Succession to Property – Conflict of Laws

Distribution of property of an intestate estate at common law depends upon whether that property is classified as a movable or an immovable asset. Succession to movable property is determined by where the deceased lived (lex domicilii); succession to immovable property is determined by its location (lex situs) – the transfer of title to the property is dependent upon and varies with the location of the property, where there is a conflict of laws.

The enactment of the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions, (adopted in New South Wales in 1986) altered the old common law choice of law rule concerning the validity of a will. But it did not affect the more general rule that succession to immovable property is determined by the lex situs.

A recent matter is unusual as the deceased died more than a century ago and all of his descendants were, and are, foreign residents. These proceedings concern proceeds from the sale of the share of a property acquired between 1865 and 1874 in New South Wales owned by the deceased and others as tenants in common that was sold in 2011.

John Meyerfeld was born in 1839 in Treysa, in the Electorate of Hesse then a member state of the German Confederation. John emigrated to the then Colony of New South Wales in 1865; becoming naturalised in 1874.

John married Jenny Lippmann in 1886; they had a son, Kurt and two daughters, Alice and Edith. Around 1882 he returned to Europe and died in Berlin in 1907.

In 1889 John made a will, (”the Will”) leaving provision for his wife and children. The Will was modified by two codicils made in October and November 1896. John named his wife, his brother Julius, and Hermann Bamberg of Berlin executors.

The Will and codicils complied with German law. However, in 1907, New South Wales law required that a formally valid Will had to be witnessed by two witnesses, the will did not meet this requirement it was therefore not valid under New South Wales law.

In New South Wales the Succession Act expressly provides that where succession takes place according to New South Wales law, the applicable law is that which prevailed as at the date of the decedent’s death.

The Succession Act 2006 (”the Act”) empowers the New South Wales Supreme Court to grant probate of a document created following the commencement of the Act that reflects the testamentary intentions of its maker but not the formal requirements. However under New South Wales law in 1907, on intestacy his widow, Jenny received one-third of the estate with the remaining two-thirds being divided among his surviving three children in equal shares.

John’s son Kurt died unmarried with no children in 1912 at the age of 29; it appears he died intestate. In December 1912 Hermann obtained probate of the Will and two codicils in England. Under New South Wales law in 1912, Kurts share of his father’s estate passed on intestacy to his mother, Jenny. Leaving her with five-ninths of the deceased’s share; Alice and Edith, holding the other four-ninths.

Jenny died in 1925 in Berlin. Her last will was made in compliance with German law but didn’t meet the formal requirements under New South Wales law. Accordingly, under the then New South Wales intestacy provisions, Jenny’s interest in John’s share of the property passed to Alice and Edith.

Edith Meyerfeld was born in March 1894, had two daughters, Ellen and Alice Mosenthal. She married Albert Julius Mosenthal in Germany. Edith died in February 1973 her last will, made in 1967 in England where the rules would have complied with the law of New South Wales leaving:

”….all residue of my estate whatsoever and wheresoever” to Ellen and Alice.

Alice married and had four children. Alice died intestate in November 2001 her estate passed to her four children in equal shares under New South Wales law.

Ellen died in London in June 2013. In January 2014 probate was granted on her will in England to her children Oliver and Clare as executors of the Will. The Supreme Court of NSW accepted that as probate was granted to Ellen’s Will it complied with English formal requirements, as a corollary it would also have complied with New South Wales formal requirements.
In September 2014 the New South Wales Trustee & Guardian( “the Trustee”) obtained a grant of letters of administration of John’s unadministered estate in New South Wales and published a notice of its intention to distribute the estate. Following genealogical searches, the Trustee was in contact with some of the Johns descendants and sought the Court’s direction to distribute the fund to those entitled to it.

The application before the Court is a Re Benjamin application; deriving its name from the case of Re: Benjamin; Neville v Benjamin and is an order made by the court for the distribution of assets on death when it is uncertain whether a beneficiary is alive.

John, Jenny, Ellen and Alice and two of their three children had died before the property was sold. At the time of each of those deaths the property was a share in a piece of land, it’s sale, the effect of which was to convert the property into a sum of money held by the trustees for the benefit of the owner or owners.

Based on this evidence, the Trustee sought the Court’s direction authorising it to distribute the proceeds of the New South Wales property as follows:

(a) a one-half share to the executors of the estate of the son of Alice Meyerfeld ;
(b) a one-quarter share to the executors of the estate of the older daughter of Edith Meyerfeld;
(c) a one-sixteenth share to each the heirs of the younger daughter of Edith Meyerfeld.

Money substituted for an immovable by the lex situs is subject to the same rights as the immovable, but, when an immovable is sold under a disposition made by the owner or in consequence of a dealing with it by the owner, the rights to which it was subject as an immovable do not affect its proceeds unless kept alive against them by the will of parties or by the lex situs.

Applying this principle following the sale of the property, the Court held the sale was pursuant to Section 66G(1) of the Conveyancing Act 1919 (NSW) and the proceeds of the sale met the description of “monies substituted for an immovable by the lex situs” and should be treated as immovable and succession to those proceeds is governed by the law of New South Wales.

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