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Validity of a will executed in a foreign place

GENERAL RULE AS TO VALIDITY OF A WILL EXECUTED IN A FOREIGN PLACE

1. A Will is to be taken to be properly executed if its execution conforms to the Internal Law in force in the place:-

* a) where it was executed; or
* b) which was the testator's domicile or habitual residence, either at the time the Will was executed, or at the testator's death; or
* c) of which the testator was a national, either at the date of execution of the Will, or at the testator's death.

2. The following Wills are also to be taken to be properly executed:-

* a) a Will executed on board a vessel or aircraft, if the Will has been executed in conformity with the internal law in force in the place with which the vessel or aircraft may be taken to have been most closely connected having regard to its registration and other relevant circumstances; or
* b) a Will, so far as it disposes of immovable property, if it has been executed in conformity with the internal law in force in the place where the property is situated; or
* c) a Will, so far as it revokes a Will or a provision of a Will which has been executed, to have been properly executed in conformity with any law by which the earlier Will or provision would be taken to have been validly executed; or
* d) a Will, so far as it exercises a power of appointment, if the Will has been executed in conformity with the law governing the validity of the power.

3. A Will to which this applies, so far as it exercises a power of appointment, is not to be taken to have been improperly executed because it has not been executed in accordance with the formalities required by the instrument creating the power.

Notwithstanding the above, we stress that it is more appropriate to execute a Will that complies fully with all local requirements. This is in preference to having to establish both the bona fides of the Will and the country of origin in which the Will was originally executed.

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David Natenzon has gained extensive experience in different aspects of commercial,corporate, and litigation matters and manages Rosendorff's employment law division.He has developed an extensive knowledge of the WorkChoices legislation and is an Associate Member of the Law Institute of Victoria. For more details, visit: www.rosendorff.com.au

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