When an Australian client dies owning property in both Sydney and Paris, legal professionals must navigate two distinct legal systems. They do this to guarantee a fair settlement. Cross-border estates are increasingly common, as many Australians own property overseas or live abroad for extended periods. Nonetheless, when wills are executed in different countries, succession becomes challenging. The assets are governed by separate legal systems.
Russell v Ceylan [2025] NSWSC 1044 illustrates how Australian courts tackle complex cross-border estate disputes. The case centred on determining the appropriate jurisdiction for succession matters involving multiple wills and assets in different countries. It highlights the challenges of competing succession systems. The case also demonstrates the application of the ‘clearly inappropriate forum’ test. The focus is on finality, the lex situs of land, and practical justice.
Uve Bierzunski died in Germany in 2022, where he was born and domiciled. At his death, he owned significant assets in both Germany and Australia. The deceased’s Sydney real estate was valued at approximately $1 million. He had Australian bank accounts totaling $420,000 and German bank accounts totaling €100,000. He left three relevant testamentary documents.
First, in 2013, he executed a will that was formally valid under NSW law. It left his entire Australian estate to Edward Russell but expressly did not deal with assets outside Australia.
In 2018, while living in Germany, he wrote an informal, handwritten, unwitnessed document in German naming Russell as sole beneficiary. This holograph was formally valid under German law, which accepts less formal testamentary documents if they show clear intent. But, it did not follow s 6 of the Succession Act 2006 (NSW). This section defines the formal requirements for a valid will. It mandates that the will must be in writing. It must be signed by the testator (or at their direction). It also needs the signatures of at least two witnesses there at the same time. The witnesses must also attest and sign the will in the presence of the testator.. It reflects a stricter approach to prevent fraud and disputes.
Thirdly, in 2021, he executed a will that complied with German requirements and named Adem Ceylan as his sole heir. Nonetheless, it did not satisfy the NSW statutory requirements for formal validity.
After the deceased’s death, Ceylan sought administration in NSW in 2022 on the basis of the 2021 document. Russell lodged caveats and alleged the deceased lacked testamentary capacity when that document was made. Those proceedings stalled. Ceylan then commenced proceedings in Germany seeking a grant in respect of the 2021 document. This matter remained unresolved.
In 2025, Russell commenced proceedings in NSW. He sought either letters of administration with the 2018 document annexed. Alternatively, he sought probate in solemn form of the 2013 will. By pursuing both options, Russell maintained flexibility. He gained leverage that allowed him to adapt to evidentiary and jurisdictional developments as the case progressed. This approach mitigated risks and protected his interests amid the complex cross-border issues. Ceylan responded by seeking to have the NSW proceedings dismissed or stayed under UCPR r 11.6(2)(b), arguing that New South Wales was a clearly inappropriate forum. His argument focused on several key points:
- Key witnesses and relevant evidence about testamentary capacity were primarily located in Germany.
- The movable estate was largely governed by German law, considering the deceased’s domicile.
- Germany had strong connections to the deceased’s life and assets.
- The proceedings in Germany related to the 2021 document were already underway. Ceylan emphasised that these factors, taken together, made Germany a more suitable jurisdiction for resolving the dispute.
Choice of law principles
The Court restated the common law distinction:
Immovable property refers to real estate. It is governed by the lex situs, which is the law of the place where the land is located.
Movable property is governed by the lex domicilii (the law of the deceased’s domicile at death).
The Sydney property must be dealt with under Australian law. The movable estate is primarily governed by German law, as Germany was the deceased’s domicile. The Court noted something important. Ss 47–50 of the Succession Act 2006 (NSW) modifies the common law. Abolishing the traditional distinction between movables and immovables for formal validity introducing a flexible regime. A will is formally valid in NSW under this regime if it complies with the internal law. Including the place of execution, the testator’s habitual residence or nationality, either at the time of execution or at death.
John is an Australian testator. He executes a will that complies with French law. He does this while residing in France at the time of residence and death. It meets formal validity in NSW. This flexibility demonstrates NSW law’s adaptability to international elements in cross-border succession. In Russell v Ceylan, this adaptability allowed the court to consider Bierzunski’s 2018 and 2021 documents. They were valid under German law. Still, they were scrutinised under NSW law. The NSW provisions are thus critical in assessing the formal validity of wills across jurisdictions in complex cases. Leaving unchanged the common law rules on:
Essential validity, testamentary capacity, involves various aspects. Construction includes questions like whether the 2021 document dealt with all assets or only German assets. It also considers whether it revoked the 2018 document or the 2013 will. Issues that still need to be resolved consistently with the lex situs for immovable property.
Forum considerations
The Court recognised a few key points. The city was in Germany in 2021. The asset in question was New South Wales real property. Both Mr Klinger and Mr Dammholz have practical skill in German succession and probate law. Assisting when applying German law where necessary. Nonetheless, the estate needs similar skill to tackle the law relating to property in Sydney. In either forum, evidence on foreign law would be necessary. Courts increasingly rely on expert testimony and virtual appearances to streamline litigation. Courts determined that New South Wales was not a clearly inappropriate forum. Thus, the inconvenience did not justify dismissal or a stay.
Ceylan motion was dismissed, and the NSW proceedings continued.
The Other Key Cases
Forum non conveniens allows courts to dismiss a case. This happens if another jurisdiction is better suited to hear it. There are different tests across common law countries. The UK uses the “more appropriate forum” test. This test is from Spiliada Maritime Corporation v Cansulex Ltd [1986] UKHL 10, [1987] AC 460. Australia uses the ‘clearly inappropriate forum’ test from Voth. The Spiliada test seeks the best jurisdiction. In contrast, the Voth test focuses on whether the current forum is clearly inappropriate. It emphasizes judicial restraint.
The Voth case adopted the ‘clearly inappropriate forum’ test. This test was derived from Oceanic Sun Line Special Shipping Co v Fay [1988] HCA 32; (1988) 165 CLR 197. Under Voth, a stay issues only when the forum is demonstrably unsuitable. The proceeding must be so unsuitable that it would result in an oppressive, vexatious, or abusive process. The burden is on the defendant to prove such unsuitability and the injustice in allowing the proceedings to continue.
Australia’s use of the ‘clearly inappropriate forum’ test promotes judicial restraint. It respects the plaintiff’s choice of forum. This approach enhances stability and predictability. Under Voth, as restated in Puttick, a stay is granted only under specific conditions. It is approved only if the Australian court is shown to be clearly inappropriate. The focus is on the unsuitability of the local court, not on finding the best forum elsewhere. The defendant generally bears the burden of proof, except in certain cases. This approach shapes the judicial handling of cross-border legal conflicts.
In contrast, the UK applies the “more appropriate forum” test from Spiliada. This test identifies the most suitable jurisdiction for the case through a comparative analysis. The Australian test focuses on the unsuitability of the current forum. In contrast, the UK test evaluates all potential forums to decide the best fit. This can result in more flexibility in changing jurisdictions in the UK.
In Puttick v Tenon Ltd [2008] HCA 54, the High Court held that Victoria was an appropriate forum. This decision allowed Mrs Puttick damages claim to continue. Her claim arose from her husband’s asbestos-related death. Mr Puttick had been employed by a New Zealand company and was allegedly exposed to asbestos overseas. After moving to Melbourne, he commenced proceedings in Victoria shortly before his death, which his widow continued. The parent company, Tenon, sought to have the proceedings stayed. They also sought dismissal, arguing that the alleged negligence occurred in New Zealand. They claimed New Zealand law applied and that New Zealand’s no-fault compensation scheme barred any common law claim. At first instance, Harper J permanently stayed the proceedings. He held that New Zealand was the more appropriate forum. This was because witnesses and documents were located there. It was also because New Zealand law governed the dispute. The Victorian Court of Appeal largely upheld that approach.
The High Court unanimously disagreed. It held that the lower courts had erred. They decided on incomplete and uncertain material. They concluded that New Zealand law governed the dispute. Critical facts were missing or unclear. This included the details of factory visits by Mr Puttick. It also encompassed the legal relationships between Tenon, Tasman, and Mr Puttick. Those matters needed to be resolved first. Only then a provisional finding be made about where the tort occurred. It was also necessary to find out which legal system applied. At best, New Zealand law was only arguably applicable. Even if New Zealand law applied, Tenon neglected to show that Victoria was unsuitable.
The Voth test requires proving that Victoria was clearly inappropriate. Australia and New Zealand have a close geographical relationship and similar legal systems. Existing trans-Tasman legislative arrangements also support this. These factors made Victoria a suitable forum. Thus, the High Court set aside the permanent stay, dismissed Tenon’s application, and ordered it to pay costs. Voth focuses on whether the domestic court is a ‘clearly inappropriate forum,’ with an emphasis on the local court’s unsuitability. Burden is generally on the defendant to prove the forum’s unsuitability. Requires a demonstration of oppressive, vexatious, or abusive process proceedings to justify a stay. Considers connections to the jurisdiction, potential for judicial advantages, and whether proceedings would be unjustly inconvenient.
In Russell v Ceylan, German proceedings could not produce res judicata. NSW proceedings were the only path to finality. Therefore, parallelism was not oppressive.
CSR Ltd v Cigna Insurance Australia Ltd (1997) 146 ALR 402 is a leading High Court authority. The case concerns forum non conveniens. It also covers anti-suit injunctions in Australian private international law.
The case involved massive asbestos litigation. More than 40,000 claims were brought against CSR in both Australia and the United States. CSR commenced proceedings in the United States against its insurers, including Cigna. In response, Cigna sought an anti-suit injunction. The aim was to restrain CSR from continuing the US proceedings. This was done in the Supreme Court of New South Wales.
The High Court allowed CSR to appeal and refused to grant the injunction. It held that Australian courts should only restrain foreign proceedings where they are truly vexatious or oppressive. Proceedings are not oppressive merely because they are brought in a foreign forum or because parallel proceedings exist. The Federal Court of Australia stated that foreign proceedings offer a remedy that is unavailable in the local forum. Hence, they are not oppressive as in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345. The US proceedings gave CSR a real and legitimate forensic advantage, not be characterised as abusive or oppressive.
The Court emphasised the importance of international comity and caution in interfering with proceedings in foreign courts. It confirmed that an Australian court should not restrain a party from pursuing litigation in another jurisdiction. This is true even if Australia is also an available or convenient forum.
The significance of CSR v Cigna lies in its refinement of the “clearly inappropriate forum” test. It also clarifies when anti-suit injunctions are justified. It established that:
- Anti-suit injunctions are exceptional remedies.
- Foreign proceedings are oppressive only if they serve no legitimate purpose.
- If the foreign forum provides real advantages unavailable locally, restraint is inappropriate.
- The practical outcome was that the NSW proceedings were stayed.
- The US litigation was allowed to continue.
This decision reinforced respect for foreign courts and the principle of international comity.
If proceedings are based on the same “factual substratum,” the focus is on whether the Australian case is truly vexatious. It also considers whether the case is oppressive, taken as a whole. The High Court of Australia allowed an appeal. Lewis v Balshaw [1935] HCA 80 originated from the Supreme Court of New South Wales. The Court decided that the grant made in the deceased’s place of domicile should be followed. They concluded that issues raised by a caveator should not be heard. The Court held that movable property is governed by the law of the deceased’s domicile. This allows foreign probate to be recognised. Still, immovable property is governed by the law of the situs.
Local courts have the authority to decide the validity of the Will. They also grant administration over land. Recognising foreign grants for movables promotes convenience and international comity. Yet it can’t override local real estate law. Contested issues about immovables must be determined on their merits.
In NSW, the Succession Act 2006 (ss 47–50) gives effect to the 1961 Hague Convention. It recognises foreign wills as valid if they follow the law of a country closely connected to the testator. It ensures technical differences in signing or witnessing don’t defeat testamentary intentions, and interacts with Part 2.4A, which implements the 1973 Washington Convention for “international wills.” This framework provides certainty for testators with cross-border assets or connections. According to a 2025 article from the University of Sydney Law School, a German Will meets formal validity requirements. Yet, issues can still arise under New South Wales law. Complications occur when the Will concerns land located in NSW.
Why Russell v Ceylan Matters
This case demonstrates the challenges of handling cross-border estates. It involves principles like forum non conveniens, parallel proceedings, and the application of the lex situs rule to property. and the multiple wills doctrine. Key lessons are clear. Australian courts keep authority over land in NSW. Finality in litigation outweighs mere convenience. Foreign inheritance certificates without legal finality are not enough. To avoid disputes, estates should be carefully planned with multiple wills. These wills should clearly define the scope and revocation effects. They must respect that NSW law governs NSW land. It is important to expect that Australian courts will generally keep jurisdiction unless exceptional oppression can be shown.
Practical steps for practitioners:
- When preparing wills, guarantee different jurisdictions are addressed separately to prevent conflicts.
- Conduct thorough property evaluations in all relevant jurisdictions to understand each legal environment.
- Regularly review and update your wills to show any changes in asset location or applicable laws.
- Consult with legal experts in international law to navigate complexities in different jurisdictions.
For cross-border estates, Russell v Ceylan is essential reading.
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