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Wills and Estates: What happens when you have assets in another country?

Most people will have only one Will.  When drafting a Will, the last Will usually revokes all prior Wills.

For those lucky enough to have assets in more than one country, it is common to have a Will made in each country which deals only with the assets within that country.  You would then have more than one Will.

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 benefit 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, 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 on (07) 4637 6300 or alternatively, send us a direct online enquiry.

[1] Re Perry [2021] QSC 97

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