Are Overseas Wills Valid in NSW? A Guide for Families
- Justeen Dormer
- Jun 17, 2021
- 3 min read
Updated: Apr 8
Wills and Estates
When a loved one passes away, managing their estate can be a difficult and emotional process. This complexity can increase if their will was created overseas. A common question we encounter is whether a will made in another country is legally recognised in New South Wales (NSW). This guide will help you understand how NSW courts handle overseas wills.
How Does NSW Law Recognise an Overseas Will?
The validity of an overseas will in NSW is governed by the Succession Act 2006 (NSW). According to Section 48 of this Act, a will is considered properly executed and valid in NSW if it complies with the laws of the place where:
It was executed (made): The will must follow the legal requirements of the country or state where it was signed.
The will-maker resided: The will is valid if it meets the legal standards of the place where the person (the testator) lived, either at the time they made the will or at the time of their death.
The will-maker was a national: The will is also valid if it conforms to the laws of the country of which the person was a citizen, either when the will was made or at their death.
In NSW, an overseas will does not have to meet the specific format or requirements set by NSW law alone. Instead, the NSW Supreme Court will consider the laws of the relevant foreign country to determine its validity. This approach ensures that a will validly made under another jurisdiction’s rules can be recognised in NSW.
What if the Foreign Country Has Multiple Legal Systems?
Certain countries have more than one system of law governing wills, often due to regional or cultural differences. Section 49 of the Succession Act 2006 (NSW) provides specific guidance in these circumstances:
Follow local rules: If the foreign country has clear rules about which legal system applies, the NSW Supreme Court will follow those rules.
Determine the "closest connection": If no such rule exists, the NSW court will apply the legal system with which the will-maker was "most closely connected".
The timing for determining the relevant connection will depend on the issue before the court. If the question relates to circumstances at the time of the will-maker’s death, then the relevant connection is assessed at that time. For other matters, it is determined as at the time the will was executed.
What if the Will Was Made While Travelling?
If a will is made while travelling on a vessel or aircraft between countries, its validity is determined under NSW law by the law of the place with which the vessel or aircraft is "most closely connected".
Relevant factors may include the place of registration and connecting circumstances. For example, if a person makes a will while on a flight operated by an airline registered in NSW, the aircraft’s connection to NSW would likely be relevant for the court’s consideration.
Navigating the Complexity of Overseas Wills in NSW
Dealing with a will that was executed overseas in the context of NSW estate administration can be challenging. Questions frequently arise concerning which country’s laws apply, and how those laws interact with the Succession Act 2006 (NSW).
If you are the executor of a will made overseas, or you wish to challenge the validity of such a will in NSW, it is essential to obtain legal advice from a specialist NSW will dispute lawyer. Expert guidance can ensure you fulfil your responsibilities correctly and the will-maker’s intentions are properly respected under NSW law.
