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Two conflicting Wills in different countries: a cross-jurisdictional estate dispute

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Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon looks at a family dispute that ended up in court after a deceased woman was found to have two conflicting Wills in different countries. Her daughter unsuccessfully challenged one of the Wills to reinstate the other that was more favourable for her.

Anderson v Tongpairojwong [2023] NSWSC 1359 is a case about a relatively common scenario: a challenge over the validity of the deceased’s Will, and in the alternative, an application seeking further provision commonly known as a Family Provision Application.

However, the dispute stands out due to its cross-border element; specifically, the deceased’s decision to execute a Will in Thailand on 24 June 2020 (the Thai Will) that revoked an earlier Will from 2017 signed in Sydney, Australia (the Australian Will).

Ms Amonrat Chanta (“Amy” in the court papers) was the matriarch of a chain of restaurants in Sydney that traded under the Chat Thai brand. Amy died from cancer in Thailand in March 2021. Amy was survived by her two children, Pat and Palisa.

The Thai Will left Amy’s son, Pat, the farmland she held in Thailand and shares in several companies that made up the Chat Thai Group, giving Pat control over the businesses.

Amy’s daughter Palisa was meanwhile cut out of the company shares and stood to only inherit Amy’s interests in two properties – the “Mosman Property” and “Boon Luck Farm” – which Palisa and her husband also co-owned, valued at $2.5 million.

The Thai Will differed from the Australian Will, which split Amy’s company shares between Pat and Palisa as tenants in common.

Following Amy’s passing, Palisa filed an application in the Supreme Court of New South Wales seeking Letters of Administration of the Australian Will, arguing that Amy lacked testamentary capacity to sign the Thai Will or did not know and approve of the contents of the said document. In the alternative, Palisa sought an order for further provision despite filing her claim after the 12-month limitation period.

Palisa’s brother Pat subsequently filed a cross-claim seeking Letters of Administration of the Thai Will, or, in the alternative, Probate of the Thai Will be granted to the named executor.

At stake was a moderately large estate valued at around $4.2 million.

Palisa’s challenge was ultimately unsuccessful for several reasons, as summarised below.

Cross-border complexity: Anderson v Tongpairojwong [2023] NSWSC 1359

On 10 November 2023, Justice Griffiths of the Supreme Court of New South Wales dismissed Palisa’s application after finding that Amy had the testamentary capacity to sign the Thai Will and knew and approved the contents. As such, His Honour made orders in favour of Pat, which had the practical effect that the Thai Will was valid and superseded the Australian Will.

Because Amy executed the Will in another country, Justice Griffiths had to consider four primary issues.

Firstly, the parties were required to establish the jurisdiction of the Supreme Court of New South Wales to hear the dispute even though Amy had executed the Thai Will in another country. It was undisputed that Amy’s domicile (the country that a person treats as their permanent home) was Australia at the date of her death.

Secondly, Justice Griffiths determined whether the Thai Will, executed overseas, had complied with the legal formalities set out in the Succession Act 2006 (NSW) (the Act).

Under section 6 of the Act, the Thai Will had to be “in writing” and “signed” by Amy, with two or more witnesses present who then signed it themselves in Amy’s presence.

All these requirements were met.

Amy had marked the Thai Will with her thumbprint, and two witnesses had also signed it. It was undisputed that a thumbprint is a signature under the legislation. The Thai Will was also validly executed under the laws of Thailand, satisfying the requirements under section 48 of the Act for Wills executed overseas.

After determining that the Supreme Court of New South Wales had jurisdiction to hear the dispute and the Thai Will met the legislative requirements, His Honour considered Palisa’s claim that Amy lacked testamentary capacity to sign the Thai Will or did not know and approve of the said document.

Finally, His Honour considered whether the Court ought to award further provision to Palisa for her proper maintenance and support.

Cognitive ability closely scrutinized

The bulk of Palisa’s evidence focused on her observations of changes in Amy during the last years of her life while battling cancer, including noticeable repetitions in conversations, bouts of confusion, illness and requiring assistance for tasks where previously she had been entirely capable.

Palisa also relied on two expert medical reports and testimonies that sought to cast doubt on Amy’s capacity to sign the Thai Will. The experts had not personally examined Amy and did not review the statements or evidence from third parties.

His Honour referred to the observations of Vickery J in Nicholson v Knaggs [2009] VSC 64 at [41], who opined that:

“…the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils.”

Justice Griffiths believed the expert opinion did not outweigh the evidence from lay witnesses who supported the proposition that Amy had testamentary capacity when she signed the Thai Will.

His Honour held that there was “strong evidence” that Amy understood the nature and significance of signing the Thai Will, the value of her estate and how her decisions would impact the future conduct and operation of the Chat Thai businesses.

The Thai lawyer who prepared the Thai Will had 34 years’ legal experience and said that while Amy “looked like most people who had cancer” – i.e., frail, slow-moving and losing her hair – she still could do things herself and communicated well. The Thai lawyer said that Amy was in a good mood during his visit and “clearly conveyed her instructions for her new Will and did not appear confused.

Justice Griffiths was satisfied that Amy was shown and approved each line of the Thai Will. His Honour concluded there was “nothing in the circumstances surrounding the preparation of the Will that excites suspicion.”

“It is unsurprising that a person in Amy’s position, undergoing both radiotherapy and chemotherapy for brain cancer, would experience these variable conditions,” Justice Griffiths said. “On balance, however, I am comfortably satisfied that Amy had testamentary capacity in the period immediately surrounding 24 June 2020.”

As a result, Justice Griffiths dismissed Palisa’s claim and granted Probate of the Thai Will to the named executor.

How much is too much – the need for further provision  

Despite receiving less under the Thai Will, Palisa’s inheritance was still considered substantial, valued at about $2.5 million. Still, she sought an order from the court for further provision for her proper maintenance and support outside the limitation period.

His Honour held that Palisa offered no reasonable or acceptable explanation about her failure to commence her Family Provision Application in time. Accordingly, His Honour refused to grant leave and dismissed Palisa’s claim.

Even if Palisa had filed her Family Provision Application within the limitation period, Justice Griffiths said that Amy had satisfied her moral obligation by gifting Palisa properties worth $2.5 million under the Thai Will.

In summary, Justice Griffiths held that Palisa did not have need, noting her age, successful career and net wealth of close to $10 million Further, His Honour believed Palisa’s enterprises should continue to materially improve her financial position.

Key takeaways

Estate litigation involves complex and unique areas of law, and it is recommended that any individual involved in a dispute like this engages a lawyer who practices exclusively in this area.

Cross-border issues in estate litigation are becoming increasingly common, reflecting the strong ties people can have with another country. Australia is often described as the ‘immigration nation,’ with almost 50 per cent of the current population born overseas or having at least one parent born overseas, according to the Department of Home Affairs.

When a Will-Maker has multiple Wills in different countries, determining their domicile can often add complexity. Succession law is governed by different legislation in every jurisdiction in Australia. It’s therefore important to obtain advice from someone who practices exclusively in this area so that the claim proceeds cost-effectively.

A solicitor who practices exclusively in estate planning will ensure that all issues are addressed, including capacity. Obtaining advice from a lawyer with substantial years of experience is crucial, as evidenced by Amy’s case, where the lawyer’s advice played a vital role in the final outcome. If Amy had engaged a lawyer without this experience or had signed a “Do-It-Yourself” Will, the outcome of the matter may have been different.

Finally, it is essential to consider the costs involved in estate litigation. The parties’ costs in this case were significant, totalling about $1.5 million. Obtaining advice from a lawyer who practices exclusively in this area will ensure that a person receives a clear and accurate view of their prospects for success, the likely range of award, and the costs involved.

Attwood Marshall Lawyers – experts in estate litigation across all jurisdictions in Australia

At Attwood Marshall Lawyers, we have one of the largest and most experienced Wills and Estates Departments, with specialist teams that practice exclusively in estate planning, estate administration, and estate litigation.

Our lawyers are well-versed in representing clients throughout every state and territory in Australia and understand the complexities of dealing with assets that span across different jurisdictions.

If you would like advice about an estate or want to discuss your entitlement to make a family provision claim, please get in touch with our Estate Litigation Department Manager Amanda Heather on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.

Our lawyers are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney, and Melbourne.

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Martin Mallon - Senior Associate - Estate Litigation

Martin Mallon

Senior Associate
Estate Litigation

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Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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