Introduction
With 30% of Australia’s population born overseas, according to the 2021 Census, it is not surprising that many of us will have assets located outside Australia. This is particularly likely for those who relocated to Australia in adulthood and who may have family or business connections in their country of birth.
Additionally, these days many Australian-based businesses have operations located internationally and, as a result, business owners may have assets located in several jurisdictions overseas.
What is the UNIDROIT Convention?
UNIDROIT refers to the International Institute for the Unification of Private Law.
Its purpose is to study needs and methods for modernising, harmonising and co-ordinating private and, in particular, commercial law as between one or more jurisdictions and to formulate uniform law instruments, principles and rules which apply universally to countries (or states within a country).
Internationally, uniform law has been adopted in many areas of legal practice such as civil procedure, commercial contracts and Wills.
International Wills
Since 2015, Australia has been a signatory to the UNIDROIT Convention in relation to drafting a multi-jurisdictional Will, commonly known as an International Will.
What does this mean for Will makers in Australia?
Prior to March 2015, if you held assets located outside your country of residence and wanted to include these assets in a Will, a separate Will was required for each country where the overseas assets were situated or registered. A country-specific Will was required because there was no guarantee that an Australian Will would be effective and enforceable in jurisdictions outside Australia.
Consequently, more than one Will might be required in order to account for assets held inseveral jurisdictions, thereby adding unnecessary complexity, time and expense for individuals preparing a Will and also for those responsible for administering the Estate.
How does the UNIDROIT Convention work?
The purpose of the Convention is to provide a standard format for an International Will, whereby participating countries mutually accept the validity of the International Will without the need to ascertain whether the Will complies with the formality of the country in which it was drafted.
Under the Convention:
A will shall be valid as regards form, irrespective particularly of the place where it is made, of 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 hereinafter.
There are strict guidelines for ensuring that an International Will is valid, in addition to the usual legal requirements for making a valid Will in Australia. It is recommended that you seek legal advice if you are considering creating an International Will or if you hold assets that you wish to leave to beneficiaries living outside Australia.
Which countries have signed the UNIDROIT Convention?
At present, 13 countries are signatories to the Convention, including Canada, USA (selected states), France, Italy, Russian Federation and the United Kingdom. A full list of signatory countries is available on the UNIDROIT Convention website.
If the country in which you have assets is not a signatory to the Convention, you must prepare a separate Will in that country, to ensure your assets are sufficiently protected.
How Sharrock Pitman Legal can help?
Our Accredited Specialist Wills & Estates team can advise individuals and business owners where an International Will may be of assistance as a strategy to protect assets held outside Australia.
Please do not hesitate to contact our Wills & Estates team on 1300 205 506 or email willsandestates@sharrockpitman.com.au. For further information on International Wills in relation to Wills drafted in Victoria, please read our article Validity of International Wills.
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.
Binay Prasad is a Senior Associate of Sharrock Pitman Legal and an Accredited Specialist in Wills and Estates law.
Binay has over 10 years of experience in the field of wills and estates and has a particular interest in complex estates involving business, family trusts, and SMSFs. Binay also has experience in family law, which complements his wills and estates practice. For further information, contact Binay on his direct line (03) 8561 3329 or by email, binay@sharrockpitman.com.au.
