By Sam Ryall
Picture this: You’re down at your regular coffee haunt on a sunny Saturday morning and the conversation between your friends turns suddenly as to who (and who doesn’t) have an up-to-date Will. You look around and notice your friends nodding their heads in the affirmative. You however, sheepishly resign yourself to the fact that you have been procrastinating on this longer than George R.R. Martin has in producing the sixth installment in the Game of Thrones series and make a mental note to rectify this urgently. Compounding your growing unease is your uncertainty as to the property you own both overseas and in Australia and how this is to be distributed if something were to happen to you. Sound Familiar? Any takers?…Well, read on.
You don’t have to be Einstein (or a legal eagle for that matter) to know the importance of having a valid up-to-date Will. However, careful attention is needed where you possess property, whether it be real property (like a house or land) or personal property (such as moveable items, bank accounts, boats and household chattels) in more than one country.
Australia is part of several international Conventions[1] which enable Australian made Wills to be valid in other nations that have also adopted the same Convention(s).[2] One of the key benefits of being part of these Conventions is that an internationally recognised Will can reduce the probability of a dreaded ‘conflict of laws’ situation where it is unclear which country’s laws apply to the distribution or administration of a particular asset you own. However, international Wills are subject to various requirements and formalities prescribed by both the Conventions and laws of Australia.[3] Thankfully (for your sake!) the detail of such requirements would be our concern, should you retain us to draft your Will!
So, what should you do?
Before you are ‘lulled’ into a false sense of security that below is a ‘one stop how-to’ guide, we must point out that the following is merely a set of ideas or strategies, amongst many others, to bear in mind when you ‘take the plunge’ and finally have your Will drawn up:
1. Seek advice on drafting both an Australian Will from an Australian legal practitioner and an overseas Will from a legal practitioner in the overseas country that you own property in. Whilst perhaps slightly more expensive at the outset, this method is one of the most cost efficient and simplistic methods in the long-term when dealing with the distribution of your assets in Australia and abroad.[4]
2. Seek advice from the relevant legal practitioner of each Will and ensure that each Will deals solely with, and is restricted to, the distribution of assets in that country.
3. Find a legal practitioner experienced with legislation relating to Wills in the country, the language required to be used in the Will and the formal requirements so to reduce the likelihood of each Will revoking each other or bringing the intestacy provisions (which apply if you do not have a valid Will or no Will at all) of that country into effect.
4. If possible, select a local executor. Due to the logistical difficulties in an executor administering an estate (i.e. selling real estate, calling in outstanding money in bank accounts) that is located overseas and the constant travel that would be required, you can avoid unnecessary costs to the estate by appointing an executor who you trust and who is local to that country.
5. Consult with an industry tax professional or accountant as to any tax implications such as Capital Gains Tax (CGT) in disposing of assets overseas or to a beneficiary that is not a resident of the country where your property is located.[5]
Should you need any assistance in navigating the unsteady territory surrounding Wills with an international element, feel free to contact one of our friendly solicitors at our Kelvin Grove or Wilston offices who would be happy to advise you about your future Will.
[1] See Hague Convention on Private International Law 1973 and the Convention Providing a Uniform Law on the Form of an International Will 1973.
[2]Dalpont, G & Mackie, K, ‘Laws of Succession’ (2012), Lexis Nexus [22.20], Australia.
[3]Succession Act 1981 (Qld) ss 33T-33YE.
[4] Hayward, Judy, ‘Legal Wise –a Fresh Look at Estate Planning – 4 September 2008 International Estate Planning and Estate Administration http://www.wills-estates.com.au/wp-content/uploads/2012/04/22572-International-Estate-Planning-and-Administration.pdf at 13.
[5]Ibid, 14.
TED BESLEY – SPECIAL COUNSEL
