Welcome to “Lost in Translation: Blunders in International Estate Planning.” This blog series explores the rarified world of international estate planning, uncovering potential pitfalls and providing insights to navigate the complexities.

Blunder No. 5:  Do Not Judge a Will by Its Cover

Occasionally, an attorney may draft a United States Will for an international client who holds assets in more than one country. The attorney may pull a model Will out of their file cabinet or off the computer and change the first page. This could involve adding a preamble on the first page stating that this Will pertains only to United States property. The printed back of the Will may declare that this is the client’s “United States Will.” Thus, both the front and back covers of the Will indicate that it covers only United States property.

Inside the Will: Residuary Clause

While the Will may contain several bequests or legacies, every well-drawn Will invariably incorporates an omnibus clause called the Residuary Clause. This clause consolidates all property not explicitly bequeathed and distributes it to one or more individuals or charities, either outright or in trust. Most Residuary Clauses begin with the phrase, “All the rest, residue and remainder of my property, wherever situated, I hereby give, devise, and bequeath to X, Y, and Z.” The challenge arises in reconciling the declaration on page one of the Will, specifying coverage limited to United States property, with the Residuary Clause, which covers all my property “wherever situated.”

So, that is the Blunder:

The discrepancy between the front and back covers of the Will and its contents poses a significant issue. An attorney or client might mistakenly assume that converting a standard Will to one covering only United States property is straightforward, merely requiring a preamble on page one of the Will. However, conflicts with other clauses within the Will can arise, undermining the efficacy of such a preamble.   

Who will object?    

We recently administered the estate of a man born in a European country who spent over 20 years working in the United States. During his time here, he established bank and brokerage accounts in the U.S. Before retiring and relocating to his home country, he signed a United States Will. The preamble on the first page of this Will indicated that it covered only his United States assets. However, the Residuary Clause contained conflicting language, stating that he bequeathed all remaining property, “wherever situated,” to a specific group of relatives. 

Following his passing, his family in Europe informed us that as a young man, he had prepared a Will in Europe that left his European property to a select group of relatives. Those excluded from the earlier European Will now seek inclusion in the Residuary Clause of his subsequent United States Will, which bequeathed “all his property wherever situated” to include them and his European property.

Where will this lead?

The disappointed relatives under the early European Will and those who received specific bequests under the decedent’s later United States Will have already spent thousands of dollars on legal fees. Despite more than two years passing since the decedent’s death, not a single cent of the United States funds has been distributed to any of the relatives. There has yet to be a discussion of compromise or settlement in the United States, and we are unaware of such negotiations taking place in Europe. 

Conclusion:  How to avoid the Blunder?

In conclusion, the case of misaligned covers and content in Will drafting serves as a stark reminder: never judge a Will by its cover. The discrepancy between the preamble and the Residuary Clause can lead to legal battles and financial strain for heirs.

To prevent such blunders, it is imperative for attorneys and international clients to meticulously examine every aspect of the Will. Mere statements on the cover, both back and front, asserting the limitation of the Will to property in the United States are inadequate. Each sentence must align with the intended scope and jurisdiction of the estate. Remember, the true essence of a Will is not in its cover but in its content — a lesson vital for preserving the integrity of estate planning in the global arena.