An international will or a will in each jurisdiction?

The regime of international wills appears new and exciting, but upon closer examination it can raise more issues than it resolves. The Uniform Law on the Form of an International Will contained in the UNIDROIT Convention (‘the Convention ’) was ratified by the Commonwealth Government on 10 September 2014 and the Convention entered into force in Australia on 10 March 2015. Each Australian state and territory has enacted its own enabling legislation. Sections 50A-50E of the Succession Act 2006 (NSW) (‘the Act’) give force and effect to the enabling legislation in New South Wales.

Purpose of introducing international wills

The international will regime is intended to harmonise and simplify the proof of formalities of wills executed in signatory countries. This means that by making an international will, Australians will now find it easier to prove the will in another jurisdiction that has also adopted the Convention. The Convention essentially creates a new form of a will which is recognised as valid in those states which are party to the Convention.

The Convention intended to overcome the problem that whenever there were cross border issues, in order to ascertain whether a will was valid, the court had to find that the will was properly executed in one of the following jurisdictions (s 48):

• where it was executed; or
• the willmaker’s domicile or residence at the time of execution; or
• the willmaker’s domicile or residence at the time of death; or
• of which the willmaker was a citizen.

The process to determine validity, therefore, involved the court having to examine laws of other jurisdictions (see Application of Perpetual Trustee Company Ltd; Re: Estate of the late Evelyn Mary Dempsey [2016] NSWSC 159).

The court also had to distinguish between the formal validity of the will with respect to movables (or chattels) which is determined by the law of the domicile of the willmaker at the date of death (In the Will of Lambe [1972] 2 NSWLR 273) and the formal validity of a will with respect to immovables (land etc) which is determined by the law where the land is situated, irrespective of where the willmaker resided or died (Pepin v Bruyere [1902] 1 Ch 24). The courts were often faced with having to determine the very complex issue of the domicile of the willmaker set out in Domicile Act 1979 (NSW).

To assist the court in determining these issues, the will’s propounder had to file affidavits from solicitors practising in foreign jurisdictions setting out the relevant local law, as well as affidavits from family and friends about facts of domicile. This examination is expensive, time consuming for the clients and the courts, and causes estate administration to be delayed.