Are wills written and executed in foreign countries acceptable in the United States? That can be a very complicated question.

A Florida court recently had to deal with a will that had been executed in Argentina by an Argentine citizen, one that would have been valid in that country — but disallowed it in an American judicial setting. But the will wasn’t disallowed just because it had been created in another country, leaving the answer to our question somewhat unsettled.

Here’s what happened:

A woman named Elena Isleno executed a will in the state of New York. Sometime thereafter, she went to Argentina, where she remained a citizen, and dictated a will to an Argentine notary that revoked all prior testaments. The notary transcribed the will in the presence of three witnesses, all of whom were identified by name, address, and national identity card number. The document was then read back to Isleno, who orally approved it but did not sign it.

So we have a will executed in another country, one that was notarized but never signed by the decedent who dictated it, and that revoked a will that was executed here, in accordance with American norms and laws. There were heirs on both sides of the dispute who wanted their favorable will to be probated. The justice system in Florida, where Isleno was living when she died, was asked to decide.

Florida law generally allows foreign wills to be treated as valid even if they do not follow all of Florida’s niceties and legalities. (Florida law requires not just the testator to sign a will but two witnesses as well.)

And indeed, in the first round of proceedings, a circuit court in Miami ruled that the Argentine will took precedence and was valid. But at the end of September, an appellate court reversed that decision, ruling that the Argentine will was invalid and that the New York will was still in effect.

The reasoning was that the Argentine will was “nuncupative,” and Florida law prohibits nuncupative wills. Even some lawyers may be unfamiliar with the term nuncupative, but it simply means “oral,” especially as pertains to a will.

The Florida law barring nuncupative wills was apparently designed to bar deathbed wills, and lawyers arguing for Isleno’s Argentine will stressed the point that it was clearly not dictated on her deathbed. So far that argument hasn’t carried much favor. But the law doesn’t define nuncupative either, which leaves the interpretation open to the courts.

On the other hand, Florida law also specifically permits notarial wills. The Argentine will appeared to qualify as notarial, since it was transcribed and attested to by a notary, but the Florida law doesn’t provide any definition of “notarial.”

The court relied on an outside treatise that defined a notarial will as an orally declared will that is put in writing by a notary, then signed by the person writing the will, witness, and a notary. In this instance, the notary had signed the will, although neither the testator nor the witnesses had.

The appellate court acknowledged the difficulty in deciding this case because such terms “noncupative” and “notarial” were not clearly defined in the Florida statute. They have asked the state legislature to create definitions for these terms and provide guidance for estate planners and attorneys going forward.

What does this all mean for estate planners and their clients? Some lessons to take away:

  • Foreign wills are generally admissible in U.S. jurisdictions, even if they don’t cross all the T’s and dot all the I’s. If a client has a will that was drawn up and executed in another country, unless there is something truly unorthodox about it, it probably does not need to be re-created according to American norms.

  • There are some norms that U.S. courts expect to be honored; for example, our judicial system expects wills to be signed by the testator. An estate planner or estate attorney should review any foreign-executed wills for obvious omissions like this.

  •  If a foreign-drawn will makes drastic changes, like the Isleno Argentine will did, it’s probably worth re-creating according to American standards. It’s possible the Florida courts would have admitted the Argentine will had it merely tweaked Isleno’s existing will.

  • Courts are becoming increasingly aware that key terms like “nuncupative” and “notarial” are not well-defined in many states. It is worth watching how Florida moves to clear up this confusion.

 

Read also these articles by Tom Nawrocki:

The end of the back-door Roth? Time for a chat with clients

Protecting a no-contest clause: What you need to know

Dealing with out-of-state property issues in estate plans