My Loved One Has Executed Their Will Overseas, What Do I Do?
Are Overseas Wills Valid in NSW?
Section 48 of the Succession Act 2006 (NSW) sets out how NSW courts will determine the validity of a will which was executed in a foreign place. A will is taken to be properly executed if its execution conforms to the internal law of the place:
where it was executed; or
that was the testator’s (will-maker's) residence, at the time the will was executed or at the time of the testator’s death; or
of which the testator was a national, at the time the will was executed or at the time of the testator’s death.
What this means is that where the validity of an overseas will is contested in NSW, rather than determining if the will is valid pursuant to NSW succession law, the courts will have regard to the internal law of the foreign land. In simple terms, foreign wills do not necessarily have to be executed in accordance with NSW succession law to be considered valid in NSW.
What if Multiple Systems of Law Could be Applied?
In some jurisdictions, there is more than one system of internal laws which relate to the formal validity of wills. In such cases, pursuant to section 49 of the Succession Act 2006 (NSW), if there is a rule in that place which indicates which system of law should be applied, it should be followed. If there is no such rule, the system of law to be applied is that with which the testator is ‘most closely connected’.
To determine which system the testator is most closely connected, regard must be had to how the matter will be determined. If it is by reference to circumstances which existed at the time of the testator’s death, then the test of close connection should be carried out by reference to the time of the testator’s death. In all other cases, the test of close connection should be carried out by reference to the time of execution of the will.
What if the Will Was Executed Between Foreign Lands?
In the rare circumstance that a will has been executed whilst the testator was travelling on board a vessel or aircraft which was between jurisdictions, the relevant law to determine the will’s validity is the law in force at the place the vessel or aircraft may be taken to be most closely connected. To determine which place the vessel or aircraft is most closely connected, regard should be had to its registration and other relevant circumstances.
For example, if a will is executed on board a QANTAS flight from Sydney to New York, the place the aircraft is most closely connected is most likely NSW as QANTAS’ headquarters are in Mascot and their aircraft are registered in Australia.
Dealing with wills which have been executed overseas is a very complex task, and in many cases, there is not a great deal of certainty as to which system of law is applicable. If you are looking to challenge the validity of an overseas will, you should seek expert opinion as soon as possible.
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