Preparing a will can often be complete and difficult to prepare in circumstances where assets or beneficiaries are located across several jurisdictions.
To assist in simplifying succession law in Australia, the Australian Government agreed to the Convention Providing a Uniform Law on the Form of an International Will 1973 (the Convention) which came into force for Australia on 10 March 2015. Since then, all states and territories in Australia have passed legislation giving effect to the Convention. In New South Wales, this has been adopted in Part 2.4A of the Succession Act 2006 (NSW) (the NSW Act).
Article 1 of the Convention provides that a will shall be valid in its form, regardless of where it was made, the location of assets, and the nationality, domicile or residence of the testator, if it is made in the form of an international will that complies with the provisions set out in the Convention. It is important to note that the invalidity of the will as an international will shall not affect its formal validity as a will of another kind, for example, a will that is compliant with the NSW Act.
The Convention requires that the will:
- Be made in writing.
- The testator shall declare in the presence of 2 witnesses and of a person authorised to act in connection with international wills that the document is his will and that they know the contents of the will.
- In the presence of the witness and the authorised person the testator shall sign the will or, if previously signed, acknowledge their signature.
- The witness and the authorised person is to attest the will by signing in the presence of the testator. Signatures are to be placed at the end of the will however, if there is more than one page, the testator is to sign each page.
- The authorised person is to attach to the will a certificate in the form prescribed in the Convention establishing that the obligations of the Convention have been complied with and is to keep a copy of the certificate and provide another copy to the testator. It is important to note that the absence of a certificate will not affect the formal validity of a will made under the Convention.
Pursuant to section 50C of the NSW Act, an authorised person is:
- an Australian legal practitioner, or
- a public notary of any Australian jurisdiction.
Although this process is similar to the making of an ordinary will in NSW, the Convention provides that there must be 3 witnesses to the will with the third witness being the authorised person.
Should you have assets or beneficiaries located outside Australia, an international will is a simplified way of addressing your estate planning needs.
We note that the following states are Contracting States of the Convention:
United States of America
If you require assistance in establishing an international will enforceable in Australia and the countries listed above, please contact our team for assistance.