Taxation & Estate Planning

Foreign Wills and The Hague Convention

By Joel A. Schoenmeyer

Opa!

Most Illinois decedents have an Illinois Will (that is, a Will executed in -- and in accordance with the laws of -- Illinois). But sometimes an Illinois decedent dies with a Will he or she executed in a different state or even in a different country. Article VII of the Illinois Probate Act deals with these types of Wills (which are usually referred to as "foreign Wills").

Basically, a foreign Will has to meet one of two criteria (under Section 7-1 of the Illinois Probate Act):

1. It must have been admitted to probate outside of Illinois OR

2. It must meet the execution formalities for a Will under (a) Illinois law or (b) the place where the Will was executed or (c) the place where the creator of the Will (i.e. the "Testator") was domiciled at the time the Will was executed.

The rest of Article VII deals with the procedure. In other words, how do we prove the above points? Section 7-3 deals with a Will that's already been admitted to probate outside of Illinois. Section 7-4 deals with a situation where Illinois is the first place a probate estate is being opened (and the "original" proof of the Will).

A recent Third District Appellate Court case (Estate of Tassaras -- here as a PDF) deals with Section 7-3. In that case, the decedent died with a 1993 Will (executed in the US) and a 1996 Will (executed in Greece). If the 1996 Will is valid, then it presumably takes the place of the 1993 Will. But how is the validity of the 1996 Greek Will to be established? That was the question before the Court.

Basically, the Court said that the Petitioner followed The Hague Convention (which is the relevant law, trumping any inconsistent Illinois law) by attaching to the Petition a group of documents known as an Apostille. The Apostille authenticates documents from a foreign country (in this case, the 1996 Greek Will). The people who were arguing against the Greek Will stated that the Petitioner had not met the requirement under Section 7-3(b) of the Probate Act, which states that:

A written will from any state or country whose laws do not require a will to be probated is sufficiently proved to admit it to probate in this State by introducing in evidence an authenticated certificate of the legal custodian of the will that the copy is a true copy and that the will has become operative by the laws of that state or country.

I've added emphasis to highlight their argument, which is that the Apostille did not include an "authenticated certificate" of the Will's custodian. The Court disagreed, and stated that the Apostille is sufficient under Section 7-3(b). The Court even goes further, by stating that the Will could be admitted under Section 7-3(a), since the Apostille satisfied that Section's requirement of "introducing in evidence an authenticated copy of the will and the probate thereof."

Full post as published by Death and Taxes Blog on March 31, 2011 (boomark / email).