Re Tang

Case [2017] VSCA 171 30 June 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0032

IN THE MATTER of the Will and Estate of MING ZHENG TANG (also known as TANG MING ZHENG and JAMES TANG), deceased
BI XIA ZHANG (also known as ZHANG BI XIA)	Applicant

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JUDGES:	KYROU and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2017
DATE OF JUDGMENT:	30 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 171
JUDGMENT APPEALED FROM:	Re Tang [2017] VSC 59 (McMillan J)

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WILLS – Application for letters of administration with will annexed – Whether handwritten note made by deceased in China an informal will under Victorian law or a valid will under Chinese law – Note a valid will under Chinese law – Appeal allowed – Wills Act 1997 ss 9, 17.

WILLS – Testamentary capacity – Applicable standard of proof – Briginshaw v Briginshaw (1938) 60 CLR 336 – Evidence Act 2008 s 140(2).

PRIVATE INTERNATIONAL LAW – Choice of law – Deceased an Australian citizen domiciled in China – Will made in China – Will disposed of part of deceased’s personal estate – No real estate – Whether validity of will governed by Australian law or Chinese law – Whether intestacy provisions of Australian law or Chinese law apply – Whether Victoria appropriate forum.

EVIDENCE – Proof of foreign law – Whether expert evidence necessary – Evidence Act 2008 s 174.

PRACTICE AND PROCEDURE – Partial intestacy – Assets in Victoria and China – Effect of order of Supreme Court of Victoria granting letters of administration in respect of a will that disposed of only part of deceased’s personal estate in Victoria.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Aufgang	Xianyi Tan

KYROU JA
McLEISH JA:

Introduction and summary

This is an application for leave to appeal against a decision of a judge of the Trial Division dismissing an ex parte application by the applicant, Bi Xia Zhang, for a grant of letters of administration with the will annexed in relation to a handwritten note written by her deceased son, Ming Zheng Tang, in Shanghai on 14 November 2014 (‘Note’).[1]
[1]Re Tang [2017] VSC 59 (‘Reasons’).

The deceased, who was an Australian citizen residing in China, died on 26 November 2014 in the Shanghai First People’s Hospital from a cardiac arrest. He was 41 years of age.

The Note was written in Chinese on a small piece of paper. It was addressed to the applicant and signed by the deceased. No one witnessed his signature. The English translation of the Note is as follows:

Mama:
In Australia, I only have two bank accounts with Westpac. One account is the one you regularly deposit $50 every month, and the other one is a three-year term deposit account. Both account bankbooks are at your place. Remember, the money in both accounts is for your personal use only. Take care!
Tang Ming ZHENG
Date: 14/11/2014

The deceased’s estate consisted of a personal estate of $179,307.77 in Victoria and a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Re Tang [2017] VSCA 171
Case: [2017] VSCA 171
Decision Date: 30 June 2017

CaseChat Overview and Summary

The court was asked to decide whether a handwritten note made by the deceased in China constituted an informal will under Victorian law or a valid will under Chinese law. The deceased, an Australian citizen domiciled in China, had made a handwritten note disposing of part of their personal estate. The appellant argued that the note was a valid will under Chinese law, while the respondent argued that it did not satisfy the requirements for an informal will under Victorian law. The court had to determine the applicable law for the validity of the will and whether the intestacy provisions of Australian or Chinese law applied.

The court held that the validity of the will was governed by Chinese law as the deceased was domiciled in China at the time of making the will. The court also found that the deceased had testamentary capacity to make the will, as the standard of proof was satisfied on the balance of probabilities. The court rejected the need for expert evidence to prove foreign law, holding that the evidence was within common knowledge or easily accessible. The court further held that Victoria was the appropriate forum to determine the validity of the will and the distribution of the deceased's estate.

The court allowed the appeal and granted the appellant letters of administration with the will annexed. The court also held that the intestacy provisions of Chinese law applied to the part of the estate that was not disposed of by the will. The court ordered that the personal estate in Victoria be distributed according to the intestacy provisions of Chinese law, while the personal estate in China be distributed according to the will. The court further ordered that the costs of the appeal be paid by the respondent.

Orders