Where There’s a Will, There’s a Way: International Wills

There are many Australians – or people living in Australia – who have assets or business interests overseas.

What may appear to be a relatively simple move from the United Kingdom to Australia, or even a nonchalant purchase of vehicles or real estate in France could very well have longstanding impacts on your estate planning and potential estate administration.

To ensure that you have a valid will in place that effectively deals with your international assets, we recommend the creation of either an international will or concurrent wills.

International Wills

In 2015, Australia became a signatory to the UNIDROIT Convention Providing a Uniform Law on the Form of an International Will 1973 (the Convention). Ultimately, the Convention is a mechanism which provides a standard format whereby participating countries may accept the validity of the will based on its compliance with the formalities set out in the document.

The following are signatories to the Convention: Australia, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, Ecuador, France, Holy See, Iran, Italy, Laos, Libya, Niger, Portugal, Russia, Sierra Leone, Slovenia, United Kingdom and United States of America.

Under the Convention, an international will is determined to be valid if it complies with the following (among other administrative matters):

  1. The will addresses the wishes of only one person.
  2. The will is in writing.
  3. The testator declares that this document is their will, and they understand the contents thereof in the presence of two witnesses and a person authorised to deal with international wills (e.g. Australian legal practitioner).
  4. The testator signs the will before the witnesses and authorised person attest to the will by signing in the presence of the testator.
  5. The authorised person completes a form in the appropriate format certifying that the document was completed in accordance with the Convention.

Queensland provides for such documents to be validly made under Part 2 Division 6A of the Succession Act 1981 (Qld). Accordingly, section 33YE of the Succession Act provides for the application of international wills in the Queensland jurisdiction.

If you currently own assets in any of the above signatory states, and need to either update or create an international will, please do not hesitate to contact Jessica Murray (07 5574 0623) or Peter Muller (07 5574 0111) of our office.

Concurrent Will

A concurrent will is used where the testator owns assets in various countries which all govern under different succession laws. Typically, concurrent wills are utilised if the country where the asset is located is not a signatory to the Convention. In this regard, each individual will addresses the legislation of each country and disposes of the assets validly in that jurisdiction.

When making a decision as to whether you will draft a concurrent will, it is vital that consideration be given to both tax and trust implications as well as legal requirements. In this regard, it is crucial that your concurrent wills clearly stipulate that the intention of each concurrent will is not to revoke the former one.

If you need advice about the relevance of concurrent wills to you, or alternatively if you require the drafting of your concurrent will which addresses your Australian assets, do not hesitate to contact either Peter Muller (07 5574 0111) or Jessica Murray (07 5574 0623) of our office.