When clients hold property across different jurisdictions, such as overseas property in Australia, it is common to prepare separate wills for each country. However, care must be taken to ensure these wills are properly drafted to reflect that intention — as highlighted by the decision in In the Estate of John Wentworth Varley; In the Estate of Jacques Johan Veldhuis [2007] SASC 420. When dealing with wills and overseas property Australia can pose unique legal challenges.

Navigating dual wills and overseas property? Learn how Australian courts handle cross-border estate planning and rectification.

Dual Wills and Jurisdictional Scope

In the Varley matter, the deceased had:

• An English will clearly stating it dealt only with assets in England and Wales; and
• An Australian will that was intended to deal solely with Australian property but failed to say so clearly for his overseas property.

The issue? The Australian will included a broad residuary clause and did not expressly exclude assets in England. This created confusion about whether it overrode the earlier English will, showing the complexity of handling wills and overseas property Australia and elsewhere.

The Supreme Court of South Australia accepted evidence from the drafting solicitor that the testator’s intention was to deal only with Australian assets. The Court rectified the will relevant succession act to give effect to that intention — making it clear the Australian will operated only in respect of property in Australia.

Conflict of Laws – Lex Situs

The decision also highlights the importance of conflict of laws rules in cross-border estates. The only Australian asset in the Varley estate was a Crown Lease, classified as immovable property. Under long-standing private international law principles, the law of the country where the property is situated (lex situs) governs how immovable property is dealt with.

Despite being executed in England, the Australian will was upheld as valid in South Australia under ss 25B and 25C(b) of the Wills Act 1936 (SA) because:

• It was valid under the internal law of the place of execution; and
• It dealt with immovable property in South Australia.

Key Takeaways for Clients and Lawyers

• When preparing dual wills, be explicit about their territorial scope — ambiguity may lead to costly rectification applications. This is particularly true for clients managing wills and overseas property Australia.
• Ensure wills do not unintentionally revoke or interfere with each other.
• For property in Australia, especially real property or leases, the local law (lex situs) will determine how the will operates.
• Courts will accept extrinsic evidence (such as solicitor instructions) when rectifying a will, but only where testamentary intention is clear.

Boettcher Law advises clients across Australia and internationally on cross-border estate planning. If you have wills and overseas property in Australia or assets in more than one country, contact us to ensure your wills are effective and enforceable.