In 2015 Australia became a signatory to the UNIDROIT Convention Providing a Uniform Law on the Form of an International Will 1973. This international convention has provided a way for a person to have one will dealing with assets held in multiple countries.
While it has aimed to assist a person with assets around the world in managing their estate, not only are there requirements the will must meet to be valid internationally but there have already been court cases which have identified what a will maker must be mindful of when drafting their will.
Where is an International Will valid?
An international will provides the benefit of the will-maker having to draft only one will, even when they hold assets in multiple countries. So long as the will meets the requirements listed further below, countries that have signed the convention must deem the will to be valid even if it does not comply with their specific requirements.
Keep in mind that international law is only valid to countries that agree to be bound by that convention. The UNIDROIT Convention on International Wills has not been signed by all countries. If the country you own assets in has not signed this convention then it will not apply to that country and you would be required to draft another will that complies with that country’s requirements.
Having multiple wills dealing with assets in different countries can be achieved through concurrent wills. Concurrent wills is the terms used for when a testator prepares separate wills for each country where the testator’s assets are owned. Each will only applies to the assets located in that country but the will must be drafted to comply with that country’s valid will-making requirements.
What is required for an International Will? 7 things to include
A will is a valid international will if it meets the following requirements:
- the countries where the will was made and the assets are held have signed and is a party to the convention;
- the testator of the will (that is the person who is making the will) is only one person;
- the will is in writing;
- the will is written with the express intention of it being a will and the testator declares they understand the contents of the will;
- the will is signed by the testator and witnessed by two authorised persons;
- the testator signs every page of the will; and
- each authorised person who witnesses the will completes a form certifying that the will was completed in accordance with the convention’s requirements.
The Succession Act 1981 (Qld) lists the people authorised to witness an international will, which includes:
- an Australian Legal Practitioner;
- a public notary; and
- a person authorised to act in connection with an international will under the law of a country who has signed the convention.
If these requirements are not met then the will is not a valid international will and can only be applied to Australian assets.
Further Considerations for International Will
Queensland Courts have already had to examine international wills and clarify any grey areas. The main concern has been to revocation clauses in wills, which is included in the will as a failsafe method to ensure the newest will’s directions will be followed.
This has been a concern where there were wills drafted in other countries that applied to the assets held in that country. Where there has been an unintentional revocation of an overseas will (because of the will-maker’s failure to disclose those assets to the lawyer drafting the Australian will), the court has held overseas wills made to deal with the international assets as valid (Re Perry  QSC 97). It is therefore important to get the wording in your wills right in order to avoid any unintentional dealings with international assets.
If you are looking to draft or update your will and you have assets in a foreign country, you should:
- disclose all your assets to your lawyer (whether they are assets held in Australia or overseas);
- obtain tax advice on any overseas assets you own and the tax implications of dealing with them in your estate;
- determine whether the country you hold international assets in has signed the international wills UNIDROIT Convention Providing a Uniform Law on the Form of an International Will 1973; and
- if you meet the requirements to have an international will and want to proceed with it, ensure your will meets the requirements of Queensland and the international convention.
If you have any questions or require assistance with drafting or reviewing your will in Queensland then please contact the property team at My Property Protect for more information.
Kayleigh Swift, Associate
Chloe Skubis, Graduate Law Clerk
About the authors
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.
Chloe Skubis is a Graduate Law Clerk in our Property team who assists with various conveyancing transactions. Chloe is very experienced in residential conveyancing and is a problem solver. She always provides efficient service to all her clients.
Tags – #wills #estates #internationalwills #gifts #assets #internationalassets #UNIDROIT #trust #internationallaw #succession #successionact