Many people have a connection to overseas jurisdictions. That can be through birth overseas or holding assets in other jurisdictions. It might even be through being a beneficiary of a foreign trust.
A will made in Australia can be valid overseas, but its effectiveness depends on several factors, including the laws of the country where you hold assets or where you reside.
Validity and Recognition
Australian wills are generally recognized in other countries that follow common law principles, such as the UK, New Zealand, and Canada. However, civil law countries (like many in Europe and Asia which adopt a different legal system) may have different rules regarding the validity of foreign wills.
Jurisdiction and Probate
If you own property or assets overseas, your Australian will might need to go through probate in each country where the assets are located. Some countries require the will to be “resealed” or authenticated to be considered valid. This process can be time-consuming and very costly.
Conflicting Laws
Different countries have different inheritance laws. For example, some nations have “forced heirship” rules, which dictate that a portion of your estate must go to certain designated relatives regardless of your wishes. This can override the terms of your Australian will.
Language and Format
If your will is written in English, it might need to be translated into the local language, certified, and “notarized” to be accepted as valid by foreign courts. The format and execution of the will must also comply with the legal requirements of the jurisdiction where it is being enforced.
Dual Wills
In cases where significant assets are held overseas, it might be practical to have multiple wills – one for Australia and another for the foreign jurisdiction. This can simplify the probate process and reduce legal complications. However, care must be taken to ensure that the wills don’t unintentionally revoke each other. This is a specialist area and requires specialist legal advice.
International Conventions
Some countries are signatories to certain international agreements which recognize wills made in accordance with the laws of the testator’s nationality or residence. This can make it easier to have your Australian will recognized overseas. In Australia including South Australia laws provide for the recognition of overseas made wills if they comply with certain requirements of the applicable laws where the will was made or the willmaker was connected by domicile, residence or nationality at their death.
Legal Advice
It’s advisable to seek legal advice from an estate planning lawyer familiar with international succession laws. They can guide you on whether your Australian will is likely to be recognized overseas or if additional measures are needed. Not only are there practical consideration as indicated there are also potential tax consequences of having assets and executors located in different jurisdictions.
Summary
An Australian will can be valid overseas but may face challenges related to jurisdiction, probate, language, and conflicting inheritance laws. For those with international assets, consulting legal experts and possibly drafting multiple wills that will validly operate in each jurisdiction is recommended to ensure your estate is distributed according to your wishes.
As a member firm of the international Society of Trusts and Estate Practitioners (STEP) we have networks of associated all over the world that can assist to get it right.
If you would like to discuss further please contact one of our estate planning lawyers on 08 8344 6422.