It is fairly common—or at least not unusual—to have property in different countries. It is often a good idea to have separate wills governing property in separate jurisdictions. Each will is drawn by a lawyer familiar with the laws of his or her jurisdiction, and can tailor your will accordingly. On your death, the executor of each will can apply for a grant of probate for the will in the jurisdiction for which it is intended to apply.
But if you have more than one will, it is important that the wills be carefully coordinated. If you change one will covering assets in one country, make sure that you do not accidentally revoke a will you indent to keep in effect for your property in another country.
This is what happened in an Ontario case, Re Estate of Blanca Esther Robinson, 2010 ONSC 3484. Esther Robinson owned property in England, Spain and Canada. She had wills made in Spain and in Canada. In her Spanish will, which she made in 2002, she gave her companion, Dr. Rondel, a life interest in her flat in London England, and provided that subject to the life interest, her property in Spain and England would go to her sisters. The terms of the Spanish will were clear that it governed only the assets in Europe, and her Canadian will governed her assets in Canada.
In 2005, she instructed her lawyer to make changes to her will in Canada. He did so. The Canadian will had provisions for a number of different beneficiaries, including step-children, business associates, her brother-in-law, two nieces and one of her sisters. She later revised her Canadian Will again to provide a gift of $1 million to her companion.
Unfortunately, when she made a new Canadian Will in 2005, she did not tell her lawyer about the Spanish Will. He included fairly standard clauses in the Canadian Will revoking all previous wills, and providing that all of her assets “wheresoever situate” would go to her estate trustee to be distributed in accordance with the Canadian Will. The lawyer went through the new Canadian Will with her clause by clause, and she signed it.
The estate trustee applied for and received a grant of probate of the Canadian Will in Ontario before he found out about the Spanish Will. He then applied to court for directions as to whether the Canadian Will could be rectified delete the revocation clause.
Mr. Justice Belobaba found that Blanca Robinson probably did not intend to revoke the Spanish Will. But he held that the court did not have the authority under Ontario law to rectify the will in these circumstances, where the solicitor had not made a drafting error, and Ms. Robinson knew of and approved the clause, but was mistaken as to the legal effect of the clause.
Ms. Robinson had accidentally revoked her Spanish Will, eliminating the gifts of the English and Spanish properties to her companion and her sisters.
The lessons are that it is important to tell you lawyer if you have wills in other jurisdictions. Lawyers, in turn, need to pay close attention to the wording of wills that they draw when the wills are not intended to revoke wills dealing with property in other jurisdictions, or to affect property in other jurisdictions.