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The recent case of Re Perry [2021] QSC 97 highlights the importance of getting the wording of your Will right, particularly where you have assets in more than one jurisdiction.

In this case, the Court had to consider the intentions of the deceased when his Australian Will unintentionally referred to the revocation of all former Wills, which came about due to the deceased not disclosing to his lawyer the existence of overseas assets.

Despite this purported revocation, the deceased had previously made two additional Wills to specifically deal with assets in two other jurisdictions (a Thai and UK Will) and intended those Wills to remain in effect.

The inadvertent revocation of the Thai and UK Wills resulted in a material change to the intended disposition of the deceased’s international assets.

Following application to the court seeking to remedy this unintended consequence of the Australian Will’s revocation clause and the court’s assessment of all evidence, the court was satisfied that the Australian Will did not carry out the deceased’s intentions and varied the revocation clause to exclude the Thai and UK Wills so those Wills remained in effect.

Whilst this case had a positive outcome, it could have had disastrous consequences, not to mention the costs and angst associated with having to take the matter to court.

To ensure you do not face a similar situation, there are a few important points you should remember:

  • There are differing succession laws in each jurisdiction and differing formalities – for example, in New South Wales, there is such thing as a ‘notional estate claim’ which means that assets that have been transferred out of the deceased’s name within a certain period before their death can actually be ‘clawed back’ into and be included as part of the estate;
  • Accordingly, you should disclose all of your assets to your lawyer, whether in Australia or overseas;
  • If you own overseas assets, we generally recommend that you have a Will prepared in each relevant jurisdiction;
  • You should ensure you receive appropriate tax advice with respect to any overseas assets as the consequences may be different according to the jurisdiction;
  • Having a Will prepared in each jurisdiction in which assets are located can also help to streamline estate administration because each Will can be proven in each jurisdiction at once (rather than waiting for the Will to be proven in one jurisdiction before then starting the process in the next jurisdiction);
  • Family provision laws differ from jurisdiction to jurisdiction so you should ensure you are advised by lawyers practising in the jurisdiction where assets are located;
  • Where, despite the above you still wish to make a Will in Australia dealing with all assets in multiple jurisdictions and the overseas assets are located in a jurisdiction which is a party to the Convention providing a Uniform Law on the Form of an International Will, you should ensure that your Will complies with the Convention so that it will be valid.

If you have interstate and/or international assets and are unsure if your Will appropriately deals with the above issues with respect to such assets, please contact our Private Clients team who will be happy to assist you.

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international wills and assets: the importance of getting it right

10 June 2021
cathy russo candice etherton

The recent case of Re Perry [2021] QSC 97 highlights the importance of getting the wording of your Will right, particularly where you have assets in more than one jurisdiction.

In this case, the Court had to consider the intentions of the deceased when his Australian Will unintentionally referred to the revocation of all former Wills, which came about due to the deceased not disclosing to his lawyer the existence of overseas assets.

Despite this purported revocation, the deceased had previously made two additional Wills to specifically deal with assets in two other jurisdictions (a Thai and UK Will) and intended those Wills to remain in effect.

The inadvertent revocation of the Thai and UK Wills resulted in a material change to the intended disposition of the deceased’s international assets.

Following application to the court seeking to remedy this unintended consequence of the Australian Will’s revocation clause and the court’s assessment of all evidence, the court was satisfied that the Australian Will did not carry out the deceased’s intentions and varied the revocation clause to exclude the Thai and UK Wills so those Wills remained in effect.

Whilst this case had a positive outcome, it could have had disastrous consequences, not to mention the costs and angst associated with having to take the matter to court.

To ensure you do not face a similar situation, there are a few important points you should remember:

  • There are differing succession laws in each jurisdiction and differing formalities – for example, in New South Wales, there is such thing as a ‘notional estate claim’ which means that assets that have been transferred out of the deceased’s name within a certain period before their death can actually be ‘clawed back’ into and be included as part of the estate;
  • Accordingly, you should disclose all of your assets to your lawyer, whether in Australia or overseas;
  • If you own overseas assets, we generally recommend that you have a Will prepared in each relevant jurisdiction;
  • You should ensure you receive appropriate tax advice with respect to any overseas assets as the consequences may be different according to the jurisdiction;
  • Having a Will prepared in each jurisdiction in which assets are located can also help to streamline estate administration because each Will can be proven in each jurisdiction at once (rather than waiting for the Will to be proven in one jurisdiction before then starting the process in the next jurisdiction);
  • Family provision laws differ from jurisdiction to jurisdiction so you should ensure you are advised by lawyers practising in the jurisdiction where assets are located;
  • Where, despite the above you still wish to make a Will in Australia dealing with all assets in multiple jurisdictions and the overseas assets are located in a jurisdiction which is a party to the Convention providing a Uniform Law on the Form of an International Will, you should ensure that your Will complies with the Convention so that it will be valid.

If you have interstate and/or international assets and are unsure if your Will appropriately deals with the above issues with respect to such assets, please contact our Private Clients team who will be happy to assist you.