by Kathryn Whitehead, Associate
When helping clients with his/her estate plan, it is not uncommon to discover assets may be located outside of the Province of Ontario in a foreign jurisdiction(s). Various issues can arise from having assets abroad, and lots of planning is required to ensure foreign owned assets are dealt with according to your wishes.
Most clients deal with their foreign and domestic assets in one will. In these cases, individuals will visit their lawyer in their primary place of residence and draft a will that applies to all their assets, regardless of where they are located. A will created in one jurisdiction and purporting to distribute assets located in another, may or may not be valid. Validity will depend on whether it’s accepted pursuant to the laws of the jurisdiction in which the foreign asset is located. For example, if Joe Smith owned a house in Barrie and a Condo in Florida, he may have his lawyer in Barrie draft a will that sets out his wishes for both the Barrie and Florida properties. His wishes for the Florida Condo will only be given effect if the will was drafted in accordance with Florida laws, which is unlikely if the Barrie Lawyer is unfamiliar with Florida law.
Another approach is to create a separate will for each of the foreign-owned assets. Your lawyer will have to ensure that each will complies with the laws of the jurisdiction where the particular foreign asset is located. This may require having your lawyer consult additional legal counsel in the particular jurisdiction to draft, or assist in drafting, the multiple wills. Mr. Smith, for instance, would need a Florida will (drafted in accordance with Florida laws) to sort out his wishes for the condo, and an Ontario will (drafted in accordance with Ontario laws) to sort out all his Ontario assets. This can be a costly and complicated way of dealing with foreign assets in estate planning.
A much more efficient alternative is to have your solicitor draft an ‘International Will’. Ontario is party to the Convention Providing a Uniform Law on the Form of an International Will, (also known as the Washington Convention). Under Ontario’s Succession Law Reform Act, if a will is made in accordance with the rules prescribed by the Convention, and both the relevant jurisdictions are contracting parties, the Will is valid as between those parties regardless of where it was made, the location of the assets, or the residence of the testator. Contracting parties include (but are not limited to) most Canadian provinces, the United Kingdom and the United States of America. This means that Mr. Smith could draft one international will, dealing with all his assets (wherever located), and so long as the foreign assets were located in a contracting party to the Convention, his wishes would have effect in that jurisdiction.
Depending on where your foreign owned assets are located, an international will may be an estate planning tool you should consider. Did you recently purchase that Florida condo? A summer cottage in Newfoundland? Have investments in the UK? If so, speak with your solicitor about whether an International Will can address your estate planning needs.