Richard Frimston, partner at Russell-Cooke
25 years later...
Is it time for England & Wales to think again?
Some EU Member States have a centralised system of registering Wills which, in the case of Spain and Portugal, is longstanding. Although a few EU states still do not have any register, most now do have some form of registration for Wills, whether centralised or not.
In Germany, Wills are filed with a notary or a court, which informs the civil status officer for the place of birth of the testator so that the Will’s existence can be noted in the margin of the birth register entry. It is therefore possible to discover the existence of a Will by contacting the registrar in the place of birth of the deceased, if this is known. Germany is now looking at converting its existing manual register into electronic form.
In the United Kingdom, Wills have historically been held by solicitors, or at the testator’s bank, and now some Will writers state that they also offer this service. Although it is possible to lodge original Wills for safekeeping with the Probate Registry under the Wills (Deposit for Safe Custody) Regulations SI 1978/1724 and section 126 of the Supreme Court Act 1981, this rarely happens in practice, which means that Wills can be very difficult to trace. With increased mobility, the problem is now becoming serious. Advertisement in the legal press is often seen, but the results this actually produces must be limited.
Basel Convention
The establishment of national systems for Will registration, and communication of information between relevant persons responsible for these registers, was encouraged by the Council of Europe within the framework of the Basel Convention of 16th May 1972 on the Establishment of a Scheme of Registration of Wills – European Treaty Series, number 77. The Convention is in force in Belgium, Cyprus, Estonia, France, Italy, Lithuania, Luxemburg, Netherlands, Portugal, Spain and Turkey.
Article 4 differentiates between:
• Notarial Wills which must be registered; formal wills declared to a notary, a public authority or any person authorised by the law of that State to record them, as well as other wills deposited with such an authority or authorised person, with a formal act of deposit having been established; and
• Holographic (handwritten) wills which have been deposited with a notary, a public authority or authorised person, without a formal act of deposit having been established, subject to that law permitting such deposit. In this case the testator may refuse to allow registration (provided that the local law does not prohibit such refusal).
The Convention although signed and effected by sections 23-25 Administration of Justice Act 1982, has never been brought into force in the United Kingdom. Germany and Denmark and more recently the Ukraine have also signed, but not yet ratified, although the Ukraine may do so soon.
Validity & confidentiality
There is no link between validity and registration. Non-registration does not invalidate a Will. Article 10 makes it clear that the Convention does not affect provisions which relate to the validity of wills.
Confidentiality is also paramount. Article 8 makes it clear that registration shall be secret during the lifetime of the testator. On the death of the testator any person may obtain the information registered on presentation of an extract of the death certificate or of any other satisfactory proof of death. It is not the Will or its contents that are registered but only the information set out in Article 7;
• The names of the testator
• Date and place (or, if this is not known, country) of birth;
• Address or domicile, as declared;
• Nature and date of the Will;
• Name and address of the notary, public authority or person who received the Will or with whom it is deposited.
The contents of the Will never reach the register.
Under section 23, the Principal Registry of the Family Division is the relevant registration authority for England and Wales and under section 24 is the relevant national body for the UK under the Basel Convention. Section 25 permits the President of the Family Division (with the concurrence of the Minister of Justice) to make Regulations for England & Wales by way of Statutory Instrument as to the conditions for the deposit of a Will, the manner of and procedure for the deposit and registration of a Will, the withdrawal of a Will which has been deposited; and the cancellation of the registration of a Will; and permits the Minister of Justice to make Regulations as to the manner in which the Principal Registry of the Family Division is to perform its functions as the national body under the Basel Convention.
The Conference of Notaries of the European Union (CNUE) has undertaken to connect the registers currently in existence in some Member States. An initial trial has already taken place involving the Belgian and French registers. The Association du Réseau Européen des Registres Testamentaires (ARERT) [the European Network of the Registers of Wills (ENRWA)] has proved a considerable success and during 2008 will be extended to the Netherlands and Slovenia. Other states are very likely to follow suit.
Connecting registers
It should be stressed that ARERT is a mechanism for registers to be connected for search purposes, and it is not envisaged that one supra-European register would be created. The majority of enquiries into a register are purely local; in France, for example, out of perhaps 450,000 enquiries, only 5,000 enquiries relate to cross border issues. It is not necessary for a state to have ratified the Basel Convention in order to join ARERT.
Harmonisation
As and when Brussels IV (the proposed Regulation harmonising Private International Law in the field of Wills and Succession) comes into force, it is very likely that some recognition of the existing ARERT model will become the norm. It may become the place where other facts relevant to succession would also be registered; matrimonial property regimes, conditional gifts, inheritance contracts, relevant insurance contracts and possibly even relevant trusts.
The traditions of the civil law mean that, in practice, it has been the European Notarial professions that have developed the registers in response to the needs of their clients. On 1 January 2007 the Dutch Royal Notary Body, took over responsibility for the running of the Dutch Will register from the Dutch Ministry of Justice. Technology does now mean that the electronic registration of Wills can be extremely simple and straightforward. Estonia and New South Wales are immediate examples.
Time for a register in England & Wales
I do believe that it is now time for professionals in England & Wales to press the President of the Family Division and the Ministry of Justice to establish an electronic Will Register under the Basel Convention. This does not require primary legislation but a statutory instrument to implement ss.23-25 Administration of Justice Act 1982. Following the Dutch model, delegation to an appropriate non-profit making body, controlled by a suitable mix of the Law Society of England & Wales and STEP could establish such a register for the use of those professionals who would see the advantage for their clients. It would also need to be open to individual testators to register direct.
I believe that ARERT would be delighted to see a voluntary Will register for England & Wales joining ARERT, on the basis that any testators with cross border issues, would see the benefits in the existence of their Wills being voluntarily registered not just in England & Wales but also in other relevant member states and thus being locatable on a Europe wide basis. Other testators, with no cross border issues, might also consider voluntary registration on a purely English internal basis. ARERT do genuinely wish to encourage the establishment of new registers and the widening of ARERT throughout Europe.
Costs
The costs of registration significantly reduce as the system grows. The cost of registration in Belgium (where usage is smaller) is currently €120, whilst in France it is €10 and in the Netherlands €8. Enquiries are usually free.
Competitive pressure
With the prospect of the Brussels IV White Paper being published by the middle of 2009 and perhaps in force by 2012, pressure for an EU wide system of Will registration will grow. If clients can register their Wills by lodging them with notaries in France or Spain, but not in England & Wales, they may start voting with their feet. To compete, we need to be able to offer a form of registration here.
The necessary mechanism
If the Family Division and the Ministry of Justice can be persuaded to consider the issue seriously, it may also be worth considering the ratification of the Washington Convention on International Wills 26th October 1973. The Convention was signed by the United Kingdom and effected by sections 27 & 28 Administration of Justice Act 1982 but has also never been brought into force. It attempted to establish a form of international Will, which would be universally recognised. An International Will must be signed by two witnesses and a notary or solicitor and signed by a testator. It can be in any language and there is a form of certificate for the solicitor or notary to give to validate it. The convention is in force in France, Belgium, Italy, Portugal, Ecuador, the Canadian English Provinces, Libya, Niger, Slovenia and Bosnia & Herzegovina and thus for these jurisdictions the International Will is recognised. Under the convention, Notaries are usually the relevant lawyer to sign a certificate.
If the Ministry of Justice could be persuaded to ratify (which again would not require primary legislation) then it could be provided under Article VII of the Washington Convention that International Wills made in England must be registered on the ARERT register. The Ministry of Justice might feel that this would also provide a benefit to those Commonwealth member states that have ratified.
Even if the Ministry of Justice do not agree to ratify the Basel or Washington Conventions, it would still be open to the profession to establish its own independent voluntary register for the benefit of its members and their clients, which could still be linked in to ARERT and provide the cross border benefits.
From our preliminary discussions, some others agree with me that the time may now be ripe.
It would be very useful to have as much feedback as possible, and the Law Society has already conducted an e-survey for this purpose. I hope that others may see the benefits of these proposals, and that we can establish a joint Law Society / STEP working party to establish the feasibility of such a project.
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