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Re The Public Trustee Of Queensland (as Administrator of the Estate of KH, deceased) [2017] QSC 48

Japan

KH was 63 when he died in Kochi City, Japan in 2010. His immediate family had all died in, or before 2010. His closest living relative was a maternal cousin living in Japan. His estate totalled more than $2.7 million, including an estate in Japan, and moveable property in Queensland.

KH was born in Japan, and from 1986-99 lived between the two countries. In 1999 he returned to live the remainder of his life in Japan.

KH died intestate, and given that his estate was split between Japan, and Queensland his estate was divided according to succession laws in both jurisdictions. In 2013, the Public Trustee of Queensland (PTQ) was appointed administrator of the deceased’s estate in Queensland.

In 2017 the PTQ sought directions as to whether it should distribute the Queensland estate to persons entitled under the Succession Act 1981 (Qld).

First cousins are not recognised under Japanese succession law. Consequently, following Japanese law, the estate in Japan fell to the Japanese Treasury.

LEGAL ISSUE

Where was KH domiciled for the purpose of the Succession Act?

Given that the Queensland estate consists in moveable property, is it subject to Japanese or Queensland Succession law?

Did KH’s Queensland property vest in the Japanese treasury pursuant to the Japanese Laws of Succession?

Is the entitlement of the Japanese Treasury to the residuary of an unclaimed estate a right in succession at the final level, or is it a right to unclaimed property.

FINDINGS AND CONCLUSION

Given that Japan was his place of birth, and death, as well as where he had spent a considerable portion of his life, KH was considered to be domiciled in Japan for the purposes of Queensland law.

Because KH’s property in Queensland was moveable property – in the form of cash deposited with a bank, the law applicable to its disposal is unclear. It is dependent upon how the property is to be constructed under Queensland and Japanese law respectively.

Under the common law, the crown is entitled to property bona vacantia. That is – it does not claim the property by succession, but because there is no successor.[1]

The Koichi Family Court gave a rulling allowing the Administrator to renounce the claims with respect to KH’s estate in Queensland. Consequently, the Japanese Treasury has no claim to the Queensland estate by succession, and has no authority over it. Therefore, the estate is subject to Queensland law, and distributed according to Part 3 of the Succession Act 1981 (Qld).

TAKEAWAYS

The resolution of conflicting jurisdictions is usually complicated. In the case of moveable property, the resolution is to be found in whether the basis for a claim is as the next successor in-line to the estate, or whether the claim under an entitlement to unclaimed property. The former will always trump the latter.

[1] In re Barnett’s Trusts [1902] 1 Ch 847