In Australia’s increasingly multicultural society, many people own assets in different countries. Recently, I had a client who owned a substantial amount of property throughout Europe. The client was interested in whether she was able to include provisions in her Will to address these assets.
It is wrong to assume that any assets you own overseas will be adequately dealt with pursuant to the terms of your Will prepared in Australia.
If you own assets outside of Australia, these assets are owned in a different legal jurisdiction. This means that different laws will apply to the drafting of Wills as well as the administration of deceased estates.
There are two ways by which assets owned in a different country can be incorporated under your Will.
- International Will
In 1973, the Convention Providing Uniform Law on the Form of an International Will (‘the Convention’) was developed by the International Institute for the Unification of Private Law.
The purpose of the Convention was to simplify the formalities of Wills that have international characteristics or terms which affect multiple countries. The Convention introduced a new form of Will for participating countries, known as the ‘International Will’.
Australia became a signatory to the Convention in 2015. As a result, every State and Territory in Australia has introduced legislation allowing for an International Will pursuant to the terms of the Convention.
International Wills are recognised as valid Wills in all countries who are signatories to the Convention. At present, these countries include: Australia, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, Ecuador, France, Iran, Italy, Laos, Libya, Niger, Portugal, Russia, Sierra Leone, Slovenia, United Kingdom, and the United States of America.
The International Will must comply with both the Convention and Victorian law. Provided that the International Will is prepared and executed pursuant to the requirements of the Convention, it will be recognised as valid in all signatory countries.
- Prepare a Will in each of the different non-convention countries where you own assets.
If you own assets in countries who are not party to the Convention, the safest and most efficient solution is to prepare separate Wills in each of these countries. These are known as ‘concurrent Wills’.
It is important that these Wills complement each other and only dispose of assets in that country. While this may appear inconvenient, concurrent Wills avoids potential conflict across the different jurisdictions and ensure that the administration of your estate occurs in a more efficient manner.
Importantly, preparing Wills in multiple countries allows you to appoint a different executor to deal with the assets in each country. This reduces the overall burden on the person you appoint as executor.
Preparing concurrent Wills avoids potential disputes regarding the interpretation of your Will, which may be a prolonged and expensive task for your estate.
For further information, please contact Charlie Robinson of our office (03 9435 9044).
This is general information only. Please contact us for expert legal advice that takes your unique personal situation into account prior to making any decisions based on this article.
