WILLS AMENDMENT (INTERNATIONAL WILLS) BILL 2011 – Tuesday, 13 Mar 2012

Posted on 26. Mar, 2012 in Speeches

Mr LIM (Clayton) — I welcome the opportunity to speak on the Wills Amendment (International Wills) Bill 2011, particularly as I represent the most multicultural electorate in this state. However it would be remiss of me not to bring to the chamber’s attention that it is some four months since the bill was introduced into the house, and four months after the government insisted that it could only agree to a two–week adjournment. Nevertheless, despite the government’s lack of urgency it is a very important bill as far as I am concerned, particularly for Victoria’s migrant communities, which have a strong connection with their home countries.

Australia is very much a land of migrants. Every time I attend a function with the mayor of the City of Greater Dandenong or the mayor of Monash or Kingston, I remind the audience of the fact that we are a city representing something like 185 nations, practising more than 100 religions and speaking nearly 200 different languages.

The census of 2006 indicated that 23.8 per cent of the Victorian population was born overseas; and I am sure in the census of last year the figure would be even higher. The latest publication from the Victorian Multicultural Commission indicated that another 20 per cent have either one or both parents born overseas, so the figure is very significant, and a bill like this makes me reflect on many of the things that are happening around me. I have a neighbour across the road who would not take up citizenship. He is in his 60s, from Italy, and it took me some time to find out that he had properties back home, and he said Australian citizenship would affect his inheritance.

I remember that when I was at university I had many friends from overseas, and one was a professor from Thailand who stayed here for a long time and wanted to stay longer but decided to return simply because of this inheritance problem. In addition, the owner of the electorate office that I rent is from Malaysia and he had the same problem. Many Malaysians here want to be permanent residents but do not want to take that step of becoming full Australian citizens simply because of the complexity of the inheritance and land ownership laws and how land may or may not be passed onto their children. A bill like this will go a long way towards making things easier for our migrant community, and it is appropriate that we are dealing with it.

There is no doubt that some migrants maintain very close relationships with their birth countries, and now with the growing number of Chinese in this state there is no doubt that this bill will go a long way towards trying to make things easier for them to understand in terms of where they stand on issues of inheritance and wills, so we should be very proud of taking this step.

There is an old saying that a person who dies without a will has lawyers for his heirs. But for Victorians owning property overseas a will may not be enough to overcome all of the legal expenses and time‑consuming delays for their heirs in having a Victorian will recognised in international jurisdictions.

As a response to this issue the International Institute for the Unification of Private Law (UNIDROIT) has developed an international convention on wills. UNIDROIT grew out of the old League of Nations, and is:

… an independent intergovernmental organisation with its seat in the Villa Aldobrandini in Rome. Its purpose is to study needs and methods for modernising, harmonising and coordinating private and in particular commercial law as between states and groups of states and to formulate uniform law instruments, principles and rules to achieve those objectives.

A UNIDROIT convention in 1973 provided for international wills. In simple terms the convention provides that an international will in the jurisdiction of one signatory state is a valid will in the jurisdiction of another signatory state. To this end the convention provides an annex which this bill inserts through the schedule at the end of the bill. There is no doubt that this bill is pretty technical in its own right.

While the Attorney‑General in his second‑reading speech mentioned that 12 states are party to the international wills convention, UNIDROIT itself has 63 member states, so there is the potential to increase the number of countries to which international wills apply, and of course Australia is now in the process of becoming party to the convention.

Clause 5 of the bill inserts a new division 7— International wills — into the principal act, which is the Wills Act 1997. It includes a new section 19D — Witnesses to international wills — and this makes it clear that the legal requirements for witnesses to wills, including international wills in Victoria, remain those as determined by the state. The main change brought by the bill is the addition to the principal act of a new section 19C — Persons authorised to act in connection with international wills. This specifies that an authorised person must be a legal practitioner or a public notary. At the end of the bill is a new schedule to be inserted into the Wills Act. It requires the authorised person to attach a certificate verifying that the will is in the prescribed form to comply with an international will.

I will conclude where I began — on the issue of the four‑month delay in debating this bill. Indeed, the Scrutiny of Acts and Regulations Committee, in its Alert Digest No. 14 of 2011 warns that international wills may not be in effect in Australia until 2013, and UNIDROIT, in Article 1 of its 1973 convention, states:

Each contracting party undertakes that not later than six months after the date of entry into force of this convention in respect of that party it shall introduce into its law the rules regarding an international will set out in the annex to this convention.

I hope the government does not sit on this bill for another four months in the Legislative Council.

 

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