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Living in South Australia with assets overseas? Your “one Will to rule them all” may not be good enough.

Many people making a Will may assume that their Will, validly made in South Australia is going to be effective to dispose of overseas assets they may own.

That assumption might be incorrect depending on where the overseas assets are held.  To make certain the overseas assets can be adequately dealt with by a local Will care must be taken to ensure foreign laws are complied with.

It may be wise or necessary for a separate Will to be made within the jurisdiction where the asset is held, such Will only dealing with that asset.

If that were to occur there would be two concurrent Wills; one to deal specifically with an overseas asset (made within that jurisdiction) and the other to generally deal with the estate of the deceased.

There is high danger with having concurrent Wills. There may be an unintentional revocation of an earlier Will.  Wills are generally expressed to revoke all earlier testamentary documents.  If an overseas (later) Will is also expressed to revoke all earlier Wills it may have the effect of replacing the local Will which may have undesirable outcomes.

Each concurrent Will must be drawn to expressly recognise the existence of the other and to preserve its operation and effect.

So what about Wills made overseas.

Generally speaking, a Will made overseas that is valid according to the laws of the country where it was drafted, will be acceptable in South Australia (even if it is not strictly valid according to our local laws).

In those circumstances it may be necessary to obtain a 're-seal' of the grant of probate obtained overseas.  This simply means that the foreign grant can be recognised locally.

If the deceased died in a Commonwealth Country this is usually a straight forward procedure however if they died in a non-English speaking country some difficulties will naturally arise.

So can you have "one Will to rule them all"?  Not necessarily.  To check the status of your Will in relation to any overseas assets you own, why not have a chat with our Senior Associate Greg Welden about where you stand.

Please note, this Blog is posted in Adelaide, South Australia. It relates to South Australian legislation.


Aussie Citizen said...
Hi, My wife and I have seperated and she has part ownership to a house overseas in Indonesia. I'm not sure if there is an actual will but according to the laws of Indonesia, if both parents have past away, the home (if 100% owned) automatically gets handed down to the children. I think this is call sharia law. I know they have been formally trying to sell the house and have already spoken to a lawyer, calculating the share each sibling has in the ownership of the house. I've also heard that if a parent passes away while we were married, I automatically have rights to 50% of my wife's share. Can you please advise me if this is correct?
May 10, 2013 01:18
Andersons Solicitors (author) said...
In regards to your comment above, your question is a family law query, we have several family lawyers who may be able to assist, feel free to call our office on 8238 6666 to make an appointment. regards, Greg.
May 10, 2013 04:24


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