03/03/2020
DO I NEED ANOTHER WILL IF I MIGRATED TO AUSTRALIA?
It appears that there is a lot of confusion and questions among migrants about the need to have an Australian will. Let me try to clear up a few misconceptions and questions:
1.“I migrated to Australia from another country. Is the will I made there valid?”
- If you have valid will, even though it was made in the country you came from, that will is probably valid in Australia. The legislation in Queensland reads: "A will is taken to be properly executed if its ex*****on is in accordance with the internal law in force in the place where it was executed”. So, if you already have a Will made before you migrated to Australia, and the above statement applies, you will be covered. However, even though the Will is legal it has to be proven to be so. This can be costly and time consuming, as lawyers in your country of birth will have to prepare paperwork evidencing the legality of the will, and it will have to be submitted to the Supreme Court for probate (approval). It probably makes good sense to get your will done in Australia.
2. “What will happen to the kids if we should both pass away?”
- You need to think about guardianship of your minor children in the event that both parents pass away. Some people assume that their parents or siblings will automatically receive custody of their children. This is not correct. If you have not made arrangements for such a situation, your child is likely to be placed into the care of a new family by the Courts on the advice of social workers, and the Court will ultimately appoint a guardian. Family members may apply to become the guardian(s) of minor children without a parent, but apart from potential costs, you need to think of the disruption and stress that this can cause for recently bereaved young children if no guardian has been appointed and family members start fighting over who are going to raise the young children. If you as parents make your wishes clear in your Will, it removes any doubt, and minimises any dispute.
3. “My sister will be the guardian, but she lives in Toronto / London / Johannesburg. Who will take care of the kids until she can get here?”
- If you think of appointing family members who live in another country as guardians, you also need to think about the short term – who will take care of your children until those guardians can make arrangements (visas, flights etc.) to come to Australia to take the children into their care? It will probably be best to specify in your will that temporary guardians (e.g. a neighbour or friend that you can trust) should take care of your young children until the ultimately appointed guardian can come to Australia.
4. “We still have a house in South Africa / London / Toronto. How should our Australian will deal with that?”
- If you still have assets in the country you emigrated from, having a will in both countries is the safest option that will give you peace of mind. Your Australian will should make it clear that it deals with guardianship and your assets in Australia, and your will in the other country will deal with the assets over there.
5. “Our financial affairs are simple, and we know exactly what we want. We’ll buy a do-it-yourself will kit and give it a go ourselves”.
- The best option is to consult with a solicitor. They have the required knowledge and skills to draw up a will exactly the way you want it. There are DIY will kits available, but they may not be considered valid, especially if they have not been signed or witnessed correctly. Some companies and government entities offer “free Wills”. The old saying goes “you get what you pay for”. Be careful about the unexpected costs of a “free Will”. Your children and other beneficiaries may find one day that that entity was appointed as the executor of the estate and will charge huge fees, taking a long time to do the work.
Please note this post is NOT intended as legal advice; it is just helping to explain some details around wills in Australia that you should know after migrating. If you need legal advice, you are welcome to contact Barto du Plessis Solicitors (ons praat Afrikaans ook!).
