Court decision

Can a Queensland court deal with a New South Wales Will?

By Margaret Arthur / 25 August 2021
2 min.
Worthwhile read for: Individuals, Charities; Married Couples, De Facto Couples, Parents, Guardians, Families

A Queensland (QLD) court can deal with a New South Wales (NSW) estate if there is a connection with QLD. Depending upon the type of matter, the court may even apply the laws of NSW. Of course, this approach would apply not just to NSW estates but to estates from any other state or territory.

For example, in the recent case of Kay v Miller [2021]QSC 185, the deceased and his de facto partner died in a helicopter crash and an issue arose as to how a clause in his Will should be read, and whether the Will should be rectified to read to accord with the deceased’s true intentions.

The deceased lived in NSW, the Will was made in NSW and but for one property, all of the deceased’s property was in NSW. 

However, as there was one property in QLD, the Supreme Court could deal with the application.

The question was then whether the court should apply QLD law or NSW law.

The applicable laws usually depend upon whether the deceased’s property was moveable (such as personal belongings), or immoveable (such as land). However, where the meaning of a Will has to be worked out, the applicable laws are those of the place where the deceased lived. 

Because the deceased’s home was NSW, the court applied the laws of NSW. 

In this time of COVID-19 and subsequent border closures, it is useful to know that some laws don’t stop at the border. 

For more information, please contact our Estates and Succession team. 

Margaret Arthur
Special Counsel
Margaret is a Special Counsel with HopgoodGanim Lawyers and specialises in the area of Succession law and Elder Law.

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