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Will your Australian Will work overseas?

Disclaimer: The content of this Bulletin is general information only. It is not legal advice. Law Central Legal recommends you seek professional advice before taking any action based on the content of this Bulletin.

29/11/2018

By Law Central Legal

Introduction

Australia is a multicultural country with many international companies having offices located here.

It is not uncommon for international companies to relocate their staff, both interstate and internationally, when economies change.

If you have assets in Australia, then you need to have a valid Australian Will to ensure your assets are distributed to your spouse and loved ones, in accordance with your wishes.

But what happens if your employer wants you to move, for example, to Paris for work? Do you need to get a valid Will drafted in France to deal with any assets you accumulate there? Or does your Australian Will cover those assets as well?

Domicile (the country that a person treats as their permanent home, or lives in and has a substantial connection with) is important when construing a Will. The issues surrounding the identity of a person’s domicile will be discussed in a future newsletter.

Convention on International Wills

Historically there was difficulty when a Will was executed in one country and the assets resided in another country. If you made your Will in Paris and attempted to bequeath your assets in Australia, the Australian Courts may have found the Australian formalities for Wills were not met, even if the French formalities were. As a result, your Australian assets may not have been distributed as you wished. This arrangement was causing issues for many people who had assets in more than one country.

The International Institute for the Unification of Private Law (‘UNIDROIT’) saw the issues people were experiencing and sought to remedy the situation. UNIDROIT’s “purpose is to study needs and methods for modernising, harmonising and co-ordinating private and in particular commercial law as between States and groups of States and to formulate uniform law instruments, principles and rules to achieve those objectives”: https://www.unidroit.org/about-unidroit/overview. They formulated the Convention Providing a Uniform Law on the Form of an International Will 1973 (‘the Convention’). The Convention provided a Uniform Law on international Wills. If the Will complied with the form specified in the Convention, other countries who adopted the Convention would recognise the Will. The Convention was signed in Washington, D.C. on 26 October 1973.

As per the website of the Australian Attorney Generals Department: “To simplify succession law in Australia, the Australian Government acceded to the Convention Providing a Uniform Law on the Form of an International Will 1973 which entered into force for Australia on 10 March 2015. All states and territories have passed legislation to give effect to the convention … The convention seeks to harmonise and simplify proof of formalities for wills that have international characteristics.” :https://www.ag.gov.au/Internationalrelations/PrivateInternationalLaw/Pages/UNIDROITInternationalWills.aspx

Application of Convention in Australia

The legislation relating to Wills in each state or territory of Australia states that the Annex to the Convention has the force of law in that jurisdiction and sets out the Annex to the Convention in full in a schedule to that Act. 

Requirements of a Valid International Will

In short, Article 1 of the Annex states that the form of a Will shall be valid, irrespective of where it is signed, the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an International Will complying with the provisions set out in Articles 2 to 5.

Without setting out the entire text of Articles 2 to 10, below is a list of some of the key requirements:

  1. The Will must only be made by one person.
  2. It must be in writing, but can be in any language.
  3. The maker of the Will, or testator, is to declare in the presence of two witnesses and of a person authorised to act in connection with international wills that the document is his or her Will and that he or she knows the contents of it.
    In most states, the legislation states that a “person authorised to act in connection with an international will” is:
    1. an Australian legal practitioner;
    2. a public notary of any Australian jurisdiction,
    acting in Australia, or any other person who is acting as an authorised person under the law of a state (other than Australia) that is a party to the Convention.
  4. The testator is to sign the Will in the presence of both the witnesses and the authorised person, or, if he or she has previously signed the Will, the testator is to acknowledge his or her signature, again in the presence of both the witnesses and the authorised person.
  5. The authorised person and the witnesses are to sign the Will in the presence of the testator.
  6. The authorised person is to attach to the Will a certificate in the form (or in a substantially similar form) set out in Article 10 which establishes that the obligations of the law have been complied with.
  7. The authorised person is to keep a copy of the certificate and deliver another to the testator.

Below is a list of the Australian legislation relating to International Wills:

  1. ACT – Wills Act 1968 Part 3B - International Wills (sections 16J – 16M) & Schedule 1
  2. NSW - Succession Act 2006 - Part 2.4A – International Wills (sections 50A – 50E) & Schedule 2
  3. QLD – Succession Act 1981 Division 6A - International Wills (sections 33YA – 33YE) & Schedule 3
  4. NT – Wills Act Part 5A - International Wills (sections 48B – 48F) & Schedule 2 
  5. SA - Wills Act 1936 PART 3A--International wills (sections 25F – 25J) & Schedule 1
  6. TASMANIA – Wills Act 2008 PART 5A - International Wills (sections 62A – 62E) & Schedule 5
  7. VICTORIA - Wills Act 1997 Part 2 – The Making, Alteration, Revocation and Revival of Wills (sections 19A – 19E) & Schedule
  8. WA – Wills Act 1970 PART XA - International wills  (sections 32A – 32E) & Schedule 1

Conclusion

“The Convention does not aim at harmonising or unifying the forms that already exist in the different systems of national law. These are neither abolished nor modified.” - http://www.unidroit.org/overview-will

The international Will, will only be recognised in other countries that have adopted the Convention. Click here to see which countries have signed, ratified or acceded to the Convention.

In addition, issues such as the capacity of the testator or of the witnesses; the revocation of the will; the destruction of the will; or the modification of will, need to be carefully considered as these are not covered by the Convention.

There are many conflicting legal systems throughout the world and cultural differences which need to be considered carefully when finalising your estate planning for circumstances in which you have accumulated assets in more than one country.

It is recommended that you obtain legal and financial advice before entering into an International Will, to ensure it suits your individual needs and circumstances. It is advisable to prepare a Will in the country where your assets are located, in order to ensure that those assets are dealt with according to the law, customs and systems of that country. It may be necessary to have numerous Wills, depending on where your assets are located.

Gold and Platinum Members read on for information on having different wills in different countries.

Platinum Members, click here to view content

Disclaimer: The content of this Bulletin is general information only. It is not legal advice. Law Central Legal recommends you seek professional advice before taking any action based on the content of this Bulletin.

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