As a result of the Australian Government acceding to the Convention Providing a Uniform Law on the Form of an International Will 1973, clients are now in a position to make a new form of will called an “international will”.
The benefit of making an international will is that it will be recognised as a valid form of will in the following countries: Belgium, Bosnia-Herzegovina, some provinces in Canada, Cyprus, Czechoslovakia, Ecquador, France, Holy See, Iran, Italy, Laos, Libyan Arab Jamahiriya, Niger, Portugal, Russia, Sierra Leone, Slovenia, UK, US (not all States) and the Former Republic of Yugoslavia. The will be recognised no matter where the will has been made; the location of the assets; or where the deceased lived. If the “international will” is made in accordance with the Convention then there will be no need to look at the laws of the countries who have signed on to ascertain if the will has been properly executed. Further, it would not be necessary for a solicitor from the foreign jurisdiction to make an affidavit confirming that the will has been made in accordance with the laws of the foreign country.
The formalities required for an international will are slightly different for normal Victorian wills.
- The will must be signed and executed by the will-maker in the presence of two witness plus a person who is authorised to act in connection with international wills being solicitors or notaries public.
- The will-maker must declare his or her will in the presence of the witnesses and authorised person.
- The authorised person must attach a certificate to the will confirming that the proper formalities have been complied with.
- The will-maker must sign the will on each page and at the end. The witnesses must sign at the end.
- The authorised person must as the will-maker if they wish to make a declaration as to the safekeeping of the will. This may be set out in the Certificate.
- The authorised person must keep a copy of the certificate and give another to the will-maker.
An international will should be considered by anyone who holds assets overseas and by people living or working outside of Australia. You should be aware that many countries do not allow the freedom of distribution of an estate that Australian’s enjoy. Many countries restrict and provide formulas for mandatory inheritance of specific percentages of an estate to specific classes of beneficiaries such as children or spouses. Please note however the convention regarding “international wills” only deals with form and not the substance of other laws that may affect assets depending on their location.
This content is intended as commentary and should not be construed as legal advice.
For more information call David Henderson on 03 9629 2211.
