Worldly Wills: Wills and Estates with Foreign Elements

It’s not uncommon for an individual to have property and assets in other countries. Some necessary formalities must be written into a will to affirm the testator’s intentions where this is the case.


Wills in Multiple Countries?

Where an individual has property in Australia and another country, it is advisable that he or she have a will in each country to deal with the respective assets. It allows for the Australian will to deal only with property and assets within Australian jurisdiction. In effect, the executors of the Australian will, will have their powers limited to only the property and assets within Australian jurisdiction.  

Therefore, where wills are held in multiple countries, an express statement or clause of intention must be added. The clause will assert two things. Firstly, that the will shall only operate for assets and property held within Australian jurisdiction. Secondly, that the Australian will does not revoke any will held in another jurisdiction.

The necessity of such a clause was confirmed in the case of Robert Paul Schneider v Sydney Jewish Museum Inc [2008] NSWSC 1331. The deceased’s most recent Australian will failed to expressly limit the jurisdiction in which it was to operate. Consequently, the Australian will was interpreted to include property and assets in Israel as well.

It is important to note that foreign immovable property, such as houses and land, will be dealt with according to the law of the jurisdiction in which they are situated. Alternately, movable property, such as artwork and personal property, will be dealt with according to the law of the domicile of the testator.

Where a dispute regarding the international assets of a testator arises, the court will rule in favour of the testator’s intentions. Where no opposing intention can be demonstrated, it is presumed the testator intended for the will to be construed according to the law in the country of their domicile. However, where the context of the will indicates the presumption of a foreign jurisdiction, effect will be given to the testator’s intentions.


Administration of Foreign Estates: 

Foreign probate requirements must be met before executors will be allowed to deal with any foreign assets. Sections 107 to 110 of the Probate and Administration Act 1898 (NSW), allow for the recognition of foreign grants of probate between Australia and other Commonwealth Jurisdictions. This includes recognising the states of Australia as different jurisdictions in which probate may be granted. This process is known as resealing the grant.

If you have assets both in Australia and another country and wish to make a will, contact us today for advice.


DISCLAIMER: The information contained in this article is general and is not intended to be advice on any matter. It is for information only and is not legal advice. In the event of a legal problem, you should seek legal advice. 

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