But what is often forgotten is an that they have made an existing will approved under UK law, which remains unchanged and therefore does not reflect the person’s wishes in the Australian document, which was drafted at a later date. In this situation of conflicting clauses a lengthy probate process can ensue.
Witnesses of the wills written in both countries must make depositions, and the authorities will rule whether an honest mistake has been made.
While changes can also legally made to the UK will using the Administration of Justice Act 1925, this is reserved for clerical errors or where there’s been a failure to understand the testator’s instructions.
It is not a straightforward process. In a worst-case scenario, both of the contradictory wills’ clauses could be ruled invalid and the assets affected fail to be distributed via the will, rendering these assets liable to the statutory laws of intestacy.
Why it’s good to have trustees in the process
Of course, every estate is different and each person intending to pass on their wealth has unique circumstances. That is why a bespoke, tailored approach to this tricky area of financial management is crucial.
We regularly advise people at the very start of their estate planning process, and others who already have sophisticated trust-based planning in place.
What is often not known by lay trustees is their obligations under the Trustee Act 2000. We work closely with them to ensure compliance.
Trusts are not merely a piece of paper executed ‘once upon a time’ only to be forgotten. They require dutiful record-keeping, the exercise of discretion, and a duty of care to ensure trust assets are invested and regularly reviewed by a competent professional, which is also confirmed in writing.
Without proper compliance the integrity of the trust can be undermined, thus losing the crucial trust protection the settlor originally intended when it was set up, for the sake of his or her beneficiaries.
Of course, where trustees, beneficiaries and the original jurisdiction of the trust are not the same, the need for expert advice is even more critical.
Understanding how the country of residence of each stakeholder - for example, the trustees and beneficiaries - affects their role is vital.
For example, a director may have a UK-based trust and underlying assets, but some trustees resident in other countries, and second-generation beneficiaries in yet another jurisdiction.
This can quickly become an administrative nightmare, even if it is one the deceased director will not be dealing with themselves.
