For example, Mr Chen is a Malaysian Chinese businessman living in Kuala Lumpur. He owns an apartment in Melbourne, savings and shares in Singapore, a brokerage account in Hong Kong, and his late parents’ flat in Shanghai is registered in his name. Ten years ago he made a will in Kuala Lumpur; last year, while visiting his daughter at university in Melbourne, he made an Australian will as well. Both wills open with ‘I revoke all former wills’. He thinks he is doubly protected. He may in fact be the opposite.
For families with assets in several countries, the real question is not just ‘do I have a will?’ but ‘how many wills, how do they fit together, and who will carry them out, where?’ This article looks at the common approaches and pitfalls from the perspective of Victoria.
One worldwide will, or several situs wills?
In theory, one will can deal with assets worldwide. Section 17 of Victoria’s Wills Act 1997 treats a will signed outside Victoria as properly executed if it complies with the law of, among others, the place where it was signed, the will-maker’s domicile or their nationality. But formal validity is only the first step. Each place where assets are located still has its own process for a grant of probate or its equivalent, and an English-language will taken to Shanghai will usually need translation, notarisation and authentication, and may be read differently by local authorities.
Many cross-border families therefore use ‘situs wills’: an Australian will dealing only with Australian assets, a Malaysian will dealing only with Malaysian assets, and so on. Each will is signed in the local form and can be proved locally, so the executors in each place can start at the same time. The trade-off is that the wills must be carefully coordinated, with clearly defined scope and no overlaps or gaps.
The most common trap: one will revoking the other
A standard will begins by revoking ‘all former wills and codicils’. With situs wills, that sentence can wipe out the will made for another country. In Mr Chen’s case, if his later Australian will revokes all earlier wills but only deals with Australian assets, his Malaysian, Singaporean and Hong Kong assets may be left without a will and pass under each place’s intestacy rules, which may not reflect what he wanted.
Mainland China’s rules also matter. Under Article 1142 of the PRC Civil Code, where several wills conflict, the last one prevails, and the former rule giving a notarised will priority no longer applies. In other words, a later will may override earlier arrangements.
Each situs will should thereforerevoke only earlier wills for the same jurisdiction and assets, define clearly which assets it covers, state that wills for other countries remain in force, and be reviewed alongside the others whenever one is changed.
Executors: one person, or one in each country?
The executor applies for the grant, collects the assets, pays debts and distributes the estate. A common approach is to appoint someone familiar with Australia and able to sign documents easily (such as a child living here) under the Australian will, and a local relative or professional trustee elsewhere. An executor living overseas is not necessarily prevented from applying for probate in Victoria, but notarising and witnessing documents and communicating across time zones adds time and cost.
Where debts, tax matters or family company shares span several countries, the wills or an accompanying letter of wishes should ask the executors in each place to cooperate and share information.
Probate and resealing
With a single will, the executor usually obtains a grant in one place and then applies to have it ‘resealed’ elsewhere. Victoria’s Administration and Probate Act 1958 allows grants from other Australian states and territories, and from certain specified overseas jurisdictions, to be resealed so they have the same effect as a Victorian grant.
Malaysia, Singapore and Hong Kong also have resealing procedures, but they are generally limited to Commonwealth countries or jurisdictions specified under local law, so each case needs checking. Resealing under section 52 of Malaysia’s Probate and Administration Act 1959, for example, is generally limited to grants from Commonwealth countries. Mainland China has no resealing procedure, and a foreign grant cannot simply be used to transfer assets there. ‘One will plus resealing everywhere’ does not always work, and situs wills often save time.
Malaysia: different rules for Muslims and non-Muslims
In Malaysia, wills of non-Muslims are governed by the Wills Act 1959, and intestate estates by the Distribution Act 1958. Estates of Muslims are governed by Islamic succession law (faraid); a wasiat (will) can generally deal with no more than one-third of the estate and usually cannot benefit a faraid heir, and the Syariah courts have jurisdiction. In mixed-faith families, Malaysian assets may pass very differently from Australian assets, and Malaysian legal advice is needed.
Australian assets are dealt with under Australian law. Bear in mind that in Victoria, eligible family members (such as children) who believe a will does not make adequate provision for them may bring a family provision claim, so this should be considered at the planning stage.
Mainland China: inheritance notarisation and documents
Under China’s Law on the Application of Laws to Foreign-Related Civil Relations, intestate succession to immovable property is governed by the law of the place where it is located. In practice, to inherit real estate or bank deposits in mainland China, the property registry or bank will often ask for an inheritance notarial certificate from a Chinese notary office or a court judgment. The notary office will generally verify the death and family relationships and require all statutory heirs to attend or give notarised declarations.
Documents created in Australia (death certificates, wills, statutory declarations about family relationships, powers of attorney) generally need to be notarised by a Notary Public and then apostilled. The Apostille Convention has applied to China since 7 November 2023, so most public documents passing between Australia and China no longer need consular legalisation. If a will is meant to deal with Chinese assets, the safer course is to make a separate will in China, or at least have a Chinese lawyer confirm it can be enforced.
Practical checklist
- List every asset, where it is, and how it is held (personally, jointly, through a company or trust).
- Decide whether each jurisdiction needs its own will, and define what each will covers.
- Check revocation clauses:revoke only earlier wills for the same jurisdiction.
- Appoint an executor and a substitute for each will, considering where they live and how easily they can sign.
- Malaysian assets: confirm whether Muslim or non-Muslim rules apply.
- Chinese assets: understand the notarisation requirements and gather proof of family relationships early.
- Tell your executors where every original will is kept.
- Review all your wills together after marriage, divorce, migration or a major purchase or sale.
Frequently asked questions
I already have a Malaysian will. Do I need an Australian will too?
Not necessarily, but if you own significant assets such as property in Australia, a separate will covering only Australian assets often makes probate in Victoria smoother. The key is that the revocation clauses and scope of both wills are coordinated.
Is a will signed overseas valid in Victoria?
Generally yes, if it complies with the formal requirements of the law of the place where it was signed, the will-maker’s domicile or nationality, among others. However, proving it may require evidence of the foreign law and certified translations.
Can a Hong Kong or Singapore grant be used directly in Victoria?
Not directly. If the grant comes from a jurisdiction whose grants can be resealed, an application can be made to the Supreme Court of Victoria; otherwise a fresh Victorian grant is needed.
Must I obtain a notarial certificate to inherit property in mainland China?
In practice, an inheritance notarial certificate or a court judgment is usually needed. Requirements vary by city and institution, so check with the local notary office or a Chinese lawyer.
Can my executor live overseas?
Yes, but it adds time and cost for notarising documents and communication. Many families appoint a relative living in Australia as executor or co-executor of the Australian will.
How we can help
Chua Tan Associates has practised in Melbourne since 1990, advising cross-border families between Australia, Greater China and Southeast Asia in Mandarin, Cantonese and English on wills and estates, family law, property and notarial matters. Our firm includes a Notary Public who can notarise documents for use overseas, and Justin Chua is a STEP Affiliate member and Nationally Accredited Mediator. We can prepare your Australian will, work with your lawyers in other countries so your wills fit together, and handle probate in Victoria. Call us on 03 9602 3988 or contact us online. Consultations are available in person at our Melbourne CBD office or by video.
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This article is general information only and is not legal advice.
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