Lex Domicilli, Lex Situs & International Intestacy

In September 2010 KH died aged 63 in Kochi City, Japan leaving an estate in Japan valued at more than $1.2 million and three bank accounts (“moveable property”) in Queensland valued over $1.5 million. KH had never married and left no issue. His only sibling, a sister, had died in infancy. His father died in 1991 and his mother in 1999. KH had at least one maternal first cousin living in Japan at the time of his death.

KH was born in Japan and between 1986 and 1995 travelled regularly between Japan and Australia. He lived in Australia from 1997 to 1999 and returned to live in Japan in 1999. KH died without a will; the Japanese Rules of Succession (“the rules”) do not recognise first cousins; therefore the deceased’s estate in Japan was deemed to belong to the Japanese Treasury.

A Japanese solicitor appointed by the Japanese Family Court to administer the estate,( “the Japanese administrator”) engaged a Queensland solicitor to act on his behalf in administering the Australian estate.

In February 2013 the Public Trustee of Queensland (PTQ) was appointed as Administrator of the deceased’s Queensland estate. In Queensland first cousins are recognised as next of kin under Part 3 of the Succession Act1981 (Qld). (“the Act”)

In January 2017, the PTQ applied to the Court under s 134 of the Public Trustee Act 1978 (Qld) seeking advice as to whether it should distribute the Queensland estate of KH’s first cousin.

The issue before the Court was whether KH’s movable property in Queensland vested in the Japanese Treasury, under the Japanese Laws of Succession. As KH had property in Queensland it is necessary to consider Queensland law in circumstances where a person has died without a will but has left moveable property within the State.

The applicable succession law for the moveable property of a deceased estate is the lex domicilii. (law of the deceased person’s domicile); immovable property of a deceased person is dealt with under lex situs (the succession law of the jurisdiction where the immovable property is located)

However, in August 2014, the Japanese Family Court following submissions made by the Japanese administrator granted permission to exclude the movable property from the estate.

The effect of the decision was that the Japanese administrator has no interest in the Queensland Estate. The Court was satisfied that the PTQ should be advised and directed that he can distribute the Queensland Estate of the deceased to the persons entitled under Part 3 of the Act.

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