Can Your Will Be Recognised In Other Countries?

Australia is a multicultural country with many international companies having offices located in Australia.

It is not uncommon for international companies to relocate their staff, both interstate and internationally.

If you have assets in Australia, then you need to have a valid Australian Will to ensure your assets are distributed to your spouse and loved ones, in accordance with your wishes.

What happens, if your employer wants you to move, for example, to New York for work? Do you need a valid Will drafted in the USA to deal with any assets you accumulate there? Or will your Australian cover those assets as well?

International Wills Convention

To simplify succession law in Australia, the Australian Government acceded to the Convention Providing a Uniform Law on the Form of an International Will 1973, which entered into force for Australia on 10 March 2015. All states and territories had passed legislation to give effect to the Convention. The Convention seeks to harmonise and simplify proof of formalities for Wills that have international characteristics.

Requirements of a valid International Will

Article 1 of the Convention states that the form of a Will shall be valid, irrespective of where it is signed, the location of 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 of the Convention.

Briefly below is a list of some of the requirements:

1. The Will must only be made by one person.
2. It must be in writing but can be in any language.
3. The maker of the Will, or ‘testator’, is to declare in the presence of two witnesses and of a person authorised in connection with international Wills that the document is his or her will and that he or she knows the contents of it. In most States, the law states that a “Person authorised to act in connection with an international Will” is:
   • An Australian legal practitioner;
   • A public notary of any Australian Jurisdiction, acting in Australia, or any other person who is acting as an authorised person under the Law of a State (other than Australia) that is a party to the Convention.
4. The testator is to sign the Will in the presence of both the witnesses and the authorised person, or, if he or she has previously signed the Will, the testator is to acknowledge his or her signature, again in the presence of both witnesses and the authorised person.
5. The authorised person and the witnesses are to sign the Will in the presence of the testator.
6. The authorised person is to attach to the Will a certificate in the form (or in a substantially similar form) set out in article 10 which establishes that the obligations of the Law have been complied with.
7. The authorised person is to keep a copy of the certificate and deliver another to the testator.

What else?

The Convention does not aim at harmonising or unifying the forms that already exist in the different systems of national law. These are neither abolished nor modified. Further, not all countries around the world have adopted the Convention.

Certain issues, such as the capacity of the testator or of the witnesses, the revocation, destruction or the modification of Will, needs to be carefully considered, as these are not covered by the Convention.

There are many conflicting legal systems throughout the world and cultural differences which need to be considered carefully when finalising your estate planning in circumstances in which you have accumulated assets in more than one country.

It is highly recommended that legal and financial advice be obtained before preparing a Will used to dispose of international assets, to ensure it suits individual needs and circumstances. It is advisable to prepare a Will in the country where your assets are located, in order that those assets are dealt with according to the law, customs and systems of that country. It may be necessary to have numerous Wills, depending on where your assets are located.

If you have any assets overseas, or currently live overseas and own assets in another country and you would like further information regarding the preparation of a valid Australian Will or a Will with international validity, please contact Stephen Rockliff of Rockliffs Lawyers located in Sydney who has vast experience in drafting Wills and Testamentary Trusts.