What Is an International Will?
If you own assets in countries other than Australia, making sure they’re considered in your estate planning is important. Overseas real estate, companies, and other foreign assets are not usually covered by your Australian Will – but, sometimes, an ‘international Will’ can be prepared to deal with these assets.
In this article, we’ll explore exactly what an international Will is, how it’s different to a domestic Will, and whether you should create an international Will or different Wills for different jurisdictions.
What Is an International Will?
An international Will is a form of Will provided for under the Convention Providing a Uniform Law on the Form of an International Will. The convention was established by the International Institute for the Unification of Private Law (UNIDROIT) to simplify international law for Wills. The convention was entered into force by Australia on 10 March 2015, and all the states and territories have passed legislation to give effect to the convention. In Queensland, international Wills are covered by the Succession Act 1981 (Qld).
Countries that are a party to the convention recognise international Wills as a valid form of Will.
Which Countries Recognise International Wills?
Only a handful of countries have passed domestic legislation to recognise international Wills. As of 2023, those countries are:
- Canada (Alberta, British Columbia, Manitoba, Newfoundland, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, Saskatchewan, Yukon)
The countries that have entered the convention into force may change from time to time and this information should be checked at the time of making your Will.
What Makes an International Will Valid?
In Queensland, a Will is considered to be ‘properly executed’ if its execution complies with the laws in force in the place:
- it was executed;
- that was the testator’s domicile or residence (either at the time the Will was executed or at the time of the testator’s death); or
- of which the testator was a national (either at the time the Will was executed or at the time of their death).
To be valid as an international Will, a Will must also meet additional conditions:
- The Will must be in writing (in any language).
- The testator must declare in the presence of two witnesses and an authorised person that they understand the contents of the Will.
- The testator must sign the bottom of the Will in the presence of the two witnesses and the authorised person.
- The signed Will must then be signed by the two witnesses and the authorised person.
- The date of the Will must be the date it was signed by the testator and the same date the certificate was signed by the authorised person.
- The pages of the Will must be numbered and each page signed by the testator
- The certificate of the authorised person must be attached.
The main requirement for validity of a Will as an international Will is the attachment of a certificate completed by an authorised person – in Australia, this is an Australian legal practitioner or notary public. All other matters in relation to the international Will, such as the capacity of the Will-maker, are governed by the relevant state or territory succession legislation.
An international Will cannot be created for joint Wills.
Should l Have an International Will or Multiple Wills?
If you own assets in a country other than Australia, you should obtain legal advice as to whether an international Will is suitable in your circumstances.
If the international jurisdiction where you own assets has not ratified the convention, then you may wish to have a Will made in each country in which your assets are located. For example, if you have assets in Australia and a property in Hong Kong, you may wish to make an Australian Will to deal with all your estate excluding your assets in Hong Kong, and a second Hong Kong Will to deal only with your assets in Hong Kong.
Having Wills for different jurisdictions allows you to appoint different executors for each jurisdiction. Having an executor ‘on the ground’ in the relevant jurisdiction may help your estate to be administered in a timelier, more cost-effective way. Multiple Wills can also make obtaining probate in each jurisdiction, if probate is necessary, a less complex and costly process.
Depending on the foreign jurisdiction’s applicable estate tax rules, having different Wills for each jurisdiction can be tax-effective – but always make sure you seek estate planning and taxation advice that’s specific to your situation.
Next Steps: Getting a Will Drafted
Owning assets internationally means you should seek estate planning advice that’s specific to your situation. As such, it’s important to find an experienced estate planning lawyer who can work with you to deliver an outcome that balances your wishes with other considerations, like timely, cost-effective estate administration.
If you need advice relating to international assets, book a consultation with our experienced estate planning team. As the oldest law firm on the Gold Coast, we’ve been helping Queenslanders navigate complex estate planning challenges since 1955 – talk to us to find out how we can help you.
The content of this page is for information only. The content does not constitute legal advice and should not be relied upon as such. You should obtain advice that is specific to your circumstances before taking any action.