Legal Tip 268: Having 2 (or more) Concurrent Wills?

Most would assume a person can only have one will, but this is not the case - a person can have multiple wills all of which can be valid at the same time.


The main reason why a person may want more than one will is where they have assets overseas. The person may have a will made according to Australian laws for their Australian property and another will for their property in another country.


Generally, wills start off making a declaration that other wills are revoked. If you are going to have 2 wills you would want to make sure one doesn’t revoke the other.


Someone may wish to have two or more concurrent wills for a few reasons, such as:


a) Death Taxes on the estate.

In some countries a ‘death tax’ may be imposed and this may be levied on the amount of assets declared when applying for probate.

Someone told me this is the case in the UK where having 2 wills can mean tax savings as only the UK assets in the UK will might count. However, someone else told me this is not the case – legal advice would be needed from a UK lawyer.


b) Control

There may be different relatives in different jurisdictions which the testator may wish to put into control of the estate as executors or trustees


c) Taxes

Foreign executors or trustees may cause different tax consequences in administering the estate in Australia.


d) Different laws

The estate may be challenged by certain persons and/or there may be laws in some countries that certain relatives must receive a minimum amount from the estate. I hear that this is the case in France and Italy for example.


Where you wish to make a second of third will it is important to make sure that they do not revoke prior wills. Most wills start off with a declaration such as “I hereby revoke all previous wills”.


e) Language

Different languages can be used for the different wills. This can save the hassle of the executor needing to get the will translated and it can avoid issues of interpretations of meanings.


f) Legal advice

Australian lawyers cannot give legal or tax advice about the laws of foreign countries unless they are admitted as lawyers those countries and/or have the knowledge. Having separate wills can mean you get the proper advice in each jurisdiction. For example, a foreign lawyer drawing up a will including Australian assets may not know of the different tax consequences if superannuation is to pass via the will.