Which law applies?

When there is a dispute between which country’s inheritance law should apply, one must distinguish between movable and immovable property.

Movables include chattels not attached to land and choses in action, such as bank accounts and debts owing to a person.

Immovables are land and any interest in land (leases, covenants, other rights in the land) and fixtures attached to the land (improvements erected on the land).

Generally, the law of the place where the thing is situated will determine the succession of immovable property. However, in relation to movables, the law of the deceased’s domicile at the date of death will apply, as opposed to the law of one’s nationality.

The distinction between movable and immovable property was explored in Haque v Haque (No 2) (1965). [1] The deceased was a man named Abdul Haque. The deceased’s Will was executed in Western Australia. In that Will, the deceased left the entirety of his estate to his brother. The deceased died while a resident of India. He had a wife and children who would be entitled under Muslim law in India. The assets situated in Western Australia included the unpaid balance of the purchase price on the sale of land and shares in partnerships (which owned several parcels of land).

Barwick CJ stated that there was “a sufficient correspondence” between the interest of an unpaid vendor in land sold and the interest of a mortgagee in mortgaged land, to justify applying the same character or quality for the purposes of determining the proper law as to its succession.

The High Court upheld the Court of Appeal’s decision that certain assets were movable assets or choses in action (even though some of the property was land). That is, the unpaid balance of purchase price moneys and shares in the partnerships were movable assets. Therefore, those assets vested in the deceased’s wife and children. By the Muslim law operative in India, the deceased was denied any testamentary capacity as to movables. By that law, they passed by succession to his next of kin.

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[1] 114 CLR 98

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