With the increasing number of people migrating to different areas of the world, there is a growing need for Wills that protect assets owned in Australia overseas. At Joss Legal, we have recently been presented with the question of whether a will validly drafted and enforced in another country will be valid in Australia.
In other words, would protected assets in another country be protected in Australia? If you own assets outside of Australia, these assets are owned in a different jurisdiction. This means that the law in that jurisdiction may be different from the law in Australia.
However, there are a few ways by which assets owned in a different country can be protected and incorporated into your Will.
International Wills – what are they, and what do they do?
Australia is a signatory to the UNIDROIT Convention Providing a Uniform Law on the Form of an International Will 1973. This applies to all other countries that are signatories to this Convention. So far, there are only 18 countries, including the United Kingdom, Italy, Russian Federation, and France.
The purpose of the Convention was to simplify the formalities of Wills that have international characteristics or terms which affect multiple countries, coining the term “International Wills.”
Australia became a signatory to the Convention in 2015. In Western Australia, we now have legislation allowing for an International Will pursuant to the terms of the Convention under the Wills Amendment (International Wills) Act 2012 (WA).
The International Will must comply with both the Convention and Western Australian law before it can be recognised as valid in all signatory countries. If an International Will is created in a country that has not adopted the Convention, it may not be recognised in Western Australia.
Will Validity
There are specific requirements to ensure that an International Will is valid. They are as follows:
- The will shall be made in writing;
- It can be written in any language, handwritten or typed;
- It does not need to be written by the Testator (a lawyer can assist in writing it);
- The Testator must sign it;
- It must be witnessed by two people and by a person authorised to act in connection with international wills;
- 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 the above has been complied with.
Creating a Will for each separate Country
The other option to protecting international assets is to create a separate will for the assets in each country. This is usually the preferred option as it would assist administratively in the following ways:
- If there are two separate wills, the property can be dealt with at the same time and independently of each other. If there is only one Will, then there can be a delay in court processes in applying for probate
- There may also be issues of translation and interpretation of the wills in different countries; and
- There may be additional costs and court fees in particular jurisdictions if the property is not dealt with according to their requirements.
If you decide to create a separate will in each jurisdiction, you must inform each lawyer of all the wills you have in place. This is to make sure the Wills don’t contradict each other or revoke the other. You should always seek legal advice regarding the best option for your matter to ensure that all your assets are protected and disposed of according to your wishes.
Here at Joss Legal, we can assist you in drafting a Will and discussing further information if required. Please get in touch with us at lawyers@josslegal.com.au or at (08) 6559 7480 to book an appointment with our lawyers.
