Ex Files with Jeremy Sutton: What happens if I sign a will overseas?

Your will might not be valid if it is signed in a country other than the one where you have assets.

My father lived in New Zealand for about 25 years and had assets here, and he travelled overseas after he separated from his wife. He did not realise he needed to sign a will before leaving the country because he was meant to be away only temporarily. However, he did sign a will overseas to deal with his New Zealand assets. He passed away overseas a few years after signing the will.

Is the will he signed overseas valid to deal with his assets in New Zealand?

The Wills Act 2007 covers New Zealand wills and has been interpreted to mean wills signed in New Zealand.

But there is an exception under the act.

If the will is made outside New Zealand, you must prove it is a valid one and was made as required by:

• the law of the place where the will was made; or
• the law of the place where the person was domiciled when the will was made; or
• the law in force when the will was made, in the place where the person had his or her domicile of origin; or
• the law of the place where the person was domiciled when he or she died.

Discussion

The law of the place where a person was domiciled when they died is important. Domicile is the place a person ultimately considers to be their true home.

You must prove your father was domiciled in New Zealand when he signed the will because he had gone overseas temporarily, even though his domicile changed later and he died overseas. Evidence of New Zealand being his domicile could include being a New Zealand citizen, long-standing living arrangements in New Zealand, and statements of intention to remain in New Zealand.

If the court holds that he wasn’t domiciled in New Zealand, you may need to obtain expert evidence from a lawyer practising in the particular overseas jurisdiction that the will your father signed was a valid will in accordance with the laws of that country.

If your father had signed the will in New Zealand, the law of domicile would not apply.

Conclusion

Your will might not be valid if it is signed in a country other than the one where you have assets. If you are considering signing a will in a country different from where you are normally domiciled or resident, take legal advice.

People sometimes have wills in several countries. But for a will to be valid in New Zealand it must be signed in New Zealand – or correspond to an exception in the Wills Act.

Disclaimer: Jeremy’s advice is of a general nature, and he is not responsible for any loss that any reader may suffer from following it. He does not consider your individual situation. Before you make legal decisions, you should always get independent advice from a specialist lawyer.