1. INTRODUCTION
7.1 All jurisdictions reviewed by the National Committee have a legislative provision which enables the executor’s right to prove a will to be overridden in certain circumstances.
7.2 Jurisdictions differ, however, in the ability of an executor who has renounced probate to withdraw that renunciation.
2. CESSATION OF RIGHT OF EXECUTOR TO PROVE WILL
| QLD | 46 | WA | 32 |
| ACT | 20, 20A | NT | 28, 29 |
| VIC | 16 | TAS | 8 |
| NSW | 69 | UK | 5 |
| SA | 36 | NZ | 11 |
7.3 Section 46 of the Succession Act 1981 (Qld) provides:
Cesser of right of executor to prove
Where a person appointed executor by a will –
(a) survives the testator but dies without having taken out probate of the will; or
(b) renounces probate; or
(c) after being duly cited or summoned fails to apply for probate;
the person’s rights in respect of the executorship shall wholly cease, and the representation of the testator and the administration of the testator’s estate shall devolve and be committed in like manner as if that person had not been appointed executor.
This section provides for the devolution of the representation of the estate in the circumstances listed in the section. The effect of the section is that, in the specified circumstances, the testator’s estate devolves as if the person had not been appointed executor. Section 46(c) provides a mechanism for removing an executor who does not apply for probate with reasonable diligence.
(a) Issue considered by the National Committee
7.4 The National Committee considered whether a provision to the effect of section 46 of the Succession Act 1981 (Qld) should be included in the model legislation.
(b) The National Committee’s preliminary view
7.5 The National Committee noted the similarity between section 46 of the Succession Act 1981 (Qld) and the equivalent provisions in other jurisdictions and agreed that such provisions are useful. The Registrars of Probate concurred in this view.
3. WITHDRAWAL OF RENUNCIATION OF PROBATE
| QLD | O 71, r 86 | WA | |
| ACT | | NT | |
| VIC | | TAS | 9, r 67, 68 |
| NSW | | UK | 6 |
| SA | r 48.06, 48.07 | NZ | 12 |
7.6 Section 46 of the Succession Act 1981 (Qld) – which the National Committee has recommended be included in the model legislation – provides, in part, that, where a person appointed executor by a will renounces probate, the person’s rights in respect of the executorship “shall wholly cease, and the representation of the testator and the administration of the testator’s estate shall devolve and be committed in like manner as if that person had not been appointed executor”.1
7.7 Although this wording implies that it is impossible for an executor who has renounced probate to withdraw the renunciation, it appears that a renunciation may be retracted under Order 71, rule 86 of the Rules of the Supreme Court 1900 (Qld), which reads:
Any person who has renounced the person’s right, or prior right, to a grant of administration may, by leave of the Court or a Judge, retract the person’s renunciation.
7.8 New Zealand legislation, which includes a provision worded in slightly different terms to section 46 of the Succession Act 1981 (Qld), clearly allows a renunciation of probate to be withdrawn.
7.9 Section 12 of the Administration Act 1969 (NZ) reads:
Withdrawal of renunciation
(1) Notwithstanding anything to the contrary in section 11 [Cesser of right of executor to prove] of this Act, an executor who has renounced probate, (whether before or after the commencement of this Act) may be permitted by the Court to withdraw the renunciation and prove the will.
(2) Where an executor who has renounced probate has been permitted (whether before or after the commencement of this Act) to withdraw the renunciation and prove the will, –
(a) The probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of and notices to any other person to whom [probate or] administration has been granted, and a memorandum of the subsequent probate shall be endorsed on the original grant of [probate or] administration:
(b) His rights (if any) in respect of the trusteeship shall revive except so far as the Court otherwise orders.
7.10 South Australia and Tasmania have similar provisions in their rules of court. In both jurisdictions, withdrawal of a renunciation is allowed only in “exceptional circumstances”. For example, the South Australian provisions read:
48.06 An application for leave to retract a renunciation of probate or administration must be made to the Registrar by summons:
Provided that only in exceptional circumstances may leave be given to an executor to retract a renunciation of probate after a grant has been made to some other person entitled in a lower degree.
48.07 An application under Rule 48.06 must be supported by an affidavit showing that the retraction of the renunciation is for the benefit of the estate, or of the parties interested.
7.11 In South Australia, the Registrar has power to permit renunciations, but in Tasmania the leave of a chamber judge is required. In Tasmania, there is no equivalent to Rule 48.07 of the South Australian rules, which requires a supporting affidavit in certain terms, although an affidavit in support would be required as a matter of practice.
(a) Issues considered by the National Committee
7.12 The National Committee considered whether:
(1) it is desirable to include in the model legislation a specific provision to enable the withdrawal of a renunciation of probate;
(2) if yes to (1), a provision to the effect of section 12 of the Administration Act 1969 (NZ) or a provision to the effect of Order 71, rule 86 of the Rules of the Supreme Court 1900 (Qld) would be an appropriate model. (The South Australian and Tasmanian provisions were not specifically considered by the National Committee.)
(b) The National Committee’s preliminary view
7.13 The National Committee noted that the New Zealand provision contemplates that a grant might previously have been made to someone else. It was considered that the New Zealand provision was undesirable as it might be seen as encouraging executors who have renounced probate to seek to withdraw that renunciation notwithstanding that an administrator had been appointed in the meantime. The National Committee considered that Order 71, rule 86 of the Rules of the Supreme Court 1900 (Qld) was a simpler and more appropriate provision.
Proposal 21
Subject to the consideration of submissions, the model legislation should include a provision to the effect of Order 71, rule 86 of the Rules of the Supreme Court 1900 (Qld) to enable the withdrawal of a renunciation of probate.
Questions for discussion
7.1 Should the model legislation include a provision to the effect of Order 71, rule 86 of the Rules of the Supreme Court 1900 (Qld) to enable the withdrawal of a renunciation of probate?
7.2 If yes to 7.1, is it necessary to codify the circumstances in which the court might permit withdrawal; for example, by including in the model legislation a requirement similar to the South Australian and Tasmanian requirement of exceptional circumstances?
7.3 Should the model legislation include a requirement for a supporting affidavit when a withdrawal of renunciation in exceptional circumstances is called for, as provided for in Rule 48.07 of the South Australian Rules?
4. REVOCATION OF GRANT BY COURT
| QLD | 6(1) | WA | 29 |
| ACT | 18A(1), 32 | NT | 26, 41 |
| VIC | 34 | TAS | r 82A |
| NSW2 | 66, Pt 78 r 38-43 | UK | |
| SA | | NZ | 21 |
(a) Introduction
7.14 Circumstances may arise in which, although probate or administration has been granted, it is undesirable or impractical for the personal representative to continue to act.3 In some jurisdictions, the legislation enables the courts to revoke grants of probate and grants of letters of administration.
7.15 Section 6(1) of the Succession Act 1981 (Qld) expressly gives a wide general power to revoke grants. The adoption of a provision to the effect of section 6(1), which has previously been proposed by the National Committee,4 may make it unnecessary for the model legislation to include provisions like section 29(1) of the Administration Act 1903 (WA) or section 26(1) of the Administration and Probate Act (NT).
7.16 Section 29(1) of the Administration Act 1903 (WA) reads:
Court may revoke grant; no grant before duty assessed
Where administration of the estate of a person has been granted the Court may, at any time, upon the application of any person interested in the estate or of its own motion on the report of the Principal Registrar, revoke the administration.
7.17 Section 26(1) of the Administration and Probate Act (NT) reads:
Probate or administration may be revoked or further bond required
At any time after probate of the will, or administration of the estate, of a deceased person has been granted, the Court may, upon the application of a person who is interested in the estate, revoke the probate or administration, as the case may be.
7.18 Section 6(1) of the Succession Act 1981 (Qld), on the other hand, simply states:
Jurisdiction
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.
(b) Issue considered by the National Committee
7.19 The National Committee considered whether, in light of the general power to revoke a grant of probate or letters of administration that is conferred by section 6(1) of the Succession Act 1981 (Qld), it would be necessary to include specific provisions about the revocation of grants based on, for example, section 29(1) of the Administration Act 1903 (WA) or section 26(1) of the Administration and Probate Act (NT).
(c) The National Committee’s preliminary view
7.20 The National Committee was of the view that a provision to the effect of section 6 of the Succession Act 1981 (Qld) was sufficiently wide to deal with the revocation of grants and the removal of executors or administrators.
Footnotes
1. Section 46 of the Succession Act 1981 (Qld) is set out at para 7.3 of this Discussion Paper.
2. The power to revoke grants is also implied by s 42(5) of the Wills, Probate and Administration Act 1898 (NSW).
3. The court might revoke the grant if the grant was made in error: for instance, if a later will is found, or a grant is made under a will subsequently found to be invalid. The grant may be a nullity when made: for example, if the grantee is already dead at the time the grant is made. After the grant is made, a defect in operation of the grant may be found: for instance, if the grantee absconds or is inactive or has become incapable. The grantee may wish to be relieved of his or her duties. Revocation may be sought pursuant to a compromise. Cases have decided that grants cannot be revoked because revocation is desired for the convenience of the parties (Goods of Heslop (1846) 1 Robb Ecc 457; 163 ER 1100) or because one of the next of kin desires to take up the administration in the place of a creditor-administrator (Dubois v Trant (1700) 12 Mod 436; 88 ER 1433; Estate of Johnston (1899) 20 LR (NSW) P 1). See R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1996) at para 40D.02ff.
4. See Chapter 3 of this Discussion Paper.
