Legal Question in Wills and Trusts in Australia

Re: making will when living overseas

This is a disturbingly complicated question.

Here goes...

At common law, any question of formal validity of a will relating to the disposition of immovable property (ie land) is determined by the law of the place where the property is situated.

However, the Succession Act (Qld) ss22-5 (all other states and territories of Australia have similar legislation) provides that a will relating to the disposition of immovable property will be recognised as valid in the forum if it is recognised as valid in any of the following places:

(a) the territory where the property is situated;

(b) the territory where the will was executed;

(c) the territory where the deceased was domiciled either (i) at the time the will was executed; or (ii) at the time of death;

(d) the territory where the deceased was habitually resident;

(e) the territory where the deceased was a national, either at the time the will was made or the time of death.

Questions of essential validity (as opposed to formal validity) in relation to the disposition of immovable property are determined by the law of the territory in which the property is situated.

Questions of how a will is to be interpreted are most likely to be determined by the law of the place in which the deceased is domiciled at the time of death ( or the place with which the deceased had the closest connection). This is in order to give effect to the idea that the purpose of a will is to give effect to the deceased's intention.

The capacity of a testator to dispose of movable property is determined by the law of the territory where the testator was domiciled.

The essential validity of a will relating to a disposition of movables is determined by the law of the territory where the testator is domiciled at death