It still surprises me that clients seem to forget to mention “their bank account in the US” or “their parent’s house they inherited in the UK”, even when asked during an appointment. Hot tip – don’t forget to mention to your solicitor any overseas assets you own outside of Australia when considering your estate plan.
When someone owns assets in a different country, they are said to own assets in a different jurisdiction. For a solicitor, this immediately indicates that some thought must be given to how those assets will be dealt with in their client’s estate plan.
There are two ways of addressing assets in a different country:
- an international Will can be prepared; or
- a Will can be prepared in each of the different countries.
On 10 March 2015, the Australian Government acceded to the Convention Providing Uniform Law on the Form of an International Will 1973 (Convention). All States and Territories in Australia have enacted legislation allowing for an international Will under the Convention.
The Convention sets up a uniform law for a new form of Will, known as an ‘international Will’. An international Will pursuant to the Convention is recognised as a valid form of Will in all countries that are party to the Convention.
Division 6A of the Succession Act 1981 (Qld) addresses international Wills pursuant to the Convention.
Although the aim of the Convention was to harmonise and simplify the proving of Wills that have international characteristics – it does fall short on some rather significant fronts, for example:
- An international Will is only accepted in countries which have legislated for the Convention – at present this includes Australia, Bosnia-Herzegovina, Croatia, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal, Slovenia and some of the states in the United States. Therefore, if you have assets in a country other than those countries which are party to the Convention, the international Will will be of no benefit.
- An international Will does not clarify which country’s law will prevail in the event of a conflict of laws between the differing countries. This has an impact on things such as the day to day administration of the estate, or if a claim is made against the estate, or if there is an issue with the interpretation of the Will.
If the international Will is disputed in some way, it may result in exorbitant costs being spent in multiple jurisdictions to reach a resolution.
In my view, many of the risks associated with having an international Will can be avoided by having concurrent Wills in the relevant countries.
If you have assets in multiple countries, a more practical and commercial solution, is to have a concurrent Will in each of the countries you have assets in.
The significant benefit of having a Will in each jurisdiction is it makes the administration of the estate efficient, in that the executor of each of the Wills may seek a grant of representation in the relevant country independent of the others. Things may be achieved in each country without being held up by what is happening in the other countries.
Furthermore, your Will will be prepared in accordance with the law in that country, therefore if there is a conflict or dispute in relation to the Will or the estate, it won’t be complicated further by trying to determine which country’s law apply to the Will.
It is important that you receive advice on each of the concurrent Wills, as the Will will have to prepared acknowledging that you have Wills in other jurisdictions. If the terms of the Will are not acknowledging this, you may find one Will is revoking one of the other Wills.
For the time being, stick to a concurrent Will
At present, I would always recommend that a Will be prepared in the different countries. In my view, this is a much cleaner and efficient option from both a practical and commercial perspective.
If you have assets in multiple jurisdictions and are concerned that you current estate plan does not address these assets, please do not hesitate to contact me.
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