In today's world, borders can be blurry. This is especially true when it comes to your money and assets. Perhaps you have an apartment in Paris, a bank account in the Bahamas, or a Tesla stock habit that is spread across five countries. Whatever the case may be, when your assets start collecting stamps, your estate plan needs to keep up. Cue the "International Will", the legal world's version of a global frequent flyer card.
What is an International Will, Anyways?
The International Will was born in 1973 at a diplomatic meeting in Washington, D.C., officially titled The Convention Providing a Uniform Law on the Form of an International Will (the "Convention"). I know this is a mouthful, but stay with me. The point of the Convention is for individuals to create a Will that can hop borders without requiring a passport or being detained by local conflicting laws.
To qualify as an International Will, the instrument must:
- be in writing;
- be signed in front of two witnesses and an authorized person (usually a lawyer or notary);
- include a formal certificate confirming that it meets the requirements of the Convention; and
- not depend on the place where the Will was made, the nationality of the testator, or the location of the property.
Canada and the Convention
Canada signed the Convention in 1977, but here is the fine print: Wills are a provincial matter. So, whether you can strut around with your International Will depends on where you reside in Canada.
Provinces currently playing nice with the Convention include:
- Ontario;
- British Columbia;
- Alberta;
- Manitoba;
- Newfoundland and Labrador; and
- Prince Edward Island.
If you live in one of these provinces, congratulations!
You can draft and execute a Will per the international standards set out in the Convention, which will not only be valid in any of the aforementioned provinces, but also in any other country that is a party to the Convention and recognizes such Wills. Of course, you should seek advice from your trusty lawyer to determine if this type of a Will is right for you.
Why You Should Care?
If you have assets in more than one country or even if you just might, an International Will can help keep things clean and avoid posthumous headaches. It will not save your beneficiaries from bad wallpaper, but it will certainly assist with the following:
- Multiple probate processes;
- Conflicting laws; and
- Simplify the administration for your executors.
However, we must note that International Wills deal only with the form and not the content. This means that while the instrument may be valid in other countries, it must comply with their inheritance and tax rules.
For example, if you own a property in Paris, your International Will may be recognized, but France's laws could still dictate who gets what in the Will. Bonjour, legal drama.
Furthermore, International Wills are not always better than multiple local Wills. It is often better to have a Canadian Will and a separate Will for your overseas assets, as long as they do not cancel each other out. Again, it would be prudent to speak to your lawyer about this so that they can advise you accordingly.
So, What Should You Do?
- Speak to a Wills and Estates Lawyer. Preferably one who does not glaze over when you say "dual citizenship".
- List all of your assets and then decide whether a single International Will or multiple local Wills make more sense. Ensure that your lawyer explains both options to you clearly before you make a decision.
- If you go international, ensure that your lawyer is authorized under your province's laws to act under the Convention and ensure that your Canadian Will does not revoke your foreign Wills or vice versa.
Conclusion
For Canadians with cross-border assets, an International Will may be a useful tool. While it does not replace the need for thoughtful and careful jurisdiction-specific legal advice, it could help simplify an otherwise complex process and ensure your wishes are respected globally.
Estate planning across borders can be a legal minefield, but with the right tools and guidance, you can build a bridge instead of a barrier. So, if your assets are living their best life overseas, make sure your estate plan has a matching suitcase.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
