Can I contest the validity of a will executed overseas?

Published 05 Jun 2018

Author: Garbis Kolokossian

Australia is one of the most multicultural countries in the world. Nearly half of the population is either a first-generation immigrant or has at least one parent who was born overseas, according to the 2016 Australian Bureau of Statistics Census.

But what happens when a person dies in NSW and their will was executed in a foreign country? While most people update their will when they relocate, this may not always be the case, so how do Australian courts deal with these matters? The Succession Act 2006 (NSW) provides insight into the validity of wills executed overseas.

Does the will conform to 'internal law'?

Every country has its own succession laws, and while there are often similarities in some countries, no two statutory approaches to inheritance disputes are the same.

When the validity of a will is contested in NSW, the courts will examine the relevant legislation for the foreign land in which the document was executed. Section 48 of the Act refers to this as the 'internal law' of that place.

In other words, the execution of the will does not necessarily have to conform to NSW succession laws to be considered valid in the state. Ultimately, you may be able to contest the validity of a will written and executed overseas, but you can't expect Australian inheritance rules to apply.

You should nevertheless contact an experienced contesting wills lawyer to have the specific circumstances of your case assessed.

Was the will signed between different foreign lands?

This may sound like an odd question, but it's possible for someone to execute a will while travelling on board a vessel or aircraft that is travelling between countries or international waters.

The Act provides some clarification, stating that the applicable succession laws should be those with which the aircraft or vessel is most closely associated based on registration or other relevant circumstances. For example, a will signed on a Qantas flight from Sydney to Dubai could be argued as executed under NSW law because the airline is based out of Australia and is headquartered in Mascot, Sydney.

What steps should I take to contest a will executed overseas?

As we can see, succession laws can be complex and there is no guarantee which legislation would be applied to a will signed and executed in a foreign place.

Please get in touch with Gerard Malouf & Partners Will Dispute Lawyers to find out whether or not you can contest a particular will under Australian or international laws.

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