Moving overseas is an important time to consider putting in place a will or updating your existing Australian will. But, is your Australian will valid when moving overseas? Here is some useful information for Australian expats.
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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.
But what happens if you plan on moving overseas (for example Paris) to live or work? Do you need to obtain a valid Will drafted in France to deal with any assets you accumulate there? Or does your Australian Will cover those assets as well?
Domicile is important when construing a Will. The issues surrounding the identity of a person’s domicile will be discussed in a separate article.
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 have passed legislation to give effect to the convention. … The convention seeks to harmonise and simplify proof of formalities for wills that have international characteristics.” :https://www.ag.gov.au/Internationalrelations/PrivateInternationalLaw/Pages/UNIDROITInternationalWills.aspx
The Convention providing a Uniform Law on the Form of an International Will 1973 (the Convention) was signed in Washington, D.C. on 26 October 1973.
Application of Convention in Australia
The legislation relating to Wills in each state or territory of Australia states that the Annex to the Convention has the force of law in that jurisdiction and sets out the Annex to the Convention in full in a schedule to that Act.
Requirements of a Valid International Will
In short, Article 1 of the Annex states that the form of a Will shall be valid, irrespective of where it is signed, the location of the 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.
Without setting out the entire text of Articles 2 to 10, below is a list of some of the requirements:
- The Will must only be made by one person.
- It must be in writing, but can be in any language.
- The maker of the Will, or testator, is to declare in the presence of two witnesses and of a person authorised to act 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 legislation 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.
- 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 the witnesses and the authorised person.
- The authorised person and the witnesses are to sign the Will in the presence of the testator.
- 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.
- The authorised person is to keep a copy of the certificate and deliver another to the testator.
“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.”http://www.unidroit.org/overview-will
Not all countries around the world have adopted the Convention. Click here to see which countries have signed, ratified or acceded to the Convention.
In addition, issues such as the capacity of the testator or of the witnesses, the revocation, the destruction or the modification of wills need 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 for circumstances in which you have accumulated assets in more than one country.
It is recommended that you obtain legal and financial advice before entering into an International Will, to ensure it suits your individual needs and circumstances. It is advisable to prepare a Will in the country where your assets are located, in order to ensure 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.
Disclaimer: The content of this article is general information only. It is not legal advice. Law Central recommends you seek professional advice before taking any action based on the content of this article.
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