Making a Will in Australia as a Non-Citizen: Legal Capacity and Jurisdiction

Introduction

In Australia, the ability to make a valid will is governed by state and territory legislation, and it is not restricted by citizenship or residency status. This short article examines the legal capacity of non-citizens to make a will in Australia, with a particular focus on the Succession Act 2006 (NSW), while also considering broader jurisdictional and practical implications as a comparison.

Statutory Framework in NSW

The Succession Act 2006 (NSW) outlines the basic requirements for the creation of a valid will. According to section 5, any person aged 18 years or over may make a will, with exceptions applying to minors who are or have been married or who receive court authorisation. Section 6 of the Succession Act 2006 (NSW) explicitly states that any individual meeting age and mental capacity requirements may make a valid will, without reference to nationality or immigration status. There is no other relevant provision about the requirement that the person making a will must be an Australian citizen or permanent resident.

1. Age

As mentioned above, section 5 of the Succession Act 2006 (NSW) provides that a person must be at least 18 years old to make a valid will. However, there are exceptions for minors. Under section 5(2), a minor who is married or has been married may make a will, and under section 16, the Supreme Court may authorise a minor to make a will in special circumstances, such as serious illness or anticipated inheritance. This allows flexibility in exceptional cases where a minor has testamentary intent and a reasonable need to formalise their wishes.

2. Mental/testamentary capacity

When it comes to Will making, the concept of testamentary capacity steps in. As a specific legal standard that applies only to making a will, there are still some differences between mental capacity (as a more general legal and medical concept) and testamentary capacity. Someone may lack capacity in one context but still have testamentary capacity. For example, an elderly person might have difficulty managing their day-to-day finances but still understand what a will is and who should inherit. On the other hand, someone with significant cognitive decline or dementia may lack testamentary capacity even if they appear mentally aware in conversation.

The Act, however, does not contain an express statutory definition of testamentary capacity. Instead, New South Wales courts apply the common law test established in the English case of Banks v Goodfellow. According to this test, the will-maker must understand the nature and effect of making a will, the extent of their property, and the claims of those who might expect to benefit from the estate. The person must also be free from any mental illness or delusion that would influence their decisions.

Comparative Analysis: Victoria and Queensland

The position is substantially similar in Victoria. Under section 5 of the Wills Act, any person aged 18 or over may make a will, with similar exceptions for minors authorised by the court, and there is no restriction based on citizenship or residency. It is also important to note that the testamentary capacity is required and based on the same common law principles as in NSW, and the formal requirements of making a will include writing, signature by the testator and attestation by two witnesses present at the same time under s7.

Queensland also maintains an inclusive framework. Under the Succession Act 1981 (Qld), section 9 requires that a will must be in writing, signed by the testator, and witnessed by two people. Again, there is no restriction based on citizenship or residency, and the same common law capacity test applies. It is interesting to notice that the Act does not contain a specific section that defines testamentary capacity. Instead, the concept is governed by common law principles, which apply in Queensland as they do in other Australian jurisdictions.

In all three jurisdictions, non-citizens can make a will provided they meet the requirements of age, capacity, and formal execution. These laws reflect a consistent principle across Australia that the right to dispose of property by will is not limited by nationality.

Other Requirements

1. Assets governed by the Will need to be located in Australia.

While a non-citizen can make a will in Australia, such a will can generally only govern the disposition of assets located in Australia, unless the foreign jurisdiction recognises the Australian will under principles of private international law. For example, real property located overseas is usually subject to the succession laws of the country in which it is located. One relevant Australian case is Re Estate of Wai Fun Chan, Deceased. The deceased was domiciled in Hong Kong but held property in NSW. Although she was not an Australian citizen, the court accepted jurisdiction over the NSW assets and admitted a Hong Kong will to probate. Justice Lindsay affirmed that foreign nationals may make wills dealing with Australian property, and that courts can apply private international law principles to determine domicile and applicable law.

In Qld this requirement remains the same, that the will of a non-Australian citizen only governs assets located in Australia. This principle also demonstrated in the case Estate of Lady Dianna Rodd, where the deceased was a British citizen domiciled in the United Kingdom who had executed a valid will in England. Her estate included both personal and real property located in the UK and in Victoria. Justice McMillan of the Supreme Court of Victoria granted probate in solemn form for the Victorian assets but made it clear that the will’s operation did not extend to property located outside Australia. As such, although the will was formally valid and had been recognised in the UK, it did not extend to govern succession to real property in the UK from the perspective of Australian law as the assets regarded were not located in Australia.

2. International will need to have cross-border considerations.

Australia is one of a limited number of countries that have adopted the International Wills Convention. To simplify succession law in Australia, the Australian Government acceded to the Convention Providing a Uniform Law on the Form of an International Will 1973 which entered into force for Australia on 10 March 2015. which aims to simplify succession planning for individuals with assets in multiple countries by establishing a uniform form of will that is recognised across participating jurisdictions. Australia gave effect to the Convention through legislative amendments to state and territory succession laws. In NSW, the relevant provisions are found in sections 48 to 50 of the Succession Act 2006 (NSW). Equivalent provisions exist in other states, including section 16A of the Wills Act 1997 (Vic) and section 33Y of the Succession Act 1981 (Qld).

However, the Convention does not override the conflict of laws rules in each country. Therefore, issues such as forced heirship or restrictions on testamentary freedom may still apply in civil law countries even if the will is formally valid under the Convention.
In Re Will of Fintan Magee (Deceased), the Supreme Court of Victoria dealt with a will made in Victoria by an Irish citizen, Fintan Magee, who had assets both in Victoria and abroad. Although the will was formally valid under Victorian law, the court explicitly acknowledged that the effect of the will on foreign assets—particularly immovable property located outside of Australia—would depend on whether the laws of those foreign jurisdictions recognised the will and allowed it to control succession. Justice McMillan confirmed that while the will was valid for the purposes of administering Victorian assets, the distribution of overseas property would be subject to the relevant foreign law.

A similar conclusion was reached in Van Duren v Blashki, where the Court reinforced the principle that the International Wills Convention does not override the private international law rules of each country. In this case, the deceased Mr Van Duren was a Dutch-Australian national who died domiciled in the Netherlands but had executed a will in New South Wales in 2014. The will was formally valid under New South Wales law and could potentially meet the requirements of the International Wills Convention, which Australia has adopted through sections 48–50 of the Succession Act. Justice Lindsay of the NSW Supreme Court unequivocally held that the IWC governs only the formal validity of a will and cannot override the substantive lex situs rule, which mandates that title to real property is determined exclusively by the law of the country where the asset is located. As a result, the court held that Dutch law, including its mandatory inheritance rules, applied to the estate, and that the New South Wales court would not apply local law simply because the will was executed in NSW or was formally valid there.

Conclusion

Although non-citizens can make a valid will in any Australian state or territory, such a will generally applies only to assets located in Australia, unless a foreign jurisdiction recognises it under principles of private international law, as all Australian states and territories have implemented the International Wills Convention into their succession laws, allowing individuals to make a uniform will that is recognised across participating jurisdictions. However, the interaction between domestic laws and private international law principles requires careful planning, individuals with cross-border estates should seek legal advice to ensure that their wills are both formally valid and substantively effective across jurisdictions.