Is my Australian Will valid for overseas assets?

 

We are forever travelling. I spent two years with my wife and son to complete my doctorate in tax and estate planning in England.

Many have insurance, real estate, bank accounts and pension funds overseas. You can build a 3-Generation Testamentary Trust Will on our law firm’s website. However:

Do Legal Consolidated Wills cover your overseas assets?

Legal Consolidated’s 3-Generation Testamentary Trust Wills are automatically drafted to include worldwide assets.

Tasmania has a unique signing structure for its Wills. All Legal Consolidated’s Wills comply with Tasmanian law and the laws of all Australian States and Territories.

Do other countries honour Australian Wills?

However, assets held in another country are subject to the laws of that country.

Countries that honour Legal Consolidated’s Australian Wills

Under the Hague Conference on Private International Law, these 83 countries automatically honour Wills prepared by Legal Consolidated. We draft our Wills to satisfy the Hague Convention:

1. Albania
2. Andorra
3. Argentina
4. Armenia
5. Australia
6. Austria
7. Azerbaijan
8. Belarus
9. Belgium
10. Bosnia and Herzegovina
11. Brazil
12. Bulgaria
13. Burkina Faso
14. Canada
15. Chile
16. China, People’s Republic of (including provinces such as Hong Kong)
17. Costa Rica
18. Croatia
19. Cyprus
20. Czech Republic
21. Denmark
22. Ecuador
23. Egypt
24. Estonia
25. European Union
26. Finland
27. France
28. Georgia
29. Germany
30. Greece
31. Hungary
32. Iceland
33. India
34. Ireland
35. Israel
36. Italy
37. Japan
38. Jordan
39. Kazakhstan
40. Korea, Republic of
41. Latvia
42. Lithuania
43. Luxembourg
44. Malaysia
45. Malta
46. Mauritius
47. Mexico
48. Monaco
49. Montenegro
50. Morocco
51. Netherlands
52. New Zealand
53. Norway
54. Panama
55. Paraguay
56. Peru
57. Philippines
58. Poland
59. Portugal
60. Republic of Moldova
61. Republic of North Macedonia
62. Romania
63. Russian Federation
64. Saudi Arabia
65. Serbia
66. Singapore
67. Slovakia
68. Slovenia
69. South Africa
70. Spain
71. Sri Lanka
72. Suriname
73. Sweden
74. Switzerland
75. Tunisia
76. Turkey
77. Ukraine
78. United Kingdom of Great Britain and Northern Ireland
79. United States of America
80. Uruguay
81. Venezuela
82. Viet Nam
83. Zambia

How to Probate an Australian 3-Generation Testamentary Trust Will Overseas

To probate a 3-Generation Testamentary Trust Will in Australia, first get Probate. This process proves the Will is valid. It allows the executor to manage the estate. A 3-Generation Testamentary Trust Will protect assets across families. It minimises taxes. It shields from creditors and divorces.

Once you have Australian Probate, get it resealed in the country where the estate has assets. This validates the Australian Probate there. Hire a local solicitor to help with resealing. They navigate the local laws. They translate documents. They ensure the Legal Consolidated Australian Will operates correctly across borders. This secures the estate for the next three generations.

A new Will in another country destroys your Australian Will

You sign your Will. Three minutes later you sign a copy of that Will. That is silly. The first Will is now invalid. You cannot have two signed Wills. Each time you sign a Will it invalidates the last Will.

You see, every time you sign a new Will, your old Will is invalid.

For example, you sign an Australian Will. Three weeks later you sign a Will in New York. Your Australian Will is invalid. Four days later you signed a German Will, and now your New York Will is invalid, as well. Later you sign an Australian Will, now the German Will is invalid.

Each time you make a new Will, whether it be in Australia or another country it invalidates the previous Will.

A way to stop this is to make ‘concurrent Wills’.

A separate Will in each country in which you hold assets
– Concurrent Wills

Another approach is to build your Wills on our website, sign them and email them to a lawyer in the other country. That lawyer prepares their own Will to only cover assets in that overseas country. These are called ‘concurrent Wills’. Your foreign Will is drafted carefully so it does not revoke your Australian Will.

A benefit of having a Will in each country is that each respective lawyer is an expert in their own jurisdiction. Each Will is structured with the most accurate and up-to-date advice. It ensures that your Will meets all of the relevant legal formalities and defacto death taxes.

Do you wish to make your Australian Legal Consolidated Will only operate for Australian assets? Then:

1. at the time of signing your Legal Consolidated Will
2. in the same blue pen
3. in clause one
4. in front of the two witnesses hand write:

However, this Will does not invalidate my previous Will signed in [country] dated […. 20..].

Legal Consolidated 3-Generation Testamentary Trust Wills are designed for this.

However, if you do not have a Legal Consolidated Will then check to see if the Australian Will:

• is prepared under the Hague Convention?
• if the Will can be made ‘concurrent’?

The answer to both questions for Legal Consolidated Wills prepared on our website is ‘yes’.

Value of Concurrent Wills

Concurrent Wills are where you prepare separate Wills for each country where you own assets. You make a Will that applies to specific assets, or assets in a particular country.

You can even have more than two Concurrent Wills if you have assets in three or more countries.

One Will relates to all of your property wherever situated – worldwide. This is other than your property in another country.

Making Concurrent Wills may seem complicated. However, it provides a faster distribution of the estate. This is important when there are tax concessions applied to assets of your estate that only exist for a short time after your death.

Concurrent Wills help avoid unintended consequences in distributing your estate in different countries. They avoid and reduce costs and taxes.

Is it a waste of time to have concurrent Wills?

I have assets in two countries. Do I need two Wills?

Q: Professor Davies, my estate planning lawyer, tells me it is a waste of time to have concurrent Wills. Instead, it is better to have an Australian Will prepared under the Hague Convention and let the Australian Will deal with worldwide assets. 

Legal Consolidated Wills built on your website are always drafted to comply with the Hague Convention. So, does Legal Consolidated agree?

A: First, could you check to see if all assets are located within the 83 countries? Only those 83 countries are signatories to the Hague Convention. If so, you do not need concurrent Wills. You then prepare one Will under the Hague Convention. (For your convenience, a copy of the Hague Convention is at the end of this page.)

You are correct. All Legal Consolidated Wills built on our website are prepared per the Hague Convention, and that is fine. So you do not need a second Will for the other country. 

But that is not the end of the story.

The rule of thumb is that you build the tax practical Will in the high tax jurisdictions:

• For example, Australia and California have high and complex death duties. So, in that case, you build an Australian 3-Generation Testamentary Trust Will for your worldwide assets. You instruct your Californian estate planning lawyer to prepare a second Will (the concurrent Will) just for your assets in California.
• In contrast, if you have assets in Australia and, say, Singapore or the UK (which are less draconian on their death duties), then an Australian 3-Generation Testamentary Trust Will is probably all you need.

What is the Hague Convention on Wills?

The Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions is an international treaty. It makes simple the rules on Wills across different countries. These are the key aspects:

• Purpose: The convention ensures that a Will is recognised across different jurisdictions. This is to reduce legal conflicts when a Will is signed in one country but involves assets or a Will-maker from another.

• Entry into Force: The convention started on 5 January 1964.

• This is how Legal Consolidated complies with the Hague Convention. All our Wills comply with:

  • A Will is valid if it follows the law of:
    • the place where someone made the Will,
    • a nationality the Will-maker held at the time of making the Will or at death,
    • the place where the Will-maker lived or usually lived, at the time of making the Will or at death,
    • the location of immovable assets.
  • The convention also covers how to revoke Wills. A revocation is valid if it meets the laws of any places mentioned above.

• Impact: This convention makes it easier to recognise Wills internationally. Legal Consolidated Wills aid executors and courts in managing international estates according to the Will-maker’s wishes.

Countries that sign this convention agree to these standards. This helps in managing estates across multiple legal systems. It reduces legal troubles in international estate planning.

The full text of the convention is at the bottom of this page, for your convenience.

International Wills do not work.

There is another type of Will. It is called an ‘International Will’.

Australia signed the Convention Providing a Uniform Law on the Form of an International Will in 2015.  Australia recognises this, and we can prepare a document called an International Will. However, ‘International Wills’ is a waste of time. ‘International Wills’ are too complex. Few countries signed the convention. We rarely prepare ‘International Wills’. It is better, instead, to prepare the 3-Generation Testamentary Trust Will.

International Will requirements vs Australian Will requirements

The Convention tries to harmonise and simplify the requirements for a valid Will across countries. The requirements for an International Will are similar to Australian Wills. The similarities of an international Will and an Australian Will:

• in writing (not verbal)
•  signed by the Willmaker
• witnessed by two witnesses
• Willmaker understand the concept of a Will, what he owns and who his family is

The differences between an Australian Will and an International Will:

An ‘Authorised Person’ signs the International Will as a third witness. An Authorised Person is an Australian lawyer or Australian public notary. This is not required for a valid Will in Australia.

The Authorised Person signs a Certificate stating that the obligations of the Convention are satisfied. The Authorised Person then attaches this to the International Will. This is optional for a valid Australian Will.

An International Will requires the Willmaker and all three witnesses to sign every page of the Will.

Concurrent Wills are better than International Wills

A significant advantage of a Concurrent Will (rather than an International Will) is you simply seek Probate for each Will in its jurisdiction.

As explained above, a new Will revokes your former Will. Concurrent Wills must clearly state that a former Will is not revoked but is, instead, concurrent. Legal Consolidated provides free advice to your overseas lawyer. We are happy to telephone them.

All my beneficiaries are overseas? Who should be the executors?

Q: My client’s beneficiaries are all overseas. He is considering appointing his Australian friends as executors of his Will. Instead, is it better to appoint the beneficiaries as executors even though they do not live in Australia?

A: It’s best to appoint the overseas beneficiaries as executors and perhaps one Australian resident. Typically, beneficiaries have a vested interest in the efficient and cost-saving administration of the estate. This aligns with their goals and the responsibilities of an executor. Their location, whether in Australia or abroad, does not inherently impede their ability to act as executors: modern communication methods, interpreters and the availability of professional local advice bridge the geographical gap.

What does an Executor do?

Executors are people named in your Will to carry out your wishes in your Will. Their responsibilities include securing a grant of probate (only if required), gathering your assets, settling debts and taxes, and distributing the remaining estate to your heirs as dictated by your Will.

Usually, the executors are also the beneficiaries.

Executors and Beneficiaries can live outside of Australia

Your executors and beneficiaries can live in any country. They do not need to be living in Australia.

They do not need to have ever lived or ever been to Australia.

There is no requirement that your Executors or Beneficiaries speak English.

Executors can administer an estate and get Probate from anywhere in the world. They do not need to be in Australia to fulfil your Will’s wishes.

(You, as the Australian will maker, also do not need to live in Australia. Australian expats can build Australian Wills on Legal Consolidated’s website.)

Extra tax burdens if there is no Australian Executor

If all your executors live outside Australia on the date of your death, then your estate is classified as a ‘non-resident trust’. This classification suffers three extra death taxes (This is in addition to the usual four death taxes that all Australians suffer):

1. Your estate loses the annual tax-free allowance, usually available for three years following death.
2. Income generated on your Australian assets post-death incurs taxes at higher non-resident rates.
3. The estate might lose the 50% discount on capital gains tax generally on the sale of ‘Taxable Australian Property,’ such as real estate.

Consequently, your estate faces seven death taxes rather than the usual four death taxes. These extra death taxes are discussed further below.

Make sure you have at least one Australian Executor in Your Will

When building your will, one important decision is who to appoint as your executor—the person responsible for managing your estate after you die. While your executor does not need to live in Australia, there are financial consequences if all of your executors are non-residents of Australia. Therefore, your estate is classified as a ‘non-resident trust,’ leading to higher taxes. Below are the three main tax issues your estate could face.

1. Loss of the Tax-Free Threshold

Usually, when someone dies, their estate receives an annual tax-free allowance for three years. This means that the estate pays no tax on a certain amount of income during this time. However, if non-resident executors manage your estate, it will not be eligible for this tax-free allowance. As a result, your estate may have to pay more tax than it otherwise would.

2. Higher Taxes on Australian Income

If your estate has income from Australian assets, such as rental properties or investments, this income would generally be taxed at resident rates. However, if all of your executors live overseas, your estate is taxed at higher non-resident rates. This means that the money earned from Australian assets is taxed more heavily than if you had an Australian resident as an executor.

3. Loss of Capital Gains Tax Discount

In Australia, there is usually a 50% discount on capital gains tax (CGT) when selling certain types of property, such as real estate. This discount can significantly affect how much tax your estate needs to pay when selling assets. However, if your estate is considered a non-resident trust, it may not qualify for this discount, resulting in a larger tax bill when selling taxable Australian property.

Why Having at least one Australian Executor is important

Having at least one Australian resident executor stops these additional death taxes. If your executors are all non-residents, your estate could pay significantly more tax. By appointing an Australian resident as one of your executors, you could help reduce the tax burden on your estate and ensure more of your assets go to your beneficiaries.

Look to friends and family who live in Australia to be your one Australian executor. Legal Consolidated’s service includes helping your executor determine whether they need Probate.

While having an Australian executor is not legally required, it is essential to consider the potential tax impact on your estate if all of your executors are non-residents. Having an Australian resident as an executor saves your estate from higher taxes and ensures a smoother process for asset distribution.

How do I stop this foreigner death tax in Australia?

To stop these extra death taxes, consider appointing an Australian resident as one of the executors.

All executors of your Will do not need to be based in Australia. If one executor is an Australian resident, your estate will not be treated as a non-resident trust, thus avoiding these specific tax repercussions.

But what if the Executors need help?

If Executors need to get a final tax return, they can email accountants in Australia to quote for the work. They can also seek investment advice from a financial planner.

If they want a lawyer to prepare an application for a Grant of Probate, then they can email lawyers to get a quote.

This is the same for real estate agents and other professionals.

We will help your executors at no cost as part of the service, which is included in the cost of the 3-Generation Testamentary Trust.

Managing Australian Mirror Wills When Living Overseas

Question: My wife is an Australian tax resident, but I am not. We both live and work overseas. In my Will, I leave everything to my wife and appoint her as the sole executor. She has done the same in her Will, creating classic mirror Wills. This setup works if I die first because she is a tax resident. However, what happens if she dies first and I, a non-resident, am the sole executor?

Answer: This situation complicates some Wills, but not the Legal Consolidated 3-Generation mirror Wills. As part of your Will’s building process, you nominate additional Backup Executors. These might include your children. If your children are under 18, you must also appoint a relative such as a grandparent or uncle to serve alongside them. You can add as many Backup Executors as you wish to make sure at least one is not a foreigner.

If your wife dies first, you renounce your role as executor. The Backup Executors then step in to administer your late wife’s estate.

You are taxed as a foreign trust if the sole Beneficiary is a foreigner

Question: Does having a foreign resident as the Primary Beneficiary of a 3-Generation Testamentary Trust have adverse tax consequences?

Answer: If your Will names a sole beneficiary who is a foreigner, your estate suffers the foreigner tax rules. However, this issue does not affect a 3-Generation Testamentary Trust Will. Although the Primary Beneficiary is a foreigner for tax purposes, many other beneficiaries could receive assets if the Primary Beneficiary wished to do so.

The 3-Generation Testamentary Trust works like a Family Trust, which includes thousands of beneficiaries. This structure allows for flexible distribution strategies that mitigate potential tax issues associated with a foreign Primary Beneficiary.

In NSW: Executors living outside of Australia appoint an attorney to get the Grant of Probate – Section 72 Probate and Administration Act 1898

Generally, in NSW, the Supreme Court of New South Wales will not grant probate to a person living outside of Australia. This is even if you are an Australian citizen. Section 72 Probate and Administration Act 1898 (NSW) allows the administration to be granted to your attorney. You appoint some other person within NSW under a power of attorney to act for you as Executor.

If you need help building your 3-Generation Testamentary Trust Wills, just telephone us. But before you ring us, start the building process first. It is highly educational and free.

Does my Will operate in all states of Australia?

Yes, Legal Consolidated is a national law firm, and your Will is drafted to operate in all states and territories of Australia. Additionally, it conforms to the provisions of the Hague Convention, ensuring its recognition and effectiveness in most other countries as well. This means that regardless of where you reside or hold assets within Australia or internationally, the stipulations of your Will are designed to be upheld according to local and international legal standards.

You can also build eight different POAs and eight different lifestyle POAs—16 in all—for every State and territory in Australia.

See also:

Divorce Protection Trusts in Wills

Married man marries sex worker

Can Family Trust override the Family Court

Who builds your SMSF Deeds – a law firm or someone else?

11: Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions
Entry into force: 5-I-1964

CONVENTION ON THE CONFLICTS OF LAWS RELATING TO THE FORM OF TESTAMENTARY DISPOSITIONS

(Concluded 5 October 1961)

The States signatory to the present Convention,

Desiring to establish standard provisions on the conflicts of laws relating to the form of testamentary dispositions,

Have resolved to conclude a Convention to this effect and have agreed upon the following provisions:

Article 1 Hague Convention

A testamentary disposition shall be valid as regards form if its form complies with the internal law:

a)  of the place where the testator made it, or
b)  of a nationality possessed by the testator, either at the time when he made the disposition, or at the time of his death, or
c)  of a place in which the testator had his domicile either at the time when he made the disposition, or at the time of his death, or
d)  of the place in which the testator had his habitual residence either at the time when he made the disposition, or at the time of his death, or
e)  so far as immovables are concerned, of the place where they are situated.

For the purposes of the present Convention, if a national law consists of a non-unified system, the law to be applied shall be determined by the rules in force in that system and, failing any such rules, by the most real connexion which the testator had with any one of the various laws within that system.

The determination of whether or not the testator had his domicile in a particular place shall be governed by the law of that place.

[Article 1 of the Hague Convention is the cornerstone for ensuring that a Will’s form is recognised internationally. It provides a flexible framework by validating testamentary dispositions under various legal systems connected to the testator’s life. This flexibility reduces the risk of a Will being deemed invalid due to technicalities in form, especially in cross-border situations.

The article outlines five key connections that determine the applicable law for validating a testamentary disposition:

• • • Place of Execution: A Will is valid if it complies with the law of the location where it was made. This is the most immediate safeguard for testators.

    • Nationality: A Will is valid if it adheres to the laws of any country where the testator holds citizenship, either at the time of creating the Will or at death. This ensures recognition in jurisdictions linked to the testator’s identity.

    • Domicile: The Will’s form is upheld if it aligns with the laws of the testator’s domicile, either when the Will was executed or upon death. Domicile ties a person to a specific legal system and is often the default criterion for estate matters.

    • Habitual Residence: A more flexible criterion, this applies to places where the testator lived regularly. It accommodates modern realities where individuals frequently relocate internationally.

    • Immovable Property: For real estate, the law of the property’s location governs its disposition. This provides clarity and respects the local jurisdiction’s sovereignty over land.

Non-unified Systems and Domicile Determination

Where a country’s legal system is non-unified (e.g., federal systems with different state laws), the applicable law is determined by internal rules or, failing that, the testator’s strongest connection within the system. Domicile is assessed based on the law of the jurisdiction where it is claimed, adding another layer of specificity.

Relevance to Legal Consolidated’s Testamentary Trust Wills

Legal Consolidated’s 3-Generation Testamentary Trusts are meticulously drafted to comply with Article 1’s principles. They are designed to align with the laws of all jurisdictions where the testator may have connections—ensuring global enforceability. For example:

• • • If a testator resides in Australia but owns real estate in France, the Testamentary Trust Will accounts for the French property’s local laws.
    • If the testator holds dual nationality, the Will satisfies the requirements of both nations to prevent challenges from conflicting legal systems.

By embracing Article 1’s flexible approach, Legal Consolidated ensures your Will remains valid across multiple jurisdictions. This eliminates the need for redundant documentation and minimises the risk of legal disputes. The Testamentary Trusts also include clauses addressing domicile and habitual residence, further strengthening the Will’s enforceability worldwide.

In summary, Article 1 provides a powerful framework for international estate planning. Legal Consolidated maximises these protections by drafting Wills that are enforceable in every jurisdiction relevant to your life and assets. With this comprehensive approach, your estate planning is secure, no matter where your assets or heirs are located.]

 

Article 2 Hague Convention

Article 1 shall apply to testamentary dispositions revoking an earlier testamentary disposition.

The revocation shall also be valid as regards form if it complies with any one of the laws according to the terms of which, under Article 1, the testamentary disposition that has been revoked was valid.

[Article 2 of the Hague Convention reinforces the principle of validating testamentary revocations under multiple legal systems. This protects the testator’s intent and provides flexibility in managing international estates.

Revoking a testamentary disposition is as critical as drafting one. Article 2 ensures that a revocation’s validity is upheld if it complies with the laws that governed the original testamentary document under Article 1. This multi-jurisdictional safeguard reduces the risk of unintended consequences when managing assets across borders.

Legal Consolidated’s 3-Generation Testamentary Trust Wills seamlessly comply with the Hague Convention. They are crafted to ensure not only the validity of your original Will but also any revocations. This provides peace of mind when assets are spread internationally. For Australians, these Wills operate within the robust framework of the Hague Convention, ensuring both local and global recognition.

This provision’s flexibility is invaluable. For example, if a client revokes a Will that complied with Canadian law while residing in Australia, the revocation remains valid under either legal system. However, such actions must be deliberate and precise. Poorly drafted documents can cause unintentional revocations, resulting in chaos for beneficiaries.

By using a Legal Consolidated Testamentary Trust, the potential for conflicting revocations is reduced. These Trusts include specific clauses to coordinate with any overseas Wills or revocations. This ensures a harmonious application of Article 2, avoiding cross-jurisdictional disputes.

International estate planning is complex. Legal Consolidated simplifies it with comprehensive solutions that comply with global standards.]

 

Article 3 Hague Convention

The present Convention shall not affect any existing or future rules of law in Contracting States which recognise testamentary dispositions made in compliance with the formal requirements of a law other than a law referred to in the preceding Articles.

[Article 3 of the Hague Convention provides a critical safeguard for testamentary freedom. It clarifies that the Convention does not override or limit the ability of Contracting States to recognise Wills executed under other formal legal systems beyond those specified in Articles 1 and 2. This ensures that domestic laws can still validate Wills that fall outside the Convention’s primary framework.

This provision promotes inclusivity and legal certainty. For example, some jurisdictions may recognise Wills drafted under traditional or religious laws, even if they do not conform strictly to the Hague Convention standards. Article 3 acknowledges these practices, allowing Contracting States to maintain flexibility in their domestic legal systems.

Legal Consolidated’s 3-Generation Testamentary Trusts leverage this flexibility. While our Wills are drafted to meet the Hague Convention’s standards for global recognition, they also respect and align with the unique laws of each jurisdiction where your assets are located. This dual approach ensures that your estate plan is enforceable both under the Convention and under local rules where exceptions might apply.

This article underscores the importance of tailored estate planning. Without comprehensive legal advice, assets governed by non-standard laws may be left unprotected. Legal Consolidated addresses this risk by drafting Testamentary Trust Wills that adapt to the diverse legal environments in which your assets may exist.

In essence, Article 3 safeguards the broad applicability of testamentary dispositions. It complements the Hague Convention’s universal principles while allowing Contracting States to honour valid Wills outside those principles. By choosing a Legal Consolidated Testamentary Trust, you maximise this flexibility, ensuring your estate plan is both robust and internationally enforceable.]

 

 

Article 4 Hague Convention [two Wills in one document]

The present Convention shall also apply to the form of testamentary dispositions made by two or more persons in one document.

Article 4 of the Hague Convention extends its provisions to testamentary dispositions made jointly by two or more individuals within a single document, commonly referred to as joint Wills. This inclusion ensures that such Wills are recognised across Contracting States, provided they meet the Convention’s formal requirements.

[In Australia, joint Wills—where multiple persons’ testamentary intentions are consolidated into one document—are uncommon and generally not recommended. Legal practitioners advise against them due to their impracticality and potential complications. Instead, Australian couples often opt for Mirror Wills:

• • • Mirror Wills: Separate documents where each partner’s Will reflects the other’s terms, allowing individual amendments as circumstances change.

Legal Consolidated does not prepare joint Wills, aligning with the prevailing Australian legal practice that favours individual Wills tailored to each person’s circumstances. For a comprehensive explanation of this approach, please refer to our detailed articles on Mirror Wills and Mutual Wills.

In summary, while Article 4 of the Hague Convention accommodates joint Wills, such practices are rare in Australia. Legal Consolidated adheres to the standard of preparing individual Wills to ensure clarity, flexibility, and alignment with best legal practices.]

 

Article 5 Hague Convention

For the purposes of the present Convention, any provision of law which limits the permitted forms of testamentary dispositions by reference to the age, nationality or other personal conditions of the testator, shall be deemed to pertain to matters of form. The same rule shall apply to the qualifications that must be possessed by witnesses required for the validity of a testamentary disposition.

 

Article 6 Hague Convention

The application of the rules of conflicts laid down in the present Convention shall be independent of any requirement of reciprocity.

The Convention shall be applied even if the nationality of the persons involved or the law to be applied by virtue of the foregoing Articles is not that of a Contracting State.

[Article 6 of the Hague Convention ensures the broad application of its rules by removing the need for reciprocity between countries. This means that even if the jurisdiction whose law is being applied is not a party to the Convention, the principles set forth in the Convention still apply.

Key Implications of Article 6:

• • • No Reciprocity Requirement: The effectiveness of the Convention is not limited to interactions between Contracting States. A Will made in compliance with the Convention’s rules is valid even if the testator’s nationality or the applicable law is tied to a non-Contracting State. For example, if an Australian testator creates a Will governing assets in a country not party to the Hague Convention, Article 6 ensures the Convention’s rules remain applicable.

    • Universal Application: This article reinforces the Convention’s aim to harmonise testamentary formalities globally, providing certainty to testators with international connections. It eliminates concerns about whether a non-Contracting State would apply reciprocal recognition.

    • Safeguard Against Jurisdictional Gaps: By not requiring mutual agreements between countries, the Convention bridges gaps where local laws might otherwise invalidate cross-border testamentary dispositions.

Relevance to Legal Consolidated’s Testamentary Trusts

Legal Consolidated’s 3-Generation Testamentary Trust Wills are specifically designed to comply with the Hague Convention, including Article 6’s principles. This ensures that your Will is effective regardless of whether all relevant jurisdictions are Contracting States. For example:

• • • A Legal Consolidated Testamentary Trust can direct assets in both Contracting States (e.g., the United Kingdom) and non-Contracting States (e.g., certain Asian countries) without losing validity.

    • The Will incorporates provisions to ensure that even non-Contracting jurisdictions respect the formalities laid down under the Convention.

Practical Importance

Without the safeguard of Article 6, testators might face challenges ensuring their Wills are valid in non-Contracting States. This article removes such barriers, guaranteeing broader enforceability. However, as the laws in non-Contracting States may vary, it remains essential to seek local legal advice for assets held in those jurisdictions.

In summary, Article 6 underpins the universality of the Hague Convention, ensuring its rules apply without the limitations of reciprocity. Legal Consolidated’s Testamentary Trust Wills are drafted to maximise this protection, providing peace of mind for testators with global assets and connections.]

 

 

Article 7 Hague Convention

The application of any of the laws declared applicable by the present Convention may be refused only when it is manifestly contrary to “ordre public“.

 

Article 8 Hague Convention

The present Convention shall be applied in all cases where the testator dies after its entry into force.

 

Article 9 Hague Convention

Each Contracting State may reserve the right, in derogation of the third paragraph of Article 1, to determine in accordance with the lex fori the place where the testator had his domicile.

 

Article 10 Hague Convention

Each Contracting State may reserve the right not to recognise testamentary dispositions made orally, save in exceptional circumstances, by one of its nationals possessing no other nationality.

 

Article 11 Hague Convention

Each Contracting State may reserve the right not to recognise, by virtue of provisions of its own law relating thereto, forms of testamentary dispositions made abroad when the following conditions are fulfilled:

a)  the testamentary disposition is valid as to form by reason only of a law solely applicable because of the place where the testator made his disposition,
b)  the testator possessed the nationality of the State making the reservation,
c)  the testator was domiciled in the said State or had his habitual residence there, and
d)  the testator died in a State other than that in which he had made his disposition.

This reservation shall be effective only as to the property situated in the State making the reservation.

 

Article 12 Hague Convention

Each Contracting State may reserve the right to exclude from the application of the present Convention any testamentary clauses which, under its law, do not relate to matters of succession.

 

Article 13 Hague Convention

Each Contracting State may reserve the right, in derogation of Article 8, to apply the present Convention only to testamentary dispositions made after its entry into force.

 

Article 14 Hague Convention

The present Convention shall be open for signature by the States represented at the Ninth Session of the Hague Conference on Private International Law.

It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

 

Article 15 Hague Convention

The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of ratification referred to in the second paragraph of Article 14.

The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after the deposit of its instrument of ratification.

 

Article 16 Hague Convention

Any State not represented at the Ninth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 15. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.

The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument of accession.

 

Article 17 Hague Convention

Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect on the date of entry into force of the Convention for the State concerned.

At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.

The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the notification referred to in the preceding paragraph.

 

Article 18 Hague Convention

Any State may, not later than the moment of its ratification or accession, make one or more of the reservations mentioned in Articles 9, 10, 11, 12 and 13 of the present Convention. No other reservation shall be permitted.

Each Contracting State may also, when notifying an extension of the Convention in accordance with Article 17, make one or more of the said reservations, with its effect limited to all or some of the territories mentioned in the extension.

Each Contracting State may at any time withdraw a reservation it has made. Such a withdrawal shall be notified to the Ministry of Foreign Affairs of the Netherlands.

Such a reservation shall cease to have effect on the sixtieth day after the notification referred to in the preceding paragraph.

 

Article 19 Hague Convention

The present Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 15, even for States which have ratified it or acceded to it subsequently.

If there has been no denunciation, it shall be renewed tacitly every five years.

Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before the end of the five year period.

It may be limited to certain of the territories to which the Convention applies.

The denunciation will only have effect as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.

[Article 19 establishes the framework for the Hague Convention’s longevity and the process for withdrawing (denouncing) it. This article ensures stability in the Convention’s application while allowing Contracting States flexibility in their participation.

Key Provisions of Article 19:

• • • Initial Term of Five Years: The Convention is guaranteed to remain in force for at least five years from the date of its entry into force. This provides a stable foundation for Contracting States to implement and rely on its principles.

    • Automatic Renewal: If no State actively denounces the Convention, it is automatically renewed every five years. This mechanism avoids unnecessary disruptions and ensures continuity in international testamentary law.

    • Denunciation Process:

      • A Contracting State may withdraw from the Convention by notifying the Ministry of Foreign Affairs of the Netherlands.
      • The notification must occur at least six months before the end of the current five-year period.
      • Denunciation can be partial, applying only to specific territories under a State’s jurisdiction.

    • Effect of Denunciation:

      • The withdrawal applies solely to the denouncing State or the specified territories.
      • The Convention continues to bind all other Contracting States, ensuring its broader application is not undermined by individual denunciations.

Relevance to Legal Consolidated’s Testamentary Trusts

Legal Consolidated’s 3-Generation Testamentary Trust Wills are built to withstand changes in international frameworks. Even if a State withdraws from the Hague Convention, the Wills are designed to comply with the local laws of relevant jurisdictions. For example:

• • • If a Contracting State denounces the Convention, Legal Consolidated’s Wills remain effective by including provisions that align with the underlying domestic legal principles governing testamentary formalities.

    • The Wills also adapt to regional changes by incorporating contingency clauses to address jurisdictional shifts, ensuring they remain valid and enforceable.

Practical Importance of Article 19

Article 19 provides assurance to testators that the Convention’s principles are not easily disrupted. Automatic renewal reinforces its stability, while the six-month notice requirement ensures adequate time for stakeholders to adjust to any denunciation.

For testators with international assets, the possibility of a State withdrawing from the Convention underscores the need for Wills that are flexible and comprehensive. Legal Consolidated addresses this by drafting Wills that comply not only with the Hague Convention but also with the domestic laws of the jurisdictions where your assets are located.

In summary, Article 19 balances stability with flexibility, allowing the Convention to evolve without compromising its integrity. Legal Consolidated’s Testamentary Trust Wills ensure your estate planning remains robust, even in the face of potential denunciations or legal changes in specific jurisdictions.]

 

 

Article 20 Hague Convention

The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 14, and to the States which have acceded in accordance with Article 16, of the following:

a)  the signatures and ratifications referred to in Article 14;
b)  the date on which the present Convention enters into force in accordance with the first paragraph of Article 15;
c)  the accessions referred to in Article 16 and the date on which they take effect;
d)  the extensions referred to in Article 17 and the date on which they take effect;
e)  the reservations and withdrawals referred to in Article 18;
f)  the denunciation referred to in the third paragraph of Article 19.

In witness whereof the undersigned, being duly authorised thereto, have signed the present Convention.

Done at The Hague the 5th October 1961, in French and in English, the French text prevailing in case of divergence between the two texts, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Ninth Session of the Hague Conference on Private International Law.