A Foreign Will Drafted For Assets in Greece
By Christos ILIOPOULOS*
Clients very often have Wills drafted and probated in other countries and wish to apply them in Greece. They are perfectly valid Wills done abroad, under the law of the country where they were executed, which makes sense according to the legal practice of that country. However, several of those Wills do not always make sense in Greece. In other words, the terms and legal phrases in their content sometimes are not clear enough for the legal practitioner and the authorities in Greece (courts, tax authority, notaries) in order to implement them into the Greek legal order.
So, when the deceased left money at the bank, which will be distributed to the heirs, or assets in Greece, which must be sold by the heirs or the beneficiaries to third parties and a court decision, called Klironomitirio must be issued, the deceased’s Will, which was drafted in the USA, Canada, Australia, the UK or any other country in the world, must have a wording which, when translated in Greek, must by understood in terms of Greek law, since the assets are located in Greece. This is not always the case with foreign Wills. Very often they have a wording which takes for granted legal notions and practices of the country where it is being executed by the testator, but leaves gaps in its interpretation, when the time comes to be probated and implemented in Greece.
An example is when the foreign Will refers to the Executor/Executrix, giving him/her power to sell or dispose of assets, and then distribute the proceeds to the beneficiaries. In Greek law, although the notion of the executor of a Will does exist, in reality it has reduced legal validity. In Greece, those who run the whole process of Will probation and transfer of assets of the deceased are the heirs and beneficiaries themselves. They act on their own and usually do not need the participation of an executor, whose actions in most cases complicate matters at the Greek tax office, the court, or the notary. Another example is when the foreign Will does not clearly provide for the 100% of the deceased’s assets. When the last will and testament says that certain assets go to certain beneficiaries, but other assets of the deceased are left without any indication where the testator wanted them to go, there are more than one interpretations possible for the Will. Especially, in cases where the Will states that the executor is vested with authority to use the assets and dispose of them at will, it may not be clear if the executor will pay the inheritance taxes (if there are any), and then sell the assets, or who else is entitled to do so.
Another example of a Will with ambiguous meaning is the case where the testator leaves an asset to a person, but indicates that after a certain point in time (a specific date) or after an event happens, (the coming of age of a child) the asset must go to another person. If the testator wishes to include in the Will such a provision, the text must be drafted meticulously, so that the Will, when probated in Greece, is possible to be understood and applied.
Finally, perhaps the most common cause for legal ambiguities in Greece with foreign Wills is when the last will and testament provides for the creation of a Trust. The notion of the trust is understood and used in legal texts in common law countries, but very often creates havoc among lawyers and administrative authorities in Greece. For this reason it should either be avoided, when it comes to assets located in Greece, or at least included in the Will only after a lawyer practicing in Greece has been consulted. In some cases it may be wise to make two Wills. One according to the law of the country where the testator has his/her main residence and properties, and another Will, meant for Greece, drafted in such a way that makes it more clear for attorneys and others involved in the probation and implementation of the Will in the Hellenic Republic.
*Christos ILIOPOULOS, attorney at
the Supreme Court of Greece , LL.M.