The Queensland Parliament has recently enacted important amendments to the Succession Act 1981 (‘Act’). As of 10 March 2015, Division 6A of the Act will come into effect regarding the making of international wills.
These changes have been brought about due to Australia’s recent signing of the Convention providing a Uniform Law on the Form of an International Will 1973 (‘Convention’). Other signatories to this convention include Canada, Portugal, France and Italy.
As it currently stands under section 33T of the Act, a foreign will is taken to be properly executed if it was executed in accordance with the laws of the place:
(a) where the testator executed the will;
(b) where the testator usually resides (either at the date of the will or the date of death); or
(c) where the testator is a citizen (either at the date of the will or the date of death).
Under the new amendments to the Act, section 33YA defines an ‘international will’ as a will executed in accordance with the requirements of the Convention as outlined in Schedule 3 to the Act. Foreign countries who are signatories to the Convention will recognise an international will as a valid will even if it does not comply with their respective laws or any other country’s laws.
According to Schedule 3 to the Act, an international will must:
(1) be in writing but not necessarily written by the testator;
(2) may be written in any language;
(3) be witnessed by two witnesses who attest the will by signing in the presence of the testator;
(4) have the signatures at the end of the will; and
(5) have each page signed by the testator and numbered.
Whilst these are not dissimilar to Queensland’s requirements, an international will has some unique features.
In addition to the two witnesses, an international will must also be witnessed by either an Australian lawyer, a public notary or an authorised witness under the law of a country who has signed the Convention (‘Authorised Person’). The Authorised Person must date the will when he or she signs the will.
Article 10 Certificate
The Authorised Person must attach to the will a certificate in the form prescribed by Article 10 of Schedule 3 to the Act (‘Certificate’). The Certificate, which confirms that the international will requirements have been complied with, may include a statement about where the testator wants the will to be kept.
Once the Certificate has been executed, the Authorised Person must keep a copy and give another copy to the testator. Whilst the Certificate is conclusive evidence of the will’s validity, its absence does not necessarily mean the international will is invalid.
When should an international will be used?
An international will is likely appropriate when a testator has assets in a country who has signed the Convention. However, if a testator has assets in a jurisdiction that is not covered by the Convention, then it is still best practice to consult the specific succession laws of that country.
Ramsden Lawyers can assist you if you need an international will prepared or with any of your other estate planning needs.