1. INTRODUCTION
12.1 When a person dies, his or her property immediately vests in another person. The term “vest” refers to the transfer of ownership. The principle of immediate vesting on the death of the owner of property ensures that at no point is the property of the deceased left without an owner. The significance of this is that there will always be someone able to make decisions about the property and that there will always be someone with a proprietary interest in the property.
12.2 Both the decided cases and administration and probate legislation have developed rules for the vesting of property on the death of the owner. However, the rules have not developed consistently in the all jurisdictions reviewed.1
2. DEVOLUTION OF PROPERTY ON DEATH
| QLD | 45 | WA | 8, 9, 11, 92 |
| ACT | 38A, 39, 40, 41B, 42 | NT | 51, 52, 53, 56, 59 |
| VIC | 13(1), 19 | TAS | 4, 12, 33 |
| NSW | 44, 45, 46B, 47, 61 | UK | 1, 9, 33 |
| SA | 45, 46 | NZ | 22, 24, 25 |
12.3 Prior to the enactment of administration and probate legislation, real property vested on the testator’s death in the devisee if there was a will, or in the heir if there was no will. Personal property of the testator vested in the executor on the testator’s death.3 If there was no executor, personal property vested on death in the Ordinary of the Ecclesiastical Court, later the President of the Probate Division. By a fiction, where an administrator was appointed, the personal estate was treated as having vested, for some purposes, in the administrator as from the death. This is known as the doctrine of “relation back”.
12.4 Atherton and Vines describe the present law in Australia as “a mixture of this old common law and statute”.4
3. SUMMARY OF AUSTRALIAN JURISDICTIONS
12.5 The following table summarises the position with respect to the vesting of property in the various Australian jurisdictions. In most jurisdictions, the situation will vary depending on whether the deceased person died testate or intestate and whether the property concerned is real or personal property. Where the legislation is silent as to a particular form of property, Atherton and Vines suggest that case law fills the gaps.5
Link to text only version
 | TESTATE ESTATE | INTESTATE ESTATE |
| QLD | On death: Executor or – if no executor able and willing to act – the Public Trustee | On death:
Public Trustee |
| On grant: Person to whom grant is made6 |
NSW7
ACT
NT8
WA | Death to grant: Public Trustee (both real and personal property)
On grant: Executor or administrator9 |
| VIC | (Legislation silent as to vesting between death and grant.) | Death to grant:
State Trustee |
On grant: Executor or administrator
(both real and personal property)10 |
| SA | On death: Real property vests in the executor or administrator
(Legislation silent as to vesting of personalty.) | Death to grant:
Public Trustee |
| TAS | On death: Real property vests in the executor or administrator
(Legislation silent as to vesting of personalty.) | Death to grant:
Chief Justice11 |
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4. QUEENSLAND: FULL VESTING IN EXECUTOR/ PUBLIC TRUSTEE ON DEATH IN TESTATE ESTATES; PUBLIC TRUSTEE IN INTESTATE ESTATES
12.6 In Queensland, the transfer of the property is to the deceased person’s executor (where there is an executor willing and able to act) or to the Public Trustee. Section 45 of the Succession Act 1981 (Qld) provides:
Devolution of property on death
(1) The property to which a deceased person was entitled for an interest not ceasing on his or her death (other than property of which the deceased person was trustee) shall on his or her death and notwithstanding any testamentary disposition devolve to and vest in his or her executor and if more than 1 as joint tenants, or, if there is no executor or no executor able and willing to act, the public trustee.
(2) Upon the court granting probate of the will or letters of administration of the estate of any deceased person the property vested in his or her executor or in the public trustee under the provisions of subsection (1) shall devolve to and vest in the person to whom the grant is made and if more than 1 as joint tenants.
(3) Where at any time a grant is recalled or revoked or otherwise determined the property of the deceased vested at that time in the person to whom the grant was made shall be divested from the person and shall devolve to and vest in the person to whom a subsequent grant is made; and during any interval of time between the recall, revocation or other determination of a grant and the making of a subsequent grant the property of the deceased shall devolve to and vest in the public trustee.
(4) The title of any administrator appointed under this Act to any property which devolves to and vests in the administrator shall relate back to and be deemed to have arisen upon the death of the deceased as if there had been no interval of time between the death and the appointment.
(4A) However, all acts lawfully done by to or in regard to the public trustee before the appointment of an administrator shall be as valid and effectual as if they had been done by to or in regard to the administrator.12
(5) For the purposes of this section, and notwithstanding the provisions of the Trusts Act 1973, section 16,13 an executor includes an executor by representation under the provisions of section 47 of this Act.
(6) While the property of a deceased person is vested in the public trustee under this section, the public trustee shall not be required to act in the administration of the estate of the deceased person or in any trusts created by the will of the deceased person, or exercise any discretions, powers, or authorities of a personal representative, trustee or devisee, merely because of the provisions of this section.
(7) Nothing in this section affects the operation of an Act providing for the registration or recording of any person as entitled to any estate or interest in land in consequence of the death of any person notwithstanding that there has been no grant in the estate of the deceased person. [notes added]
12.7 Unlike many other Australian jurisdictions,14 in Queensland property vests in the Public Trustee only as a last resort. The reason for this was partly because the principle that estate property vests in the executor is an ancient one that has caused no trouble, and partly in order to maintain the policy favouring private administration of estates.15 Property of which the deceased was trustee is excepted in order to keep property beneficially owned entirely separate from property held as trustee.16
12.8 Section 45(2) ensures that on grant the property vests in the grantee – in particular, the administrator where there is no will or where the will does not appoint an executor who is able and willing to act.
12.9 Section 45(3) provides for vesting of the property if the grant is revoked.
12.10 Section 45(4) provides for “relation back” of the title of the administrator; section 45(4A) preserves the validity of acts done by the Public Trustee before an administrator is appointed and the doctrine of “relation back” applies.17
12.11 Subsections (4A) and (6) of section 45 address problems in relation to the role of the Public Trustee raised by the New South Wales legislation. In relation to those problems, Wood and Certoma say:18
Section 45[(4A) and] (6) of the Succession Act 1981 (Qld) conveniently summarise the position which appears from the oceans of litigation produced by s 61 of the Wills, Probate and Administration Act 1898 (NSW).
12.12 Section 45(5) provides that the provisions of the section apply to an executor by representation.19
12.13 Section 45(7) is one of a group of provisions in the Queensland legislation that favour the policy of allowing informal private administration of estates even where the estate contains land.20
12.14 Subsections (3) to (7) of section 45 have no equivalents in the legislation of other jurisdictions. The subsections consist partly of consequential provisions, and partly of provisions that clarify the law, or improve the operation of section 45.
12.15 In its 1978 Report, the Queensland Law Reform Commission identified a number of problems that arose out of the then Queensland law relating to vesting (that is, as the law stood before the enactment of the Succession Act 1981 (Qld)):21
- The law was in a state of confusion. The Queensland Law Reform Commission observed in its 1978 Report:22
It seems to be the object of section 30 of the Public Curator Act of 1915 to vest property of an intestate in the Public Curator. But that section uses the language of beneficial succession when what appears to be intended is representative succession; and in any case, the section does not expressly include property of a testator who has died without an executor.
This observation applies to intestates and to testates whose wills do not effectively appoint an executor.
- Devised realty vested in the devisee. In some jurisdictions this remains true now. Although some advantages were recognised in relation to the rule’s application in the case of simple estates, there are considerable practical disadvantages in this rule in relation to other cases. The rule tends to undermine the principle that real and personal property should be equally available for the payment of the debts of the estate. The Queensland Law Reform Commission made the further observation in its 1978 Report:23
It is clearly undesirable from the point of view of creditors and even from the point of view of devisees that the former should find themselves having to pursue devisees rather than personal representatives, and that the latter should not know whether their devise, even after transmission of the title to them, is freed of future liability to other beneficiaries of the estate.
- The rule that devised property vests in the devisee conflicts with the policy of the Trusts Act 1973 (Qld). Further, the Queensland Law Reform Commission observed in its 1978 Report that the rule that realty vests in the devisee conflicts with the policy of the Trusts Act 1973 (Qld), which is, as far as possible, to convert all forms of property held for successive interests into trust property:24
The objective of the Trusts Act is to ensure that all trust property as defined by that Act becomes vested in trustees having the powers of trustees given by that Act. Where land is devised to beneficiaries in succession, without the appointment of trustees, however, the vesting rule constitutes an obstacle to that policy.
5. NEW SOUTH WALES, THE AUSTRALIAN CAPITAL TERRITORY, THE NORTHERN TERRITORY AND WESTERN AUSTRALIA: FULL VESTING IN THE PUBLIC TRUSTEE
12.16 New South Wales, the Australian Capital Territory, the Northern Territory and Western Australia have all enacted statutory provisions that vest both real and personal property in the Public Trustee in both testate and intestate estates from death until grant.25 In each of these jurisdictions, with the exception of the Australian Capital Territory, on grant, the estate vests in the executor or administrator; there is a relation back so that the estate vests in the grantee as from death.26
12.17 Sections 44 and 61 of the Wills, Probate and Administration Act 1898 (NSW) vest the whole estate in the Public Trustee on death, and then, on grant of probate or letters of administration, vest the whole estate in the executor or administrator as from death. Section 61 of that Act is in terms which would apply to testate and intestate property.
12.18 The New South Wales provisions have caused a good deal of litigation, and do not appear to have worked well. In Darrington v Caldbeck,27 Young J said of section 61:28
Section 61 has caused a tremendous amount of problems to persons affected by it over the years.
12.19 There is an opinion that it is preferable to allow the executor to have the estate vested in him or her, as in England and under section 45 of the Succession Act 1981 (Qld), and take his or her authority from the will rather than from the grant.
6. VICTORIA, SOUTH AUSTRALIA AND TASMANIA: LIMITED VESTING IN THE PUBLIC TRUSTEE
12.20 In Victoria, South Australia and Tasmania, it is only where a person dies intestate that the whole of the person’s estate vests in the Public Trustee (or similar officer) on death and until grant.29 Atherton and Vines explain that this extends the former law to the entire property of the deceased, not just personal property.30
12.21 Atherton and Vines point out that in these States there is a different approach in the case of testate estates, where there is no provision for vesting in the Public Trustee.31 South Australia and Tasmania provide that real property is to vest in the executor or administrator on the death of the deceased.32 In Victoria, in the case of testate estates, it is only on the grant that the estate vests in the executor or administrator as from the death;33 there is no provision for the vesting of real property from the date of death until the grant.34 According to Sundberg, Victoria retains the old rule in relation to assets during the period before grant – real property vests in the devisee from death until grant.35 Atherton and Vines, however, regard the Victorian position as unclear.36 They explain the effect of the various gaps in the law in these jurisdictions as follows:37
In relation to personal property in testate estates these three jurisdictions make no express provision, but it would seem that the common law position would still apply. Pending a grant of probate personal property would be vested in the executor. But where the grant is not one of probate but letters of administration cta the position is not entirely clear. The old common law provided that it vested in the Ordinary. If the provisions which apply to intestate estates are wide enough to apply to cases of grants cta then the personal property in such estates could vest in the Public Trustees as successors to the Ordinary. [note omitted]
The Victorian legislation also includes an additional provision to the effect that an estate does not vest in a minor executor.38
7. NEW SOUTH WALES: VESTING OF PROPERTY THE SUBJECT OF A GENERAL POWER OF APPOINTMENT
12.22 Section 46B of the Wills, Probate and Administration Act 1898 (NSW) provides that property which is the subject of a general power of appointment vests on the donee’s death in the donee’s personal representative. Section 46B of the Wills, Probate and Administration Act 1898 (NSW) reads:
Appointments under general power
(1) Real and personal estate passing under a gift in the will of a testator dying after the commencement of the Conveyancing (Amendment) Act 1930 which operates as an appointment under a general power to appoint by will shall vest in the testator’s personal representatives as if the testator had been entitled thereto at the testator’s death, whether or not the testator was so entitled, and whether or not for an interest not determining on the testator’s death.
(2) Real and personal estate the subject of a gift contained in the will of a testator dying after the passing of the Probate Act of 1890, which operated as an appointment under a general power, shall be deemed to have vested under the provisions of that Act, or of this Act, as the case may require, in the testator’s executors or administrators as if that property had been vested in the testator at the time of the testator’s death, whether or not the testator was entitled thereto for an estate or interest not determining on the testator’s death.
(3) Nothing in subsection (2) shall affect any right or title accrued before the commencement of this section under any disposition by an appointee which would have been valid if this section had not been passed or shall affect the interpretation of section 44.
8. STATUTORY EXECUTORSHIP AND VESTING IN THE CASE OF INTESTACY
12.23 In its 1993 Report on Intestacy, the Queensland Law Reform Commission recommended that, in certain circumstances, property in a deceased estate should vest directly in those persons entitled to apply for letters of administration.39 It was considered by the Commission that it was desirable to assimilate the vesting rules for intestacy (or where there was a will that failed to appoint an executor) with the vesting rules that apply where an executor is appointed by will.
9. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
12.24 The National Committee considered whether:
(1) a provision to the effect of section 45 of the Succession Act 1981 (Qld) should be included in the model legislation in preference to the vesting provisions of other jurisdictions;
(2) it is desirable to include provisions that create a statutory executorship in the case of an intestacy or a will that does not effectively appoint an executor and, by doing so, assimilate the vesting rules for executors and statutory executors;
(3) section 45(6) of the Succession Act 1981 (Qld) should be amended to provide that, when property is vested in the Public Trustee under that section, the Public Trustee should act in the administration of the estate or whether the vesting should be purely notional.
10. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
12.25 Some concern was expressed about the provisions in a number of jurisdictions that automatically vest property in the Public Trustee on the death of a deceased person. Whereas, traditionally, a Public Trustee would not actively administer a deceased estate pending grant40 and would therefore charge no fee, the trend towards commercialisation of Public Trustees might result in active management and the imposition of fees. However, the independence of the Public Trustee was recognised as a factor in favour of vesting in the Public Trustee.
12.26 Consideration was given to a possible redraft of section 45(6) of the Succession Act 1981 (Qld) to confine the effect of vesting in the Public Trustee to a notional vesting. However, the Committee noted that the Public Trustee might have legitimate reasons to act – for example, for the benefit of the beneficiaries or to maintain the estate. There was also a reluctance to be seen to override the particular powers that the Public Trustee might otherwise have, especially in emergency situations. Consideration was also given to providing that the Public Trustee must not charge a fee, but the general view was that such an approach would not be practicable.
12.27 It was considered inappropriate that property should vest in the Chief Justice of any particular jurisdiction,41 since failure to perform anything required to be done in the administration of the property could lead to personal liability for non-feasance.
12.28 The possibility of a statutory scheme of executorship to take effect on intestacy was considered. In particular, consideration was given to the proposal that, on an intestacy, the spouse or others entitled to share the estate of the deceased should be considered to be the executors of the deceased, and the estate should vest directly in them.
12.29 However, concerns were expressed about this proposal. It was suggested that it would lead to uncertainty when a number of people claimed to be entitled to take under the relevant intestacy rules. The uncertainty would not be overcome by providing that the property should vest in the person entitled to be granted letters of administration, since there may be several people with equal claim – for example, where there is no spouse, but are a number of siblings. Registrars of Probate also commented that many people who believe that they are entitled to a grant of letters of administration in fact are not so entitled.42 A further concern related to statutory executors overstepping their powers and threatening the security of the property.
12.30 The National Committee considered section 45(7) of the Succession Act 1981 (Qld) in Chapter 10 of this Discussion Paper in the context of informal administration.
12.31 The National Committee did not consider the inclusion in the model legislation of a provision to the effect of section 46B of the Wills, Probate and Administration Act 1898 (NSW) relating to the vesting in the personal representatives of property the subject of a general power of appointment.
Footnotes
1. For a concise definition of “vesting” see W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 105.
2. Public Trustee Act 1941 (WA).
3. Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603 at 608.
4. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 17.4.2.
5. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 17.4.4.
6. Section 45(4) of the Succession Act 1981 (Qld) provides for the relation back of the title of the administrator to any property to the date of death of the deceased.
7. Property passing by general power of appointment vests in personal representatives. See the discussion of s 46B of the Wills, Probate and Administration Act 1898 (NSW) at para 12.22 of this Discussion Paper.
8. Section 56 of the Administration and Probate Act (NT) provides that property passing by general power of appointment vests in personal representatives. See note 338 of this Discussion Paper.
9. In New South Wales, the Northern Territory and Western Australia, upon the grant the property is vested in the executor or administrator as from the date of death of the deceased: Wills, Probate and Administration Act 1898 (NSW) s 44(1); Administration and Probate Act (NT) s 52; Administration Act 1903 (WA) s 8.
10. Upon the grant the property is vested in the executor or administrator as from the date of death of the deceased: Administration and Probate Act 1958 (Vic) s 13(1). There is no statutory provision for the vesting of property from the date of death until the grant.
11. Section 12 of the Administration and Probate Act 1935 (Tas) refers to “the Chief Justice or in case there may not be a Chief Justice at any time, then in the senior puisne judge, in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary in England”.
12. See Chapter 11 of this Discussion Paper for a discussion of the administration of deceased estates by the Public Trustee before a grant is made.
13. Section 16 of the Trusts Act 1973 (Qld) deals with the devolution of trust assets and trust powers upon death.
14. See para 12.5 of this Discussion Paper.
15. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 30.
16. Ibid.
17. See para 12.3 of this Discussion Paper for a discussion of this doctrine.
18. O Wood and G L Certoma, Hutley, Woodman and Wood: Succession Commentary and Materials (4th ed 1990) at 263.
19. See Chapter 6 of this Discussion Paper for a discussion of the doctrine of executorship by representation.
20. See generally the discussion of informal administration and, in particular, of s 54 and 45(7) of the Succession Act 1981 (Qld) in Chapter 10 of this Discussion Paper.
21. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 29.
22. Ibid.
23. Id at 30.
24. Ibid.
25. Wills, Probate and Administration Act 1898 (NSW) s 61; Administration and Probate Act 1929 (ACT) s 38A; Administration and Probate Act (NT) s 51; Public Trustee Act 1941 (WA) s 9.
26. Wills, Probate and Administration Act 1898 (NSW) s 44(1); Administration and Probate Act (NT) s 52; Administration Act 1903 (WA) s 8.
27. (1990) 20 NSWLR 212.
28. Id at 218.
29. Administration and Probate Act 1958 (Vic) s 19; Administration and Probate Act 1919 (SA) s 45; Administration and Probate Act 1935 (Tas) s 12. See also R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 17.4.2-17.4.4.
30. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 17.4.4.
31. Ibid.
32. Administration and Probate Act 1919 (SA) s 46; Administration and Probate Act 1935 (Tas) s 4.
33. Administration and Probate Act 1958 (Vic) s 13(1).
34. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 17.4.4.
35. R A Sundberg, Griffith’s Probate Law and Practice in Victoria (3rd ed 1983) at 23 n 13 and the cases there cited.
36. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 17.4.4.
37. Ibid.
38. Administration and Probate Act 1958 (Vic) s 26(2). A provision about vesting may not be necessary since the minor would not be able to deal with the estate. But note provisions such as s 137 of the Land Title Act 1994 (Qld), which permits the guardian of a minor to perform acts required or permitted to be done by or in relation to a person under that Act. Section 137 reads:
Acts for minors and by attorneys etc.
(1) If –
(a) an act is required or permitted to be done by or in relation to a person under this Act; and
(b) the person is a minor or is mentally or intellectually impaired or incapable of managing the person’s own affairs;
the act may be done by or in relation to a person who is responsible by law for the management and care of the first person’s interests.
(2) If an act is required or permitted to be done by or in relation to a person under this Act, the act may be done by or in relation to the person’s attorney appointed under this division.
39. Queensland Law Reform Commission, Report, Intestacy (R 42, 1993) at 71-72.
40. In In re Broughton (1902) 19 WN (NSW) 69, which was decided at a time when in New South Wales property vested in the Chief Justice prior to a grant, leave was sought to serve the Chief Justice along with the executors named in the will with certain legal proceedings. Although the Court found it unnecessary to decide the question, it made the following comments about the appropriateness of joining the Chief Justice (at 70):
My present impression is, however, that it would be improper to make him a party. I do not think that the Legislature intended to do more than make him a mere formal repository of the legal estate, until the Probate Court should grant probate or administration, and I am of opinion that it was never intended that he should thereby be put in the position of being joined as a party in litigious proceedings.
41. See Administration and Probate Act 1935 (Tas) s 12.
42. See Chapter 5 of this Discussion Paper in relation to entitlement to letters of administration.
