This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

Intestacy Law and Movable or Immovable Property


When someone dies without having created a will, they are said to have died intestate. The law that governs how property is distributed after someone passes away without a valid will is called the law of intestacy. Intestacy can be complicated where the deceased person has lived across different states within Australia or even overseas. It can be further complicated where the intestate owned property in different jurisdictions. The question becomes which law applies in these situations where there is a conflict of laws. The answer can vary depending on the relevant circumstances and is often determined by whether the assets are movable or immovable property.

Movable or immovable property

What jurisdiction applies in a particular case may depend on what type of property remains after the deceased passes away. The two types of property relevant here are:

  1. Movable property – generally property that is not attached to land, e.g. a bank account; and
  2. Immovable property – generally immovable property is that what is attached to land, e.g. a parcel of land and its fixtures.

The general rule is that the law of the place where the immovable property is located applies to that immovable property for the purposes of intestacy. However, with regard to movable property the law of the intestate’s domicile (place where they are residing) at the date of death will apply. This is regardless of nationality.

There are two Australian cases where there was a conflict of laws that had to be resolved in relation to property someone left behind after they passed away. This needed to be resolved before it could be determined who should inherit the property.

Haque

In the 1965 High Court decision of Haque, the relevant property was:

  • The unpaid balance of purchase money owing to the deceased from land which he had sold; and
  • A share in a solvent partnership which amongst its assets included land.

The deceased died while domiciled in India. A dispute arose about who was entitled to inherit the property he had left behind.

The deceased had a will in Western Australia that left all of his property to his brother. However, Indian Muslim law would have provided a share in his property to his wife, ex-wife and children.

The relevant property, despite relating to land, was determined to be movable property. The court likened the type of property that had been left behind to mortgagee debt which was considered movable property. Accordingly, as at the time of death the deceased was domiciled in India, Indian Muslim law applied and, his wife, ex-wife and children were entitled to a share in the property he left behind.

Re Tang

In the 2017 Victorian Court of Appeal decision of Re Tang, the deceased was an Australian citizen but at the time of his death, he was domiciled in China. At the time of his death, his assets in Australia included some bank accounts and a motor vehicle ( movable property ). He had some other remaining assets in China.

While he was sick the deceased wrote a note purporting to leave his Australian bank accounts to his mother. He was in China at the time he made this note.

The Court of Appeal in Victoria found that the relevant law that applied due to the deceased’s domicile at the time of death and due to the fact that the property in Australia was movable property was the Chinese law. The note was determined to be a valid will under Chinese law and the deceased’s mother could apply to have these bank accounts released to her. The remaining property was to be distributed according to the laws of intestacy of China.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

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