One of the effects of globalization is the increase in foreign-born individuals and families visiting, living, and/or investing in the United States and it is very common for those people to own property in both their native home, as well as here in the United States. As these people look to pass on their U.S. assets after death, they may do so by a will or trust executed in the U.S. or in their home country. Recently, a Florida court was asked to consider whether the disposition of real and personal property owned by a citizen of Argentina was governed by the Will she executed in the U.S. or by the Will executed in Argentina. Or stated another way, are Wills written and executed in foreign countries acceptable in the United States? As with everything in the law, that can be a very tricky question.

Here’s what happened:

Elena Isleno, a citizen of Argentina, died in Florida at 79 years old. At the time of her death, she owned property in the U.S. and Argentina. Shortly before her death, Elena executed two wills. She executed the first will in New York, directing the disposition of her real and personal property located in the U.S. to friends and family living in the U.S. and Argentina. Elena signed the will in the presence of attesting witnesses who also signed in the presence of each other and Elena, in accordance with the typical formalities required of American wills.

Four months later, Elena executed a second will in Argentina. This will directed the disposition of all of her assets to friends and family living in Argentina. For this will, Elena orated her testamentary wishes to a notary who typed up her will, then read the will back to her. Elena approved the will in the presence of the notary and two witnesses, and the notary signed and stamped the will. But neither Elena nor the witnesses signed the will.

The two Wills had completely different beneficiaries. None of the beneficiaries of the New York will were named as beneficiaries of the Argentine will, and none of the beneficiaries of the Argentine will were named as beneficiaries in the New York will. After the Argentine will was admitted to probate in Argentina, the beneficiaries of the New York will filed a petition for administration of the New York will in Florida. The beneficiaries of the Argentine will objected and sought to have the Argentine will admitted instead.

So we have a Will executed in another country, that was never signed by the decedent who dictated it, and that revoked a Will that was executed here in the USA in accordance with our American norms and laws. Of course, these two Wills left Ms. Isleno’s assets to different people and there were heirs on both sides of the dispute who wanted their favorable Will to reign supreme. The court here in Florida, where Elena Isleno was living when she died, was asked to decide.

Florida law generally allows foreign wills to be treated as valid even if they do not follow all of Florida’s niceties and legalities…and indeed, in the first round of proceedings, the court in Miami ruled that the Argentine Will was valid. But, after the losing party appealed, at the end of September 2015, the appellate court reversed that decision, ruling that the Argentine Will was invalid and that the New York will was still in effect.
The reasoning was that the Argentine will was “nuncupative,” and Florida law prohibits nuncupative wills. Even some lawyers may be unfamiliar with the term nuncupative, but it simply means “oral,” especially as pertains to a Will. The law doesn’t define nuncupative, which leaves the interpretation open to the courts.

On the other hand, Florida law also specifically permits notarial wills. The Argentine will appeared to qualify as notarial, since it was transcribed and attested to by a notary, but the Florida law doesn’t provide any definition of “notarial.”

The court relied on an outside treatise that defined a notarial will as an orally declared will that is put in writing by a notary, then signed by the person writing the will, witness, and a notary. In this instance, the notary had signed the will but Ms. Isleno had not. Based on this finding, the claims of the beneficiaries in Argentina failed and the first [US] Will was accordingly admitted to probate, and controlled the disposition of Ms. Isleno’s property.

The court acknowledged the difficulty in deciding this case because such terms “noncupative” and “notarial” were not clearly defined in the Florida statutes.
Of course, it is very important to plan one’s estate; but as illustrated, it is even more important to properly plan if there are international aspects involved. If you or someone you know has property both here and abroad, please do not hesitate to contact us regarding your estate planning.

Here is a link to the actual decision.