Preparing a Will with Assets in multiple countries

It is becoming increasingly common for people to own significant assets in multiple countries, which should be taken into consideration when drafting a will. A will made in one Australian state or territory is valid in every other part of Australia, but what happens to overseas assets? There are a number of approaches available in this situation, each with its own pros and cons.

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Foreign Wills

Each country has its own unique laws relating to wills. When a person only has one will, that will is taken to relate to all of their assets, wherever situated. It is possible for a will made in Tasmania to be upheld in another country, as long as it complies with Tasmanian law. However, some countries do not accept wills made in other countries at all, or do not recognise the validity of concepts that may be contained within the will, such as a testamentary trust.

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An International Will

An International Will allows a will-maker to have one will for assets in multiple jurisdictions. The Convention providing a Uniform Law on the Form of an International Will 1973 (Convention) provides a standard form that an International Will must take to be accepted in those countries which have adopted the Convention. The Convention has been adopted by Australia.

Countries which have adopted the Convention will recognise the validity of an International Will which complies with the requirements of the Convention, regardless of which jurisdiction it was made in. This is a simple and straightforward way to account for all assets under a single will.

However, an International Will is generally only valid in jurisdictions which have adopted the Convention into domestic legislation. At the time of this article, only 13 countries have ratified the Convention.

Additionally, some countries who have ratified the Convention, do not recognise it in every province, such as Canada, and, in countries which have not ratified the Convention, certain states have independently adopted the Convention (such as a number of states in the United States). This creates uncertainty in knowing where an International Will can be recognised. An International Will may still be accepted in countries which have not adopted the convention if it sufficiently abides by that country’s domestic requirements. However, this may result in the International Will being applied or interpreted in a manner contrary to the will-maker’s intentions.

A further complication of an International Will is that it does not account for the nuances between other laws of particular countries, such as those relating to estate taxation. It is difficult to draft one will which will have the preferred taxation treatment in all relevant jurisdictions.

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Concurrent Wills

Concurrent Wills are separate wills to be applied in each jurisdiction in which a person holds assets. These wills would only apply to assets held in the relevant country. Legal advice should be sought from a practicing lawyer in each of the relevant jurisdictions, which adds to the costs of this approach. Care must be taken to ensure that there are no conflicting provisions within the wills, which may cause one or more wills to be revoked.

Wills relating to assets in New Zealand

New Zealand allows any will validly created in any Commonwealth jurisdiction to be granted probate in New Zealand. Therefore, if you have assets in both Australia and New Zealand, you will likely only need an Australian will to cover your assets in both countries.

New Zealand also provides for wills drafted in another country and relating to moveable property in New Zealand to be granted probate, as long as they abide by domestic legislative requirements.

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What does this mean?

There are a number of options available when preparing your will if you own assets in multiple countries. Whatever your situation, it is important to find the option that works best for you and which avoids the common pitfalls of wills covering assets across multiple jurisdictions.

This article includes general information only and is not specific to your situation.

If you require assistance in relation to anything contained within this article, please contact us.