We have previously published an article on foreign assets which discussed different estate planning strategies you may need to consider for yourself or for your clients. A recent amendment to the Succession Act 1981 (Qld) (Act) adds further to the conversation about international estate planning.
On 10 March 2014, the “Convention providing a Uniform Law on the Form of an International Will 1973” (Convention) came into force in Australia. It does not aim to harmonise or unify the laws that are already in existence, but provides a form that can sit alongside the traditional forms where a client’s circumstances may have some international elements that need to be addressed.
The provisions of the Convention incorporated into the Act deal with the form of an International Will. Issues surrounding a client’s capacity to make a will, joint wills and revocation or amendment of wills have not changed.
The Main Elements
There are 15 articles of the Convention that need to be considered in making a valid International Will. The main elements, as are now contained in Division 6A of the Act, include:
- Provided the International Will is made in accordance with the articles set out in the Convention, issues such as where the will is made, the location of assets and the nationality or residence of the will maker are irrelevant;
- The persons authorised to act in relation to an International Will are an Australia legal practitioner, a public notary and a person authorised to act under the law of a country that is a party to the Convention;
- The International Will must be made in writing, in any language and by hand or any other means;
- The will maker’s signature needs to be witnessed by three people - two witnesses (as is usual) and an authorised person. Uniquely the will maker can either sign the International Will in the presence of the witnesses or previously then acknowledge the signature in the presence of the witnesses;
- The authorised person must attach a certificate (in the prescribed form) to the International Will certifying that the obligations and requirements of the Convention have been complied with. This certificate, in the absence of any contrary evidence, is conclusive of the will’s formal validity.
With proper advice, an International Will provides clients with another option and increased flexibility in considering their estate planning affairs. However taxation implications must always be carefully considered when advising on an International Will.