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Wills made interstate or overseas

It can be time consuming and expensive to sort out property left in a Will where the property is overseas.

A Will that has been executed outside Victoria will be recognised as valid in Victoria if it was properly executed according to the law that was in force:

  • where the Will was executed
  • where the Will-maker was domiciled (or habitually lived) either when the Will was executed or at time of the Will-maker's death
  • in the country of Will-maker's nationality.

If a Will is not properly executed

The Supreme Court can make decisions about Wills that are not properly executed, even if the Will was created outside Victoria.

The court can allow a document to be admitted to probate even if the document lacks some of the formalities needed to make it a valid Will. The court's decision relies on whether it believes that the Will-maker intended to create a valid Will.

The court also has power to revoke or admit additions or alterations to a Will that is lacking in formalities.

If more than one system of law was operating at the time that a Will is made, in the absence of any rule determining which law applies, the applicable law will be the one that the testator was most closely connected with.

Wills written in a language other than English

It is not necessary that a Will be written in English, however it will need to be translated into English. This will add to the cost of administering the estate.

Making an international Will

From 10 March 2015 a person can make a Will that is more easily recognised as valid in other countries.

See International Wills.

More information

Legislation

There are two Acts that apply in Victoria. The new Act commenced operation on 20 July 1998.

Wills Act 1997 (Vic)

  • s. 9(4)—applies to a document whether created within or outside Victoria
  • s. 17—validity of a Will executed in a foreign place
  • s. 18—deciding which system of law is applicable
  • s. 19—construction of law that applies to Will
  • s. 30—recognition of statutory Will interstate

See Wills Act 1997 (Vic).

Wills Act 1958 (Vic)

  • s. 20—how a revoked Will shall be revived
  • s. 20A—formal validity of Wills
  • s. 20B—general rules as to formal validity
  • s. 20C—additional rules

See Wills Act 1958 (Vic).

Family Law Act 1975 (Cth)

  • Part 6—divorce and nullity of marriage.

See Family Law Act 1975 (Cth).

Administration and Probate Act 1958 (Vic)

  • Part 3—recognition of foreign grants.

See Administration and Probate Act 1958 (Vic).

Updated