International Wills and Foreign Language Documents

law library

International wills might become a more common feature in estate planning in Australia. This is because the growing body of foreign born Australians will translate into a growing body of individuals who may have foreign property and may therefore wish to draw up testaments that are enforceable here as well as overseas. The internationalisation of trade and commerce will also see an increase of Australians who have acquired property and assets located outside Australia, and this too will increase the likelihood people wanting to draw up international wills.

For these reasons, it may be prudent that those wishing to have their property disposed of – in a particular way – after their passing, might want to consider having a notarised international will signed and witnessed. This will ensure that their wishes and directions as to that property are respected after their death.

Our summary of a recent practice note outlines what the international will actually is and how it can be executed with the assistance of a Public Notary. Those who have wills drafted in a foreign language need not feel that their will or testament cannot be notarised by a local Sydney notary. As explained in our section on foreign language documents, even an international will drafted in an alphabet that does not use the English alphabet, such as Chinese (Cantonese or Mandarin) Indian (Hindi, Punjabi, Bengali, Gujarati) or Cyrillic, Japanese, Korean etc., or any other European language, all these can indeed be notarised subject to the cautions and reserved rights of the notary.

The new regime established under the legislation (which sets out the form of an international will to be notarised by a public notary) is not however mandatory. Nevertheless, the new law brings into effect the international agreement which seeks to facilitate the administration of estates which are located across borders. It is encouraged that those who believe that they may benefit from having an international will executed should make further inquiries as to its practicality.

If you are considering the production of an international will that will cover your local and foreign property and assets, a Notary Public in Sydney can assist in certifying the document so that it can be used in a foreign jurisdiction (court, tribunal, administrative body etc.). Depending on where you are located, a notary may be in a position to come to your home or office, for example in Chatswood, Epping, Mosman, Neutral Bay, Cremorne, Balmain, Roselle or the greater Sydney Central Business District (see further our section on Availability). For more information about other Sydney locations where our Notary Public can offer his services, or to get a quote for our services, we can be contacted on the details provided on this website.

ANZCN Practice Note – International Wills

The Australian and New Zealand College of Notaries has circulated a Practice Note concerning the execution of notarial certificates for International Wills and Testaments. The Note, which was prepared by Prof. Peter Zablud, explains that on 10 March of this year, the Convention Providing a Uniform Law on the Form of an International Will (Washington, D.C., 1973) has entered into force in Australia.

New South Wales has enacted legislation, namely the Succession Amendment (International Wills) Act 2012 (NSW) which gives effect to the Convention‘s operative provisions. The Annex to the Convention – which outlines the procedures for the drafting and execution of an international will – has therefore  been incorporated into the law of NSW. The form of notarial certification has therefore been established under the present regime.

Prof. Zablud notes that the Convention does not aim to harmonize the laws relating to the drafting and execution of international wills, rather it seeks to provide “an additional form […] which if employed, would dispense to some extent with the search for the applicable law” (Preamble to the Convention). The Convention‘s Explanatory Note reflects this purpose, that the new process and form “simply proposes, alongside and in addition to the traditional forms, another form which it is hoped practice will bring into use mainly but not exclusively when in the circumstances a will has some international characteristics” (per Jeab-Pierre Plantard, Rapporteur).

The international characteristics contemplated in the Explanatory Note include: the fact that the will is made in a jurisdiction which is not the nationality of the person signing the will or his domicile or place of residence; the fact that some of the property subject to the operations of the will are located in different jurisdictions; the fact that some of the beneficiaries under the will are located in other jurisdictions other than the one in which the will is made.

The International Will will have to aspects: the first is the will itself, and the second is the notarial certificate which is in the form or substantively in the form of the template established under the state law (Prof. Zablud notes however that under the new law, the certificate is to be executed by an “authorised person” and that this can be a solicitor entitled to practice law in the state as well as a Notary Public).

Other procedural and legal matters are outlined in the Practice Note. Individuals who are seeking to make or execute an International Will are urged to seek professional assistance in relation to the proper form and procedure. Contact us for more information as to how we can assist.

NB: The above is a summary and interpretation of the Practice Note. For a complete copy of the Practice Note, readers are strongly encouraged to contact the Australian and New Zealand College of Notaries directly.

If you require an international will notarised by a Sydney Public Notary, we may be able to come to you if you are located in the Northern Sydney region or Central Business District and surrounds. For more notarial service locations, see our Availability page. Be sure that all parties have at least two forms of photo identification available so that the notarial act can be applied to the international will. An international will can be certified by a Notary Public in North Sydney, Chatswood, Lane Cove, Artarmon, St Leonards, Crows Nest, Roseville, and other suburbs. For more information, contact us for a quote via the email form on this webpage or call us on the phone number provided.