Increasingly, people are owning assets in more than one country around the world and require succession documents including a Will to cover all those assets.
Usually, it is assumed that one Will will cover all their assets. However, if only a Will in Australia is made it might not be effective in other countries. For an Australian Will to be considered valid in another country it would need to be valid under the laws of that country. Even if an Australian Will is accepted as valid formally, because of application of the different law it might have a different effect in dealing with the assets in that country.
As Vesna Pocuca, Associate Lawyer at Robertson Hyetts, explains – ‘The will maker might have two options, depending on where those assets are situated; make an international Will or multiple Wills’.
An international will is executed pursuant to the Unidroit “Convention Providing a Uniform Law on the Form of an International Will 1973”, being an international Convention to which Australia became a party in 2014.
A will that is made pursuant to the requirements of the Convention will be accepted in countries which are signatories to the Convention.
An international will shall be valid as regards form if it is made in the form of an international will complying with the provisions set out in Convention. However, the international will might not be totally effective in terms of dealing with assets in another country because of the different laws of succession which may apply.
Therefore, although the international Will will be accepted by the Convention-participating country it might still not be operative in that country and not achieve the outcome which the will maker wanted it to achieve.
The other and preferred option is to make an Australian Will and a Will/Wills to deal with the assets in the countries/s in which the assets are located. The reasons for having multiple Wills are:
- If there are beneficiaries who are inheriting Australian assets and beneficiaries in the other country who are inheriting in that country, the costs of transferring the assets between jurisdictions could be avoided.
- Both countries might require the original Will to deal with the assets, or if a grant is obtained in one country then it will not be possible to deal with the assets in the other country until that probate is re-sealed, which could cause delays.
- There might be tax savings if the different jurisdictions are dealing with the assets in their own jurisdiction.
Each Will should refer to the other Will without using any language to revoke the sustainability of either Will. Otherwise, if one Will revokes the other it might mean that the law of intestacy could apply with respect to the assets located in the country in which the Will was revoked, and the laws of intestacy are different in different countries.
If you would like more information, or to discuss your options further, please contact Vesna Pocuca at Robertson Hyetts on 03 5472 1588.