Multi-jurisdictional Estate planning: which Will is right for you?

June 1, 2018

If you own assets in both Australia and overseas, you should consider which sort of Will best suits your circumstances. There are two options to consider when you own assets in multiple jurisdictions.

International Wills

Australia is a party to the Convention Providing a Uniform Law on the Form of an International Will 1973 (“the Convention”) which has been ratified into the law of all States and Territories. The Convention seeks to simplify the proof of formalities for international Wills.

The Convention recognises international wills by member countries as valid. An international Will may also be recognised where both countries are Commonwealth nations underpinned by a common law legal system, for example, Canada and Australia.

An international Will is beneficial in that it provides clarity of the assets within one document and can reduce legal drafting fees. They are also advantageous if a person only has limited assets overseas. However, it becomes challenging for the Court and Executor to deal with the administration of the cross-jurisdictional component of the Will.

Further, international Wills are not supported unless the country has enacted legislation that ratifies the Convention.

Separate Wills in Multiple Jurisdictions
 
There are a range of benefits for having separate Wills in multiple jurisdictions, including:
  1. Quicker and simpler administration of the estate;
  2. Legal compliance is easier for the Executor as the Wills will already be prepared in the correct formal requirement for each country;
  3. Tax advantages by minimising the estate’s tax liability through estate planning; and
  4. Removal of the possibility that one jurisdiction may prevail over the distribution of assets when determining which succession law applies.

Overall, it depends on the countries where your assets are located as to which option is best for you, although having separate Wills is commonly a better option to avoid jurisdictional challenges and to allow for proper legal consideration of each country’s probate procedures, taxation and estate planning.

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