Mon, Aug. 23, 2004

Transatlantic Testament

CK - Washington. published a recent decision, IV ZR 135/03, dated July 7, 2004, by the German Supreme Court on the validity of a holographic will made by a German testator with respect to real estate in Florida. The last will does not meet the requirements of Florida law which the court found to apply substantively under the German conflicts of law rule in Art. III(3), XXVI(1)(1)(b) EGBGB. Yet, the court found the will to meet German statutory requirements, §2247 BGB, and to be valid under conflicts of laws rules established by the Hague Convention on the recognition of testaments, dated October 5, 1961, Art. I(1)(b). Although neither the United States nor Florida signed the convention, its rules are accepted as "universal law", the court acknowledged.

As a result, the testamentary provisions will govern the distribution of the estate among its beneficiaries. The court recognized that Florida may not accept the will and may not grant the intended beneficiaries the right to administer the property within Florida's borders. Therefore, the will may have a "limping" effect, to be resolved once the parties continue the matter in the lower court, but in any case with the effect of the distribution of the estate in the shares established by the decedent.

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