When someone passes outside of Germany, the death often follows numerous questions regarding the legal evaluation of the estate. One of the most important questions that requires clarification at the beginning of the estate settlement is in regards to the applicable law. This clarification is important in numerous ways:

  • What law is applicable to the validity of last wills?
  • What law applies when the deceased did not leave a last will?
  • What law determines the rules for settling the estates in multiple countries?
  • What law determines the procedure for probate and a certificate of inheritance?

This post will detail the problems regarding the formal validity of last wills.

What does formal validity mean?

Formal validity in German law determines whether a last will in itself comes into effect regardless of its content. With this, the meaning of the dispositions in the will or the question what law governs over these has yet to be determined. The sole clarification lies within the finding whether the will comes into effect, not its regulations.

Should a last will be found to be invalid, statutory succession governs. The competent probate court rules whether a last will is valid.

Convention On The Conflicts Of Laws Relating To The Form Of Testamentary Dispositions

The Convention On The Conflicts Of Laws Relating To The Form Of Testamentary Dispositions from October 05th, 1961 specifies what law governs over the formal validity of last wills and other testamentary dispositions. This Convention came into effect in Germany on January 1st, 1966.

Canada and the USA are not member states of this Convention. This means that they have never joined the Convention. It doesn’t mean that the Convention cannot apply their laws however, to the contrary: the applicability of the Convention does not require reciprocity. Canadian or US-American laws can therefore still govern under the rules of the Convention.

What law determines whether a testamentary disposition is valid?

The Convention issues different indicators for the deciding law:

  • the place where the testator made it
  • the nationality of the testator at the time of the disposition or death
  • the place of domicile of the testator at the time of the disposition or death
  • the place of habitual residence of the testator at the time of the disposition or death
  • in case of immovables, the place of location.

The last will must only comply with the rules of one of these jurisdictions that could apply according to these criteria. For example, should the deceased have been a German national who lived permanently in the Canadian province Ontario, the last will he made would already be valid if it was valid according to the laws of the province of Ontario. Whether this will would also be valid according to German law, is irrelevant.

For states such as Canada or the USA, it is of note that these are considered so-called Multi-unit States. This means that different parts of the law are not unified within one prevailing jurisdiction. Both Canada and the USA do not have unified estate laws. Instead, the different provinces and states have their own estate acts and regulations.

We at SNP Canada Ltd. have specialized in German inheritance law and cross-border estates over many years. We would be happy to advise you regarding the applicability of German law and the following consequences for the estate settlement in an individual consultation.