Will your Australian Will work overseas?
Having a valid Australian Will is crucial if you possess assets in Australia, ensuring these assets are distributed to your spouse and loved ones in line with your preferences.
However, suppose you are requested by your employer to relocate, for instance, to Paris for work. Would it be necessary to draft a valid Will in France to handle any assets accumulated there, or would your Australian Will suffice?
The concept of domicile, i.e., the country where an individual has a permanent home or significant connection, is critical when interpreting a Will. The complexity of determining a person’s domicile will be addressed in a forthcoming newsletter.
Convention on International Wills
Traditionally, challenges arose when a Will was drafted in one country, but the assets were located in another. If, for example, you drafted your Will in Paris, intending to bequeath your Australian assets, the Australian courts might have deemed that Australian Will formalities were not met, even if French formalities were complied with. Consequently, your Australian assets may not have been distributed as per your wishes. This led to complications for many individuals with assets in multiple countries.
Recognising this issue, The International Institute for the Unification of Private Law (‘UNIDROIT’) aimed to address the problem. UNIDROIT strives to modernise, harmonise, and coordinate private and commercial law among nations and groups of states, thereby formulating uniform law instruments, principles, and rules to meet these objectives. Accordingly, they formulated the Convention Providing a Uniform Law on the Form of an International Will 1973 (‘the Convention’), a Uniform Law on international Wills. If a Will is compliant with the form specified in the Convention, it would be recognised by other nations that have adopted the Convention. The Convention was signed in Washington, D.C. on 26 October 1973.
Implementation of Convention in Australia
In Australia, the legislation pertaining to Wills in each state or territory stipulates that the Convention’s Annex is law within that jurisdiction, and the Annex is fully detailed in a schedule to that Act.
Prerequisites of a Valid International Will
Briefly, Article 1 of the Annex mentions that a Will’s form will be considered valid, regardless of where it is signed, the location of assets, or the nationality, domicile, or residence of the testator, provided it is prepared as an International Will in accordance with the provisions detailed in Articles 2 to 5.
Some of the key requirements highlighted in Articles 2 to 10 include:
- The Will can only be prepared by one individual.
- It must be in written form and can be in any language.
- The Will’s maker or testator must declare in the presence of two witnesses and a person authorised to act concerning international wills that the document is his or her Will and that he or she knows its contents.
- A “person authorised to act in connection with an international will” is usually an Australian legal practitioner or a public notary of any Australian jurisdiction, acting in Australia, or any other person acting as an authorised person under the law of a state (other than Australia) that is a party to the Convention.
- The testator should sign the Will in the presence of both the witnesses and the authorised person or, if the Will has been previously signed, acknowledge his or her signature in their presence.
- The authorised person and the witnesses are to sign the Will in the testator’s presence.
- The authorised person should attach a certificate to the Will, which verifies that legal obligations have been met.
- The authorised person must keep a copy of the certificate and deliver another to the testator.
Only countries that have adopted the Convention will recognise an international Will. You can find a list of such countries here. Furthermore, issues such as the capacity of the testator or witnesses, revocation of the Will, destruction of the Will, or modification of the Will, which are not covered by the Convention, should be carefully considered.
Due to differing legal systems globally and cultural variances, careful consideration is required when estate planning involves assets accumulated in multiple countries.
It is advised to seek legal and financial advice before drafting an International Will, to ensure it aligns with your unique needs and circumstances. Preparing a Will in the country where your assets are situated is recommended to ensure that these assets are handled as per the law, customs, and systems of that country. Depending on the situation, multiple Wills, each dealing with assets in a specific country, might be appropriate.