Translators and Interpreters for International Wills and Probate in the United States
In previous posts we discussed legal translation and interpreting services and Apostille translation services for cases involving an international aspect. Probate matters are no exception. More and more, individuals live abroad and hold property internationally. What issues can arise when a person with a US domicile executes a will in another country and in another language? The below case is one example.
American Executes Will in Portugal
In Matter of Estate of Sweet, involves a decedent, Marilyn Sweet, a Maryland domiciliary. Sweet executed a will in Portuguese in Portugal. The will was overseen and signed by a notary and was witnessed by two other individuals. Approximately, 14 years after signing the Portugal will, Sweet passed away in Nevada. At the time of her death, her estate consisted of a home in Las Vegas.
Probate Proceedings in Nevada
Following her death, Christopher Hisgen, Sweet’s surviving spouse, filed a petition to administer her estate and to admit her will to probate. The Portuguese will was submitted with an English translation. The translation read:
[Sweet] establishes as universal heir of all her goods, rights, and actions in Portugal, Christopher William Hisgen, single, adult, native Washington, DC, United State of America, of American nationality with whom she resides.
Should he have already died, on the date of her death, Kathryn Kimberly Sweet, married, resident of Arlington, Virginia, United States of America and Christy Kay Sweet, single, adult, resident of Thailand, will be her heirs.
One of the Sweet daughters waived notice to the Hisgen petition while the other daughter objected to the petition claiming the Portuguese language will could not be probated in Nevada. This daughter claimed the will could not be probated because it was signed in a foreign country, and the will applied only to property in Portugal.
Hisgen replied to the objection and provided three declarations. One declaration was from a witness. The other two declarations were from a Portuguese attorney. The attorney had witnessed the will signing and also attested to the validity of the will under the law of Portugal. The attorney also provided another Portuguese to English translation of the will, which only differed slightly from the first Portuguese to English translation.
Following a hearing, the probate commissioner issued a report accepting the Portuguese will to probate. The probate commissioner concluded that the will was a valid international will under Nevada law and even if it were an invalid international will, it could be probated under another provision of Nevada law. Additionally, the probate commissioner concluded the will applied to Sweet’s entire estate and not just property in Portugal as the daughter claimed.
The daughter objected to the report, and a hearing was held at the district court. The district court affirmed the probate commissioner.
The daughter appealed the decision to the Court of Appeals of Nevada raising the following four issues: (1) the will was not a valid international will under Nevada law, (2) no other provision of Nevada law allowed the will to be probated in Nevada, (3) the will only applied to property in Portugal and (4) she was entitled to a will contest.
Portuguese Will was Valid as an International Will under Nevada Law
With respect to the daughter’s first argument, the Appeals Court concluded that the will was valid under Nevada law, which codified the Uniform Law on the Form of an International Will Convention.
Nevada law requires that an international will be signed “in the presence of two witnesses and of a person authorized to act in connection with international wills.” Since the will was executed in Portugal, the Appeals Court looked to Portuguese law to determine who could be an authorized person. The Appeals Court also noted that it is logical to look to Portuguese law because the purpose of an international will would be frustrated if the person who made a will had to anticipate where his/her will would be admitted to probate to ensure its validity. In Portugal, a notary is an authorized person, and Nevada had to recognize the Portuguese notary’s signature.
Other defects in an international will do not affect validity of a will. For example, that the will was not signed on every page or that it did not include a certificate, did not affect the will’s validity.
Alternate Provision of Nevada Law Allowed Probate
The daughter also claimed that the lower court erred in ruling that even if the will was invalid under the section of Nevada law governing international wills, it could be probated as a valid foreign will.
The Appeals Court reasoned that the language of the statute is unambiguous in that it states that even if a will is invalid as an international will in Nevada, it could still be valid as a foreign will. The daughter had not disputed that the will was valid in Maryland or valid in Portugal.
The Portuguese Will Applied to Sweet’s Entire Estate
With respect to what property the will covered, the daughter argued that the will only covered property in Portugal. The daughter pointed to the terms “in Portugal” and argued that they applied to the entire clause and not just the word “actions.”
On this issue, the Appeals Court analyzed the language of the will and ultimately sided with the surviving spouse. The Appeals Court reasoned that Sweet had referred to her spouse as “universal heir” in the will and this demonstrated intent to have him inherit her entire estate.
Additionally, interpreting “in Portugal” as applying to the entire clause would mean that Sweet would die without a will with respect to the Nevada property. The Court noted that the law should give effect to an interpretation that avoids intestacy. Finally, the general residual clause that left out the terms “in Portugal” showed an intention to leave the entire estate to her daughters (and not just the Portugal property), had the spouse predeceased Sweet. Interpreting the Portuguese will to include Sweet’s entire estate would give meaning to the term “universal heir” and the general residual clause that did not include the terms “in Portugal.”
Sweet Waived Her Right to a Will Contest
Finally, the Appeals Court ruled that because the daughter had not argued she was entitled to a will contest in the proceedings below, she was barred from bringing the argument on appeal.
Case Discussed:
Matter of Estate of Sweet, 520 P.3d 827 (Nev. 2022)
Contact All Language Alliance, Inc., nationwide provider of legal document translation, Apostille services, and legal interpreter services to obtain certified translation of a foreign will written in Portuguese, Polish, Czech, Spanish, Danish, Thai, Romanian, Hungarian, Hebrew, Lithuanian, German, Dutch, Croatian, Bulgarian, Italian, Greek, Japanese, Vietnamese, French, and other foreign languages for probate in the United States. We can also help your law firm locate missing and/ or unknown beneficiaries and heirs to testate and intestate estates, guardianships, and trusts who reside in foreign countries.
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