International Wills in NSW: Overseas Property and Your Will

If you own property or other assets outside Australia, your estate plan has to work in more than one legal system. An international will is one tool that can help, but it is often misunderstood. This article explains what an international will is, which countries recognise it, how to make one in NSW, and when separate wills in each country may be the better choice.

An international will is a special form of will created under the Convention Providing a Uniform Law on the Form of an International Will 1973, known as the Washington Convention. Australia lodged its accession on 10 September 2014, and the Convention came into force for Australia on 10 March 2015. In NSW, it operates through Part 2.4A of the Succession Act 2006 (NSW).

Its purpose is narrow but useful. A will made in the international form is valid as to form regardless of where it was made, where the assets are located, or the will-maker’s nationality, domicile or residence. In practice, a court in another member country should not reject your will because it was signed and witnessed under Australian rules rather than its own.

Making an international will is optional. It is an additional form of will in NSW, not a replacement for existing forms.

Only a small number of countries have implemented the Convention. UNIDROIT lists 13 contracting states:

Two points often cause confusion:

• The UK and the US. Both countries signed the Convention but never ratified it, so it is not in force in either.
• Canada. Canada acceded with a declaration limiting the Convention to particular territorial units, so whether it applies depends on the province.

If your overseas assets are in a country that is not on this list, an international will gives you no special advantage there.

The Convention sets strict formal requirements. In summary:

• The will must be in writing. It can be in any language, and you do not have to write it yourself.
• You must declare, in front of two witnesses and an authorised person, that the document is your will and that you know what it says. You do not have to reveal its contents to them.
• You sign the will (or acknowledge your earlier signature) in their presence, and they then sign in yours.
• The signatures go at the end of the will, and every page must be signed and numbered.
• The authorised person dates the will and attaches a certificate in the prescribed form confirming the requirements were met.

In NSW, the authorised person must be an Australian legal practitioner or a public notary of any Australian jurisdiction.

Two further points to note:

• A joint will (one document made by two or more people) which cannot be made in NSW also cannot be an international will.
• If a will fails as an international will, it may still be formally valid as another kind of will.

This is where many people are caught out.

• It deals only with form. The Convention covers form in the strict sense. Questions such as capacity, revocation and interpretation are still governed by the ordinary law. Depending on your circumstances, that may be foreign law.
• It does not decide who inherits. Each country applies its own rules to decide which succession law governs your estate. Some countries have rules requiring a share to pass to particular family members, and an international will does not override them.
• It does not by itself remove the need for probate overseas. Your executor may still need a grant of probate, or the local equivalent, in each country where you hold assets. What an international will should do is make it easier to prove the will is formally valid there. 
• It can be revoked like any other will. Ordinary revocation rules apply. A later will, including one made overseas, could revoke it unless the documents are drafted to work together.

There is no single right answer. The main options are:

• One international will covering everything. You have one document to maintain. However, it helps only in Convention countries, and one executor must deal with every jurisdiction.
• Separate wills in each country. For example, a NSW will for your Australian assets and a local will for assets abroad. This lets you appoint an executor on the ground and have each will drafted to local law. The risk is that one will accidentally revokes another if the wording isn’t coordinated, and the cost is higher.
• A combination. For example, an international will alongside a separate will for a country that is not a Convention member.

The right structure depends on where your assets are, where you live, your citizenship, and the tax and succession rules in each country. It often requires advice from a lawyer in each jurisdiction.

An international will is a special form of will created under the Convention Providing a Uniform Law on the Form of an International Will 1973, known as the Washington Convention. Australia lodged its accession on 10 September 2014, and the Convention came into force for Australia on 10 March 2015. In NSW, it operates through Part 2.4A of the Succession Act 2006 (NSW).

Its purpose is narrow but useful. A will made in the international form is valid as to form regardless of where it was made, where the assets are located, or the will-maker’s nationality, domicile or residence. In practice, a court in another member country should not reject your will because it was signed and witnessed under Australian rules rather than its own.

Making an international will is optional. It is an additional form of will in NSW, not a replacement for existing forms.

Stephen Wawn & Associates advises clients across Sydney on estate planning involving assets in Australia and overseas. Call (02) 9328 1000 or book a

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