QUESTION OF DOMICIL

Dominion, Volume 15, Issue 14, 11 October 1921, Page 9

QUESTION OF DOMICIL

NEW ZEALAND OR VICTORIA? LAW OF SUCCESSION A question as to the application of the law of succession of Victoria and of New Zealand was answered in a judgment delivered for the Full Court ion Saturday by Mr. Justice Salmond, in respect of a case brought by John Humphries against Mary Eliza O’Neill, and others. The plaintiff, as executor of the will of the late David Edward O’Neill, had submitted to the Court certain questions as to the distribution of the estate. Tho testator died in Melbourne on May 17f 1980, leaving surviving him a wife and certain next-of-kin, but no, children, grandchildren, father, mother, brothers, or sisters. By his last will, dated December 1, 1911, he gave to the wife a life interest in his estate terminable on remarriage, with remainder to his brother Henry O’Neill, subject, however, to certain pecuniary legacies. Henry O’Neill died in the testator’s lifetime, and the gift to him of the residuary estate has accordingly failed. Tho testator was formerly resident in New Zealand, but went to. Melbourne in or about the year 1910, where he resided until his death. The testator had acquired a domicil in Victoria. Regarding that part, the Judge stated:—"Legal questions in the case are based on the assumption of a Victorian iomlcil, and may be determined on that assumption, without prejudice to the question of fact. We express on that question neither an opinion nor a doubt. The testator left no real estate. The bulk of his property was in New Zealand and consisted of .£BOOO, invested in bonds of the New Zealand Government, and of ,£15,500 invested in mortgages of land in New Zealand. His property in Victoria consisted of JI76G. The will was proved by the executor in Victoria, and the Victorian grant has been rescaled in New Zealand.”

The question of law raised was whether the intestate succession to the testator’s residuary estate in New Zealand (the testamentary disposition of which had failed by the death of the residuary legatee in the testator’s lifetime), was governed by the law of New Zealand, or by the law s of Victoria. Tho Court was of ‘opinion that the mortgages held by the deceased were movable property, and that the intestate succession to them was governed by the, law of the deceased’s domicil. "As this domicil is alleged by the executor to be Victoria," the judgment stated, "it is for the Victorian Courts to determine the various questions raised by this summons as to the distribution of the estate. The principal grant of probate has been made in Victoria, and it is not appropriate for this Court to answer on originating summens questions of Victorian law in relation to this estate. The only answer which is made by this Court to the question raised by the summons is that any right of intestate succession to the mortgages owned by the deceased in New Zealand is determinable in accordance with the law of his last domicil.” "The\ executor, the defendants Mary Eliza CyNci],! and James Mayne, and the Public Trustee as representing the next-of-kin, will have their costs taxed as between solicitor and client and paid out of the estate/*