As the Australian States move to accede to the Convention providing a Uniform Law on the Form of an International Will (Washington D.C 1973), the Wills Watch team looks at what this will mean in Australia.
Accession to the Convention has received broad support from Australian State and Territory Ministers. There is widespread recognition of the benefits to the Commonwealth in acceding to the Convention to streamline the process for the proof of formalities of International Wills.
There was support for further consideration of Australia’s accession through the Standing Committee of Attorneys General (SCAG). Ministers indicated that the proposal to accede to the Convention would not raise any major conflicts with current policies or processes.
On 2 November 2011, the Commonwealth advised that they would commence with formal procedures to accede to the Convention in late 2011 which has not yet occurred, including a model Bill to be drafted by Parliamentary Counsel.
To that end, and in a first, the Wills Amendment (International) Act 2012 was assented to in Victoria on 27 June 2012. It is yet to be proclaimed. The main purpose of the Act was to amend the Wills Act 1997 (Vic) to give effect to the Convention providing a Uniform Law Form of an International Will 1973.
That Convention defines “International Will” as one made in accordance with the Convention.
Upon accession by other states and territories, an International Will may now be recognised in Victoria if that document meets the following requirements:
- is not made by two or more persons in the one document
- is in writing
- may be written in any language by hand or by other means
- must be declared by the willmaker, in the presence of two witnesses and of a person authorised to act in connection with International Wills, that the document is their will and that they know of its contents
- an authorised person is a legal practitioner or a public notary
- the willmaker does not need to inform the witnesses or the authorised person of the contents of the will or write it themselves
- the willmaker must sign the Will in the presence of the two witnesses and the authorised person and their signatures placed at the end of the Will.
Once executed, the authorised person must attach a certificate pursuant to Article 10 of the Convention certifying that the requirements as to execution and form have been met as well as satisfying themselves as to the identity of the willmaker and witnesses.
The effect of this amendment to the Victorian legislation is that an International Will made in accordance with the requirements of the Convention may be recognised as a valid will by a court in Australia or another country that is a party to the Convention, irrespective of where the will was made, the location of assets or where the willmaker lives, and without the court having to examine the laws of foreign countries to determine whether the will has been properly executed. This will overcome difficulties often confronted by a willmaker when considering their foreign owned assets.
A similar Bill has been passed by the Tasmanian House of Assembly and was introduced into its legislative council on 21 August 2012. In Western Australia it was introduced into the House of Assembly on 16 August 2012. An amendment to the Succession Act 2006 (NSW) was assented to on 9 September 2012.
There are presently no Bills before the Queensland or South Australian parliaments; however there is no reason to suggest that Bills will not also be assented to and proclaimed in all States in the near future.
Once that occurs it is intended that the Commonwealth will then accede to the Convention.