RE TANG (DECEASED)

52 VR 786·Kyrou and McLEISH JJA
52 VR 786
52 VR 786
RE TANG (DECEASED) Court of AppealKyrou and McLEISH JJA 13, 30 June 2017[2017] VSCA 171Private international lawChoice of lawWills and codicilsDeceased Australian citizen domiciled in ChinaTestamentary note made in ChinaNote disposed of part of Victorian personal estateWhether willWhether validity of note as a will governed by Victorian law or Chinese lawWhether Victoria appropriate forumProof of foreign lawEvidence Act 2008 (Vic)174Wills Act 1997 (Vic)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).

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