A Will properly signed in Hong Kong will usually be formally valid in Victoria, and it can be used to obtain a grant for Australian assets. The harder questions are practical: which law decides who inherits Australian land, whether a Will made later in one place revokes the Will in the other, and which family provision regime a disappointed relative can use. For families with real wealth in both places, the usual answer is two coordinated Wills, one for Hong Kong and one for Australia, with consistent executors and a letter of wishes that explains the overall plan.
Is a Hong Kong Will valid in Victoria?
Section 17 of the Wills Act 1997 (Vic) treats a Will as properly executed if its execution conformed to the internal law in force in any of these places:
- the place where the Will was executed;
- the place where the willmaker was domiciled or habitually resident, either when the Will was made or at death; or
- a country of which the willmaker was a national, at either of those times.
A Will signed in Hong Kong in the Hong Kong form will therefore normally satisfy the first limb without further argument. The other Australian states and territories have equivalent rules.
Hong Kong’s Wills Ordinance (Cap 30) contains a mirror-image provision (section 24), so a Will signed in Melbourne in the Victorian form is generally treated as formally valid in Hong Kong. We work alongside Hong Kong solicitors on the Hong Kong side of these matters.
Hong Kong formalities in general terms
In broad terms, a Hong Kong Will must be in writing, made by a person aged 18 or over with testamentary capacity, and signed (or acknowledged) by the willmaker in the presence of two witnesses present at the same time, each of whom then signs in the willmaker’s presence. Hong Kong courts also have a limited power to admit a document that does not meet these formalities where there is no reasonable doubt that it records the deceased’s testamentary intentions. The Hong Kong formal rules are close to the Victorian ones, which is why Hong Kong Wills travel to Australia more easily than Wills from mainland China or Taiwan.
One difference worth noting: Hong Kong retains a rule that a gift to an attesting witness (or the witness’s spouse) generally fails. Independent witnesses should be used in both places in any event.
Formal validity is only the first step
Section 17 deals with signing and witnessing. It does not decide capacity, whether the Will has been revoked, or what it means. Nor does it remove the need for a Victorian grant. To sell a Melbourne apartment or close an Australian share portfolio, the executor will usually need either a Victorian grant of probate or, where available, a Hong Kong grant resealed in Victoria. Grants from Victoria can, for their part, be resealed in Hong Kong. Whether resealing is available and sensible should be decided at the outset, because a Hong Kong Will dealing with worldwide assets brings the whole estate, including Hong Kong assets, into the Victorian court file.
For the comparable position for Wills made in mainland China or Taiwan, see A Will Made in China or Taiwan and Assets in Australia.
Which law decides who inherits Australian assets?
Australian law draws a basic distinction:
- Immovable property (land, houses, apartments) passes according to the law of the place where it is situated. A Melbourne apartment is governed by Victorian law, whatever the owner’s domicile.
- Movable property (bank accounts, shares, most other assets) generally passes according to the law of the deceased’s domicile at death.
Domicile is not the same as residence, nationality or permanent residency. A Hong Kong permanent resident who has lived in Melbourne for years, holds Australian permanent residency and intends to stay may have acquired a Victorian domicile. A parent who spends part of each year in Melbourne but whose home remains Hong Kong is probably still domiciled there. Where the family moves between the two cities, domicile can be genuinely uncertain, and it affects both intestacy and family claims.
Revocation traps when there are two Wills
The most common and most expensive problem in two-Will planning is one Will cancelling the other.
- A standard revocation clause. “I revoke all former Wills” in a new Australian Will will revoke an earlier Hong Kong Will, and the reverse is also true. Families have discovered after a death that the Hong Kong assets were left without a Will because a short Australian Will was signed later.
- Worldwide wording. A later Hong Kong Will leaving “all my property wherever situated” may revoke or override the Australian Will by implication, even without an express revocation clause.
- Marriage. In both Victoria and Hong Kong, marriage generally revokes an existing Will unless it was made in contemplation of that marriage. A second marriage late in life can therefore revoke both Wills at once.
- Divorce. In Victoria, divorce revokes gifts to the former spouse and the former spouse’s appointment as executor, unless a contrary intention appears. Hong Kong has a broadly similar rule for gifts to a former spouse. Neither place treats divorce as revoking the whole Will.
The drafting solution is for each Will to define precisely the assets it covers, to revoke only earlier Wills dealing with those assets, and to state that the other Will is preserved. Both Wills should be reviewed together whenever either is changed. We discuss the structure in Assets in Australia and Overseas: Do You Need More Than One Will?
Family claims: Hong Kong Cap 481 and Victorian family provision
Neither Hong Kong nor Australia has forced heirship. A willmaker may leave the estate as they choose, subject to court-ordered family provision. Each place has its own scheme, and they apply to different parts of the estate.
Hong Kong
The Inheritance (Provision for Family and Dependants) Ordinance (Cap 481) allows the Hong Kong court to order reasonable financial provision from the estate. In general terms, it applies only where the deceased had the required connection with Hong Kong, principally domicile there at death. Applicants include a spouse, certain former spouses, children, and others who were being maintained by the deceased immediately before death. The ordinary time limit is six months from the grant. Hong Kong solicitors should advise on eligibility in a particular case.
Victoria
Part IV of the Administration and Probate Act 1958 (Vic) allows an “eligible person” to apply for provision for their proper maintenance and support. Eligible persons include a spouse or domestic partner; children (with additional requirements for adult children who are not full-time students aged 18 to 25 or children with a disability); certain stepchildren and former spouses; grandchildren; and members of the deceased’s household. An application must generally be made within six months of the grant, although the court may extend time. See Who Can Challenge a Will in Victoria, and When?
Which regime reaches which assets?
Victorian courts have long applied the principle stated in Re Paulin [1950] VLR 462: the courts of the domicile deal with movables wherever they are, but land is dealt with only by the courts of the place where it is situated. The practical consequences are these:
| Deceased | Australian land | Australian bank accounts and shares | Hong Kong flat |
|---|
| Domiciled in Hong Kong | Victorian Part IV claim | Hong Kong Cap 481 claim | Hong Kong Cap 481 claim |
| Domiciled in Victoria | Victorian Part IV claim | Victorian Part IV claim | Outside the Victorian court’s reach; whether a Hong Kong claim is available is a question of Hong Kong law |
So a child left out of a Hong Kong father’s Will may have a Victorian claim against his Melbourne house, but must look to Hong Kong for the Australian bank account. When the Victorian court decides what provision to make from the land, it can take into account what the claimant receives, or could claim, elsewhere. Families should plan on the basis that both regimes may be engaged, and that Victoria’s list of eligible persons is wide.
If there is no Will
Intestacy follows the same split. Victorian land of a Hong Kong-domiciled person passes under Victoria’s intestacy rules; movables pass under Hong Kong’s Intestates’ Estates Ordinance (Cap 73). In general terms, both schemes give a surviving spouse the personal effects, a fixed sum and a share of the balance, with children taking the rest, but the fixed sums, the shares and the treatment of children from earlier relationships differ. One estate can therefore be divided in two different ways. See Dying Without a Will in Australia: Who Inherits in Each State and Territory.
A typical situation
Consider a typical situation. A widower domiciled in Hong Kong dies without a Will, leaving a flat in Kowloon, a house in Box Hill, Melbourne, and an Australian term deposit. He is survived by his second wife and two adult children from his first marriage. The Box Hill house passes under Victorian intestacy rules, the term deposit and the Kowloon flat under Hong Kong rules. Two sets of administrators may be needed, two applications made, and the family receives different fractions of different assets. A pair of coordinated Wills would have settled who receives what, and who manages it.
Joint ownership and survivorship
In both Victoria and Hong Kong, property held as joint tenants passes automatically to the surviving joint owner and does not form part of the estate. A Will cannot change that. Many Hong Kong couples hold their flat as joint tenants; many Melbourne purchases by parents and children are made the same way, sometimes without the family appreciating the effect. Where the intention is that a share should pass under the Will, the joint tenancy should be severed during lifetime and the property held as tenants in common. See Joint Names or Your Will? Australian superannuation also sits outside the Will and needs its own nomination.
Enduring powers of attorney in both places
A Will speaks only on death. Incapacity during lifetime needs separate documents in each place.
| Hong Kong | Victoria |
|---|
| Legislation | Enduring Powers of Attorney Ordinance (Cap 501) | Powers of Attorney Act 2014 |
| Scope | Property and financial affairs only | Financial and personal matters; medical decisions through a separate appointment of a medical treatment decision maker |
| Signing | Prescribed form, signed before a registered medical practitioner and a solicitor | Two adult witnesses, one of whom must be authorised to witness affidavits or be a medical practitioner |
| When the attorney can act | After registration with the High Court once the donor is, or is becoming, mentally incapable | From the time stated in the document; no registration required |
A Hong Kong enduring power is not a Victorian enduring power, and Australian banks, share registries and the land titles office should not be expected to accept it. Victorian legislation provides for recognition of enduring powers made in other Australian states and territories; it does not extend the same recognition to powers made overseas. The reliable course is a Victorian enduring power for Australian assets alongside a Hong Kong enduring power for Hong Kong assets, with attorneys who can work together. Hong Kong’s Advance Decision on Life-sustaining Treatment Ordinance (Cap 651), in force from 31 July 2026, now provides a statutory framework for advance medical directives there; Victoria has its own advance care directives. Australian documents for use in Hong Kong are generally apostilled by the Department of Foreign Affairs and Trade: see Apostille for a Power of Attorney or Will From Australia to Asia.
Practical recommendations
- Coordinated situs Wills. An Australian Will for Australian assets and a Hong Kong Will for Hong Kong assets, each limited to its own assets, each preserving the other.
- Consistent executors. The same people, or people who work well together, in both Wills. At least one Australian executor can make the Victorian administration simpler.
- A letter of wishes. A short, non-binding letter to executors and trustees explaining the overall plan, how the two Wills fit together and why particular choices were made. It is not filed with the grant, it helps preserve privacy, and a clear explanation can reduce the risk of a family claim.
- Check title. Confirm how each property is held (joint tenants or tenants in common) in both places.
- Consider family provision exposure. Victoria’s list of eligible persons is wide. Where someone is to be left out or given less, plan for it and record the reasons.
- Review on life events. Marriage, divorce, a move between Hong Kong and Melbourne, a change in domicile or a significant acquisition should prompt a review of both Wills together.
- Tax. Neither Hong Kong (which abolished estate duty in 2006) nor Australia has an inheritance tax, but Australian capital gains tax, land tax and duty surcharges can affect beneficiaries who are not Australian residents. Advice should be obtained from a tax adviser on the family’s facts. Families planning a move to Australia should also see Before Becoming an Australian Tax Resident.
Privacy and family harmony
A Will admitted to probate in Victoria becomes part of the court record. An Australian Will confined to Australian assets keeps the family’s Hong Kong wealth out of the Victorian file. Where a dispute does arise between family members in Hong Kong and Australia, confidential mediation, conducted online if needed, can often resolve it without open court proceedings in either place.
How we can assist
We prepare Australian Wills and Victorian enduring powers of attorney for Hong Kong families that are designed to work alongside their Hong Kong documents, review existing Hong Kong Wills for their effect on Australian assets, and act for executors and family members in Victorian probate and family provision matters, coordinating with Hong Kong solicitors on the Hong Kong side.
Related reading
Chua Tan Associates acts for families and their professional advisers on Australian legal matters with a cross-border dimension, working alongside lawyers and tax advisers in mainland China, Taiwan and Hong Kong. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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