International Wills (Qld)

An international will is a will executed in accordance with the Convention Providing a Uniform Law on the Form of an International Will 1973 (the Convention). A person who has assets in other countries that are signatories to the Convention may benefit by making an international will. This article examines the benefits of and requirements for international wills.

The Convention

The Convention was drafted by the International Institute for the Unification of Private Law (UNIDROIT) in response to some common problems that arose when a person made a will in Country A that dealt with assets in Country B. The requirements for Country B might not have been met even if the will complied with the formalities in Country A. This often resulted in assets not being distributed as the testator had intended.

The Convention seeks to simplify the process of proving formalities have been complied with in respect of wills with international characteristics. It ensures that the provisions of an international will are respected when the will is executed in any country that has acceded to the Convention.

The Convention does not alter the requirements for wills in any country that has acceded to it.

Australia acceded to the Convention in 2015 and all states and territories have now passed legislation implementing its provisions. A total of 12 countries have acceded to the Convention and passed legislation to recognise international wills, including Canada, Italy, France and Portugal.

The Succession Act

In Queensland, the Succession Act 1981 gives effect to the Convention’s provisions. Section 33YA of the Act states that an international will is a will made in accordance with the annex to the Convention. Section 33YY states that the provisions of the Succession Act that relate to wills also apply to international wills.

What are the requirements for an international will?

The Annex to the Convention states that in order to be valid, an international will must comply with the following requirements.

• It must be in writing (but in any language)
• It must be for only one person
• It must be signed in the presence of two witnesses
• It must be declared to be the testator’s will before an authorised person (Australian lawyer or public notary)
• It must be signed by the witnesses and the authorised person
• The authorised person must attach a certificate to the will attesting that the formalities have been complied with.
• The authorised person much keep a copy of the will and deliver one to the testator

When should an international will be used?

It may be advisable to use an international will when a testator has assets in a country that has acceded to the Convention and wants to ensure that their estate is distributed according to their wishes wherever the will is executed. However, whether an international will is beneficial depends on what type of property is owned and where it is located. It is always advisable to seek legal advice prior to making an international will. Where a person has assets in more than one other country, it may be advisable to have an international will or it may be advisable to have a separate will in each jurisdiction where assets are held. It is also important to note that where assets are held in a country that has acceded to the Convention but has not passed legislation to give effect to it, an international will may not be recognised.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.