International Wills

With an increasing number of Australians born overseas, there is a growing need for Wills that protect not only a person's Australian assets, but also those assets owned overseas, as Wills & Estates Lawyer Melinda Van Rooyen explains.

Introduction

When a person creates a Will, they often assume that it will be recognised and enforced in any jurisdiction where they may be residing or own assets at the time of their passing. Unfortunately, this is not always the case.

The Issue

Generally speaking, a Will for each country where the assets are held is required to ensure that the assets are managed in accordance with the Will maker's wishes. For Australians relying on a Will drafted in Australia to be valid overseas, uncertainty can exist as to whether their Australian Will is effective and enfoceable overseas.

International Wills

Fortunately, it is possible to make an International Will, which applies to assets located in the countries that are signatories to the UNIDROIT Convention Providing a Uniform Law on the Form of an International Will 1973. However, not all countries have adopted the Convention; so far, there are only 13 signatories, including the United Kingdom, Italy, France and Australia. See our article on the UNIDROIT Convention.

How does an International Will apply in Victoria?

There are specific laws relating to the validity of an International Will, and it is important to understand these laws to ensure that one's last wishes are enforeable and will be carried out.

In Victoria, the Wills Amendment (International Wills) Act 2012 adopted into Victorian law the Uniform Law on the Form of an International Will contained in the UNIDROIT Convention. The Act introduced Division 7 to Part 2 of the Wills Act 1977.

If an International Will meets the requirements set out in the Act, it will be recognised in Victoria and it will be given the same legal effect as a Will created in Victoria. However, if a person creates an International Will in a country that has not adoped the Act, it may not be recognised in Victoria.

How do I ensure that my International Will is valid in Victoria?

In addition to ensuring that the overseas country where the assets are held is a signatory to the Convention, there are several requirements for an International Will to be valid in Victoria.

One of the key requirements for an International Will to be considered valid in Victoria, is that it must be in writing and signed by the Testator (the person creating the Will). The testator must sign the Will in the presence of two witnesses, and a person authorised to act in connection with International Wills.1 The witnesses and the authorised person must also sign the Will in the presence of the Testator. The authorised person is required to attach to the Will a certificate, in the form prescribed by the Convention, stating that the above formalities have been complied with.2

Another requirement for a Will to be valid in Victoria, is that it must be clear that the document is intended to be the Testator's Will. The Testator must have testatmentary capacity at the time of creating the Will, and they must have created the Will voluntarily, without any undue influence or pressure from others.

Drawbacks of an International Will

There are a number of reasons for avoiding an International Will and instead having separate Wills in each country where the Testator owns assets. One significant reason is that most countries would prefer to retain the original Will. Therefore, there may be difficulties obtaining Probate in another country if a Grant of Probate has already obtained in a different country. This would cause delays in obtaining Probate of the Will and the timely administration of the Estate.

Limitations of International Wills

It is also important to note that the recognition of International Wills in Victoria may be subject to certain limitations. For example, if the Will is considered to be contrary to public policy or if it contains provisions that are not permitted under Victorian law, it may not be recognised. Therefore, it is important to seek legal advice before creating an International Will to ensure that it meets all of the necessary requirements and is likely to be recognised in Victoria.

Conclusion

In conclusion, while International Wills can be a useful tool for people with assets in multiple jurisdictions, the Testator needs to ensure that the International Will would be recognised and enforceable in Victoria.

How Sharrock Pitman Legal can assist?

Our Accredited Specialist Wills & Estates team is experienced in assisting citizens and foreign residents residing in Victoria to manage their asset portfolio, ensuring that any assets in Australia will be protected.

Our team can also assist with succession planning for business owners, including trust arrangements, superannuation and Powers of Attorney.

Please do not hesitate to contact us on 1300 205 506 or sp@sharrockpitman.com.au.

1 The following persons are authorised in Victoria: an Australian legal practitioner (within the meaning of the Legal Professional Act 2004) and a public notary of any Australian jurisdiction.

2 The omission of the certificate does not affect the formal validity of the Will.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

For further information contact  
Melinda Van Rooyen

Melinda Van Rooyen is a lawyer in our Wills & Estates team. Melinda can be contacted on (03) 8561 3311 or email melinda@sharrockpitman.com.au.

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