Australian foreign legal opinion

To inherit the property of a person who passed away in a different country than the one where the property is located, a foreign expert legal opinion is often needed. The legal opinion is submitted by a foreign law expert, who is proficient in the laws of the foreign country.

Which cases require an Australian foreign legal opinion? Who is a foreign law expert? These questions and others are answered in this article by the attorneys at our offices.

The need for a foreign legal opinion

A foreign legal opinion is often needed when dealing with issues of wills and inheritance, real estate deals that involve foreign companies, and enforcement of foreign court rulings.

The laws that determine the requirement for a foreign legal opinion (in the relevant cases) are: The Israeli Inheritance Law – 1965 and clause 10(B) of the Real Estate Regulations (management and registration) – 2011 which states that if one of the parties to the deal is a foreign corporation, in addition to the bill of sale there must be a certificate of approval from an attorney who is proficient in the laws of the country where the corporation is registered, stating that the corporation is qualified to carry out the transaction based on those laws. In addition, a foreign legal opinion is required under the Foreign Rulings Enforcement Law – 1958.

Foreign legal opinion – wills and inheritance

The most common cases in which a foreign expert legal opinion is needed are those dealing with the inheritance of a person who lived abroad and left behind property in Israel. This property can be real estate assets as well as bank accounts, pension funds, securities, etc.

The Inheritance Law states that a court in Israel is authorized to hear the bequest of any person who resided in Israel on the day of their death or left assets in Israel. The Inheritance Law also states that the law of the deceased’s last place of residence applies to the inheritance he or she bequeathed.

In other words, if an Australian citizen passed away in Australia, and left behind property in Israel, the Israeli family court will need an Australian foreign expert legal opinion regarding the law that applies to the deceased’s assets.

Therefore, in order to probate the will or obtain an inheritance decree, the beneficiaries must submit an application to the Inheritance Registrar at the place where the bequeathed property is located and attach an expert foreign legal opinion to the application. The Inheritance Registrar will turn the file over to the family court. Based on the court’s judgement, the Australian foreign law expert may be required to testify in court and even undergo cross-examination.

The phrase “the deceased’s last place of residence” often raises questions and uncertainty. For instance, consider a businessperson who has bank accounts in Israel, lived in a rented apartment in New Zealand before their death, but were the owners of a house in Australia, in which their children and siblings live. Was New Zealand their last place of residence, or was it perhaps Australia? In such a case, the “maximum linkages” test will be applied, which will determine which place the deceased was most strongly connected to at the time of their death.

Several different foreign legal opinions

A foreign legal inheritance opinion does not have to be the only opinion submitted to the Inheritance Registrar. In other words, if there is a disagreement between the beneficiaries, each party is allowed to bring a foreign legal expert as a witness on their behalf. It is very important to choose a foreign law expert who is thoroughly proficient in the foreign law, because many times the party that shows more proficiency will be the one that wins the case. An example of a case in which the court required an Australian foreign expert legal opinion on the subject of wills and inheritances can be found in Inheritance Case (טב’) 942-07-09 (executor) v. the Haifa General Power of Attorney. The family court in Tiberias accepted the petition of an executor to approve the division of the inheritance among the beneficiaries as suggested by him, even though they were not the original beneficiaries in the deceased’s will. The court ruled that the requested process fits the language and purpose of the Inheritance Law and the supposed intent and wishes of the testator.

The petitioner was the executor of the deceased in Australia and he filed a petition to probate the will. The deceased’s last place of residence was Australia, and according to his will the beneficiaries were Israeli institutions. Along with the probate petition, a foreign expert Australian legal opinion was submitted, by which it was made clear that Australian law applies the laws of the country where the real estate property (which is part of the inheritance) is located.

Subsequently, it was ruled that the Israeli law provisions must be applied to the probate order – in this case the provisions of the Inheritance Law and the relevant interpretations of the law.

Thus, in order to know what law must be applied to the inheritance in Israel, the court required an Australian foreign expert legal opinion, as required by the Inheritance Law.

Foreign legal opinion – real estate deals

By law, a foreign expert legal opinion must be submitted to the court when discussing real estate deals that involve foreign corporations. As stated, according to clause 10 (B) to the Real Estate Regulations, when executing a real estate deal in which one of the parties is a foreign corporation, a foreign legal opinion is needed in order to register the deal in the Land Registry Office.

The law states that when one of the parties in the deal is a foreign corporation, documents and certificates must be attached to the bill of sale that prove the existence of the corporation and a certificate of approval from an attorney confirming that the corporation is authorized to carry out the transaction. In addition, a certificate of approval must be attached by an attorney who is proficient in the laws of the foreign country where the corporation is registered, stating that the corporation is qualified to carry out the deal according to the foreign country’s laws.

Therefore, if one of the parties in the real estate deal is a registered corporation in Melbourne, for instance, an Australian foreign expert legal opinion is required in order to register the deal in the Land Registry Office.

Generally, a legal opinion is required in real estate deals like these, because there are some countries that do not allow corporations to acquire real estate outside of their territory. Some countries require that real estate transactions such as these are brought for special approval by the authorities.

Who is a foreign law expert?

The Supreme Court ruled in civil appeal 6796/97 Berg Jacob and Sons (furniture) V. Berg East Imports Inc. that it is difficult to determine precisely who may be considered an expert in foreign law; however, a lawyer or jurist who deals with the required foreign law through practice, academia, or otherwise, has the required qualifications for this purpose, meaning: they can serve as an expert witness by whom the foreign law can be proven.

The court noted that if the expert’s testimony is not contradicted by another piece of evidence, the court will tend to accept it. It is important to note that a foreign expert opinion is a legal opinion, which follows the format of an affidavit.

Contact us for assistance in obtaining an expert opinion

Our offices specialize, among other things, in preparing foreign expert legal opinions regarding wills and inheritance, for cases where a foreign resident lived in a foreign country and left behind property in Israel. Likewise, our offices accompany foreign corporations in the process of registering real estate deals in Israel, and supply foreign legal opinions as required by the real estate regulations.

We are glad to be at your service and assist you in a quick and professional manner with everything regarding foreign legal opinions.

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