A Foreign Will Drafted For Assets in Greece
By Christos ILIOPOULOS*
22 February 2017
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.
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