Recognition of Foreign Wills A PAPER BY PAUL ANDERSON SEPTEMBER 2009
Recognition of Foreign Wills
Summary This paper considers the circumstances in which a foreign Will will be recognised by New South Wales Courts and the consequences of not making a Will.
Who Does This Impact? Asset owners and their families.
What Action Should Be Taken? Any owner of assets should make a Will and if such assets are located in more than one country, should take advice to ensure that such Will will be recognised in all relevant jurisdictions.
Contents:
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In the Will of Lambe
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Lynch v Provincial Government of Paraguay
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Nelson v Bridport
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Hague Convention
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Lambe Revisited
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Intestacy
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Conclusion
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Recognition of Foreign Wills by Paul Anderson
In what circumstances will a New South Wales court recognise a Will made overseas?
In the Will of Lambe The factual complexities that can arise are illustrated by this 1972 case. Lambe was born in Queensland of British parents. His nationality is not clear from the case but may have been either British or Australian. He lived for a time in Argentina where he married and later moved to Portugal where he acquired a domicile of choice. Domicile is a legal concept referring to the place which a person regards as his permanent home. Lambe died in Portugal in 1966 leaving moveable property of $57,000 in New South Wales, $40,000 in Victoria and $25,000 in the ACT. While resident in Argentina, Lambe made a Will in English which was expressed to apply only to his Australian assets. The Will complied with the formalities of NSW law but did not comply with the formalities of the law in either Argentina or Portugal. Which law was to determine the validity of the will? The law of the nationality, residence, domicile, or some other connection? The law has moved on since, but in 1972 the Court found that formal validity of the Will in respect of moveable property was determined by the law of the domicile, as distinct from immoveable property i.e. real estate, where formal validity was determined by the lex situs i.e. the law of the place where the immoveable property was situated. The assets in Lambe’s case were moveable property in New South Wales. This meant that the law of the domicile applied i.e. Portugal. Under Portuguese Law, the Will was invalid and the deceased was deemed to have died intestate.
Lynch v Provincial Government of Paraguay Francisco Lopez died domiciled in Paraguay in March 1871. In proceedings in England, probate was sought of his Will which disposed of moveable property situated in England. The Provincial Government of Paraguay opposed the application on the ground that two months after his death, a decree had been passed declaring that all of the property of Francisco Lopez constituted the property of the Nation of Paraguay and that his Will was invalid. The Court held that the validity of the Will insofar as it applied to moveable property in England was determined by the law of the domicile i.e. Paraguay. However, the relevant law was the law at the date of death and not the law as later retrospectively changed. The Will was valid under Paraguay law as at the date of death in March 1871 and a grant of probate was issued.
Nelson v Bridport Another interesting case concerned Lord Horatio Nelson who was killed at the battle of Trafalgar in 1805. In 1799, the King of the two Sicilies had granted to Lord Nelson the estate and duchy of Bronte in Sicily, with power to appoint a successor. By his Will, Lord Nelson left the Bronte estate to his brother, William Nelson, for life with remainder thereafter to stated persons. Following Lord Nelson’s death, William Nelson took possession of the Bronte estate as life tenant.
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Before William’s death in 1835, a general law was passed in Sicily abolishing remainders. In particular, the law provided that the person lawfully in possession of land should thereafter hold it as absolute owner with unfettered power of testamentary disposition. William Nelson became aware of the change in the law and made a Will leaving the Bronte estate absolutely to his daughter, Lady Bridport. Following William’s death, the question was whether Lady Bridport or the remainderman under Lord Nelson’s Will was entitled to the Bronte estate. The Court held that, as the claim involved immoveable property, the issue was to be determined by the lex situs i.e. the law of Sicily. However, the applicable Sicilian law was not that operating at Lord Nelson’s death but as it existed from time to time. The result was that at the date of his death, William Nelson was the absolute owner of the Bronte estate with power to dispose of it by Will to his daughter. This decision is difficult to reconcile with the decision in Lynch and could only be regarded as being decided on pragmatic grounds. However, the underlying principle remains, namely the relevant law in relation to immoveable property is the lex situs.
Hague Convention As indicated above, the law has moved on since Lambe’s case in 1972. In 1964, the Hague Convention on the Conflict of Laws relating to the Form of Testamentary Dispositions came into force. Thirty nine countries are currently signatories to the Convention which was also adopted in each of the Australian states from the late 1970s. The current legislation in New South Wales is the Succession Act 2006. Under Section 48, a Will is taken to be properly executed if its execution conforms to the law in force in the place: (a) where it is executed; or (b) that was the testator’s domicile or habitual residence, either at the time the Will was executed or at the time of the testator’s death; or (c) of which the testator was a national, either at the time the Will was executed or at the time of the testator’s death. A Will is also taken to be properly executed to the extent that it disposes of immoveable property if executed in conformity with the law in force in the place where the property is situated.
Lambe Revisited Section 48 of the Succession Act is very broad in its scope and will almost certainly result in most Wills made overseas being recognised on one ground or another. However, the section is not without exceptions. If Lambe was decided today, neither ground (a) or (b) of Section 48 would apply, bearing in mind that the assets concerned were moveable property in New South Wales. The only remaining basis for recognition of the Will would be under ground (c), if it
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complied with the law of Lambe’s nationality at the time of execution or at the time of his death. His nationality was not clear from the case. However, if he was a national of Portugal or Argentina, the Will would still have failed, but if he was a national of Australia or Britain, the Will would have been valid and recognised by New South Wales Courts.
Intestacy What happens if the deceased dies intestate i.e. without leaving a Will, or if a Will made overseas is not recognised by New South Wales Courts? The 2004 NSW Supreme Court case of Meisner v The Crown dealt with the issue. The deceased, who had resided in New South Wales for a substantial period until she moved to Israel in 1976, died intestate domiciled in Israel in 1995. Her estate included immoveable property in New South Wales (real estate at Bondi worth $1.1m and moveable property in New South Wales – two bank accounts containing $570,000). The closest surviving relatives were three first cousins and three children of the first cousins, all resident in Israel. The New South Wales Wills Probate and Administration Act 1898 (which was the predecessor to the Succession Act 2006) set out in order a list of persons entitled on intestacy, e.g. spouse, children, parents, siblings, etc but none of these categories applied. Claims of first cousins and their children were not recognised. If there were no beneficiaries within the specified classes, then the relevant property was forfeited to the Crown. Austin, J held that the beneficial succession on intestacy to immoveable property is determined by the lex situs, whereas the beneficial succession on intestacy to moveable property is determined by the law of the domicile of the intestate at the time of death. This meant that in relation to the Bondi property, New South Wales law applied. In relation to the bank accounts, Israeli law applied. New South Wales law did not recognise the claims of first cousins or children of first cousins, so the proceeds of sale of the Bondi property were forfeited to the Crown. Israeli law recognised the claims of first cousins and their children, so they were entitled to the proceeds of the bank accounts.
Conclusion Section 48 of the Succession Act 2006 means that almost all overseas Wills are now likely to be recognised by New South Wales Courts. However, the facts in Lambe’s case suggest that exceptions are still possible. One lesson that clearly emerges is the need to make a Will. Meisner’s case highlights the unfortunate consequences that can occur if there is no Will in existence. It is highly unlikely that the deceased in Meisner intended the New South Wales Government to receive the proceeds of the Bondi property in the sum of $1.1m.
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For more information, please contact:
Paul Anderson Partner T: 02 8257 5742 paul.anderson@turkslegal.com.au
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