While the intention of the testator might likely have been to include any foreign assets in describing their ‘estate’ in their will, the law of that foreign jurisdiction might mean that those foreign assets aren’t easily dealt with. For example, if the Australian will doesn’t conform to the requirements of the foreign jurisdiction it may be not be recognised leading to significant problems in the administration of an estate.
Birtles and Neal offer salient reasons why you may wish to prepare wills for each jurisdiction in which you have assets (Hutley’s Australian Wills Precedents, 8th Ed, 2014, p 91). The practical outworking is to have (for example) a will for the United Kingdom (or Canada) and a will for Australia and everywhere else.
Given most NSW solicitors are not experts in, say, the law of Belgium or Canada, it is convenient that in 2015 the NSW Parliament passed into law its accession to the 1973 International Convention Providing a Uniform Law on the Form of an International Will.
The amendments to the Succession Act 2006 in Part 2.4A and Schedule 2 make it easy for NSW solicitors to prepare wills which conform to the requirements of an “international will” which are meant satisfy the legal requirements of the countries who are parties to the convention. Sadly that list is not expansive and presently only has 19 contracting parties, however the United Kingdom, the United States, Italy and France are presently listed which is a useful start. That Australia took 40 years to get its act together is an indicator of the difficulty such a sensible system can suffer getting off the ground.
There are various specific requirements to the form of an “international will” including a particular form of certificate and being witnessed by three persons (including a solicitor). NSW law only requires two witnesses for a will conforming to its laws so the ‘international will’ isn’t the same as an Australian or NSW will.
If you have assets in foreign jurisdictions speak with your solicitor to discover if an “international will” can assist.
Figure: Don’t let your beneficiaries be left out in the cold, make a will for every jurisdiction in which you have assets.