52 VR 786RE TANG (DECEASED) Court of AppealKyrou and McLEISH JJA 13, 30 June 2017[2017] VSCA 171Private international law — Choice of law — Wills and codicils — Deceased Australian citizen domiciled in China — Testamentary note made in China — Note disposed of part of Victorian personal estate — Whether will — Whether validity of note as a will governed by Victorian law or Chinese law — Whether Victoria appropriate forum — Proof of foreign law — Evidence Act 2008 (Vic) s 174 — Wills Act 1997 (Vic) s 17.
The deceased was an Australian citizen, domiciled in the People’s Republic of China, who executed a note in China on his hospital deathbed. The note concerned some, but not all, of his personal property in Australia. It was written and executed by the deceased alone, without any witnesses and in circumstances where there was only limited evidence regarding his testamentary capacity. The note purported to bequeath money contained in certain bank accounts to the deceased’s mother, the applicant, who resided in Melbourne, but who had flown to China to be with her son. The deceased briefly discussed the note with his mother at the hospital before he died. The applicant argued that the note constituted a will under Chinese law which was enforceable as such under Australian law. In the proceeding below, the applicant relied upon translated extracts of Chinese succession legislation accessed from Asian Legal Information Institute (AsianLII).