Re Tang

Case [2017] VSC 59 24 February 2017

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2015 16629

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)

Plaintiff

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, written submissions filed by the plaintiff on 17 May 2016 and 10 October 2016
DATE OF JUDGMENT:	24 February 2017
CASE MAY BE CITED AS:	Re Tang
MEDIUM NEUTRAL CITATION:	[2017] VSC 59

---

PROBATE —Application for grant of representation in Victoria — Where deceased left handwritten note disposing of monetary assets in Victoria but not all assets or any assets in the People’s Republic of China — Where note written in Chinese language and executed in the People’s Republic of China — Wills Act 1997, ss 7, 9, 17, 18

PRIVATE INTERNATIONAL LAW — Choice of law — Succession — Where deceased is an Australian citizen —Where deceased resided in the People’s Republic of China since 2003 — Whether deceased intended to reside there permanently or for an indefinite time — Domicile of choice— Where all assets of the deceased’s estate are movable — Whether will executed in conformity with internal law of People’s Republic of China — Whether estate falls on intestacy — Domicile Act 1982 (Cth), ss 10, 11, 12 —Domicile Act 1978, s 9, 10, 11 — Re Fuld’s Estate (No 3) [1968] P 675; [1965] All ER 776 — Harrison v Harrison [1953] 1 WLR 865 — Hyland v Hyland (1971) 18 FLR 461 — Ross v Ellison or Ross [1930] AC 1

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S Aufgang	Xianyi Tan Barrister & Solicitor

HER HONOUR:

Introduction

Mr Tang Mingzheng[1] died on 26 November 2014 (‘the deceased’ or ‘the testator’), aged 41 years. He died in Shanghai in the People’s Republic of China (‘China’). At the date of his death, the deceased was an Australian citizen and resident in China.
[1]To maintain consistency of naming, the family names have been placed before the given names consistent with Mandarin Chinese.

On 14 November 2014, the deceased wrote a handwritten note in the Chinese language on a small scrap of paper the size of an envelope (‘the note’). The note was to his mother, who is the plaintiff in this proceeding. It was signed by him and dated 14 November 2014. His signature on the note was not witnessed. The translation of the note reads 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

By originating motion filed 30 October 2015, the plaintiff…

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.

Continue reading Re Tang

Details

AGLC: Re Tang [2017] VSC 59
Case: [2017] VSC 59
Decision Date: 24 February 2017

CaseChat Overview and Summary

The matter of Re Tang involved an application for a grant of representation in Victoria. The deceased had left a handwritten note disposing of monetary assets in Victoria but had not addressed all of their assets or any assets located in the People’s Republic of China. The note was written in Chinese and executed in the People’s Republic of China. The court had to determine whether the note constituted a valid will under the Wills Act 1997 and, if not, whether the estate should follow the intestacy rules.

The central legal issue was whether the deceased intended to reside in the People’s Republic of China permanently or for an indefinite period, thereby establishing their domicile of choice there. The court considered the applicability of the Wills Act 1997 in conjunction with the Domicile Act 1982 (Cth) and the Domicile Act 1978. The court also needed to examine whether the will was executed in accordance with the internal law of the People’s Republic of China and if the estate should fall into intestacy.

The court found that the deceased had established a domicile of choice in the People’s Republic of China, as they had resided there since 2003 and demonstrated an intention to reside there permanently. Consequently, the court held that the internal law of the People’s Republic of China applied to the validity of the will. The court concluded that the handwritten note did not comply with the requirements of a valid will under the internal law of the People’s Republic of China, and therefore the estate should fall on intestacy. The court ordered that the estate be administered according to the intestacy rules of Victoria.

The final orders of the court were that the application for the grant of representation be dismissed and that the estate be administered as intestate under the laws of Victoria. The court directed that the deceased's assets located in Victoria be dealt with in accordance with the intestacy rules of that jurisdiction, while the assets in the People’s Republic of China were to be managed in accordance with the laws of that country.

Orders