Making a Victorian will when you have assets in China

If you live in Melbourne and own property, bank accounts or company interests in China, your Victorian will has to work alongside Chinese succession rules. This guide explains Victorian will formalities, how a later will can override an earlier Chinese will, and what your executor will need to deal with assets in China.

Updated October 2026

Victorian will formalities

Section 7 of the Wills Act 1997 (Vic) sets the ordinary signing and witnessing requirements, including two witnesses present together when the will-maker signs or acknowledges the signature. Remote execution has additional statutory requirements. Section 9 allows the Supreme Court to dispense with formalities in qualifying cases, but litigation over an informal document is no substitute for careful execution. Marriage generally revokes an existing will (s 13), and divorce generally revokes gifts and appointments in favour of the former spouse (s 14), subject to exceptions. If English is not your first language, use an accurate interpreter and keep a clear record that you understood and approved the will.

One will or two: avoid one will cancelling the other

Many Chinese-Australian families keep a Victorian will for Australian assets and a separate Chinese will for assets in China. The scope and revocation clauses of each must be coordinated. Under Article 1142 of the PRC Civil Code, where several wills conflict in content, the last will prevails. Since the Civil Code took effect on 1 January 2021, a notarised will no longer automatically takes priority. A later Victorian will that deals with "all my assets wherever situated" may therefore displace an earlier Chinese will, even a notarised one.

Formal validity is recognised in both directions. Section 17 of the Wills Act 1997 (Vic) treats a will as properly executed if it complies with the law of the place of execution, or of the will-maker's domicile, habitual residence or nationality. Article 32 of China's Law on the Application of Laws to Foreign-related Civil Relations takes a similar approach. For intestacy, Article 31 applies the law of the deceased's habitual residence to movables and the law of the place where the property is located to immovables, so Chinese real property is generally governed by Chinese law.

What your executor will need in China

An Australian grant of probate does not itself transfer real property in China (housing ownership and land use rights) or release a Chinese bank account. Chinese registries and banks will ask for evidence of the heirs' entitlement and family relationships, which may involve a notarial certificate, a court judgment or the attendance of all heirs. China's accession to the Apostille Convention took effect on 7 November 2023, so Australian public documents such as a death certificate or grant of probate can generally be apostilled rather than legalised through a Chinese consulate. Certified translations are still needed. Choose an executor who can deal with Chinese processes, or plan for a power of attorney to someone in China.

Family provision claims in Victoria

Part IV of the Administration and Probate Act 1958 (Vic) allows an eligible person to apply for provision from an estate. Since 2015, s 90 defines the categories of eligible person, and an application must generally be made within six months after the grant of probate or administration (s 99), although the Court can extend time. A child or former spouse living in China may still be eligible. Good planning considers who could claim and documents the reasons for your decisions, rather than treating the will as a guarantee.

For executors, Australian law firms and accountants

Hugh Zhao holds current practising certificates issued in Victoria and in Shanghai, PRC. PanAus Partners prepares coordinated Australian and Chinese wills for Melbourne families, and acts for executors and Australian law firms that need the Chinese side of an estate handled, from reviewing a Chinese will and advising on PRC succession law to coordinating with partner firms in China on transferring property there.

中文摘要

在墨尔本生活、在中国有房产或存款的家庭，通常需要中澳两份遗嘱并相互协调。根据《民法典》第1142条，数份遗嘱内容相抵触的，以最后的遗嘱为准，公证遗嘱不再具有优先效力。一份措辞过宽的维州遗嘱可能覆盖之前在中国订立的遗嘱。澳洲遗嘱认证文件现在可以通过海牙认证（Apostille）在中国使用。维州的遗产供养申请一般须在遗嘱认证后六个月内提出。Hugh Zhao 律师同时持有维州和上海律师执业证，泛澳律业也为遗嘱执行人和澳洲律所处理遗产中的中国部分。