It is not uncommon for a person to own real and personal property in other states and countries. But when a deceased person’s assets are located beyond their state's borders, can the court make orders affecting property not in NSW?
Can I Commence a Claim in NSW?
It is common sense that when a deceased's estate is located in NSW, eligible applicants can commence a family provision claim in NSW. In particular circumstances, however, eligible persons can also seek family provision orders in NSW which affect property located overseas and interstate.
The basic principle is that movable property, such as personal possessions, chattels or bank accounts, falls under the law of the deceased’s state, while immovable property, including real estate, falls under the law of its location. Section 64 of the Succession Act, however, broadens this principle, enabling the court to make orders affecting interstate or overseas property where the deceased was living in NSW at the time of their death.
Put simply, all of the deceased's property can come under NSW jurisdiction if the deceased lived in NSW or the property is located in NSW.
The Court's Steps
In family provision claims involving assets across multiple locations, the court will consider the following factors to determine whether assets fall within its jurisdiction:
1. Domicile – First, the court will determine where the deceased was domiciled, meaning where they lived or considered their permanent home. If the deceased was domiciled in NSW, the court can then make orders concerning all personal and real property within and outside the state. However, in practice, the court will often refrain from affecting overseas property due to practicality issues.
2. Location of Assets – If the deceased was not domiciled in NSW, the court will then consider which assets are located within NSW and will make orders only affecting that property. However, the court will take into account the existence of property located outside the state when making an order. This means the court will take note of who will inherit what outside its jurisdiction to inform how the court distributes the NSW property.
Some Recent Cases
The deceased's estate comprised of property in NSW valued at $9,923 and property in Asia valued at $1,389,927. The NSW estate was insufficient to meet the family provision order. The deceased was domiciled in NSW, and thus the Court had jurisdiction over the overseas property. It designated property in NSW, however, as notional estate to meet the order instead of looking to the overseas assets. This decision was a consequence of the COVID-19 pandemic and the fact that the deceased was presently residing overseas, which created uncertainty as to whether access to the overseas assets could be gained or enforced.
The deceased owned property in both NSW and China. As the deceased was domiciled in NSW, the Court had jurisdiction over the China properties, however, as neither party sought relief in respect of the China properties, the Court did not make orders concerning them. Nonetheless, the Court noted that the existence of the China properties could be taken into account when determining the claim.
The deceased was domiciled in Bermuda, however, he left substantial actual property and property capable of being designated as notional estate in NSW. The executor of the estate opposed providing disclosure of the deceased's overseas assets, asserting that he was not under any obligation to do so as the property was outside the Court's jurisdiction and irrelevant to the NSW proceedings. However, the Court held that while it did not have jurisdiction over the overseas's property, it was still relevant to the Court's consideration of the plaintiff's family provision claim.
The Takeaway
In NSW family provision claims, the assets must have a connection to the state to fall within its jurisdiction – either that the deceased lived in NSW or had property located in the state.
While the Supreme Court can exercise jurisdiction over any assets within NSW, it may be more beneficial to make a claim within the jurisdiction that has access to the majority of the deceased’s estate – usually where the testator lived. This is because the court of the testator’s domicile will, at the very least, have jurisdiction under the general principles over all movables and immovables within the territory, and all movables outside the territory.
In making such a decision, it is important to seek legal advice and information regarding the legislation of each jurisdiction in which assets are located, including those overseas.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.