It’s a Small World: International Wills

November 5, 2012 Hull & Hull LLP Wills Tags: 0 Comments

 

As technology improves and the way we live changes, people move around more often than they ever have. They may move overseas, spend a few years away for school, travel for work, marry internationally, spend winters in a warmer climate, and move home again. It is no wonder that Estate assets, with increasing frequency, can be located in multiple jurisdictions.

Canada is a signatory to the 1973 Convention Providing a Uniform Law on the Form of an International Will. The Convention provides for a Will that will be respected in all signatory countries. The Convention also provides that in interpreting and applying a Convention Will, Courts should respect its origin and the need for uniformity in its interpretation. The Convention has been incorporated into Ontario law and is now included in s. 42 of the Succession Law Reform Act

A significant barrier to the usefulness of Convention Wills is that it is only in force in a very short list of jurisdictions. In Canada, British Columbia, Quebec, and the territories have not ratified the Convention. The United States is a signatory since 1973, but the Convention was never ratified there. Nor was it ratified in the United Kingdom. It is in force in Belgium, France, Italy, Portugal, and a few others. This drastically limits the practicality of a Convention Will.

One way to deal with Estate assets in multiple jurisdiction is to draft multiple Wills. A Canadian Will would deal with Canadian assets, while a foreign Will (or Wills) would deal with assets in foreign jurisdictions under their own domestic law. 

Another option for dealing with international assets, at least in Commonwealth countries, is to seek to have foreign will that has been granted probate overseas resealed in Canada. S. 52 of the Estates Act provides for the procedure. A resealed grant of probate is of the same force and effect as if probate was originally issued in Ontario. 

Ancillary grants of probate are another way to handle international Estates. If probate is granted in the jurisdiction where the testator is domiciled, then Ontario Courts may make an ancillary grant to the Estate Trustee.

For more on resealing Orders and ancillary grants, see Moira Visoiu’s prior blog post on the subject.  

It appears that as the world becomes a global village, international Estates will only become more common. The need for a more comprehensive treaty to streamline the process for administering such Estates will only grow as the world becomes smaller. 

Ian M. Hull

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