Is an international will the same as a foreign will?

No, they are not the same. A foreign will is a will made in accordance with a foreign country’s internal law. An international will is a will that meets certain requirements set out in domestic law which replicate the requirements of an international convention.

What convention? And what requirements?

Australia is a party to the Convention Providing a Uniform Law on the Form of an International Will 1973 (the Convention), which entered into force in the country in March 2015.

It provides that a will that meets the requirements set out in the convention will be recognised as a valid will in any country that is a party to the Convention and has incorporated it into domestic legislation.

In NSW, the Succession Act 2006 incorporates the Convention into the state’s law.

The requirements for a valid international will are set out in the annex to Convention and replicated in Schedule 2 of the Succession Act. They are:

  • That the document is in writing, though it need not be written by the testator themselves and may be in any language, either by hand or otherwise.
  • That the testator declares their intention that the document form their last will in the presence of two witnesses and a person authorised to act in connection with international wills (more on that later). It is not necessary that they be informed of the contents of the will.
  • That the testator signs the will in the presence of two witnesses and an authorised person.
  • That the two witnesses must attest the will by signing it in the presence of the testator. If the will is more than one page, each page must be signed by both the testator and witnesses.
  • That the authorised person must complete a form that declares the requirements have been complied with and attach it to the will. The form is annexed to the convention.
  • That the will be only for an individual. A joint will or testamentary disposition will not be valid.

The term ‘a person authorised to act in connection with international wills’ is defined in s 50C of the Succession Act as an Australian legal practitioner or a public notary of any Australian jurisdiction.

If my will is valid under the succession act will it also be a valid international will?

Probably not. The Succession Act doesn’t require an authorised person to witness the signing of the will – only two witnesses, who need no qualifications or special skills.  There’s also no requirement that the will be accompanied by declaration form.

How do I revoke an international will?

Section 50E provides that the provisions of the Succession Act that apply to wills, apply to international wills.

This means that you revoke an international will in the same way you revoke a ‘regular’ will. Section 11 of the Succession Act sets out an exhaustive list of all the ways a will can be revoked:

  • Authorised by a court order
  • By marriage (in some circumstances only; see s 12 of the Succession Act)
  • Divorce or annulment of the marriage (partial revocation only; see s 13 of the Succession Act)
  • By making a new will
  • By the will-maker destroying the will
  • By the will-maker writing on or otherwise dealing with the will in a way that the court is satisfied that the will-maker intended to revoke

Do you need an international will?

Having an international will might make sense for someone who owns property in both Australia and an overseas country/s. However, not all countries have incorporated the Convention into their domestic law. Currently, only 13 countries including Australia will recognise an international will.

If you own property in both Australia and a country that recognises international wills, it may make sense for you to have a will drafted that meets these requirements. Provided it has been drafted correctly, the will should be recognised in both countries. This may be easier than having a will made in each country in which you own property; there are less documents to keep track of, no requirement to liaise with an overseas lawyer and likely a cost saving.

If you own property in Australia and another country, but one that has not signed the Convention or incorporated the Convention into their domestic law, there is little utility in drafting a will that complies with international will requirements as it won’t be valid in the other country. Instead, you should speak to a lawyer about having a will made in each of the countries in which you own property.

How do you contest an international will?

Once again, contesting the validity of an international will would be done in the same way a ‘regular’ will would be contested. You may file a probate caveat, if a grant of probate has not been issued, or commence proceedings to challenge the validity of the will on the grounds of lack of testamentary capacity, fraud, undue influence, forgery or that the testator did not know and approve of the will’s contests.

You may also make a family provision claim in the same way you would as a ‘regular’ will, if you are an eligible person who meets the criteria specified in the Succession Act.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.