Since the entry into force of the UNIDROIT Convention Providing a Uniform Law on the Form of an International Will in Australian jurisdictions, a Notary Public is authorized to certify international wills. An international will is an additional form of will possessing certain international characteristics, namely:
- A will made in a jurisdiction other than that of the testator’s country of nationality, domicile or ordinary residence; and/or
- All or some of the testator’s property located in jurisdictions other than that of the country in which the will is made; and/or
- All of some of the beneficiaries under the will are nationals of or domiciled in jurisdictions other than that in which the will is made, and/or where the properties of the testator are located.
In essence, an International Will involves two documents: the will itself, and a certificate by an ‘authorized person’, such as a Notary Public which is in a form prescribed by law. As such, a Notary Public involved in the making of an international will has two main tasks:
- Overseeing the formalities of the making of the will;
- Completing the certificate and attaching it to the will.
The making of an International Will
Generally, the will itself can be prepared either by the testator personally, or with the assistance of someone else, such as a solicitor. The will can be in print or handwritten and may be prepared in any language of the testator’s choosing.
At least four persons must be present at the making and certifying of the will:
- The testator;
- Two qualified witnesses; and
- The Notary Public.
In the presence of the witnesses and the Notary Public, the testator needs to declare that the document contains his or her will, and that he or she has knowledge of its contents. The testator then proceeds to either sign at the foot of the document or acknowledge his or her signature on the document if it has already been signed.
If the testator is in fact unable to physically sign the will, the Notary Public must then note the fact and the reason on the will document. As Australian law allows some other person to execute the document in the presence of and at the direction of the testator, this obstacle can be overcome. The date of the will is that of the signature, which the Notary Public will note at the end of the document.
After the will is executed, the Notary Public must ask the testator if he or she wishes to make a declaration, either positive or negative, as to the safe-keeping of the will. The answer to that question will also be noted in the Notary Public’s certificate.
Finally, the Notary Public will prepare and complete a certificate in compliance of the law. Unless contradicted by evidence, the certificate by the Notary Public is conclusive as to the formal validity of the will.