By Bernie O Sullivan
Bernie O’Sullivan Lawyers is an independent law firm that specialises in succession solutions for estates, superannuation funds, family trusts and businesses. Bernie is lead author of the leading publication Estate and Business Succession Planning published by The Tax Institute, now in its 4thedition.He is an Estplan lecturer and succession planning expert.
The following is an abridged version of a recent article by Bernie O’Sullivan on the new regime of International Wills which is proposed for all Australian jurisdictions.
In 2010, all Australian State and Territory Ministers agreed to implement legislation to allow Australia to accede to the International Institute for the Unification of Private Law[1] (UNIDRIOT) Convention (Washington, 1973) (the Convention).
On 8 November 2011, Victoria became the first Australian jurisdiction to give effect to the agreement by introducing the Wills Amendment (International Wills) Bill 2011 (the Bill) into Victorian Parliament. The remaining States and Territories are expected to follow course in the near future.
These reforms serve as an important reminder of the complexities of international law (including general law) and their potential impact on the testamentary intentions of clients. International wills may become an important tool for clients with assets in multiple jurisdictions who wish to maximise certainty in regard to their estate planning.
While there are a number of subtle issues with the international will model, this article will focus on the Bill and the key concepts of the Convention.
What is the aim of the Bill?
The Bill aims to bring Victorian law into line with the Convention by amending the Wills Act 1997 (Vic) ) to adopt the Convention's uniform law in relation to wills.[2]
According to the Bill’s Explanatory Memorandum, the primary objective of the Bill is to eliminate problems that arise when cross-border issues affect a will, for example where a will deals with assets located overseas or where the will-maker's country of residence is different to the country in which the will is executed.
The Bill aims to meet this objective by providing for a new form of will – an international will. An international will that complies with the Uniform Law will be recognised as a valid form of will by the courts of other States party to the Convention, irrespective of:
- where the will was made;
- the location of the assets; or
- where the willmaker lives,
and without a court having to examine the internal laws operating in foreign countries to determine whether the will has been properly executed.
Commencement
In respect to commencement, the second reading[3] of the Bill stated:
Australia will not accede to the International Wills Convention until States and Territories have the necessary implementing legislation in place. Further, the Convention provides for a mechanism so that entry into force of the Convention occurs six months after accession. The Victorian amendments will therefore not commence operation until the Convention comes into force in Australia, which may not be until 2013.
What is an international will
The Bill provides that in order for a will to meet the international will standard it must be made in accordance with the requirements of the annex to the Convention. The annex to the Convention is set out in the Bill in the form of a proposed new Schedule to the Wills Act (Vic).
The Schedule requires an international will:
- to be executed in the presence of two witnesses and an “authorised person” (see below);
- to have attached to it a certificate in, or substantially in a prescribed form stating the requirements of the Uniform Law have been complied with (see below).
Who is an authorised person?
A person will be an authorised person if they are an Australian legal practitioner or a public notary.
What form must the certificate take?
A prescribed form of the certificate is set out in the Schedule. It must be completed and signed by the authorised person.
Novel features of international wills
The following features of international wills will be new to legal practitioners:
- the requirement that there effectively be 3 witnesses instead of the normal 2: the 3 being the 2 ‘usual’ witnesses plus the authorised person;
- the requirement to have a legal practitioner or notary, as the authorised person, present at the signing of the will; and
- the notion of attaching a certificate to the will – attaching anything to a will has always been akin to committing a crime: any legal practitioners will shudder when pushing down on that stapler!
Construction of international wills
Questions as to construction of an international will are to be determined in accordance with existing provisions of the Wills Act (Vic).
Revocation of international wills
Provisions in the Wills Act Vic that deal with revocation of wills shall apply to international wills.
Limitations of international wills
The Convention is only binding to states and nations that are parties to the Convention and who have enacted legislation to give effect to it. Some jurisdictions, such as the United Kingdom and Italy, adhere to the Convention without having ratified it.
As at March 2010 many countries (such as Germany and Sweden) had not signed nor ratified the Convention.
However, it an international will may still be regarded as a validly executed foreign will in states that are not party to the Convention.
Comments
My initial reaction when I read that Australian State and Territory Ministers had agreed to implement legislation to facilitate international wills was one of surprise that the Ministers’ regarded this legislation as more urgent than other reforms. After all, the law in each Australian jurisdiction already recognises, to varying degrees, foreign wills.
However, when it comes to estate planning it is a fact that most clients want as much certainty as possible. If you have clients with assets in multiple jurisdictions you should consider raising with them the concept of an international will.
Finally - a word of caution. Complex issues will arise in regard to international wills. For example, the validity of an international will and the application of the Convention will be impacted by issues such as the domicile of the willmaker and whether or not an asset is a movable or immovable. These concepts are explained in Chapter 6 of the leading Australian text on estate planning: Estate and Business Succession Planning.[4] It is imperative that clients obtain advice from lawyers with expert knowledge in international estate planning.
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[1] Unidroit is an independent intergovernmental Organisation with its seat in the Villa Aldobrandini in Rome. Its purpose is to study needs and methods for modernising, harmonising and co-ordinating private and in particular commercial law as between States and groups of States and to formulate uniform law instruments, principles and rules to achieve those objectives.
[2] A copy of the Convention can be found at: http://www.unidroit.org/english/conventions/1973wills/main.htm
[3] 9 November 2011.
[4] 4th Edition, published by The Taxation Institute. Bernie O’Sullivan is the lead author of this text.
