Brian Hor, Principal, WillWorks®
Jennifer Maher, Special Counsel, Kliger Partners (Vic)
Caite Brewer, Callinan Chambers, Barrister and Angela Cornford-Scott, Director, Cornford-Scott Lawyers (Qld)
Morgan Solomon, Director Solomon Hollett Lawyers (WA)
Rosemary Caruso, Consultant, Tindall Gask Bentley Lawyers (SA)
Maria Dwyer and Christine Schokman, Senior Associates, Ogilvie Jennings Lawyers (Tas)
Andrew Freer, Director and Erin Bedford, Associate, KJB Law (ACT)
In a multicultural society as Australia, it is increasingly common for clients to have significant assets held across a number of jurisdictions. Often the client has accumulated wealth in their home country overseas and then migrated to Australia and accumulated additional assets here. Alternatively, they may have come from a different Australian state or territory and moved to another state or territory. Both situations give rise to additional special issues for the will draftsperson to consider and take into account.
Assets held in various jurisdictions within or outside of Australia
Where a client holds assets held in various jurisdictions within Australia, a practitioner will need to be aware that there may be interstate considerations that may need to be taken into account when drafting the client's will, especially where the client holds real estate. This is because much of the legislation relevant to wills, succession, trusts, property law and taxation law is state-based or territory-based.
As a practical matter, when drafting a will for a client which is executed in another state or territory in which the client holds the assets, but still within Australia, a will that is correctly executed and witnessed in accordance with the requirements of that particular state or territory should be treated as validly executed in all Australian states or territories.
However, there may be differences between Australian states or territories as regards issues such as the validity of wills of minors, wills witnessed by interested witnesses, witnessing requirements for special testators (such as blind persons), and the recognition of court authorised wills.
Where a client holds significant assets (especially real estate) overseas, it may be preferable to advise the client to specify that their Australian will is to apply only to their Australian estate, and to have separate wills drawn up in relation to their overseas assets by a lawyer who practises in that jurisdiction.
See Assets held in various jurisdictions within or outside of Australia.
Wills executed in a foreign jurisdiction
Where a will of a deceased person has been executed in a foreign jurisdiction, there may be issues as to whether or not it will be recognised as a valid will in the Australian state or territory in which the deceased was residing at the time of his/her death.
These issues have more to do with the obtaining of a grant of probate and the administration of the will rather than with will drafting; however, it is worth noting that various jurisdictions provide recognition for wills executed in a foreign jurisdiction.
See Wills under foreign laws.
International wills
On 10 September, 2014 Australia acceded to the Convention Providing a Uniform Law on the Form of an International Will 1973 which entered into force in Australia on 10 March, 2015. All states and territories have passed legislation to give effect to the convention.
The convention simplifies proof of formalities for wills that have international characteristics by setting up a uniform law introducing a new form of will, known as an “international will”, which is recognised as a valid form in all countries that are party to the convention.
The uniform law is annexed to the convention and establishes the international will as an alternative form of will available to prospective testators. However, there are a number of issues that a client must consider before deciding to rely solely upon an international will for their multi-national estate.
See International wills.