Owning property overseas whilst residing in Australia or owning property in Australia whilst residing overseas creates food for thought about the jurisdiction of wills.
Australia is one of twelve countries that joined the Convention Providing a Uniform Law on the Form of an International Will 1973, with legislation commencing in Australia in 2015.
The aim of the convention is to harmonise and simplify proof of formalities for wills that have international characteristics. International Wills pursuant to the convention require the following for international recognition in member countries:
- The will must be in writing;
- Can be written in any language;
- Need not be written by the testator;
- Must be signed and dated in the presence of two witnesses and a person who has the authority to draw up the document; and
- Must have an attached certificate, signed by a lawyer, confirming that the necessary requirement and procedures have been met.
These requirements are not the same as for wills made in NSW or other Australian states. However, NSW state legislation, namely the Succession Act 2006 (NSW), provides for international wills made under the convention.
Given the small number of member nations to the convention, a further option for testators with property in multiple jurisdictions is to make wills in each of those jurisdictions, provided the wills are cross referenced and not revoked. This strategy may assist overseas beneficiaries inheriting property situated in that country, or where the original will is required in more than one jurisdiction, as well as avoiding tax implications that may apply in different countries.
Cecilia Castle is an Accredited Specialist in Family Law, and principal of Castle Lawyers at Asquith. CastleLawyers.com.au