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[2017] QSC 48
This decision considers an interesting question of the application of domestic and foreign laws arising in the context of moveable property of a deceased’s estate. The relevant question ultimately turned upon whether the right of the Japanese National Treasury to unclaimed property of an intestate deceased was a prerogative right, dependent upon the property being ownerless, or a statutory right of succession. Her Honour held that the Treasury’s right was not a succession right. Accordingly, the Treasury’s right was merely a right to unclaimed property and therefore could only apply to property within its territory.
Ann Lyons J
5 April 2017
This interesting recent decision addressed how moveables of an intestate deceased domiciled in Japan ought to be treated. When the deceased in this case died, he left an estate in Japan and moveable property in Queensland (“the Queensland Estate”) with a combined value of in excess of AUD $2.7 million dollars. [3]. He died without any immediate next of kin but with at least one maternal first cousin living in Japan. [2], [17].
There was a chasm between the Japanese Rules of Succession and Pt 3 of the Succession Act 1981. As the Japanese Rules do not recognise first cousins as next of kin under Japanese law, if Japanese law applied then the deceased’s estate was deemed to belong to the Japanese Treasury. [6].
The Public Trustee sought advice and/or directions from the Court as to whether it should distribute the Queensland estate to the persons entitled under the Succession Act 1981 or whether Japanese law applied such that the Queensland Estate vested in the Japanese Treasury. [14].
Where differing laws of succession apply to the one parcel of property, it is the general rule that so far as the moveable property of a deceased person is concerned, the succession law which applies is the law of the deceased person’s domicile: see Lee on Succession Law, 5th ed, [113]. [20]. In this case, the deceased was domiciled in Japan at the time of his death: see s 6 of the Domicile Act 1981. [21]. Her Honour relevantly observed that the deceased only had moveable assets in Queensland in the form of cash in bank accounts. This resulted in the legal complexity, given his domicile in Japan, as to whether Japanese or Queensland succession law applied to the Queensland Estate. [23], [24].
The applicable Japanese law
Article 959 of the Japanese Civil Code Act No. 89 of 1896 prescribes the succession rights of relatives where a person dies without a will. [27]. Pursuant to Art 959, the Japanese National Treasury is essentially entitled to inherit property that has not been disposed of because the heir has not claimed their entitlement or no heir has been located, (rather than being the last level of persons entitled to receive the estate). [36]. The critical question was whether Art 959 was a prerogative right to ownerless property or a statutory right of succession. [28]. If Art 959 was a provision that gave succession rights to the Japanese Treasury as opposed to being an unclaimed property right then, given that the Japanese Rules did not recognise a first cousin as next of kin, the Japanese Treasury had a claim to the Queensland estate. If it was a mere right to unclaimed property, then the Japanese Treasury’s claim was restricted to property within its territory. [28].
Was Japanese Code Article 959 a “prerogative right” or a “statutory right”?
After due consideration of the evidence of Japanese law, her Honour was satisfied that Japanese Art 959 is not a succession right of the Japanese Treasury. Therefore, the Treasury did not have any authority over the Queensland Estate. [40]. The correct course was that the deceased’s Queensland estate should be distributed to his next of kin under Pt 3 of the Succession Act 1981. [42]. She made orders accordingly, and further ordered that the applicant’s costs of the application be assessed on the indemnity basis and be paid out of the estate. [43].
A De Jersey