Problems and extra costs can occur where assets or beneficiaries are located across several overseas jurisdictions and in addition, where you are domiciled is also an important issue.
To simplify succession law in Australia, the Australian Government has been working to accede to the Convention Providing a Uniform Law on the Form of an International Will 1973 (the Convention). On 10 September 2014, Australia ratified the Convention Providing a Uniform Law on the Form of an International Will 1973 (the Convention) which will enter into force on 10 March 2015 following the passing of legislation by all states and territories in Australia.
The Convention was developed by the International Institute for the Unification of Private Law (UNIDROIT), a forum which aims to develop international instruments to assist in the harmonisation of private international law principles between member countries. Australia has been a member since 1973.
The Convention assists Wills with an international aspect 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. International Wills should be utilised where ever there are assets in other jurisdictions and/or where the Will maker intends living elsewhere than in Australia or where overseas persons are appointed as executors under the Will. Recognition of International Wills in participating states could save much time and cost in the administration of the estate.
An International Will requires authorised persons (in Australia a legal practitioner or a Notary Public) to provide a certificate under their hand which certifies a number of things. The authorised person must be present with two witnesses and must provide the will maker with a copy of the Certificate. Certification by a Notary Public may provide further acceptance in overseas jurisdictions given the position of trust that Notaries hold internationally. However, the Convention does not require certfiication by a Notary.
Some of the requirements to constitute a valid International Will under the Convention include:
- The Will must only be made by one person.
- It must be in writing, but can be in any language.
- The maker of the Will, must declare in the presence of two witnesses and a a personal authorised by the Convention that the document is his or her Will and that he or she knows the contents of it.
- The maker of the Will must sign in the presence of two witnesses and the authorised person.
- The authorised person and the witnesses are to sign the Will in the presence of the testator.
- The authorised person is to attach the Will a certificate in the form set out in the Convention which establishes that the obligations of the law have been complied with.
- The authorised person is to keep a copy of the certificate and deliver another to the Will maker.
Notaries Public are authorised persons under the Convention (as are Australian Legal Practitioners). It should also be noted that the member countries that are members of the convention are limited. The list of countries can be found on the UNIDROIT website and a map of the world showing those countries is also available. It is expected that more countries will eventually adopt the convention.
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