Key Takeaways
- A person with assets in multiple countries may have a separate Will in each country dealing only with assets located in that jurisdiction.
- A Will commonly contains a clause revoking all earlier Wills and testamentary dispositions.
- A broadly drafted revocation clause in the most recent Will can unintentionally revoke valid Wills previously made in other countries.
- Each Will should clearly state that it applies only to assets in the relevant country and does not revoke the person’s other jurisdiction-specific Wills.
- A Queensland court may rectify a Will where its wording does not give effect to the testator’s instructions or intentions.
- Although rectification may correct an unintended drafting consequence, the court process can create additional delay, difficulty and expense for the estate.
Multiple Wills – which is final?
Such was the case for Mr Perry who had assets in the United Kingdom, Thailand and Australia. Mr Perry, with the assistance of a solicitor in each of those countries, made three Wills. The intention was for the Will made in each country to be specifically confined to operate in respect of the assets held in that country.
Mr Perry’s Australian Will was the last in time of the three Wills that he made.
Unfortunately, for Mr Perry and his Estate, the first clause of his Australian Will provided
“I hereby revoke all former Wills and Testamentary Dispositions previously made by me and declare this to be my last Will and Testament.” [1]
The unintended consequence of that clause was significant, because it was the last Will made in time, and the unintended effect of that clause was to revoke the UK and Thai Wills because they were made before the Australian Will.
That meant that the intended beneficiaries of Mr Perry’s property in Thailand and the UK would not have received the benefit that he intended.
To Rectify a Will
Section 33 of the Succession Act 1981 (Qld) enables a Court to make an Order to rectify a Will if the Court is satisfied that the Will does not carry out the Testator’s intentions. This can be because a clerical error was made or the Will does not give effect to the Testator’s instructions.
Whilst the Court was not satisfied that the problematic clause in the Australian Will amounted to a clerical error, the Court was satisfied that the Will as signed by Mr Perry did not give effect to his instructions.
Fortunately for Mr Perry’s beneficiaries, the Court made an order which altered the clause so it did not revoke his earlier UK and Thai Wills. That meant his intended beneficiaries of the assets in those countries received the benefits Mr Perry intended.
Whilst there was a remedy available to Mr Perry’s Estate, it did mean that his Estate was put to additional trouble, and certainly additional expense, in making an application to the Court to rectify Mr Perry’s Australian Will.
All of this goes to demonstrate the high level of care and attention which is necessary when undertaking your Estate administration & planning.
Contact Us
This article was prepared by Jon Wiedman, the Director who heads our team of Wills and Estate Planning lawyers.
If you need to prepare any estate planning documents or to obtain legal advice regarding your specific circumstances, please make an appointment with Jon Wiedman at our office at (07) 4637 6300 or alternatively, send us a direct online enquiry.
Frequently Asked Questions
Can a person have more than one Will?
Yes. A person with assets in different countries may make a separate Will in each country, with each Will limited to the assets located in that jurisdiction.
Does the most recent Will automatically revoke earlier Wills?
It may do so if it contains a broad clause revoking all former Wills and testamentary dispositions. This can create problems where earlier Wills were intended to remain effective for overseas assets.
How can multiple international Wills be protected?
Each Will should be carefully drafted to identify the assets and jurisdiction it covers and to confirm that it does not revoke Wills dealing exclusively with assets in other countries.
What happened to Mr Perry’s overseas Wills?
His Australian Will was made after his United Kingdom and Thai Wills and contained a clause revoking all former Wills. The clause unintentionally revoked the earlier overseas Wills.
Can a court correct a Will that does not reflect the testator’s intentions?
Section 33 of the Succession Act 1981 (Qld) allows the court to rectify a Will where it does not carry out the testator’s intentions, including where it does not give effect to their instructions.
Why is coordinated international estate planning important?
Without careful coordination, one Will may unintentionally revoke or conflict with another. Correcting the problem after death may require court proceedings and result in additional costs and delays for the estate.
