International Wills in Australia: They Secure Formalities, Not Probate

3 September 26
Uncategorized

Yes, Australia recognises an international will under the UNIDROIT Convention, but that recognition only standardises the will’s formalities. It does not remove probate, resolve which country’s inheritance rules apply, or settle tax questions for your beneficiaries. If you hold assets in more than one country, check the will meets the international will formalities and get Australian legal advice before you assume it will do the job alone.

TL;DR:

  • An Australian international will only standardizes formalities and does not address probate, inheritance rules, or taxes for cross-border assets.
  • The will must be in writing, signed in front of two witnesses and an authorized person, with all signing each page and a certificate attached to confirm formalities.
  • An international will’s validity depends on correct execution; it does not guarantee acceptance of content by foreign courts with forced heirship rules.
  • Creating an effective international will requires mapping assets and jurisdictions, getting local advice, and executing with proper formalities, especially if estate complexity increases.
  • Mistakes like incomplete certificates or improper witnessing common in DIY templates can lead to costly disputes, making professional cross-border estate planning essential.

Table of Contents

What is an international will and how does the UNIDROIT convention work in Australia?

The Convention Providing a Uniform Law on the Form of an International Will exists to solve one specific problem: a will drafted for cross-border assets used to be judged against whichever country’s formal rules a court happened to apply, and small errors in signing or witnessing could sink an otherwise sound document. UNIDROIT built a single set of formal requirements that member countries agree to accept, regardless of where the will was signed or where the testator was domiciled.

Australia acceded to the convention in September 2014, and it entered into force here on 10 March 2015. The Attorney-General’s Department explains that the convention harmonises and simplifies proof of a will’s formalities where the estate has genuine international characteristics.

Recognition only runs between countries that have actually signed up. Multiple countries currently form part of the regime, including Australia, the United Kingdom, Italy, France, and Canada (in several provinces).

If your assets sit in a country outside that list, the international will format buys you nothing there.

What formalities must an international will meet in Australia?

An international will made overseas NSW residents rely on, or one drafted here for assets abroad, only qualifies if it follows a strict execution process. Get any one of these steps wrong and the “international” protection disappears, leaving you with an ordinary will that may or may not satisfy local formal rules.

  1. The will must be in writing, in any language, and does not need to be handwritten.
  2. The testator signs in the presence of two witnesses and an “authorised person” (in Australia, typically a solicitor).
  3. All three (testator, witnesses, authorised person) sign each page, and the testator confirms the document reflects their wishes.
  4. The authorised person attaches a certificate confirming the formalities were followed. This certificate is what a foreign court relies on instead of re-examining the whole execution process.

Each state gives effect to the convention through its own legislation, such as the Wills Amendment (International Wills) Act 2012 in Western Australia. Comparable provisions exist elsewhere, but the drafting details differ slightly, so check the Making & Amending A Will requirements in your own state before signing anything.

Pro Tip: Keep the certificate stapled or bound to the will itself. A separated certificate is one of the most common reasons a court asks extra questions during probate.

Does an international will fix everything, or just the paperwork?

An international will fixes formal validity. It says nothing about whether the document’s content will hold up once it reaches a foreign court, and that gap catches a lot of people out.

Several civil-law countries apply forced heirship rules, which override a testator’s wishes and reserve a fixed share of the estate for children or a spouse regardless of what the will says. France, Italy, and much of continental Europe work this way, and it’s a genuinely different framework to Australia’s approach, as this comparative look at Swiss and European succession law sets out for affluent families with cross-border holdings.

In Australia, the practical hurdles usually show up at probate:

  • The Supreme Court in the relevant state still has to grant probate or, for a foreign grant, “reseal” it before an executor can deal with local assets.
  • Cross-border estates routinely take longer to finalise than single-jurisdiction ones, largely because courts want proof the will meets formal requirements in every jurisdiction it touches.
  • Beneficiaries face no Australian inheritance tax on the assets themselves, but capital gains tax can apply when they later sell an inherited asset, and income earned from the asset in the meantime is taxable in the usual way.

None of that is solved by ticking the UNIDROIT formality box.

How do you actually create an international will from Australia?

Getting this right is less about the document itself and more about the sequence you follow before you sign anything.

  1. Map every asset and jurisdiction. List where property, bank accounts, shares, and business interests sit, because that list determines which countries’ rules matter.
  2. Get local advice where assets are located. A solicitor qualified in that country can flag forced heirship, local tax, or registration quirks an Australian lawyer simply won’t know.
  3. Decide if an international will alone covers it. For straightforward estates it may; for anything involving trusts, family businesses, or contested family relationships, it usually doesn’t.
  4. Execute correctly. Use the standard international will form and certificate, sign in front of an authorised person and two witnesses, and confirm consular execution if you’re signing overseas.
  5. Store the original securely and tell your executor exactly where it is. A will nobody can find is functionally no will at all.

Pro Tip: Where your estate spans more than two countries, consider a purpose-built Australian will for local assets alongside the international will covering the rest. It’s often the fastest way through probate here.

What if you already have a foreign will covering Australian assets?

Plenty of expats and long-term migrants arrive in Australia holding a will drafted years earlier under a different country’s law, and never revisit it.

An Australian Supreme Court examining a foreign will checks whether it was validly executed under the law of the place it was made, or under the testator’s domicile or nationality at the relevant time. It doesn’t automatically defer to the fact a will exists.

  • Foreign wills that pass this test can usually be admitted to probate, but the process often takes longer and costs more than probating a locally drafted will.
  • Genuine cross-border estates frequently need a formal court application before assets can be released, and early review by an Australian wills lawyer tends to shorten that process considerably.
  • Keep the original document safe, avoid signing anything that could be read as revoking it, and get it reviewed against current Australian and foreign law rather than assuming it still works.

What does drafting and probate actually cost in Australia?

Costs vary by complexity, but there are reliable patterns worth knowing before you start.

A lawyer-drafted will for a straightforward estate typically costs a few hundred dollars; complex cross-border wills with trusts or business interests cost considerably more because of the extra advice involved. Public trustee offices offer a cheaper drafting service in most states, though turnaround and personalisation are limited. Probate application fees are set by each state’s Supreme Court and scale with the size of the estate.

  • Straightforward single-jurisdiction estates often clear probate within a few months.
  • Cross-border estates, disputed estates, or those needing a foreign grant resealed here regularly take considerably longer.
  • Superannuation, family trusts, and company shareholdings sit outside the will’s direct control and need separate steps such as binding death nominations or trust deed reviews, adding both cost and time if left unaddressed.

What do lawyers see go wrong with cross-border wills?

The mistakes that create the most cost and stress are rarely dramatic. They’re small, procedural, and entirely avoidable.

What do lawyers see go wrong with cross-border wills? — overview diagram

DIY will kits are a recurring culprit. Reporting on will kits has repeatedly flagged that a cheap template offers no professional indemnity cover if something goes wrong, and cross-border estates are exactly where the nuance a template can’t capture tends to matter most. Incorrect witnessing, certificates left unattached, and superannuation nominations that contradict the will itself are the three issues Simons George Legal sees most often in cross-border matters.

Disputes usually surface once an executor tries to deal with an asset a foreign court or institution won’t recognise, and by then the fix costs far more than it would have upfront. Simons George Legal builds complementary wills, coordinates cross-border planning, and supports executors through the probate process so these gaps get caught before they become court applications.

— George

Cross-border estate disputes can be expensive to fight, and cost shouldn’t be the reason someone with a legitimate claim walks away from it. Simons George Legal offers No Win, No Fee arrangements for eligible cases, with eligibility assessed during a free initial consultation. That removes the upfront cost barrier for people who have a genuine claim but are worried about legal fees stacking up before they see any outcome. If you think you have a case worth pursuing, book a free case assessment and find out where you stand.

No Win, No Fee arrangements are subject to case eligibility and a written costs agreement. Liability limited by a scheme approved under Professional Standards Legislation.

Where to check the rules yourself

For readers who want to verify any of this directly, the primary sources are public. UNIDROIT publishes the convention text, the model form, and the current list of signatory states. The Attorney-General’s Department and NSW Government wills guidance explain how the framework applies locally, and the ATO’s guidance on inherited assets covers the CGT questions beneficiaries face.

Get your international will right the first time

If you’re holding assets in two or more countries, an international will can genuinely simplify the formal side of things, but it’s not a set-and-forget document. Simons George Legal drafts and reviews international wills for Sydney clients with property, super, or family interests spanning multiple countries, and pairs that drafting with the practical cross-border planning most templates skip entirely.

Simons George Legal

What sets this apart from a generic will kit or an overseas-only solicitor is coordination: a lawyer who understands both the UNIDROIT formalities and how Australian courts actually handle foreign wills at probate. That matters most for blended families, business owners, and anyone with superannuation or trust interests that a will alone won’t control. Simons George Legal offers a complimentary 30-minute consultation to assess your situation and map out whether an international will, a complementary Australian will, or both, fits your circumstances. Start with wills and estates services in Bondi and book that first conversation before you sign anything overseas.

This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.

Sources

FAQ

Are foreign wills valid in Australia?

A foreign will can be admitted to Australian probate if it was validly executed under the law of the place it was made, or the testator’s domicile or nationality, but the process often takes longer than probating a locally drafted will.

Do I pay tax on overseas inheritance in Australia?

Australia doesn’t impose inheritance tax on the assets you receive, but you may owe capital gains tax when you later sell an inherited asset, and income it generates in the meantime is taxable as usual.

Can you write your own will without a lawyer in Australia?

You can, but DIY kits carry no professional indemnity cover and commonly fail on witnessing or execution details, a risk that grows sharply once assets or beneficiaries span more than one country.

How much should a will cost in Australia?

A straightforward lawyer-drafted will typically costs a few hundred dollars, while complex cross-border wills involving trusts or multiple jurisdictions cost more given the extra legal advice required; public trustee services offer a cheaper but less tailored alternative.

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