27/05/2015

If you follow the internationally-approved protocol your Will might be recognised in other countries.  But will that really help much?

With Australia’s increasingly multicultural focus many Australians have assets in other countries and need to ensure that those assets are dealt with appropriately on their death.

Along comes The Convention Providing a Uniform Law on the Form of an International Will 1973 (no, the date is correct, 1973).  The bad news is that the convention has been around now for just on 42 years with Australia doing little about it.  The better news is that Australia has recently ratified the convention and it commenced in NSW, at least, in April of this year.

You’ll note we say ‘better news’, not ‘good news’.  The fact is we can’t get very excited about the benefits of Australia’s ratification of the convention.  It just doesn’t seem to provide much help for testators with assets in other countries.

To appreciate why we say that, you need to understand that most civilised countries have a system whereby the State takes an overseeing role in how the assets of a deceased are dealt with.  Let’s face it, a system for the orderly transfer of assets according to the wishes of the deceased is a major measure of how effective ‘the rule of law’ is in that country.  The alternative is giving all the assets to the first bunch of bandidos who ride into town brandishing their AK-47s or to the village grannies who raid the recently deceased’s home as we saw in the movie ‘Zorba the Greek’.

But despite every civilised country having a system for overseeing asset distribution according to law, those systems differ enormously. It’s bad enough that systems might be slightly different in different Australian States.  When we start to talk differences between countries the gaps open to Sydney Heads proportions.  Try getting your loved one’s Will accepted by a court in Alabama, New Delhi, Beirut or Vladivostok!

That’s why we recommend that if you have assets in another country (or even another Australian State for that matter) create a special Will in that jurisdiction solely to deal with those assets.  

You’ll need the services of a local lawyer probably, but having a separate American, Indian, Lebanese or Russian Will serves two purposes.  

First it ensures that the form and the contents of the Will are in line with local succession laws.  

Second it allows that Will to be submitted to the local court for approval simultaneously with the Will being used for the place where the deceased died and presumably had most of their assets.

Meanwhile if you’re going to have an international Will be aware that:

•    the international Will provisions are intended to supplement and not replace existing local domestic legislation on wills,
•    the international Will provisions are limited to prescribing the form of a will that will be recognised by participating countries; they do not affect the succession laws of each country;
•    you can use an international Will even if your Will doesn’t have any international components; the local rules of participating states will still recognise the Will; and
•    the international Will improves your chances of accessing justice in the participating countries – it doesn’t guarantee you’ll succeed.

Townsends Business & Corporate Lawyers offers a full estate planning service including advice on how to deal with assets in other countries. For further information and inquiries, call us on (02) 8296 6222.