All About Estates

The International Estate Plan

A Will in every Port

The laws of succession, probate, and property differ from country to country, state to state and jurisdiction to jurisdiction. As such, a prudent testator should consider having a Will in every jurisdiction where they own property. Certainly, there are methods by which a domestic Will can be used to handle foreign assets (or the other way around) through ancillary probate processes however, this can be expensive, time-consuming and challenging for estate trustees. As a rule, it’s best for a testator to have a Will in each legal jurisdiction where they own property.

Importantly however, a foreign Will dealing with foreign assets should not be treated as a standalone Will. Careful planning to ensure that an Ontario and a foreign Will do not revoke, contradict or undermine each other is very important. In most cases this boils down to ensuring that the newest Will does not revoke a previous Will and that the foreign Will only speaks to the specific assets located in the jurisdiction in which it was drafted.

 

International Wills

The variation in the laws of succession across jurisdictions is a challenge for estate planners. As an attempt to get around this issue in 1973 several countries entered into a convention that established an international standard for what constitutes a valid Will. The Uniform International Wills Act (the “UIWA”) established that a valid will must meet the following requirements:

  • Be made in writing;
  • Be signed and dated in the presence of two witnesses and the person with the authority to sign the document; and
  • Have an attached certificate, signed and commissioned by a lawyer, confirming that the necessary requirements have been met.

Notably the UIWA allowed that a Will could be written in any language and need not be written by the testator. This is certainly a familiar and uncomplicated standard. However, a notable difference between the UIWA and Ontario’s Succession Law Reform Act (the “SLRA”) is that a valid Will under the UIWA must be signed in person, with all witnesses, testators and other signatories physically present at the same time. This means no virtual signings are permitted under the UIWA whereas virtual signings have been permitted by the SLRA since 2022. Therefore, a valid Will in Ontario is not automatically valid anywhere else.

Additionally, the UIWA on its own is not sufficient to allow that any Will that meets the UIWA validity standard will be applicable across international borders, as each signatory nation must also enact domestic legislation accepting the conventions of the UIWA. To date, very few countries have done so. These include Canada, Australia, France, Belgium and several other countries. Moreover, even within the nations that have accepted the UIWA the convention is not applied across the board. For example, even though Canada is a signatory, Quebec has not enacted domestic legislation to recognize international Wills under the UIWA. On the other hand, even though the USA is not a signatory, 15 States have individually enacted legislation accepting international Wills under the UIWA.

All this to say that while international Wills exist and the concept has been around for a while, their applicability is very limited and it will take a vastly heightened degree of buy-in before international Wills become common practice in estate planning. As it stands, having a Will for every jurisdiction is the most prudent course in normal circumstances.

As discussed in last week’s blog “A Will of Its Own” there is no limit to the number of Wills a testator can execute and, while planners should not overcomplicate an estate, using separate wills for assets in other countries is just another strategy for estate planners to keep in their arsenal.

Written by Derek Hambly, Scotiatrust

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For over 100 years, Scotiatrust® has helped Canadians preserve and transfer their wealth. Together with your team of specialists, we work to understand your achievements and help you connect them, so your wealth makes the meaningful impact you want. We also help you make important decisions sooner and ensure they’re followed when you’re unable to do so yourself. We are a team of highly experienced, hands-on professionals and we view it as our responsibility to ensure our clients have addressed all relevant issues and that their wishes are followed throughout and beyond their lifetime, helping them to live well and leave well.

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