Australia is a multicultural country, where the likelihood of an Australian having assets in a jurisdiction outside Australia is strong. Being a dual national or just having assets in more than one jurisdiction raises issues when it comes to estate planning.
The case of Re Tang concerned a Chinese resident who left a handwritten note disposing of his assets in Victoria but not all assets or any assets in China (where he died).
At the date of his death, Mr Tang was an Australian citizen but resident in China. He owned movable assets in Australia and China but no real estate. The note referred to his bank accounts in Australia but did not mention all his assets including his assets in China where the majority of his wealth was held.
His mother, who lived in Victoria, sought a grant of letters of administration with the Will annexed on the basis that the note was his Will and she was the sole beneficiary.
The deceased was married in Australia and had a son. The difference between the laws of China and Victoria meant that the potential beneficiaries (his mother on the one hand, and his wife and son on the other) stood to inherit different proportions of his estate depending upon which law applied.
The central issue that had to be considered was whether the note that was signed In China and disposing of movable assets in Victoria could be admitted to probate in Victoria.
The Court held the key question in determining the applicable law was whether the deceased was domiciled in Victoria or in China, as the two other personal connecting factors, being Australian citizenship and residency in China, were conflicting.
Although his mother said her son intended to move back to Australia, the vast majority of his assets were held in China, he lived in China, he worked in China and the balance of his family lived in China, so the Court held his domicile of choice and habitual residence was China. There was no evidence of him having an intention to return to Victoria by maintaining significant connections to Victorian organisations or applying for jobs there. This was reinforced by the fact that the note was executed in China.
Therefore, the validity of the note was determined under Chinese law with Chinese laws determining the distribution of his estate, both in China and Australia. The Court of Appeal found that the note was a valid Will according to Chinese laws, irrespective of the fact that it did not conform with the requirements of a Will under Victorian law.
The case highlights the importance of considering which succession law applies to an individual’s estate, where an individual owns assets in different countries and/or has other connections to those countries.
To avoid costly and time consuming disputes and estate administration, individuals who have assets in more than one country should ensure they obtain legal advice in those countries and if appropriate have valid Wills in those countries. These Wills should work with each other to ensure that one does not accidentally revoke or conflict with the other.