1. SCOPE OF STATUTORY JURISDICTION
| QLD | 6 | WA | 4, 6, 183 |
| ACT | 9 | NT | 14 |
| VIC | 6, 17(1)2 | TAS | 13, 15, 6(5)4 |
| NSW | 3, 40, 41A | UK1 | 61, Sch 1 |
| SA | 5 | NZ | 5 |
(a) Introduction
3.1 The jurisdiction of a court to determine matters relating to the administration of estates is determined by case law and by statute. The statutes are not consistent. The Queensland provision is in very general terms. It gives the court the jurisdiction and power to determine all matters relating to the administration of estates and making of grants. In the other States and Territories, the jurisdiction and powers of the court tend to be separated into a number of different provisions. The powers conferred on the court in these provisions are more specific because they relate to matters of detail such as the different types of grants of administration.
(b) Queensland
3.2 Section 6 of the Succession Act 1981 (Qld) provides:
Jurisdiction
(1) Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.
(2) The court may in its discretion grant probate of the will or letters of administration of the estate of a deceased person notwithstanding that the deceased person left no estate in Queensland or elsewhere or that the person to whom the grant is made is not resident or domiciled in Queensland.
(3) A grant may be made to such person and subject to such provisions, including conditions or limitations, as the court may think fit.
(4) Without restricting the generality of subsections (1) to (3) the court has jurisdiction to make, for the more convenient administration of any property comprised in the estate of a deceased person, any order which it has jurisdiction to make in relation to the administration of trust property under the provisions of the Trusts Act 1973.
(5) This section applies whether the death has occurred before or after the commencement of this Act.
3.3 The Queensland Law Reform Commission, in a 1978 Report, stated in relation to the first limb of section 6(2) of the Succession Act 1981 (Qld):5
Today there is an additional reason for stressing that the Court has jurisdiction even though there is no estate at all at the date of the death: this is where litigation is contemplated against an “estate” where the “estate” is merely a cover for litigation against the deceased’s insurers, as in Kerr v Palfrey [1970] VR 825.
3.4 In relation to the second limb of section 6(2) of the Succession Act 1981 (Qld), the Commission noted that, in practice, probate and letters of administration were frequently granted to persons in other Australian States but that, since the language of section 6(2) was not mandatory, the court would be able to refuse to make a grant if no good reason for making the grant could be shown.6 A similar provision in New South Wales is section 41A of the Wills, Probate and Administration Act 1898 (NSW), which allows probate for family provision “whether or not the deceased person left property in New South Wales”.
(c) Issue considered by the National Committee
3.5 The National Committee considered whether a provision to the effect of section 6 of the Succession Act 1981 (Qld) should be included in the model legislation.
(d) The National Committee’s preliminary view
3.6 The National Committee considered that a significant advantage of section 6 of the Succession Act 1981 (Qld) is that it collects all the powers and jurisdiction of the court in relation to the administration of estates and the making of grants into one section. In other jurisdictions (as in Queensland before the enactment of the Succession Act 1981 (Qld)) the court has these powers, although they are not conveniently collected.
3.7 The National Committee recognised that the powers given by the Queensland provision are wide enough to cover powers given by a large number of other provisions. Consequently, the enactment of a provision modelled on section 6 would mean that those other provisions would no longer be required. Each jurisdiction should decide which provisions in its own legislation can be repealed once a provision based on this section is enacted.
3.8 In its 1978 Report, for example, the Queensland Law Reform Commission noted that some twelve provisions of the then Queensland legislation could be eliminated by the enactment of section 6 of the Succession Act 1981 (Qld).7 The Commission expressed the policy behind section 6(1) as follows:8
The intention of this section is to give the Court plenary jurisdiction in respect of all matters in this area of the law. Jurisdiction is given in respect of “the estate” as well as “the administration of the estate” to embrace matters affecting estates which may not be strictly speaking administration matters, such as, for instance, questions of family maintenance, and the recognition of foreign decrees.
3.9 A further advantage of section 6, in the view of the National Committee, is that it omits reference to matters that are of practice rather than of substance; matters of practice being left to be regulated by the rules of court. The Queensland Law Reform Commission noted that this was done with an eye to the possibility of uniform probate practice throughout Australia in the future.9
3.10 The National Committee considered the extent to which the model legislation should be transparent, and the extent to which matters of detail could be spelt out in rules of court. It was noted that section 6 of the Succession Act 1981 (Qld), which was drafted at a high level of abstraction, was aimed at practitioners, rather than lay members of the public, who would need more information to be included in the legislation. There was also concern that a broad general provision would leave room for rules and court interpretation to diverge in different jurisdictions, endangering the concept of uniformity.
3.11 Three possibilities were canvassed by the National Committee in relation to the model legislation:
- inclusion of a provision based on section 6 of the Succession Act 1981 (Qld);
- inclusion of a provision based on section 6 of the Succession Act 1981 (Qld), with some additional elaboration;
- inclusion of specific powers.
(e) Issues for discussion
3.12 A further issue which was raised within the National Committee’s deliberations was the constitutional validity of a provision such as section 6 of the Succession Act 1981 (Qld), which could be read as purporting to give jurisdiction to a State court over property in another State or Territory.10
3.13 Windeyer J in Balajan v Nikitin11 found that the New South Wales legislature was not competent to affect property outside New South Wales of a deceased person who had been domiciled outside of New South Wales, and so read down section 11(1)(b) of the Family Provision Act 1982 (NSW) to operate as he claimed it was intended to operate.12 Section 11(1)(b) of the Family Provision Act 1982 (NSW) reads:
An order for provision out of the estate or notional estate of a deceased person (whether or not an order made in favour of an eligible person) may:
...
(b) be in respect of property which is situated in or outside New South Wales at the time of, or at any time after, the making of the order, whether or not the deceased person was, at the time of death, domiciled in New South Wales.
3.14 Under section 2(1) of the Australia Act 1986 (Cth), State Parliaments are able, subject to the Constitution Act 1900 (Cth), to make laws which have extra-territorial operation. However, for a law to be valid there must be a nexus between the subject matter of the law and the State or Territory enacting the law.
3.15 In Flaherty v Girgis13 McHugh JA stated:14
Domicile, residence or even presence within the jurisdiction is always sufficient to give the legislature power to impose any liability whatsoever on the person so residing, domiciled or present. But in respect of persons who do not reside and are not domiciled or present within the State, the liability must be imposed by reference to a fact, event, thing or transaction which has a direct connection with the State. Sufficient connection can be found in the ownership or control of, or in the beneficial interest in, property situated within the jurisdiction or in the participation, directly or through an agent, in any event or transaction occurring in the jurisdiction. But it is not enough that indirectly the person upon whom the liability is imposed obtains a benefit from the use of property or the occurrence of an event within the jurisdiction.
3.16 On the other hand, it has been suggested that, where the deceased person had been domiciled in another jurisdiction but still in Australia and where the property was in another jurisdiction but still in Australia, the position adopted by Windeyer J is contrary to the concept of cross-vesting15 and the full faith and credit provisions of the Constitution.16
Proposal 4
A provision to the effect of section 6 of the Succession Act 1981 (Qld) should be included in the model legislation. If some additional express powers are to be conferred on the court in the model legislation, it is desirable that those powers should be expressed to be in addition to the broad general provision, and not in derogation from it.
Questions for discussion
3.1 Should a provision based on section 6 of the Succession Act 1981 (Qld) be restricted in its operation to matters involving a direct connection with the jurisdiction in which proceedings are brought?
3.2 The National Committee specifically seeks submissions on the constitutional validity of section 6 of the Succession Act 1981 (Qld) to the extent that it purports to operate extra-territorially.
2. ISSUES ARISING FROM CONFERRAL OF GENERAL JURISDICTION
(a) Introduction
3.17 The adoption of a provision such as section 6 of the Succession Act 1981 (Qld) which confers jurisdiction on the court in general terms raises a number of issues about the inclusion of additional, more specific, provisions. An example of these issues is the inclusion in the model legislation of reference to the various kinds of letters of administration which the court may grant.
(b) Particular types of grants of letters of administration
(i) Issue considered by the National Committee
3.18 The National Committee considered whether a list of the different types of grants of letters of administration should be included in the model legislation, given the wide scope of section 6 of the Succession Act 1981 (Qld).17
(ii) The National Committee’s preliminary view
3.19 The National Committee was of the view that the court’s power to grant probate of the will or letters of administration, under section 6 of the Succession Act 1981 (Qld), is sufficiently wide to encompass the different types of general and limited grants currently recognised in the various jurisdictions.
3.20 The National Committee considered listing the different types of administration in legislation. However, the National Committee was of the view that this could limit the development of the types of letters of administration.
3.21 The National Committee was also of the view that, wherever relevant in the model legislation, Latin terminology used in relation to some kinds of grants should be replaced by an English translation.
(c) Administration granted to guardian of minor executor
| QLD | 6(3) | WA | 33 |
| ACT | 21 | NT | 30 |
| VIC | 26 | TAS | 23 |
| NSW | 70, 71 | UK18 | r 32 |
| SA | r 42 | NZ | 9 |
(i) Introduction
3.22 For the case where the person named as executor in the will is a minor, most jurisdictions make specific provision for administration to be granted to the guardian of the minor or to some other person as the court thinks fit. For example, sections 70 and 71 of the Wills, Probate and Administration Act 1898 (NSW) provide:
70. Minority of sole executor
Where a minor is sole executor, administration with the will annexed may be granted to:
(a) a guardian of the person or of the estate of the minor; or
(b) such other person as the Court thinks fit,
until the minor attains the age of eighteen years, with full or limited powers to act in the premises until probate is granted to the executor or administration is granted to some other person.
71. Who shall have the same power as where administration is granted durante minore aetate of the next of kin
The person to whom such administration is granted shall have the same powers vested in the person as an administrator by virtue of an administration granted to the person durante minore aetate of the next of kin.
3.23 Section 6(3) of the Succession Act 1981 (Qld) is exceptional, since it is expressed in very general terms:
A grant may be made to such person and subject to such provisions, including conditions or limitations, as the court may think fit.
(ii) Issue considered by the National Committee
3.24 The National Committee considered whether, in light of the general wording of section 6(3) of the Succession Act 1981 (Qld), a provision to the effect of sections 70 and 71 of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model legislation.
(iii) The National Committee’s preliminary view
3.25 The National Committee was of the view that section 6 of the Succession Act 1981 (Qld) is wide enough to cover an appointment such as the guardian of a minor as administrator of an estate of which the minor has been named executor. However, the National Committee considered that a footnote in the model legislation which referred to details such as those which appear in sections 70 and 71 of the Wills, Probate and Administration Act 1898 (NSW) would be sufficient to exemplify the kinds of power conferred on the court by section 6 of the Succession Act 1981 (Qld). Different jurisdictions may need to adopt the most appropriate method of achieving the same result according to their own Parliamentary Counsel’s drafting style.
Proposal 5
It is not necessary for the model legislation to include provisions to the effect of sections 70 and 71 of the Wills, Probate and Administration Act 1898 (NSW). However, a footnote in the model legislation should refer to the details which currently appear in sections 70 and 71 of the Wills, Probate and Administration Act 1898 (NSW) without referring to these provisions in particular.
Footnotes
1. Supreme Court Act 1981 (UK).
2. Supreme Court Act 1986 (Vic).
3. Supreme Court Act 1935 (WA).
4. Supreme Court Civil Procedure Act 1932 (Tas).
5. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 5.
6. Id at 5-6.
7. Id at 5.
8. Ibid.
9. Ibid.
10. See also Queensland Law Reform Commission, Miscellaneous Paper, Uniform Succession Laws: The Effect of the Lex Situs and Mozambique Rules on Succession to Immovable Property (MP 16, 1996).
11. (1994) 35 NSWLR 51.
12. Windeyer J’s interpretation of how s 11(1) of the Family Provision Act 1982 (NSW) was meant to operate was based in part on a reading of paragraph 4.8 of the New South Wales Law Reform Commission, Report, Jurisdiction of Local Courts over Foreign Land (R 63, 1988). The New South Wales Commission had recommended that the jurisdiction of the court should be extended to real estate outside New South Wales in the case of a deceased person domiciled in New South Wales. However, the amending legislation which was to give effect to the New South Wales Law Reform Commission’s recommendations did not include such a limitation or restriction relating to domicile.
13. (1985) 4 NSWLR 248.
14. Id at 267-268.
15. See Bankinvest v Seabrook (1988) 14 NSWLR 711 per Street J at 713-715.
16. See Rowe v Silverstein [1996] 1 VR 509 per Batt J at 511-513.
17. The different kinds of grant and the purposes for which they are made are discussed in Chapter 2 of this Discussion Paper.
18. Non-Contentious Probate Rules 1987 (UK).
