Event and Time
Event Description
Xinwei Xu passed away on September 23, 2017, leaving behind a will dated March 18, 2016 (the 2016 will). The deceased had been diagnosed with cancer in 2015. His family includes four children, with Zhenfeng Xu, the eldest, representing his interests as the plaintiff in the case. The defendant is the deceased's wife and mother of his youngest child, contesting the distribution of assets as outlined in the will.
Application and Claims
The plaintiff seeks a grant of letters of administration with the 2016 will annexed, asserting it addresses all the deceased's properties regardless of location. The defendant filed a probate caveat, arguing the 2016 will does not deal with the deceased’s assets in Australia and that these should be distributed according to intestacy laws because there are no other testamentary documents.
Judicial Decisions
The court's primary task was to determine whether the 2016 will adequately addresses the deceased's assets located in Victoria, Australia. Throughout the proceedings, affidavits were submitted as evidence regarding the deceased’s intentions and prior wills.
Dispute Points and Legal Basis
Dispute Points
- Plaintiff's Claims
- The 2016 will is a well-structured document addressing the deceased's property worldwide. - Reference to "my property" indicates that all assets, including those in Australia, were intended to be included. - Emphasized the principle from Isaacs J in *Fell v Fell* that intestacy should be avoided whenever possible.
- Defendant's Claims
- The 2016 will was intended solely for assets in China, as asserted through extrinsic evidence including: - A transcript from a notarized meeting indicating the will was for assets in China. - Previous wills explicitly compartmentalizing assets geographically. - Statements made by the deceased shortly after the will was executed, indicating it pertained only to Chinese assets.