any other satis­ factory proof of death.

3. If the will has been made jointly by two or more persons, the provisions of paragraph 2 of this article shall apply, notwithstanding the provisions of paragraph 1, on the death of any of the testators.

ARTICLE 9

Services between Contracting States pursuant to this Convention shall be rendered free of charge.

ARTICLE 10

This Convention shall not affect provisions which, in each Contracting State, relate to the validity of wills and other deeds referred to in this Convention.

ARTICLE 11

Each Contracting State shall have the option to extend, under the conditions to be established by that State, the registration system provided for by this Convention to any other will not referred to in Article 4 or any other deed affecting the devolution of an estate. In this case, in particular the provisions of Article 6, paragraph 2, shall

apply.

ARTICLE 12

1. This Convention shall be open to signature by the member States of the Council of Europe. It shall be subject to ratification or acceptance. Instruments of ratifica­ tion or acceptance shall be deposited with the Secretary General of the Council of Europe.

2. This Convention shall enter into force three months after the date of deposit of the third instrument of ratification or acceptance.

3. In respect of a signatory State ratifying or accepting subsequently, the Conven­ tion shall come into force three months after the date of the deposit of its instrument of ratification or acceptance.

ARTICLE 13

1. After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may invite any non-member State to accede thereto.

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2. Such accession shall be effected by depositing with the Secretary General of the Council of Europe an instrument of accession which shall take effect three months after the date of its deposit.

ARTICLE 14

1. Any Contracting State may, at the time of signature or when depositing its instrument of ratification, acceptance or accession, specify the territory or territories to which this Convention shall apply.

2. Any Contracting State may, when depositing its instrument of ratification, acceptance or accession or at any later date, by declaration addressed to the Secretary General of the Council of Europe, extend this Convention to any other territory or territories specified in the declaration and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings.

3. , Any declaration made in pursuance of the preceding paragraph may, in respect of any territory mentioned in such declaration, be withdrawn according to the procedure laid down in Article 16 of this Convention.

ARTICLE 15

No reservation shall be made to the provisions of this Convention.

ARTICLE 16

1. This Convention shall remain in force indefinitely.

2. Any Contracting State may, in so far as it is concerned, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.

3. Such denunciation shall take effect six months after the date of receipt by the Secretary General of such notification.

ARTICLE 17

The Secretary General of the Council of Europe shall notify the member States of the Council and any State which has acceded to this Convention of:

(a) any signature; (b) any deposit of an instrument of ratification, acceptance or accession; (c) any date of entry into force of this Convention in accordance with Article 12 thereof;

(d) any communication received in pursuance of the provisions of paragraph 2 of Article 3 and of paragraphs 2 and 3 of Article 14; (e) any notification received in pursuance of the provisions of Article 16 and the date on which denunciation takes effect.

In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.

Done at Basle, this 16th day of May 1972, in English and French, both texts being equally authoritative, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each of the signatory and acceding States.

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ANNEX E

1961 CONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM OF TESTAMENTARY DISPOSITIONS

XI. CONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM OF TESTAMENTARY DISPOSITIONS (Concluded October 5, 1961)

The States signatory to the present Convention, Desiring to establish common provisions on the conflicts of laws relating to the form of testamentary dispositions, Have resolved to conclude a Convention to this effect and have agreed upon the

following provisions:

ARTICLE 1

A testamentary disposition shall be valid as regards form if its form complies with the internal law:

(a) of the place where the testator made it, or (b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or (c) of a place in which the testator had his domicile either at the time when he

made the disposition, or at the time of his death, or (d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or (e) so far as immovables are concerned, of the place where they are situated.

For the purposes of the present Convention, if a national law consists of a non- unified system, the law to be applied shall be determined by the rules in force in that system and, failing any such rules, by the most real connexion which the testator had with any one of the various laws within that system.

The determination of whether or not the testator had his domicile in a particular place shall be governed by the law of that place.

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Article 1 shall apply to testamentary dispositions revoking an earlier testamentary disposition.

The revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under Article 1, the testamentary disposition that has been revoked was valid.

A R TIC LE 2

ARTICLE 3

The present Convention shall not affect any existing or future rules of law in contracting States which recognize testamentary dispositions made in compliance with the formal requirements of a law other than a law referred to in the preceding Articles.

ARTICLE 4

The present Convention shall also apply to the form of testamentary dispositions made by two or more persons in one document.

ARTICLE 5

For the purposes of the present Convention, any provision of law which limits the permitted forms of testamentary dispositions by reference to the age, nationality or other personal conditions of the testator, shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications that must be possessed by witnesses required for the validity of a testamentary disposition.

ARTICLE 6

The application of the rules of conflicts laid down in the present Convention shall be independent of any requirement of reciprocity. The Convention shall be applied even if the nationality of the persons involved or the law to be applied by virtue of the fore­ going Articles is not that of a contracting State.

ARTICLE 7

The application of any of the laws declared applicable by the present Convention may be refused only when it is manifestly contrary to “ordre public”.

ARTICLE 8

The present Convention shall be applied in all cases where the testator dies after its entry into force.

ARTICLE 9

Each contracting State may reserve the right, in derogation of the third paragraph of Article 1, to determine in accordance with the le x f o r i the place where the testator had his domicile.

ARTICLE 10

Each contracting State may reserve the right not to recognize testamentary dis­ positions made orally, save in exceptional circumstances, by one of its nationals possessing no other nationality.

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A R TIC LE 11

Each contracting State may reserve the right not to recognize, by virtue of provisions of its own law relating thereto, forms of testamentary dispositions made abroad when the following conditions are fulfilled:

(a) the testamentary disposition is valid as to form by reason only of a law solely applicable because of the place where the testator made his disposition, (b) the testator possessed the nationality of the State making the reservation, (c) the testator was domiciled in the said State or had his habitual residence there,

and .

(d) the testator died in a State other than that in which he had made his disposi­ tion.

This reservation shall be effective only as to the property situated in the State making the reservation.

ARTICLE 12

Each contracting State may reserve the right to exclude from the application of the present Convention any testamentary clauses which, under its law, do not relate to matters of succession.

ARTICLE 13

Each contracting State may reserve the right, in derogation of Article 8, to apply the present Convention only to testamentary dispositions made after its entry into force.

ARTICLE 14

The present Convention shall be open for signature by the States represented at the Ninth session of the Hague Conference on Private International Law.

It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

ARTICLE 15

The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 14.

The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification.

ARTICLE 16

Any State not represented at the Ninth session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 15. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession.

ARTICLE 17

Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one of more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned.

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At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for the territories mentioned in such an exten­ sion on the sixtieth day after the notification referred to in the preceding paragraph.

ARTICLE 18

Any State may, not later than the moment of its ratification or accession, make one or more of the reservations mentioned in Articles 9, 10, 11, 12 and 13 of the present Convention. No other reservation shall be permitted.

Each contracting State may also, when notifying an extension of the Convention in accordance with Article 17, make one or more of the said reservations, with its effect limited to all or some of the territories mentioned in the extension. Each contracting State may at any time withdraw a reservation it has made. Such a withdrawal shall be notified to the Ministry of Foreign Affairs of the Netherlands.

Such a reservation shall cease to have effect on the sixtieth day after the notifica­ tion referred to in the preceding paragraph.

ARTICLE 19

The present Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 15, even for States which have ratified it or acceded to it subsequently. If there has been no denunciation, it shall be renewed tacitly every five years.

Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period.

It may be limited to certain of the territories to which the Convention applies.

The denunciation will only have effect as regards the State which has notified it. The Convention shall remain in force for the other contracting States.

ARTICLE 20

The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 14, and to the States which have acceded in accordance with Article 16, of the following:

(a) the signatures and ratifications referred to in Article 14; (b) the date on which the present Convention enters into force in accordance with the first paragraph of Article 15; (c) the accessions referred to in Article 16 and the date on which they take effect; (d) the extensions referred to in Article 17 and the date on which they take effect; (e) the reservations and withdrawals referred to in Article 18; (f) the denunciation referred to in the third paragraph of Article 19.

In witness whereof the undersigned, being duly authorised thereto, have signed the present Convention. Done at The Hague the 5th October 1961, in French and in English, the French text prevailing in case of divergence between the two texts, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Ninth session of the Hague Conference on Private International Law.

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