Leaving a “note” for mum successfully appealed; “Note” = Will

Not all that long ago, I wrote an article on a case involving a gentleman who had passed away in China.  He was Australian Citizen who was resident in China for many years and he had left a note for his mum regarding his wishes to distribute some of his property which gave rise to various questions about whether this note comprised his “Will”, his testamentary intentions and what law applied in this situation.

For full background, you can read my earlier article here. The summary of the first case was that the deceased’s mother had applied to the Court to uphold the note that the deceased had left as his last Will.  The Court dismissed the claim stating that it was not satisfied that the deceased had the capacity to make the will, nor did he intend the “note” to be his last will.

In Re Tang [2017] VSCA 171 the grounds of the appeal were:

  1. That the primary judge failed to take into account the evidence laws as they related to the need for expert evidence when considering the laws of succession of China relevant to accepting and interpreting the “note” and the distribution of the deceased’s estate in the event of partial or complete intestacy – Agreed;
  2. That the primary judge misdirected herself that the only forum to determine the validity of the “note” as a Will is China by requiring a finding of validity be made in a foreign Court because the deceased was domiciled in China – Agreed;
  3. That the primary judge applied the wrong principal of law elevating the required standard of proof in proving testamentary capacity – Agreed;
  4. That the primary judge applied the wrong principal of law by reversing the onus of proof for testamentary capacity required under Chinese law – Agreed;
  5. That the primary judge misdirected herself that there was no evidence that the handwriting on the “note” was the deceased’s Agreed;
  6. That the primary judge took into account irrelevant considerations regarding the extent of the beneficiaries named and the assets disposed of in the “Note” when finding that the deceased did not intend the “Note” to be his Will – Agreed;
  7. That the primary judge’s finding that the “note” appeared to express a wish that the applicant could deal with the bank money for her own purposes but when she could was not clear was not supported by the evidence – Agreed.

The Court of Appeal allowed the appeal finding that each of the Grounds of the appeal were made out.

In respect of Ground 1, regarding the evidence of Chinese Law of Succession, the Court said, at paragraphs 61-66:

61. The applicant contended that, as a result of not considering s 174 of the Evidence Act and its permissive character, the judge fell into error by making no findings as to the content or application of the law of China.  As a consequence, so it was said, the judge failed to make a finding regarding the validity of the Note as a will pursuant to s 17 of the Wills Act, despite her observation that it is possible that the Note does comply with the internal law of China by virtue of the operation of Article 17 of the Chinese Law of Succession.

62. The applicant submitted that if the judge had considered s 174 of the Evidence Act, she ought not to have required expert evidence.  According to the applicant, this would have enlivened recognition of the Note as a valid will pursuant to s 17 of the Wills Act.

63. In our opinion, Ground 1 is made out.

64. In the light of s 174 of the Evidence Act, expert evidence is not the only means by which the content of a foreign law can be proved to the satisfaction of an Australian court.  It appears that, as the judge did not refer to that section, she was under the misapprehension that, in the absence of expert evidence, it was not open to her to make a finding on the content of the Chinese law relating to succession.

65. Given the risk of error — and perhaps even abuse — it is understandable why, in many cases, strict proof of foreign law, through expert evidence, may be required.[28]  However, this was not such a case.  This is because the judge conducted her own research on the applicable Chinese law and the text of the Chinese law of succession that was yielded by that research coincided with the text upon which the applicant relied.  In accordance with s 174(1)(b) of the Evidence Act, the judge should have been readily satisfied that the text was ‘a reliable source of information’ about the applicable Chinese law.

66. It follows that the judge erred by not accepting the text of the Chinese Law of Succession as an accurate statement of the applicable Chinese law, in accordance with s 174(1)(b) of the Evidence Act.

In considering Grounds 2 and 5 of the appeal regarding the appropriate forum and the deceased’s handwriting in the “Note”, the Court said, at paragraphs 71-75:

71. We agree with the applicant’s submission that, in deciding that China was the appropriate forum for determining whether the Note was a valid will under Chinese law, the judge gave too much weight to her finding that the deceased’s domicile was China.  In doing so, the judge failed to determine the question of forum by reference to all relevant considerations, including the wording of the relevant Chinese law, the degree of complexity involved in interpreting and applying that law, the location of the assets which are the subject of the Note and the location of the beneficiary to whom those assets were gifted by the Note.

72. We note that the applicant resides in Victoria, the assets gifted by the Note are located in Victoria and the applicant is the sole beneficiary in respect of those assets and a major beneficiary of the deceased’s intestate estate.  In these circumstances, prima facie Victoria is an appropriate forum for determining — in accordance with s 17 of the Wills Act — the validity of the Note as a will under the Chinese Law of Succession.  There is nothing in the wording of that law, nor any factors peculiar to the deceased, his family situation, the nature of his estate or the identity of any potential beneficiaries of his estate, that displaces that prima facie position.

73. From a review of the Chinese Law of Succession, it is readily apparent that the Note will be a valid will under that law if it complies with the requirements of a ‘testator-written will’ in Article 17.  That article provides that such a will ‘is one made in the testator’s own handwriting and signed by him, specifying the date of its making’.  It is evident on the face of the Note that it specified the date that it was made.  The only issues are whether it was in the deceased’s own handwriting and whether the signature it bore was his signature.

74. We agree with the applicant’s submission that the judge erred in stating that there was no evidence in relation to these issues.  In her first affidavit, the applicant gave evidence that she asked the deceased why he had written the Note and he responded: ‘in case something happened to him he needed to make sure that [the applicant] got the money held in the two bank accounts’.[31]  The clear inference from this evidence is that the applicant recognised the writing and signature on the Note as that of the deceased and that he acknowledged that he wrote and signed it.  As the deceased’s mother, the applicant was undoubtedly in a position to recognise his handwriting and signature.

75. It follows that the judge erred in concluding that China was, to the exclusion of Victoria, the appropriate forum for determination of whether the Note was a valid will under the Chinese Law of Succession.  It also follows that the judge should have determined that issue in accordance with s 17 of the Wills Act.

In respect of grounds 3 and 4 regarding the Onus and standard of proof regarding testamentary capacity, the Court said, at paragraphs 85-87 and 90:

85. It is well established that the propounder of a will has the onus of satisfying the Court on the balance of probabilities that the relevant will is valid, including that the testator had testamentary capacity to make the will.[39]  The Briginshaw principles do not apply to the propounder.  Those principles may, however, apply to determining whether a caveator or any other person who opposes the grant of probate has discharged an evidential burden that may have shifted to him or her due to the nature and seriousness of the allegations upon which he or she has relied to impugn the will.[40]  For example, an allegation of undue influence will attract the Briginshaw principles.

86. In the present case, there was no opposition to the grant of letters of administration with the will annexed and there was no allegation of undue influence or, indeed, lack of testamentary capacity.  As the only question regarding testamentary capacity was whether the applicant, as the propounder, had established testamentary capacity, the judge was required to decide that question on the balance of probabilities without regard to the Briginshaw principles.

87. Had the judge done so, there would have been no proper basis for her to conclude that the applicant had not established testamentary capacity.  The deceased was in hospital due to a physical illness, namely, heart problems.  There is no evidence that these problems affected his cognitive skills or that any medication he was taking affected his lucidity.

90. In relation to Ground 4, if the correct construction of Article 22 of the Chinese Law of Succession is that it presumes testamentary capacity unless lack of capacity is established, then it must follow from our discussion of Ground 3 that such a presumption has not been displaced.  Likewise, if on its proper construction Article 22 does not contain any presumption, it follows from that discussion that the deceased was not a person ‘with no capacity or with limited capacity’ for the purposes of that article.  In these circumstances, it is not necessary for us to decide whether the judge — who did not refer to Article 22 — impermissibly reversed the onus of proof.

In consideration grounds 6 and 7 regarding the findings about the “Note” being a Will, the Court said, at paragraph 93:

93. We agree with the applicant’s submissions.  The fact that the Note did not deal with all the deceased’s assets and only benefitted one potential beneficiary does not, in the circumstances of this case, indicate that he did not intend the Note to be a will.  Similarly, in the circumstances of this case, it can readily be inferred that the Note was not precatory but was intended to be a testamentary instrument in respect of two bank accounts which were sufficiently identified by it.  Accordingly, Grounds 6 and 7 are made out.

The Court of Appeal made the order that Letters of Administration (with the will annexed) be granted to the deceased’s mother and that she, therefore, may distribute the proceeds of the bank accounts, as set out in the “Note”, to herself, and the remainder of the estate will fall to the distributed in accordance with the intestacy provisions of the Chinese Law of Succession.

You can read the appeal here.


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