A will outlines your wishes for how your assets are distributed, to whom, how much, and at what time. In addition, a will governs the administration of the property within the jurisdiction the Will was properly executed.
However, Governments have begun to enter into more international treaties or agreements due to many of their domiciles holding different forms of property in various jurisdictions in the world. One such agreement was in 1973, the Convention Providing a Uniform Law on the Form of an International Will (“Convention”). The intention of this Convention was to allow wills signed and executed in one jurisdiction to be applicable in another jurisdiction, regardless of which jurisdiction the assets or domicile was located. Thus, limiting the conflicts of laws that would have risen otherwise.
However, even signatory States may not have introduced the appropriate legislation required by the Convention across their entire dominion or have limited jurisdictions therein which have ratified the appropriate legislation.
Notwithstanding the foregoing, in the event that the jurisdictions are both signatories of the Convention and have ratified the appropriate legislation therein; the condition precedents for a will to be considered internationally recognized requires that the will:
- Must be executed by a licenced and practicing member of the Law Society of Alberta (cannot use a notary);
- Will not be applied to a testamentary disposition made by 2 or more persons in one instrument;
- Witnessed by two people and a third person authorizing to validate its execution;
- Has a certificate by the authorized person attached to it; and
- Is registered at the Office of the Public Guardian and Trustee.
Even if the above condition precedents are satisfied, and the foreign jurisdiction has ratified the appropriate legislation as set forth in the Convention; this may not ensure the appropriate disposition of the testator’s will.
One issue that may remain is that the executor of the Will may be unable to act in the foreign jurisdiction to ensure the property is correctly disposed of. For example, in Alberta, if an Executor receives authority from a Canadian Will, section 20 and section 21 of the Estate Administration Act would vest the property of the testator with the Executor. However, if the Executor is not able to access the property in the foreign jurisdiction, which may be due to immigration concerns or otherwise, they would not be able to dispose of the property.
To avoid this situation, it is recommended to have the Canadian Will appoint two executors, one for the Canadian property and one for the foreign property and to have a licenced legal practitioner in the foreign jurisdiction ensure the executor meets their State’s requirements. Another issue could be any applicable death benefits, especially if they accrue or arise in the foreign jurisdiction.
The solution with the most assurance would be to have two wills, one entailing the testator’s assets in Canada, and the other contemplating their assets in the foreign jurisdiction. If there are assets in multiple jurisdictions, a separate will should be executed in each jurisdiction.
However, it is essential that a practicing and licenced lawyer draft the appropriate will in their applicable jurisdiction to ensure that they are coordinated with each other. In that, neither dispose or gift of the same property twice or in contradiction with the other will. Further, the wills should not revoke one another, instead they should refer to each other.
Each Will may require an executor/personal representative whom meets the requirements of that responsibility in that jurisdiction. For instance, the testator may require an individual whom meets the requirements to dispose of the foreign property in that applicable jurisdiction. Again, it is essential that the testator ensures that the Executor, whom receives authority from the Will as stated in section 20 and section 21 of the Estate Administration Act, does not have any barriers to access the property in the foreign jurisdiction and satisfies the laws and regulations of the foreign State.
Navigator Law Can Help with Your Will and Estate Planning
At Navigator Law, our lawyers can give you peace of mind by ensuring that your will encompasses your assets and estate and is properly drafted based on your unique situation. If you own international property, we can help mitigate the risk of your will being declared invalid and will ensure that your wishes are met. Contact us to begin the wills process with one of our experienced wills lawyers.