1. INTRODUCTION
2.1 When a person dies leaving real or personal property, that property must be dealt with according to law. In particular, the debts of the estate must be paid and any remaining assets must be distributed according to the applicable succession laws. Statute law and case law in each Australian jurisdiction govern such matters as:
- who is entitled to administer the deceased person’s estate;
- in whose name the property vests until dealt with according to the deceased person’s legally enforceable expressed intentions (for example, by will) or according to the law governing the situation where the deceased person has not effectively disposed of his or her property by will (intestacy); and
- the rights and responsibilities of the persons entrusted with the task of administering the deceased person’s estate.
One of the difficulties in the administration of estates, however, is that the law in respect of all these issues is not uniform, or even consistent, between the Australian States and Territories.
2. PERSONAL REPRESENTATIVES
2.2 A person with authority to administer a deceased person’s estate may be either an executor or an administrator. An executor is a person appointed by the deceased person’s will to administer the estate. An administrator is a person appointed by the court to administer the estate where there is no will or, for some reason, no executor who is willing and able to act.1 Executors and administrators are commonly referred to as “personal representatives”.
2.3 Atherton and Vines describe the general law regarding the role of executors and administrators and the significance of a grant of representation:2
In all Australian jurisdictions someone is appointed to attend to the administration of the estate of a deceased person. That person is generically called a legal personal representative or personal representative, but has different specific names, depending upon whether the deceased appointed a representative or not. The deceased’s chosen representative is called an executor and any other representative is called an administrator. The essential difference is between a representative chosen by the deceased and one chosen by the court. They both administer the deceased’s estate. The executor, however, has the additional task of obtaining probate of the will, that is proving that it is the last and valid will of the deceased, the testator. The authority of the representative is officially conferred through a grant of representation: probate, for executors; letters of administration, for administrators. Even where there is a will an administrator may be required, for example if there is no executor appointed or the nominated executor has died before the testator. In such cases letters of administration with the will annexed ... will be required.
(a) Probate
2.4 A grant of probate of a will is official recognition that an executor has the right to administer the deceased’s estate according to the terms of the will in question.
(b) Letters of administration
2.5 An administrator acts under what is generally referred to as a grant of letters of administration, the terms and conditions of which, if any are required, are set out by the court.
2.6 The grant of letters of administration empowers the administrator to deal with the deceased person’s property in the manner considered appropriate by the court, and otherwise according to the law. A grant of letters of administration is official recognition that an administrator has the right to administer the deceased’s estate.
2.7 Different kinds of letters of administration are granted for a number of different purposes. A grant of letters of administration is a “limited” or “special” grant if restricted in its purpose or objects; the time in which it operates; or in the extent to which it operates over the deceased person’s property.3 If a grant of letters of administration is unrestricted, it is referred to as a “general” grant.
2.8 Legislation, rules of court or both may regulate aspects of some of these grants and the restrictions which may be attached to them. However, if the legislation is silent, the court still has the residual power to attach conditions.4
(i) General grants of letters of administration
2.9 General grants of letters of administration include:5
- letters of administration cum testamento annexo – with the will annexed (cta);6
- letters of administration de bonis non – of the unadministered assets (dbn).7
(ii) Limited grants of letters of administration
2.10 Grants of limited (or special) administration are usually of the following kinds:
- durante minore aetate – during infancy;8
- durante absentia – during absence;9
- during incapacity;10
- pendente lite – where there is a suit pending;11
- cessate – second grant upon expiry of grant of limited duration;12
- ad colligenda bona – for the collection of assets;13
- ad litem – for the purposes of litigation.14
2.11 Some jurisdictions have also included in their legislation a provision to the effect that, where any person named as executor or the person entitled to administration is out of the jurisdiction, administration may be granted to an attorney of that person.15 This provision applies where no grant has been made and the person entitled to the grant appoints an attorney. This type of grant can be distinguished from the grant of administration durante absentia which applies in the case where a grant has already been made, and the grantee is residing out of the jurisdiction.
3. PURPOSE OF A GRANT
2.12 Lee refers to the grant of probate or letters of administration as:16
... official recognition of the right of the personal representatives named in the grant [of probate or administration] to administer the deceased’s estate and of the vesting in them of the title to those assets passing to them upon the death or grant. Where there is a need for personal representatives to prove formally their title to any assets, production of the grant is necessary. Persons owing money to the deceased, for instance, or having title, or the control of title, of property belonging to the deceased, may insist on seeing the grant to protect themselves upon payment of the debt owing or upon transfer of the title in question. Where the deceased was a shareholder in a company, for instance, then normally the company will insist on seeing the grant before it will register the personal representatives as shareholders in place of the deceased. Where personal representatives embark on litigation, they will ordinarily have to produce the grant to the court before they can obtain a decree of the court because that is the only way in which they can prove the title they assert. [notes omitted]
2.13 The general effect of a grant of probate or administration is referred to in section 49(2) of the Succession Act 1981 (Qld) as follows:17
Upon the making of a grant and subject thereto, the powers of personal representatives may be exercised from time to time only by those personal representatives to whom the grant is made; and no other person shall have power to bring actions or otherwise act as personal representatives without the consent of the Court.
2.14 Grants offer the personal representatives some degree of protection from liability in the administration of the estate which they would not otherwise have. Grants may also inspire some confidence in those dealing with a personal representative in relation to property which is the subject of the grant, in that the legal authority of the personal representative to deal with the deceased person’s estate has been confirmed by the court.
4. APPLICATION FOR A GRANT
2.15 In each Australian jurisdiction, application for a grant may be made to the Supreme Court of that particular jurisdiction by the executor named in the will or by a person who wishes to be appointed as the administrator. An application can be made for a grant in either “solemn” or “common” form.
(a) Grants in “common form”
2.16 Grants in common form are normally made by a Registrar of the court pursuant to his or her delegated power.18
2.17 Lee explains the basis of a grant in common form:19
A common form application is based on the assumption that there is no litigable issue arising respecting the admission of the will to probate or the grant of letters of administration. Even if there are some features of a will sought to be admitted to probate which raise a doubt, a grant in common form may still issue although the court may require affidavits in explanation to satisfy the doubt. Thus, if a will contains no attestation clause, a court may require an affidavit of due execution from at least one of the attesting witnesses, or, if that cannot be obtained, from a non-attesting witness, swearing that the due formalities of execution have been observed; or if there are alterations to a will, an affidavit may be required of someone present when the will was executed to show whether the alterations were written before the will was executed or not.
(b) Grants in “solemn form”
2.18 More formality is required in relation to a grant in solemn form:20
... it is the product of judicial proceedings where an issue touching the validity of the will has been determined, such as whether the testator had the requisite capacity or was subject to undue influence.21 ... Application for probate in solemn form may be made although probate in common form has been granted. [substance of one note preserved and noted below; other note omitted]
2.19 The purpose of seeking a grant in solemn form is to put an end to the litigable issue. Where such a grant follows the determination of a litigated issue, the parties to the issue cannot seek to revoke the grant because the issue is res judicata.22 The only bases upon which such a grant can be revoked are:23
(1) a later will is found to exist;
(2) it is later established that subsequent to the making of the will the testator either married24 or divorced;25
(3) the order for grant was obtained by fraud;26
(4) the applicant now seeking to set aside the grant was prevented, on a sufficient basis,27 from being heard on the obtaining of the grant in solemn form. [substance of the notes preserved and noted below]
5. DEFINITIONS
(a) Personal representative
(i) Introduction
2.20 Section 5 of the Succession Act 1981 (Qld) defines “personal representative” in the following terms:
“personal representative” means the executor, original or by representation, or administrator of a deceased person.
2.21 This section does not expressly refer to the situation of a trustee corporation appointed by a will as an executor of an estate or by the court as an administrator. Section 16 of the Administration and Probate Act 1935 (Tas) provides for trustee corporations to take grants of probate or letters of administration. The section provides:
Grant of representation to a trust corporation
(1) Where a trust corporation is appointed an executor in a will, either alone or jointly with another person, the Court may grant probate to such corporation either solely or jointly with another person, as the case may require, and the corporation may act as executor accordingly.
(2) Administration may be granted to any trust corporation either solely or jointly with another person, and the corporation may act as administrator accordingly.
(3) Representation shall not be granted to a syndic or nominee on behalf of any trust corporation.
(4) Any officer authorised for the purpose by any such corporation or by the directors or governing body thereof may swear affidavits, give security, and do any other act or thing which the Court may require on behalf of the trust corporation with a view to the grant of representation to the corporation, and the acts of such officer shall be binding on the corporation, and he shall be entitled to be kept indemnified by the corporation in regard to matters so authorised as aforesaid.
(5) Where at the commencement of this Act any interest in real or personal estate is vested in a syndic on behalf of any trust corporation acting as the personal representatives of a deceased person, the same shall, by virtue of this Act, vest in the corporation, and the syndic shall be kept indemnified by the corporation in regard to the interest so vested.
This subsection does not apply to securities registered in the name of a syndic, or to land, or to a mortgage or charge of which the syndic is registered proprietor under the Land Titles Act 1980, but any such securities, land, mortgage, or charge shall be transferred by the syndic to the corporation, or as the corporation may direct.
(6) This section has effect whether the deceased died before or after the commencement of this Act; and no such vesting or transfer as aforesaid shall operate as a breach of a covenant or condition against alienation or give rise to a forfeiture.
(ii) Issues considered by the National Committee
2.22 The National Committee considered whether:
(1) a definition of “personal representative” to the effect of that in section 5 of the Succession Act 1981 (Qld) should be included in the model legislation;
(2) it is necessary to clarify that an executor to whom a grant has not been made is a “personal representative” for the purposes of the model legislation;
(3) it is necessary to specify at what point a personal representative becomes a trustee;
(4) the definition of “personal representative” should contain the words “the estate of” before the words “a deceased person”;
(5) there should be a provision in the model legislation enabling trustee corporations to be appointed as personal representatives;
(6) the definition of “personal representative” in the model legislation should be defined to include a trustee corporation.
(iii) The National Committee’s preliminary view
2.23 The National Committee considered it arguable that the definition of “personal representative” should be more clearly defined to state expressly whether a grant is necessary for an executor to come within the definition. “Administrator” must mean a person appointed by the court, because no person can be an administrator unless a grant has been made to that person. However, the National Committee came to the view that its concerns on this issue would be addressed by the redraft of section 54 of the Succession Act 1981 (Qld) which it considers in Chapter 10 of this Discussion Paper.
2.24 It was suggested that it would not be helpful to try to define when a personal representative becomes a trustee as, even once a personal representative holds assets as a trustee, he or she can still become the personal representative in relation to further assets or liabilities accruing to the estate.
2.25 The National Committee noted that most jurisdictions have legislation setting out the powers of trustee corporations. However, it was suggested that such provisions are more appropriately located in trustee corporation legislation, and should not be included in the model legislation.
2.26 The National Committee was of the view that the definition of “personal representative” in the model legislation should not identify trustee corporations. The purpose of the definition is to describe the types of appointment that constitute a person or entity as a personal representative, not the identity of particular entities. For example, if a trustee corporation is appointed by will as an executor, the corporation will, under the existing definition in the Succession Act 1981 (Qld), be a “personal representative” without the need for specific inclusion.
(b) Administration
(i) Introduction
2.27 Section 3 of the Wills, Probate and Administration Act 1898 (NSW) defines “administration” as follows:
“Administration” includes all letters of administration of the real and personal estate and effects of deceased persons whether with or without the will annexed, and whether granted for general, special, or limited purposes, also exemplification of letters of administration or such other formal evidence of the letters of administration purporting to be under the seal of a Court of competent jurisdiction as is in the opinion of the Court deemed sufficient.
(ii) Issue considered by the National Committee
2.28 The National Committee considered whether the model legislation should include a definition of “administration” to the effect of the definition in section 3 of the Wills, Probate and Administration Act 1898 (NSW).
(iii) The National Committee’s preliminary view
2.29 The National Committee was of the view that inclusion in the model legislation of a provision to the effect of the definition of “administration” in section 3 of the Wills, Probate and Administration Act 1898 (NSW) would highlight the existence of the different kinds of letters of administration.
Footnotes
1. The possibility of administering a deceased estate other than by a personal representative acting pursuant to a grant is discussed in Chapters 10 and 11 of this Discussion Paper.
2. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 17.1.1.
3. R F Atherton, P Vines and B Brown, Halsbury’s Laws of Australia (looseleaf), “Succession” at para 395-3055.
4. Id at para 395-3180.
5. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at paras 814-824.
6. Where there is no executor willing and able to act pursuant to a will, letters of administration cta will be granted by the court. A copy of the will is annexed to the letters of administration.
7. Lee describes this type of grant in the following terms (W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 815):
Wherever a grant has been made and the executor or administrator can no longer act – for instance if he or she is dead or has been discharged by the court – leaving no one to represent the estate, and part of the estate in question is unadministered, the court will grant letters of administration de bonis non administratis – of the unadministered assets – of the estate, enabling the grantee to complete the administration of the estate. [note omitted]
8. Lee describes this type of grant as follows (id at para 817):
Where the executor appointed, or where there is no executor the person entitled to the grant of letters of administration, happens to be an infant at the date of the application for the grant, a grant of letters of administration will be made to an adult until the infant attains adulthood. When a grant durante minore is made power is usually reserved to the infant to seek a grant upon attaining adulthood. [note omitted]
9. Lee describes this type of grant as follows (id at para 818):
Where a representative is out of the jurisdiction, a grant may be made to her or his attorney durante absentia. The court has a discretion to make the grant elsewhere – for instance to a beneficiary. [notes omitted]
10. Lee notes (id at para 819):
Where a representative is incapacitated, a grant will be made until he or she recovers.
11. Lee describes this type of grant as follows (id at para 820):
Where there is a suit pending which touches upon the validity of the will, or calls for a revocation of a grant, then until that suit is determined the court may appoint an administrator, who is virtually an officer of the court, to perform certain acts in relation to the estate, although it cannot be distributed. There must be a pending suit – the existence of a caveat only being insufficient – and there must be a reason for the grant, in particular that assets require protection or administration. [notes omitted]
12. Lee describes this type of grant as follows (id at para 821):
Upon the expiry of a grant of limited duration, a second or cessate grant is made to the person entitled, that is to the infant now an adult, the absentee who has returned or the incapacitated person who has recovered. If such person dies before taking out the grant, or fails to take it out, letters of administration de bonis non must be obtained.
13. Lee describes this type of grant as follows (id at para 823):
Where there may be a delay before a personal representative can be appointed and there are assets of the deceased’s which require to be protected, or debts or taxes which need to be paid from them, a grant ad colligenda bona may be made.
14. Lee describes this type of grant as follows (id at para 824):
Where the estate is so small that it seems unlikely that anyone will wish to take out a grant, but there is some person having a right of action against the estate which cannot be pursued because there is no representative to fulfil the role of defendant, a grant ad litem may be issued to any convenient person. The action must be within the jurisdiction appointing such administrator. [notes omitted]
15. For example, s 72 of the Wills, Probate and Administration Act 1898 (NSW) reads:
Administration to be granted to attorney in certain cases
(1) When any person named as executor, or any husband or wife or the next of kin entitled to probate or administration is out of the jurisdiction or is engaged on war service within the meaning of the Trustee and Wills (Emergency Provisions) Act 1940, but has some other person within the jurisdiction appointed under power of attorney to act for the person, administration may be granted to such attorney, but on behalf of the person entitled thereto, and on such terms and conditions as the Court thinks fit.
(2) A grant of administration under this section shall continue in force notwithstanding the death of the donor of the power, unless the grant in terms provides that it shall determine on such event.
For other jurisdictions see Rules of the Supreme Court 1900 (Qld) O 71 r 30; Administration and Probate Act 1929 (ACT) s 22; Administration and Probate Act 1919 (SA) s 34; The Probate Rules 1998 (SA) r 41; Administration Act 1903 (WA) s 34, 141; Administration and Probate Act (NT) s 31; and Probate Rules 1936 (Tas) r 42.
16. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 802.
17. See Chapter 8 of this Discussion Paper for a discussion of s 49 (which, apart from s 49(3), the National Committee has accepted).
18. Administration and Probate Act 1929 (ACT) s 10; Administration and Probate Act (NT) s 17; Supreme Court Rules (NT) r 88.05(1)(a); Supreme Court Rules 1970 (NSW) Pt 78 r 5(1)(a); Rules of the Supreme Court 1900 (Qld) O 71 r 7(1); The Probate Rules 1998 (SA) r 5, 7; Administration and Probate Act 1958 (Vic) s 12(1), 12(2); Administration Act 1903 (WA) s 5, Non-Contentious Probate Rules 1967 (WA) r 4. There is no equivalent provision in Tasmania, although s 5 of the Administration and Probate Act 1935 (Tas) preserves the court practice current at the commencement of that Act.
19. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 832.
20. Ibid.
21. Lee refers to: Re Bowles [1952] QWN 41; Russell v Williams [1953] QWN 42; Re Flynn [1982] 1 WLR 310.
22. Once a matter between parties has been litigated and decided, it cannot be raised again between the same parties, although other parties are not so bound. A grant in solemn form can also bind people who are not parties to the litigation. See Tristram and Coote’s Probate Practice (28th ed 1995) at 596-598. See also Court Forms, Precedents and Pleadings (Qld) at para 56,010.
23. R F Atherton, P Vines, B Brown, Halsbury’s Laws of Australia (looseleaf), “Succession” at para 395-3435.
24. Subject to the statutory provisions that do not invalidate a will made in contemplation of marriage [reference omitted].
25. This applies only if the applicant is the ex-spouse, whose entitlement is abrogated by statute [reference omitted].
26. For example, see Birch v Birch [1902] P 130.
27. Atherton, Vines and Brown refer to Young v Holloway [1895] P 87 and Osborne v Smith (1960) 105 CLR 153 (except for good cause being shown, a person interested in the estate is bound by the making of a grant in solemn form).
28. See Chapter 11 of this Discussion Paper in relation to the filing of an election to administer an estate.
