Is my Australian Will valid for overseas assets?
We are forever travelling. I spent two years with my wife and son to complete my doctorate in tax and estate planning in England.
Many of us have insurance, real estate, bank accounts and pension funds overseas. When you build your 3-Generation Testamentary Trust Will or a simple Will on our law firm’s website, does it cover these overseas’s assets?
Legal Consolidated’s tax-effective Wills (even the non-tax effective ones) are automatically drafted to include worldwide assets.
Tasmania has a unique signing structure for their Wills. All Legal Consolidated’s Wills comply also with Tasmanian law. This is as well as the laws in all Australian States and Territories.
But, assets held in another country are subject to the laws of that country.
Countries that honour Legal Consolidated’s Australian Wills
Under the Hague Conference on Private International Law, these 83 countries automatically honour Wills prepared by Legal Consolidated. We draft our Wills to satisfy the Hague Convention:
- Bosnia and Herzegovina
- Burkina Faso
- China, People’s Republic of
- Costa Rica
- Czech Republic
- European Union
- Korea, Republic of
- New Zealand
- Republic of Moldova
- Republic of North Macedonia
- Russian Federation
- Saudi Arabia
- South Africa
- Sri Lanka
- United Kingdom of Great Britain and Northern Ireland
- United States of America
- Viet Nam
A new Will in another country destroys your Australian Will
You sign your Will. Three minutes later you sign a copy of that Will. That is silly. The first Will is now invalid. You cannot have two signed Wills. Each time you sign a Will it invalidates the last Will.
You see, every time you sign a new Will, your old Will is invalid.
For example, you sign an Australian Will. Three weeks later you sign a Will in New York. Your Australian Will is invalid. Four days later you sign a German Will, well now your New York Will is invalid, as well. Later you sign an Australian Will, now the German Will is invalid.
Each time you make a new Will, whether it be in Australia or another country it invalidates the previous Will.
A way to stop this is to make ‘concurrent Wills’.
A separate Will in each country in which you hold assets
– Concurrent Wills
Another approach is to build your Wills on our website, sign them and email them to a lawyer in the other country. That lawyer prepares their own Will to only cover assets in that overseas country. These are called ‘concurrent Wills’. Your foreign Will is drafted carefully so it does not revoke your Australian Will.
A benefit of having a Will in each country is that each respective lawyer is an expert in their own jurisdiction. Each Will is structured with the most accurate and up-to-date advice. It ensures that your Will meets all of the relevant legal formalities and defacto death taxes.
Do you wish to make your Australian Legal Consolidated Will only operate for Australian assets? Then:
- at the time of signing your Legal Consolidated Will
- in the same blue pen
- in clause one
- in front of the two witnesses handwrite:
However, this Will does not invalid my previous Will signed in [country] dated […. 20..].
Value of Concurrent Wills
Concurrent Wills are where you prepare separate Wills for each country where you own assets. You make a Will that applies to specific assets, or assets in a specific country.
You can even have more than two Concurrent Wills if you have assets in, say, three or more countries.
One Will relates to all of your property wherever situated – worldwide. This is other than your property in another country.
Making Concurrent Wills may seem complicated. However, it provides a faster distribution of the estate. This is important where there are tax concessions applying to assets of your estate which only exist for a short time after your death.
Concurrent Wills help avoid unintended consequences in distributing your estate in different countries. They avoid and reduce costs and taxes.
International Wills do not work
Australia signed the Convention Providing a Uniform Law on the Form of an International Will in 2015. Australia recognises and we can prepare a document called an International Will. However, ‘International Wills’ are a waste of time. ‘International Wills’ are too complex. Few countries signed the convention. We rarely prepare ‘International Wills’. It is better, instead, to just prepare the 3-Generation Testamentary Trust Will.
International Will requirements vs Australian Will requirements
The Convention tries to harmonise and simplify the requirements for a valid Will across countries. The requirements for an International Will are similar to Australian Wills. The similarities of an international Will and Australian Will:
- in writing (not verbal)
- signed by the Willmaker
- witnessed by 2 witnesses
- Willmaker understand the concept of a Will, what he owns and who is family is
The differences between an Australian Will and an International Will:
An ‘Authorised Person’ sign the International Will as a third witness. An Authorised Person is an Australian lawyer or Australian public notary. This is not required for a valid Will in Australia.
The Authorised Person signs a Certificate stating that the obligations of the Convention are satisfied. The Authorised Person then attaches this to the International Will. This is not required for a valid Australian Will.
An International Will requires the Willmaker and all 3 witnesses to sign every page of the Will.
Concurrent Wills are better than International Wills
A great advantage of a Concurrent Will (rather than an International Will) is you simply seek Probate for each Will in its own jurisdiction.
As explained above, a new Will revokes your former Wills. Concurrent Wills must clearly state that a former Will is not revoked but is, instead, concurrent. Legal Consolidated provides free advice to your overseas lawyer. We are happy to telephone them.
For help building your 3-Generation Testamentary Trust Wills just telephone us.
Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide law firm
Mobile: 0477 796 959
National: 1800 141 612
Email: [email protected]
11: Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions
Entry into force: 5-I-1964
CONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM OF TESTAMENTARY DISPOSITIONS
(Concluded 5 October 1961)
The States signatory to the present Convention,
Desiring to establish common provisions on the conflicts of laws relating to the form of testamentary dispositions,
Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:
A testamentary disposition shall be valid as regards form if its form complies with the internal law:
a) of the place where the testator made it, or
b) of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or
c) of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or
d) of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or
e) so far as immovables are concerned, of the place where they are situated.
For the purposes of the present Convention, if a national law consists of a non-unified system, the law to be applied shall be determined by the rules in force in that system and, failing any such rules, by the most real connexion which the testator had with any one of the various laws within that system.
The determination of whether or not the testator had his domicile in a particular place shall be governed by the law of that place.
Article 1 shall apply to testamentary dispositions revoking an earlier testamentary disposition.
The revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under Article 1, the testamentary disposition that has been revoked was valid.
The present Convention shall not affect any existing or future rules of law in Contracting States which recognise testamentary dispositions made in compliance with the formal requirements of a law other than a law referred to in the preceding Articles.
The present Convention shall also apply to the form of testamentary dispositions made by two or more persons in one document.
For the purposes of the present Convention, any provision of law which limits the permitted forms of testamentary dispositions by reference to the age, nationality or other personal conditions of the testator, shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications that must be possessed by witnesses required for the validity of a testamentary disposition.
The application of the rules of conflicts laid down in the present Convention shall be independent of any requirement of reciprocity.
The Convention shall be applied even if the nationality of the persons involved or the law to be applied by virtue of the foregoing Articles is not that of a Contracting State.
The application of any of the laws declared applicable by the present Convention may be refused only when it is manifestly contrary to “ordre public“.
The present Convention shall be applied in all cases where the testator dies after its entry into force.
Each Contracting State may reserve the right, in derogation of the third paragraph of Article 1, to determine in accordance with the lex fori the place where the testator had his domicile.
Each Contracting State may reserve the right not to recognise testamentary dispositions made orally, save in exceptional circumstances, by one of its nationals possessing no other nationality.
Each Contracting State may reserve the right not to recognise, by virtue of provisions of its own law relating thereto, forms of testamentary dispositions made abroad when the following conditions are fulfilled:
a) the testamentary disposition is valid as to form by reason only of a law solely applicable because of the place where the testator made his disposition,
b) the testator possessed the nationality of the State making the reservation,
c) the testator was domiciled in the said State or had his habitual residence there, and
d) the testator died in a State other than that in which he had made his disposition.
This reservation shall be effective only as to the property situated in the State making the reservation.
Each Contracting State may reserve the right to exclude from the application of the present Convention any testamentary clauses which, under its law, do not relate to matters of succession.
Each Contracting State may reserve the right, in derogation of Article 8, to apply the present Convention only to testamentary dispositions made after its entry into force.
The present Convention shall be open for signature by the States represented at the Ninth Session of the Hague Conference on Private International Law.
It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.
The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 14.
The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification.
Any State not represented at the Ninth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 15. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.
The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession.
Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned.
At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.
The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the notification referred to in the preceding paragraph.
Any State may, not later than the moment of its ratification or accession, make one or more of the reservations mentioned in Articles 9, 10, 11, 12 and 13 of the present Convention. No other reservation shall be permitted.
Each Contracting State may also, when notifying an extension of the Convention in accordance with Article 17, make one or more of the said reservations, with its effect limited to all or some of the territories mentioned in the extension.
Each Contracting State may at any time withdraw a reservation it has made. Such a withdrawal shall be notified to the Ministry of Foreign Affairs of the Netherlands.
Such a reservation shall cease to have effect on the sixtieth day after the notification referred to in the preceding paragraph.
The present Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 15, even for States which have ratified it or acceded to it subsequently.
If there has been no denunciation, it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period.
It may be limited to certain of the territories to which the Convention applies.
The denunciation will only have effect as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.
The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 14, and to the States which have acceded in accordance with Article 16, of the following:
a) the signatures and ratifications referred to in Article 14;
b) the date on which the present Convention enters into force in accordance with the first paragraph of Article 15;
c) the accessions referred to in Article 16 and the date on which they take effect;
d) the extensions referred to in Article 17 and the date on which they take effect;
e) the reservations and withdrawals referred to in Article 18;
f) the denunciation referred to in the third paragraph of Article 19.
In witness whereof the undersigned, being duly authorised thereto, have signed the present Convention.
Done at The Hague the 5th October 1961, in French and in English, the French text prevailing in case of divergence between the two texts, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Ninth Session of the Hague Conference on Private International Law.