Australia’s large migrant intake means there is a strong chance that an Australian will have assets in a jurisdiction outside Australia, which can result in a conflict of laws when assets have to be distributed after death.
“Being a dual national or just having assets in more than one jurisdiction raises issues when it comes to estate planning,” says Ines Kallweit, the leader of the wills and estates team at KHG Lawyers
In a recent case, the Court of Appeal in the Supreme Court of Victoria looked at whether a testamentary disposition (a will) validly executed overseas and disposing of assets in Victoria could be admitted to Probate in Victoria.
Tang Ming Zheng was an Australian citizen living in China. He was hospitalised with heart problems in Shanghai in 2014 and died a couple of weeks later.
He left a note for his mother saying he had money in two bank accounts in Australia, which were for her use. He made no reference to his other assets, which were in China.
The note satisfied the requirement for a valid will, covering the bank accounts, but the other assets had to be dealt with according to the laws of intestacy.
Kallweit says the question then was whether the law to be followed was that of China or Victoria.
He was survived by his wife and his parents, who were divorced – is father living in China and his mother in Victoria. He had separated from his wife, who lived in China with her son. It was not clear if the deceased was the father of the boy.
The Court of Appeal found that as the deceased’s mother, who was the sole beneficiary, lived in Victoria, the assets gifted by Tang’s note were located in Victoria and the deceased’s mother was also a major beneficiary in the estate, Victoria was prima facie an appropriate forum for determining the validity of the note as a will under the Chinese Law of Succession.
The court considered the provisions of the Chinese Law of Succession, and two local laws – the Evidence Act and the Wills Act. It ruled that Tang’s note could be admitted to probate.
It granted Tang’s mother letters of administration, with the will annexed, with the balance of the estate to be distributed in accordance with the intestacy provisions of the Chinese Law.