Is your Australian Will effective in dealing with your overseas assets?

Date: September 21, 2018
Author: Lisa Rosenheim
Posted in: Insights

Do you have a bank account in Israel? Have you inherited your mother’s house in South Africa? Do you own shares in the United States? Given Australia’s large multicultural population, it is unsurprising that many of us own assets overseas as well as in Australia. It is important to ensure that your will properly disposes the assets you own in other countries and not just those in Australia. This article discusses two options that are available to address assets held in other countries and the limitations of both.

1. International Wills
To simplify succession law in Australia, the Australian Government signed up to a UNIDROIT Convention in 2015. The convention introduced a new form of will, referred to as an international will, and is accepted in all countries that are signatories to the convention. The will allows clients with ‘assets in multiple countries to prepare one will that will be effective across them all’.
The formalities required for an international will are similar to the requirements for a will executed in compliance with section 7 of the Wills Act 1997, in that, it will must be in writing and signed by the will-maker in the presence of two witnesses. The only additional requirement is that a certificate must be attached to the international will, signed by an authorized person, attesting that the procedures for drafting and execution of the international will have been satisfied.

Limitations
One of the limitations of international wills is that they are only accepted in countries which have legislation supporting the Convention. And even where they are accepted in other signatory countries, they may result in unwanted consequences because of the different laws of succession which may apply. In determining which countries succession law applies, courts in the different countries consider different factors. Some consider the testator’s nationality while others consider the testator’s country of residence.

2. Concurrent Wills
The second option is to have a concurrent will in each of the countries in which you have assets. It is possible to make a will which only applies to specific assets or assets in a specific country. And it is also possible for a number of concurrent wills to be created for different countries. Each will is prepared in accordance with the law in that country, which means that if there is a dispute in relation to the will, it will not be complicated further by trying to determine which country’s law is applicable.

Limitations
Where the advice of a foreign lawyer or Australian lawyer with expertise in the foreign country have not been sought, the separate wills may have the effect of revoking each other. This may cause disastrous consequences because the will-maker may be deemed not to have a valid will.

We have invaluable experience with helping our clients with multiple wills in Australia and overseas. If you have assets in another country and need some estate planning advice, please get in contact with Harriet Warlow-Shill and the team for a free 30-minute consultation.
If you liked this article you may also like Estate Planning for your Digital Assets: What happens when you’re gone?

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