Hi I am an Austrian Law Student working at a notary and I need your help!At the moment I have to prepare a case concerning English law of succession. As the English law is very different from the Austrian law, it is hard to say if the living will is valid. The Austrian law needs a definite successor (Erbe) and doesn't know the idea of a testamentary trust. However it is the English law that counts in that case... I would be very glad, if you could help me!! The decedent, born in the UK, living in Austria made the following will: I X born in Great Britain, living in Austria, being of sound mind, do herewith state my last will. To my friends A and B I leave all my personal belongings, so that they may choose what they would like to have. From my savings , my burial and the transfer of my ashes to the Garden of Remembrance should be paid. The flat should be cleared and painted. one thousand euro to the "evangelische Kirche" the rest to be distributed by Miss C. at her discretion. signature of the decedent date witnesses: Miss C second witness third witness As I understand the English law, there need not be a successor. It seems to be possible just to allocate the assets. The English law also knows testamentary trusts ..could Miss C be a trustee?! The thousand Euro to the Evangelische Kirche and the personal belongings to A and B seem to be general legacies. The conditions for validity seem to be observed. The decedent and the witnesses signed the document. There are two independent witnesses and Miss C (trustee?). The Wills Act allows a trustee to be a valid witness. If Miss C is not a trustee there are still two independent witnesses, who are not benefited. the wills act 1837 says:No will shall be valid unless-
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either-
(i)attests and signs the will; or
(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.]
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1) The Austrian national law: §30 IPRG says that the validity goes according to the English law
2) There are two witnesses
(3) The legacies to A and B and the church seem valid.
(4) "The rest to be distributed by Miss C" could be an attempt to create a testamentary trust but I think that it would be invalid because it is uncertain. The beneficiaries are not identified. Alternatively it might possibly be viewed as an outright legacy to Miss C.
A)Is the will valid? B)Is there a testamentary trust?
C) Is the testamentary trust valid?
D)Does anybody know case law to come to a definite conclusion?
I really hope you can help me. Thank you and best wishes Yours sincerely
Maria