Wills for Expatriates

Ken

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Jan 1, 2002
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Fabio, The discussion about wills in another thread got me wondering. Can an expatriate use a Dominican attorney to make a will? Will this will be accepted in the US if the expatriate also has assets there?
 

mainer

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Mar 22, 2002
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Thanks Ken for bringing this up.

We were just discussing this yesterday and wondering the same thing.
Mainer
 

KenoshaChris

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Jan 4, 2002
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Good Question

I'm not Fabio but have practiced law in Illinois for 20 years. First, the foreign will would be required to meet the requisites of a will in the state that the estate is probated in. Generally a will is defined as a written instrument, signed by the testator (maker), dated and witnessed by at least two individuals not taking under that will. Of course, the maker must have proper testamentary capacity at time of making as must the witnesses. The bottom line is that it doesn't matter where that will was made so long as it was made and executed properly under the laws of the state that the estate is probated in.
 

Fabio J. Guzman

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Actually, this is a question for KenoshaChris who is a U.S. attorney and he has just answered it below. I'll take the opportunity, however, to ask some questions, for a change:

A will under Dominican law can be drafted in three different ways: holographic, notarial or secret (?m?stico?). A holographic will must be entirely written and dated by hand by the testator. A notarial will must be written by hand by a public notary from the declarations given by the testator in the presence of at least two witnesses. A secret will is written by the testator or by another person at the request of the testator, signed by the testator, sealed and delivered to a notary public for safekeeping in the presence of six witnesses.

I would think that an expatriate can do a holographic will here in the Dominican Republic which will be accepted in the U.S. Please correct me if I am wrong.

As for notarial and secret wills as described above, would they be rejected by a U.S. Court just because they do not follow exactly the FORM established by the particular jurisdiction where it will be probated? Under Dominican law, there is a rule called "locus regit actum" whereby a Dominican judge looking at a foreign testament, will accept it as valid if it complies with the PROCEDURAL rules or FORMS considered legal in the jurisdiction where it was prepared. For this reason, wills prepared in the U.S. with the requirements you have stated below are accepted in the Dominican Republic even though they do not comply with Dominican law insofar as the form is concerned.
 

Ken

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Fabio, the posts by you and KenoshaChris are very interesting, informative and helpful, I hope he will respond to your questions.

Regarding the holographic will of an expatriate, to be considered legal by the Dominican Republic, may it be written in the expatriate's language or must it be written in Spanish? Also, is it composed entirely by the expatriate or is there a form he should/can follow, filling in the blanks so to speak with information pertinent to his/her situation?

With respect to the notarial will, it would seem to me to be ok. At least it seems to meet the conditions stated by KenoshaChris (in writing, signed by the testator, witnessed by at least two persons).
 

Fabio J. Guzman

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Ken, a holographic can be done in any language. An attorney can provide you with a draft.

Regarding the notarial will, things are not as simple as they seem. But this is technical stuff not for a general information board.
 

m65swede

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Gentlemen: Thank you for asking - and answering - an important question. It was a subject I had not yet thought about.

Sorta nice to click on a topic and glean some good information. :)

Swede
 

NoMoreSnow

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Apr 10, 2002
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Holographic wills and 'fill in the blank" forms

quote from Ken:
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Also, is it composed entirely by the expatriate or is there a form he should/can follow, filling in the blanks so to speak with information pertinent to his/her situation?
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Ken, a holographic will must be composed ENTIRELY in the testator's hand writing. That being said the courts have tried to "find" the testator's intentions where fill in the blank forms have been used. For example if the form states:

1. I give the ___________ to __________.
2. I give the ___________ to __________.

If the testator writes "in his/her own hand writing" in response to #1.

"My car goes to my sister."

The court can find that this is a will and the car will be pass to sister under the will.

If the testator writes "in his/her own hand writing" to #2.

"boat" in the first blank and "Joe" in the second blank"

The court will find that this is not a will. The Boat will fall outside the will and will be disposed of as if the testator died without making a will.

NMS

PS, IMHO, I think the biggest issue is whether the will is being interpreted in a common law or a civil law jurisdiction. You can get different results out of different jurisdictions.. This is not my area of expertise however, so I will let Mr Guzman and the other attorney comment further.
 
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Ken

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Thanks Fabio, KenoshaChris and NMS for your helpful and informative responses. I believe you have helped many expatriates and possible expatriates.