A Will that has been proved in Victoria is not automatically accepted everywhere. Each country decides, under its own law, whether a foreign Will is valid and how it can be used. Families with a home in Melbourne and a bank account, flat or business in Hong Kong, mainland China, Malaysia or Singapore should plan for this before it becomes an executor’s problem.
What Victoria requires
Under the Wills Act 1997 (Vic), a Will must be in writing and signed by the Will-maker in front of two witnesses who are present at the same time, and who then sign. That is the standard almost every common law country recognises.
Victoria also has a safety net. If a document was not signed or witnessed correctly, the Supreme Court can still admit it to probate if satisfied the deceased intended it to be their Will. This is often called the “dispensing power”.
The dispensing power is a Victorian rule. A court or bank in another country may not accept that an informally signed document is a valid Will just because a Victorian court did.
Foreign Wills used in Victoria
Victoria is generous to Wills made elsewhere. Section 17 of the Wills Act 1997 (Vic) treats a Will as properly signed if it complies with the law of the place where it was signed, the place where the Will-maker was domiciled when signing or at death, or a country of which they were a national.
So a Will signed correctly in Kuala Lumpur or Singapore can normally be proved here. The registry will still want the original (or a court-certified copy), an English translation if needed, and sometimes evidence of the foreign law.
The “international Will”
Since 10 March 2015, Victoria has recognised the “international Will” under an international convention. The Will is signed before two witnesses and an authorised person, who attaches a certificate. In Victoria, Australian legal practitioners and notaries public are authorised persons.
An international Will is recognised as to form in every country that has adopted the convention. Not every country has, so check each country where you hold assets.
Practical steps for families with assets in two countries
- List your assets by country. Real estate is usually governed by the law of the place where it sits.
- Consider separate Wills. One Will for Australian assets and one for each other country can speed up probate in each place. The revocation clauses must be drafted so that one Will does not cancel the other.
- Sign strictly. Use two adult witnesses who are not beneficiaries, all present together. Do not rely on any dispensing power overseas.
- Plan for paperwork. Overseas registries often want notarised and apostilled copies of a Victorian grant or Will, plus translations.
Chua Tan Associates prepares cross-border Wills and provides notarial services for families with assets in Australia and overseas. 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 or tax advice. Victorian law unless stated otherwise.
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