In an increasingly globalised world, it’s not surprising that estate disputes involving foreign wills are becoming more common.
One in every two members of the Australian population was born overseas or had a parent who was born in another country. Australia has become an incredibly multicultural nation, and the likelihood of an estate dispute arising over a foreign will is strong.
Managing the estate of a testator with a foreign will is often perceived as particularly difficult, as conflicting legislation between countries can raise complex questions. However, by gaining professional advice from an estate lawyer, you can ensure that you follow the correct legal procedures and are sufficiently equipped to make well-informed decisions.
What is a Foreign Will?
While many people update their will accordingly once having relocated, this is not always the case.
When a deceased individual wrote their testamentary wishes in one country but passed away while living in another, they are said to have written a foreign will.
In such instances, it’s not uncommon for the testator to own assets in more than one country. This can cause confusion as to how the deceased’s assets across different jurisdictions ought to be dealt with which, in turn, often leads eligible people to dispute the estate.
In March 2015, the Convention Providing a Uniform Law on the Form of an International Will 1973 was approved Australia-wide. In actioning these legislative amendments, the Australian Government sought to simplify the validation and administration of foreign wills. The convention details uniform private law principles for international wills, all of which are accepted in member countries. By introducing more legislative harmonisation, greater clarity can be established when dealing with cases involving foreign wills.
Differing Inheritance Laws & Foreign Wills
Inheritance laws can differ drastically between jurisdictions and, thus, it’s paramount that you take this into account when writing your will.
While some countries enforce an inheritance tax, others distribute assets directly to beneficiaries. For a deceased individual’s testamentary wishes to be considered valid some countries, such as Australia, require that witnesses are present when the will is signed. However, in other jurisdictions, a signature from the testator alone suffices. While many European countries impose heirship rules that have been fixed in their civil code, this standard isn’t applied worldwide. In fact, there are numerous countries where testators can distribute their estate to whoever they would like, without restriction.
Every country has different laws that dictate how wills and estate disputes are handled so, if you are moving countries, updating your will accordingly and discussing your options with an estate professional is crucial.
By carefully considering how divergent laws will be interpreted during the administration of your will, you can determine whether they are likely to impact the execution of your testamentary wishes. Creating a clear, comprehensive estate plan can help to avoid conflicts surfacing when your assets are being distributed. This is because, essentially, potential claimants will have fewer legitimate reasons to contest your will. In turn, this increases the chances of your estate being kept relatively intact, rather than funds being taken from the estate to pay legal costs or your administration desires being disrupted.
Contesting a Foreign Will
Before a foreign will can be contested, its validity must be confirmed.
In Victoria, the court will begin by examining relevant inheritance legislation from the country where the foreign will was written. This means that, for a foreign will to be legally enforceable in Victoria, it does not necessarily have to comply with the distinct requirements of the state. It’s crucial that, if you intend to contest a foreign will, you take this point into account. While you can still contest a foreign will’s validity, Victorian inheritance law won’t always be completely applicable.
As established, cases involving foreign wills aren’t always going to be straightforward and simple to resolve. When a will has been executed in a foreign country, there is no guarantee as to which jurisdictions legislation will be deemed suitable. It’s for this reason that, if you intend to pursue a claim against a foreign estate, you seek advice from an estate lawyer who has a comprehensive understanding of such matters.
Are you interested in contesting a foreign will? At Hentys, our specialist estate lawyers can determine the merit of your claim and provide you with expert guidance at each stage of your estate dispute. We have extensive experience resolving cases like yours and will help you get the outcome you deserve. For more information, see our Estate Dispute FAQs or speak with a professional today.