A businessman makes an Australian will in Melbourne in 2015 covering his Australian property. In 2022 his Hong Kong lawyer prepares a new will for his Hong Kong assets. It opens, as most wills do, with “I revoke all former wills and testamentary dispositions.” When he dies, the Australian will has been revoked without anyone intending it. The Australian property now passes under a Hong Kong will that never contemplated it, or, if that will does not cover it, under intestacy rules.
This is one of the most common, and most avoidable, cross-border estate problems.
What can go wrong
- Accidental revocation by a general revocation clause in a later will.
- Gaps. Each will covers “my assets in” one country, and an asset moves or is held through a company in a third country.
- Overlaps. Both wills claim the same asset, or both appoint different executors to the residue.
- Inconsistent gifts. The children receive equal shares under one will and unequal shares under the other, with no explanation.
- Formal validity. Victoria generally recognises a will as formally valid if it complies with the law where it was signed, or where the will-maker was domiciled, habitually resident or a national. Informal documents, such as a will on WeChat or an unwitnessed note, raise harder questions.
Fixing it after death
The court may be asked to decide which will applies and what the revocation clause was meant to cover. A will can sometimes be rectified if it fails to carry out the will-maker’s intentions. In Victoria, an application must generally be made within six months of the grant. These applications need evidence from the lawyers who drafted both wills and are expensive.
Getting it right while alive
- Each will should say exactly which assets it covers, by country, and should revoke only earlier wills about those assets.
- Lawyers in each country should see the other will before signing.
- Executors in each country should know about the other will and how to get the original.
- Review all wills together whenever one changes.
Frequently asked questions
Can I have separate wills in different countries?
Yes. Many people with assets in several countries have a separate will for each, but the wills must be drafted to work together. Each will should state exactly which assets it covers, by country, and revoke only earlier wills about those assets, so that a later will does not accidentally revoke another.
Can a new overseas will revoke my Australian will?
Yes, it can. Most wills begin with a clause revoking all former wills. If a will made in another country contains a general revocation clause, it may revoke your Australian will even though no one intended it, leaving your Australian assets to pass under a will that never contemplated them, or under the intestacy rules.
Is a will signed overseas valid in Victoria?
Generally, yes, if it complies with the law of the place where it was signed, or of the place where the will-maker was domiciled, habitually resident or a national. Informal documents, such as a will on WeChat or an unwitnessed note, raise harder questions and may require an application to the court.
Can a will be corrected after death if it revoked another will by mistake?
Sometimes. The court can be asked to decide which will applies and what a revocation clause was meant to cover, and a will can sometimes be rectified if it fails to carry out the will-maker’s intentions. In Victoria, an application must generally be made within six months of the grant, and these applications are expensive.
Chua Tan Associates advises families, executors, trustees and their professional advisers on estate planning, estate administration and estate disputes, in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. Victorian law unless stated otherwise.
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