Which country, which will?

From
Elizabeth Wang

Elizabeth Wang

The Victorian case of Re Tang [2017] looked at a raft of issues that arose when the deceased had assets in both Australia and China.

The deceased was an Australian citizen who resided in China. Although, the majority of his personal estate was held in China the deceased did hold some personal assets in Australia. These assets included two bank accounts which he left to his mother on a hand written note in Chinese which did not name an executor and was not witnessed. In other words the note did not meet the formal requirements to be a will in Victoria.

The deceased’s mother sought a grant of “letters of administration with the will annexed” (kind of like a grant of probate but where’s there’s no executor). She argued that the handwritten note was effectively the deceased’s will for his Australian assets and that she was the sole beneficiary, and, as the note stated, the money was for her personal use.
One of the main issues was whether the validity of the note was to be determined under Chinese or Australian law as this would determine the potential beneficiaries (his mother, who lived in Victoria, or his estranged wife and a son living in China who the deceased’s mother was unaware of).  Who stood to benefit from the deceased’s estate depended upon which law applied.

At the hearing the trial judge held (among other things) that Chinese law applied to the document.

The Appeal Court said the choice of whether Australian or Chinese law applied to this note about the Australian assets was to be decided based on a whole raft of factors – where the deceased was domiciled, where the assets were located, where the beneficiary lived, what Chinese law had to say about the issue and the degree of complexity involved in interpreting and applying Chinese law.

The Appeal Court held that it was entitled under the Wills Act to hold that although the note was not executed in the correct manner it could be admitted to probate if the Court was satisfied that the deceased intended the document to be their will (even if only over part of their assets).  They found for the mother who as a result inherited her son’s Australian assets.

An Australian will for Australian assets and a foreign will in other jurisdiction for foreign assets
The case highlights the importance of ensuring that if a person has assets in other jurisdictions as well as Australia they should have an Australian will to deal with their Australian assets and a foreign will in that other jurisdiction that deals with the foreign assets and does not accidentally revoke or conflict with their Australian will.
Without such wills there can be highly complex issues to resolve like which law applies to the assets and how that law would operate.  Those issues will delay the administration of the estate for a long time and add unnecessarily to estate expenses.

By Elizabeth Wang, Solicitor

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