Many family groups across Singapore, Malaysia and Indonesia now have an Australian arm: a Melbourne office building, a Queensland cattle station, a Western Australian vineyard, a Sydney subsidiary, or apartments held for children who studied here. The founding generation usually knows exactly how these were acquired. The next generation often does not — and Australian law will not simply follow the family’s plan in Singapore or Kuala Lumpur.
I grew up in a family business. My family has plantations in Malaysia, and I am now taking over our family’s law firm, which has practised since 1990, from my father. I am also an Accredited Family Business Advisor. I know from experience that succession is as much about relationships and authority as it is about documents.
Why the Australian assets need their own plan
A home-country Will may not be enough. Australian land passes under Australian law. A Singapore or Malaysian Will can be recognised here, but executors still need an Australian grant or a resealed grant, which can take months. Many families sign a separate Australian Will limited to Australian assets, carefully drafted so it does not revoke the home-country Will.
Who controls the company or trust matters more than who owns it. Much Australian wealth is held through a company or a discretionary trust. On the founder’s death, the shares or units may pass under the Will, but control of a trust passes under the trust deed — through the appointor or guardian role. If the deed names a founder with no successor, families can end up in court.
Incapacity is as important as death. If a director or trustee loses capacity, Australian banks and land registries will need an Australian enduring power of attorney, or a court appointment. A power of attorney made in Singapore or Malaysia may not be accepted here.
Foreign investment rules continue after succession. Transfers of Australian land or business interests between family members or entities can require foreign investment approval or notification, and can trigger state stamp duty and foreign surcharges. Agricultural land has its own thresholds and must be registered with the ATO.
Tax interacts across borders. Australia has no inheritance tax, but capital gains tax rules for non-residents, foreign resident withholding on sale, and dividend and trust distribution taxes all apply. We work alongside the family’s accountants and tax advisers in each country, so the legal structure and the tax position are planned together.
Planning the people side
Documents fail when the family does not accept them. A succession plan for a multi-generational family should also address:
Who will lead, and whether that person is ready. Often the eldest child is not the right successor for the Australian arm.
Fairness between heirs who work in the business and heirs who do not.
In-laws and divorce risk. Australian family law can reach business interests if an heir separates.
A family charter or constitution setting out how decisions are made, how disputes are resolved, and how a family member can sell out.
Where relationships are strained, I can facilitate family meetings in English or Mandarin before disagreements become disputes.
A practical sequence
Map the Australian holdings and how each is legally held.
Review the trust deeds, company constitutions and shareholder agreements for control and succession clauses.
Put in place Australian Wills and enduring powers of attorney that fit with the home-country plan.
Check foreign investment, duty and land tax consequences before any restructure or transfer.
Hold a family meeting to explain the plan to the next generation, and record agreed decisions in a family charter.
Frequently asked questions
Does my Singapore Will cover my Australian property? It can, but an Australian grant or resealed grant will still be needed, and delays are common. A separate Australian Will is often simpler.
We hold farmland in Australia through a Malaysian company. Does a change of shareholders need approval? Possibly. Changes in control of an entity holding Australian land can be a notifiable action under foreign investment law. Get advice before shares move.
Can a family trust’s control pass to my children? Yes, if the trust deed provides for succession of the appointor or guardian. Many older deeds need amending first.
Do you work with our advisers in Singapore, Malaysia or Indonesia? Yes. We regularly coordinate with private bankers, accountants, trustees and lawyers overseas.
Contact us. If your family holds Australian assets and the next generation is approaching, book an initial consultation to review whether your structure will hold.
Related reading: Holding Australian property through trusts and companies (read the guide); Cross-border family and estate disputes (read the guide).
This article is general information only and is not legal or tax advice. Contact us for advice on your circumstances.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice.
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