An interesting judgment was handed down last week by Moore J of the Supreme Court in respect of a 2016 Will validly executed in China, that was deemed to have been intended to deal with the deceased’s assets located in China as well as in Victoria, Australia, notwithstanding the Chinese Will contained no express provision or mention of the Australian assets.
The key issue in contention between the plaintiff (the attorney for the deceased’s oldest son from his first marriage) and the defendant (who was married to the deceased at the time of his death) was whether the Chinese Will dealt with the deceased’s assets in Australia. If the Chinese Will did not deal with the deceased’s Australian assets, those assets would have otherwise been dealt with via the Victorian statutory intestacy rules. In that scenario, the defendant would have had the most substantial interest in her late husband’s intestacy.
In making its ruling, the Court was persuaded by some of the following factors:
- the plain meaning of the words ‘my property’ contained in the Chinese Will conveyed that the deceased intended the Chinese Will to deal with all of his assets, including those in Victoria;
- the deceased had executed a number of previous Wills in his lifetime which suggested to the Court that the question of his legacies would likely have been a matter of some active consideration, particularly given his terminal condition with which he had been diagnosed in 2015; and
- in ascertaining the deceased’s intention in respect of his Australian assets, the Judge held that the construction of the Chinese Will was consistent with, and relied on the principle in Fell v Fell (1922) 31 CLR 268 such that the Judge ought to ‘lean against an intestacy, and not to presume that the testator meant to die intestate if, on a fair construction, there is reason for saying the contrary‘.
The implications of this decision are potentially significant for persons who have executed a Will overseas. Depending on how they intend to deal with their Australian assets, the question is whether their overseas Will expresses their testamentary intentions in respect of their Australian assets with sufficient clarity, or whether they have taken precautionary measures to deal with those assets via other means.
This article was written by Simon Crawford, Partner and Angela Liaskos, Senior Associate.
