Forgos Case

Legal updates WILLS AND ESTATES
An international will or a
Christine Smyth is a
partner at Robbins
Watson Solicitors
will in each jurisdiction? & President of the

Queensland Law
Society and Katerina
Peiros is principal of
Hartwell Legal.
By Christine Smyth and Katerina Peiros
T
he regime of international wills To assist the court in determining these
appears new and exciting, but issues, the will’s propounder had to file
upon closer examination it can • The international wills regime affidavits from solicitors practising in for-
raise more issues than it resolves. is intended to harmonise and eign jurisdictions setting out the relevant
The Uniform Law on the Form of an Inter- simplify the proof of formalities local law, as well as affidavits from family
national Will contained in the UNI- of wills executed in signatory and friends about facts of domicile. This
DROIT Convention (‘the Convention’) countries. examination is expensive, time consuming
was ratified by the Commonwealth Gov- • While the regime appears for the clients and the courts, and causes
ernment on 10 September 2014 and the new and exciting, upon closer estate administration to be delayed.
Convention entered into force in Australia examination it can raise more
issues than it resolves. The form of an international will
on 10 March 2015. Each Australian state
and territory has enacted its own enabling • Careful consideration should be An international will is a will that complies
given to advising willmakers to
legislation. Sections 50A-50E of the with the formalities set out in the Con-
continue to have a local will in
Succession Act 2006 (NSW) (‘the Act’) give each foreign jurisdiction in which vention. A compliant will enables a Grant
force and effect to the enabling legislation they have assets. of Probate in member states. This saves
in New South Wales. the propounder the expense of the court
examining where the will was executed,
Purpose of introducing international wills considering the internal law of that jurisdiction and whether that
The international will regime is intended to harmonise and simpli- law corresponds with the jurisdiction where the Grant is sought,
fy the proof of formalities of wills executed in signatory countries. or where the willmaker resided, was domiciled, died or had citi-
This means that by making an international will, Australians will zenship or where the willmaker’s assets are situated.
now find it easier to prove the will in another jurisdiction that has Section 6 of Succession Act 2006 (NSW) sets out the formal
also adopted the Convention. The Convention essentially creates requirements of an international will – it differs from a standard
a new form of a will which is recognised as valid in those states will in that:
which are party to the Convention. • there should be three witnesses;
The Convention intended to overcome the problem that when- • one of the witnesses must be a registered legal practitioner or a
ever there were cross border issues, in order to ascertain whether a notary public;
will was valid, the court had to find that the will was properly exe- • every page must be signed and numbered;
cuted in one of the following jurisdictions (s 48): • the willmaker may declare where the will should be held and
• where it was executed; or this should be recorded in the certificate; and
• the willmaker’s domicile or residence at the time of execution; • the will must contain a certificate (in the prescribed form)
or that the will is an international will and the certificate must be
• the willmaker’s domicile or residence at the time of death; or attached to the will. The certificate is conclusive evidence of the
• of which the willmaker was a citizen. will’s validity, but its absence does not invalidate the will. This
The process to determine validity, therefore, involved the court presumption of validity is rebuttable.
having to examine laws of other jurisdictions (see Application of The will may be in any language, and the usual process about
Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary translation of wills applies.
Dempsey [2016] NSWSC 159).
The court also had to distinguish between the formal validity of What is not covered by the Convention
the will with respect to movables (or chattels) which is determined The Convention (and the Succession Act) only provide uniformi-
by the law of the domicile of the willmaker at the date of death (In ty on the formal requirements for a will in the strictest sense and
the Will of Lambe [1972] 2 NSWLR 273) and the formal validity compliance with the requirements for an international will does
of a will with respect to immovables (land etc) which is determined not preclude arguments about the will’s essential validity such as
by the law where the land is situated, irrespective of where the will- testamentary capacity, knowledge and approval, undue influence,
maker resided or died (Pepin v Bruyere [1902] 1 Ch 24). The courts construction or interpretation of a will. These remain in the realm
were often faced with having to determine the very complex issue of of the law of domicile at the date of death of the willmaker.
the domicile of the willmaker set out in Domicile Act 1979 (NSW). The international will regime also does not address the laws
78 LSJ I ISSUE 34 I JUNE 2017

WILLS AND ESTATES
which apply to presumption can give proper consideration in

of death; where probate can or each jurisdiction to issues relating
should be taken, or who can apply
[T]he willmaker benefits from having to the appointment of executors
for it; inheritance and intestacy and practical aspects of admin-
rules (who can inherit and what a will in each jurisdiction where the istration. Receiving this advice
they can inherit); family provi- willmaker holds assets, as the willmaker early would allow the willmaker
sion applications (who can make to plan ahead, if they needed to
a claim and in which jurisdiction); can be educated about the differences do so. This may involve shifting
revocation; tax; and estate admin- between the legal systems assets to another jurisdiction to
istration. These matters continue avoid triggering death duties on
to be governed by the jurisdiction their assets in that jurisdiction, or
where the willmaker makes the on their assets worldwide, or by
will, where the willmaker dies or was domiciled, where probate is avoiding or invoking forced heirship rules (where a portion of the
granted and where the immovable assets are situated. estate is by law reserved for a member of the family and there is no
Accordingly, the international will does not simplify nor circum- testamentary freedom over that portion. It exists in Islamic coun-
vent the conflicts of laws which follow the death of a willmaker tries and in France and Italy).
who had assets in various jurisdictions. The commonly seen issues In the probate stage, local wills can significantly simplify the
surrounding forced heirship, death duties, an acceptable legal rep- administrative process for the family and executors, not just
resentative to obtain a grant etc remain alive for the willmaker. because the will does not need to be translated, additional affida-
vits filed and judicial interpretation of a foreign document applied
Acceptance of international wills for, but also because the executors have a local legal advisor who is
International wills are only recognised by the member states who able to guide them through the process and the cultural differenc-
have ratified the Convention and enacted it internally. Apart from es. Executors in different jurisdictions may also apply for probate
Australia, there are 62 member states (UNIDROIT, Membership at the same time and independently of each other. If there is only
ETATS MEMBRES (2015) www.unidroit.org/about-unidroit/ one will, probate must be obtained in one jurisdiction and then
membership), not all of whom have enacted the Convention re-sealed or re-applied for in the next, which can cause delay.
internally. This means the scope and operation of the internation- Another advantage of a local will and local executors and/or local
al will is again limited to the jurisdictions which have enacted the beneficiaries is that the willmaker may reduce the tax liability for
Convention internally. their estate in that jurisdiction. For example, in Australia, a gift of
a CGT asset to a non-resident beneficiary may result in the estate
Consequences for practitioners having to pay CGT. Conversely, CGT may be payable if a resident
Practitioners taking instructions from clients for an international beneficiary inherits a foreign asset. If considered planning is under-
will still need to obtain detailed information about the willmaker’s taken this may be avoided if the assets are sold early on or gifted to a
assets and their location, willmaker’s family needs and responsibil- local beneficiary. Another Australian tax that a foreign lawyer advis-
ities. Practitioners should not lose sight of giving comprehensive ing a client about an international will may not know about is the
and appropriate advice about the local law on wills, probate, tax tax on superannuation death benefits. This illustrates that planning
and family provision. opportunities may be missed if local advice is not obtained.
The practitioner should keenly turn their mind to whether, even Practitioners would be in treacherous territory if they attempted
if an international will is possible, whether it is, in fact, the pre- to advise about foreign jurisdiction laws or structures. If a client is
ferred route. By preparing an international will, instead of preparing having wills prepared in more than one jurisdiction, practitioners
a local will in addition to advising the client to obtain another will would be wise to liaise with each other to ensure the wills (and any
in the other jurisdiction where the assets are located, the practitioner ancillary paperwork) are not inconsistent and in fact complement
may be depriving the unknowing client of an opportunity to obtain each other. Care must be taken that the will executed later does not
comprehensive advice in the other jurisdiction about making a will inadvertently revoke the will signed earlier in a different jurisdiction.
and its effect. This is particularly the case with respect to the impact An international will may still however be in order where a cli-
of taxation laws applying to inheritances. ent has the majority of their assets in Australia but has a bank
account or some other modest asset in a signatory jurisdiction,
Advantages of local wills where their will is likely to require probate.
In the authors’ experience, more often than not, the willmaker
benefits from having a will in each jurisdiction where the will- Conclusion
maker holds assets, as the willmaker can be educated about the Careful consideration should be given to advising willmakers to
differences between the legal systems and take advantage of the continue to have a local will in each foreign jurisdictions in which
particular laws of the jurisdiction, including probate, inheri- they have assets. There is no substitute for a well drafted and care-
tance, tax, insolvency, family law and administration laws, and fully considered local will.
ISSUE 34 I JUNE 2017 I LSJ 79

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Legal updates WILLS AND ESTATES

will in each jurisdiction? & President of the

78 LSJ I ISSUE 34 I JUNE 2017

which apply to presumption can give proper consideration in

ISSUE 34 I JUNE 2017 I LSJ 79

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