- the testator then had his or her permanent legal residence;
- the testator then had his or her habitual residence; or
- the testator then was a national if there was in that place one body of law governing the Wills of nationals.
If a testator has an additional foreign will, it is critical that each Will clearly indicates what property is subject to the Will and there should be no confusion or contradiction. As well, the Wills should indicate the intent that they co-exist and operate simultaneously. In particular, whichever Will is prepared later should expressly state that it does not revoke the earlier Will dealing with property in another jurisdiction.
If a testator has one or more foreign Wills, each Will should be probated (if probate is required) in the court of the jurisdiction in which the property is located and the laws pursuant to which the Will was drafted. Proceeding in this manner avoids the necessity of having to apply for a foreign grant and perhaps having to translate the foreign Will into a different language for the court.
Where a testator has property in more than one jurisdiction, an alternative to having a foreign Will (and therefore multiple Wills) may be to prepare a single Will in international form dealing with all of the testator’s worldwide property. The SLRA sets out the “Convention Providing a Uniform Law on the Form of an International Will”, as well as the formalities required for a valid international Will. It should be noted, however, that the foreign jurisdiction in which the testator’s property is located must be a signatory to the above-noted Convention in order for the option of an international Will to be available.
Thanks for reading “The Estates Nutshell” – questions and comments are very welcome at estates@cklegal.ca.