September 29, 2017 By: Marcia Green
Print

What happens if you own property outside of Ontario? Or outside of Canada?

In today’s highly interconnected world where people and capital move freely, it is very common for people to have lived in more than one country, and for people to own assets outside of their home province or outside of Canada.  There are more than a few snowbirds who fall into this category. Therefore, when you are preparing your Will, you have to consider: Do you want your Ontario Will to distribute all of your worldly assets? Do you want to create multiple Wills in every jurisdiction that you own property? Or do you want to create an international Will that attempts to distribute all of your worldly property?

Elements of a Will

The basic elements of a Will are generally quite similar in jurisdictions all over the world. These elements include the identity of the person making the Will, a description of the estate and how it is to be distributed, and witness signatures.

These similarities, however, do not mean that Wills made in any jurisdiction will be universally accepted. All countries, and even provinces and states within a single country, have their own laws that make Wills distinct, and knowing what to look for when choosing the best option for your estate can be more complicated than you might think at first glance.

For many people, jurisdictional conflicts are not a problem at all. If your property is located within the province you reside, and you create a valid Will within that jurisdiction, then you can likely rest assured that your estate will be divided in accordance with your wishes. However, what if you own property in another province, or another country? Does it matter if the property in question is land or not?

Although it is always advisable to seek legal assistance from an experienced Wills and Estates lawyer when making important legal decisions, many people are unaware that an international Will may be an option if their estate transcends jurisdictions. Some basic knowledge of this type of Will may help those struggling to decide what type of Will is best for them.

What is an International Will?

In 1973, a number of countries held a convention in an attempt to make Wills recognizable across international boundaries. These countries sought to create a set of minimum standards to make Wills legally acceptable in each nation that signed the convention. The intention was to limit conflict of laws issues that arise when a testator dies with assets in multiple jurisdictions.

The benefit of an international Will is that courts within countries that have adopted the law will uphold its validity regardless of where the Will was signed, or where the testator’s assets or domicile are located. According to the Uniform International Wills Act, in order for a Will to be recognized internationally, the document:

  1. Must be made in writing;
  2. Can be written in any language;
  3. Need not be written by the testator;
  4. Must be signed and dated in the presence of two witnesses and a person who has the authority to draw up the document;
  5. Must have an attached certificate, signed by a lawyer, confirming that the necessary requirements and procedures have been met.

Applicability of International Wills

Although the minimum standards required of international Wills sound straightforward, it is important to note that the benefits of international Wills are not available to everyone.

For example, if you complete a Will that meets these minimum standards, then so long as you reside in a country that abides by the requirements of the Convention Providing a Uniform Law on the Form of an International Will (also known as the “Washington Convention”), your international Will is valid across boundaries of those other signatory nations. However, not every country that signed the convention in 1973 introduced the necessary domestic legislation required to formally recognize international Wills.

As such, anyone considering an international Will should understand that their applicability is actually quite narrow. Only twelve countries have introduced the requisite domestic legislation to recognize international Wills: Australia, Bosnia-Herzegovina, Belgium, Canada, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal, and Slovenia.

This list is further limited by the fact that some provinces of signatory nations are not included among those that recognize international Wills, and some states from nations that are not on the above list actually do recognize international Wills. For example, although Canada is on the list, Quebec has not enacted the necessary legislation that the other nine provinces have to recognize international Wills. Similarly, although the United States is not on the list, fifteen jurisdictions within that country actually have passed the necessary legislation to recognize international Wills.[1]

Limited Use in Practice

Whether or not an international Will would benefit you depends on what type of property you own, and where it is located. For example, if you own land in Ottawa and France, then an international Will is something you may consider discussing with your lawyer, because both jurisdictions acknowledge the validity of international Wills. However, if you own land in Ontario and Scotland, the benefits of an international Will would be lost because it would not be valid in both jurisdictions.

In spite of the fact that the practicality of an international Will in the right circumstances is self-evident, it is rarely used at all in Canada.

Conclusion

If you own real property in more than one country, then you should seek a legal opinion to determine if it would be advantageous to have an International Will or multiple Wills in every jurisdiction where you own property.

[1] Those jurisdictions are: Alaska, California, Colorado, Connecticut, Illinois, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North Dakota, Oregon, Virginia, and Washington DC.

If you have any questions about International Wills or multiple Wills, contact our Wills and Estates Practice Group.

This article originally appeared in the September 2017 edition of Fifty-Five Plus Magazine.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.