8.1 As previously discussed,¹ there are two kinds of personal representatives – executors appointed by a will and court appointed administrators. There has been, historically, some difference between the powers and duties of executors and those of administrators:²

Traditionally executors have been placed in a better position than administrators, the argument being that since the testator himself selects his own executors their authority should be unlimited, whereas since it is the Court which appoints administrators their authority should be more limited.

8.2 Personal representatives have certain duties in respect of the administration of a deceased person’s estate. These duties have been developed by case law and a number have found expression in legislation, albeit in a variety of forms.

8.3 The role of personal representative includes the authority to deal with the deceased estate in certain ways. These powers are expressed in case law as well as by statute – again in no consistent way.

8.4 Personal representatives may also have duties and powers imposed upon them more by virtue of their role as trustee of the deceased estate or a portion thereof, than by virtue of their role as executor or administrator of the estate.

8.5 This Chapter sets out the proposals of the National Committee for uniform legislation concerning the assimilation of the position of executors and administrators, and the powers and duties which should be attached to the assimilated role. Unless the contrary is indicated, the term “personal representative” is used to include both executors under a will and administrators appointed by the court.

8.6 The Registrars of Probate agreed with the views of the National Committee expressed in this Chapter except if otherwise noted.

2. ASSIMILATION OF THE ROLES OF EXECUTOR AND ADMINISTRATOR

QLD	49	WA	12, 21
ACT	43, 50, 51A, 54	NT	60, 80, 81
VIC	14, 20	TAS	5, 15, 39, 40, 42, 43
NSW	48	UK	2, 39, 40, 41
SA	51, 64	NZ	28, 29, 30

(a) Assimilation of powers

8.7 In a number of jurisdictions, provisions have been enacted recognising the increased similarity between the roles of executor and administrator. In other jurisdictions, the extent of recognition has not been as great, and powers are still expressed to apply to either executors or administrators.

(i) Queensland

8.8 Section 49(1) of the Succession Act 1981 (Qld), is a general provision which has assimilated the roles of executors and administrators. The section reads:

Powers of personal representatives

Subject to this Act a personal representative represents the real and personal estate of the deceased and has in relation to all such estate from the death of the deceased all the powers hitherto exercisable by an executor in relation to personal estate and all the powers conferred on personal representatives by the Trusts Act 1973.

(a) It confers on all personal representatives the powers that executors have from the date of death in relation to personal property.

(b) It confers on all personal representatives the powers that are conferred on personal representatives under the Trusts Act 1973 (Qld).³

8.10 When the Queensland Law Reform Commission considered this provision in its 1978 Report, it was of the view that administrators could never be entirely assimilated to the position of executors.⁴ The Commission noted the following reasons for this view:⁵

• The executor obtains his or her authority from the will, whereas the administrator obtains his or her authority from the grant of letters of administration. Accordingly, an administrator cannot exercise any powers before the grant.
• The administrator will never be in the position of the executor by representation.⁶
• Grants to administrators may be, and often are, limited by the form of the grant (for instance, grants ad colligenda bona or ad litem, where the grantee is not intended to perform all the functions of a personal representative) or the order of court, while executors have general power (subject to the terms of the will) to administer the estate.⁷

(ii) Issue considered by the National Committee

8.11 The National Committee considered whether a provision to the effect of section 49(1) of the Succession Act 1981 (Qld) should be included in the model legislation.

(iii) The National Committee’s preliminary view

8.12 The National Committee agreed that, while it is true that the executor is the testator’s choice, and the administrator is appointed by the court (being chosen according to a conventional order that usually favours the largest beneficiary), this does not necessarily mean that the executor is to be trusted more than the appointed administrator. It was considered that there seems to be no good reason why the general powers of an administrator should be different from, or more restricted than, those of an executor. The National Committee further agreed that section 49(1) of the Succession Act 1981 (Qld) provided a useful template for inclusion in the model legislation.

Proposal 23

The model legislation should include a provision to the effect of section 49(1) of the Succession Act 1981 (Qld).

(i) Queensland

8.13 Section 50 of the Succession Act 1981 (Qld) reads:

Rights and liabilities of administrators

Subject to any provision contained in the grant every person to whom administration of the estate of a deceased person is granted shall have the same rights and liabilities and be accountable in like manner as if the person were the executor of the deceased.

In common with legislation in other jurisdictions this section assimilates the rights and liabilities of administrators with those of executors.

8.15 The National Committee considered whether a provision to the effect of section 50 of the Succession Act 1981 (Qld) should be included in the model legislation.

(iii) The National Committee’s preliminary view

8.16 It was generally seen as desirable to assimilate the rights and liabilities of administrators with those of executors.

Proposal 24

A provision to the effect of section 50 of the Succession Act 1981 (Qld) should be included in the model legislation.

(a) Introduction

8.17 When a person assumes the position of executor or administrator of a deceased person’s estate, the person becomes subject to a number of duties which have been developed over time by the courts. Attempts have also been made in some jurisdictions to incorporate those duties, to varying degrees, in statute. The duties are primarily to protect the estate and persons who have an interest in the proper administration of the estate.

8.18 In Queensland, some of the duties imposed upon a personal representative are set out in section 52 of the Succession Act 1981 (Qld). However, section 52 is not a complete statement of the duties of a personal representative. Other duties include, for example, disposing of the body of the deceased.¹²

(b) Specific duties

(i) Duty to pay interest upon general legacies

QLD	52(1)(e)	WA	143A
ACT	55A	NT
VIC		TAS
NSW	84A	UK
SA	70(3)	NZ	39

8.19 An objective of the law relating to the administration of estates is that the estate should be administered as soon as possible.¹³ A provision found in a number of jurisdictions to further that objective relates to interest payable upon outstanding general legacies. The longer it takes to administer the estate the greater the amount of interest payable on general legacies. However, the jurisdictions which specify that interest is to be paid on general legacies are not consistent in their approach.

8.20 Some jurisdictions specify the actual rate of interest that personal representatives must pay.¹⁴ For example, section 52(1)(e) of the Succession Act 1981 (Qld) reads:

The personal representative of a deceased person shall be under a duty to –

...

(e) pay interest upon any general legacy –


(i) from the first anniversary of the death of the testator until payment of the legacy; or

(ii) in the case of a legacy that is, pursuant to a provision of the will, payable at a future date – from that date until payment of the legacy;

at the rate of 8% per annum or at such other rate as the court may either generally or in a specific case determine, unless any contrary intention respecting the payment of the interest appears by the will.

Interest on legacies

(1) Subject to subsection (2), where interest is payable on a legacy in accordance with the will under which the legacy is payable or in accordance with any enactment or rule of law, that interest shall, unless the will otherwise provides, or the Court otherwise orders, be payable at such rate as is determined by the Minister for the purposes of this subsection.

(2) Where an executor or administrator, in accordance with any power conferred on him or her by a will under which a legacy (not being an annuity) is payable, appropriates any property in or towards satisfaction of the legacy, the legatee shall be entitled to the income from the property so appropriated, and interest shall not be payable out of any other part of the estate on so much of the legacy as has been satisfied by the appropriation.

(3) A determination under subsection (1) is a disallowable instrument for the purposes of section 10 of the Subordinate Laws Act 1989.

8.23 B. The National Committee’s preliminary view. It was suggested that it was not appropriate for the rate of interest on unpaid legacies to be stipulated in the legislation. It was generally considered that there was a greater likelihood of the interest rate being reviewed and changed when appropriate if it were contained in the rules, rather than in the model legislation itself.

Proposal 25

A provision to the effect of section 52(1)(e) of the Succession Act 1981 (Qld) should be included in the model legislation. However, the provision should refer to an interest rate set by the rules (as in section 55A of the Administration and Probate Act 1929 (ACT)), rather than stipulate the interest rate.

(ii) Duty to provide inventory and to pass accounts

QLD	52(1)(b), O 73 r 1	WA	43(1)
ACT	58	NT	89, 90, r 88.27
VIC	28	TAS	26
NSW	81A, 81B, 85	UK	25(b)
SA	56, 121A	NZ	44

8.24 A number of jurisdictions have provisions which impose a duty on personal representatives to provide an inventory and to pass accounts in relation to the deceased estate. For example, section 52(1)(b) of the Succession Act 1981 (Qld) reads:

The personal representative of a deceased person shall be under a duty to –

...

(b) when required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court; ...

8.25 A. Issues considered by the National Committee.

The National Committee considered whether:

(1) there should be a provision in the model legislation relating to a duty to produce an inventory and to pass accounts; and

(2) if yes to (1), that provision should refer to the obligation imposed by the court, by rules of court, or by either.

8.26 B. The National Committee’s preliminary view. It was suggested that a provision should be included in the model legislation to impose a specific duty on a personal representative to maintain such documents as are necessary to render an account to the court. While it was acknowledged that this was implicit in the obligation set out in section 52(1)(b) of the Succession Act 1981 (Qld), it was considered that there would be an advantage in making this obligation clear, especially for lay executors and administrators.

Proposal 26

The model legislation should include a provision imposing a duty on a personal representative or other person administering a deceased estate to maintain such documents as are necessary to render an inventory and/or account to the court.

Questions for discussion

8.1 Should a provision to the effect of section 52(1)(b) of the Succession Act 1981 (Qld) be included in the model legislation?

8.2 If yes to 8.1, should it extend to any person administering the estate whether or not a personal representative?

8.3 If yes to 8.1, should the requirement to provide inventories and accounts only be upon the court’s direction?

(iii) Duty of personal representative holding property belonging to person who is not sui juris or not resident in the State to pay or deliver the property to the Public Trustee

8.27 Section 65 of the Administration and Probate Act 1919 (SA) requires any personal representative holding property belonging to a person who is not sui juris or not resident in the State to pay or deliver the property to the Public Trustee on the expiration of one year from the death of the intestate or testator or within six months after the property has been sold or realised.¹⁹ However, section 67 of the Administration and Probate Act 1919 (SA) enables a judge to dispense with compliance under section 65 in certain circumstances.

8.28 Section 65 reads:

Administrator to pay over money and deliver property to Public Trustee

(1) Every administrator who is possessed of or entitled to any property within this State, whether personal or real, belonging to any person who –


(a) is not sui juris, or

(b) is not resident in this State, and has no duly authorised agent or attorney therein:

shall deliver, convey, or transfer such property to the Public Trustee immediately after the expiration of one year from the date of the death of the intestate or testator, or within six months after such sooner time as the same or such portion thereof as is available for that purpose, has been sold, realised, collected, or got in.


(2) The Public Trustee shall then administer such property according to law, and in accordance with any will affecting such property.

(2a) The Public Trustee may, in his discretion, (but subject to the provisions of any will or instrument of trust) realise, or postpone the realisation of, any real or personal property delivered, conveyed or transferred to him under subsection (1) of this section.

(3) This section shall not apply in any case where the administrator is a limited company registered under the Companies Act 1962-1968 or any corresponding previous enactment, and is acting as administrator in pursuance of any powers granted to it by any Act.

(4) This section shall not apply to an administrator acting under any probate or administration not granted by the Supreme Court but sealed with the seal of the Supreme Court in pursuance of the provisions of section 17 of this Act.

(5) Subject to the provisions of any will or instrument of trust, the Public Trustee may, if he is satisfied that it will be advantageous to the beneficiaries, authorise the sale of any trust property, not exceeding four thousand dollars in value, to the administrator, or to the administrator conjointly with any other person, notwithstanding that the property has not been offered for sale by public auction or otherwise.

Judge may dispense wholly or partially with compliance with section 65

(1) A Judge may, on being satisfied by affidavit that it is beneficial or expedient so to do, order –


(a) that any administrator, or proposed administrator, shall not be bound by section 65; or

(b) that any administrator, or proposed administrator, shall not be bound by the said section 65 until after a certain time to be mentioned in the order.


(2) The time mentioned in any order made under subdivision (b) of subsection (1) may be extended by a subsequent order.

(3) Any order under subsection (1) or (2) may be obtained ex parte on the application of the administrator or proposed administrator.

(4) An order under subdivision (a) of subsection (1) may be granted notwithstanding that an order has already been made under subdivision (b) of subsection (1).

(5) The making of any order under this section shall, if the Court so directs, have the effect of discharging from further responsibility all parties to the bond, if any, given to the Public Trustee upon the granting of the administration.

(6) The Public Trustee, or any person interested, may issue a summons requiring the administrator, or proposed administrator, to appear before a Judge to show cause why any order made under this section should not be set aside, and the Judge may set aside such order, or vary the same, or make such other order as seems to him best.

8.31 B. The National Committee’s preliminary view. The National Committee was hesitant to recommend that people be forced into dealing with the Public Trustee or trustee companies. It was considered more appropriate to enable the court to make orders to the effect of those available under sections 65 and 67 of the Administration and Probate Act 1919 (SA) simply as one of a number of options available to protect persons who are not sui juris. This would be in addition to other options such as appointing joint administrators or requiring bonds. Section 65(1)(b) was not considered necessary at all.

Proposal 27

A provision generally to the effect of sections 65 and 67 of the Administration and Probate Act 1919 (SA) should be included in the model legislation. However, the provision should not impose a mandatory obligation, but should simply provide for one of a number of possibilities to protect persons who are not sui juris.²⁰ The model provision should not refer to property belonging to persons who are not resident within the particular jurisdiction.

(iv) Duty to inquire about ex-nuptial children

8.32 Section 92(3) of the Wills, Probate and Administration Act 1898 (NSW) places an onus on the personal representative of a deceased person to search the Registry of Births, Deaths and Marriages for the existence of any ex-nuptial children of the deceased who may be entitled to share in the estate. The personal representative is liable to any ex-nuptial child whose interests are disregarded when the estate is distributed if the ex-nuptial child could have been discovered. Section 92(3) reads:

In relation to a distribution of the assets of a testator or intestate dying after the commencement of the Children (Equality of Status) Act 1976, an executor or administrator referred to in subsection (2) shall be deemed to have notice of the claim of any person whose entitlement to the assets or to any part of them would have become apparent if the executor or administrator had applied for and obtained a certificate under section 50 of the Births, Deaths and Marriages Registration Act 1995.

8.33 Section 47A of the Administration Act 1903 (WA) reads:

Protection of executors, administrators and trustees

(1) Notwithstanding –


(a) the provisions of section 12A;²¹ or

(b) the provisions of Part IX of the Wills Act 1970,²²


for the purposes of the administration or distribution of any estate or any property no executor or administrator or trustee shall be under any obligation to inquire as to the existence of any person who could claim an interest in the estate or the property by virtue only of those provisions in so far as they confer any interest on illegitimate children or any person claiming through an illegitimate child.

(2) No executor or administrator or trustee shall be liable to any such person as is referred to in subsection (1) in relation to any claim arising by reason of an executor or administrator or trustee having made any distribution of the estate or property held on trust, or otherwise acted in the administration of the estate or property held on trust, disregarding the interest of that person, if at the time he made the distribution or so acted the executor or administrator or trustee had no notice of the relationship on which the claim is based.

(3) Nothing in this section shall prejudice the right of any person to follow the property, or any property representing it, into the hands of any person, other than a purchaser, who may have received it. [notes added]

Protection of executors, administrators and trustees

(1) For the purposes of the administration or distribution of an estate or of property held on trust or of an application under Part 4 of the Succession Act 1981 or for any other purposes, an executor, administrator or trustee is not under any obligation to inquire as to the existence of any person who could claim an interest in the estate or the property by reason only of the provisions of this Act.

(2) Action shall not lie against an executor of the will or administrator or trustee of the estate of any person or the trustee under an instrument by any person who could claim an interest in the estate or property by reason only of any of the provisions of this Act to enforce a claim arising by reason of the executor, administrator or trustee having made any distribution of the estate or of the property held upon trust or otherwise acted in the administration of the estate or property held on trust disregarding the claims of that person where at the time of making the distribution or otherwise so acting the executor, administrator or trustee had no notice of the relationship on which the claim is based.

The National Committee considered whether:

(1) a provision to the effect of section 92(3) of the Wills, Probate and Administration Act 1898 (NSW) or section 47A of the Administration Act 1903 (WA) and section 6 of the Status of Children Act 1978 (Qld) should be included in the model legislation; or

(2) such a provision would be better placed in legislation which deals with the status of children.

8.36 B. The National Committee’s preliminary view.

A provision to the effect of section 92(3) of the Wills, Probate and Administration Act 1898 (NSW) was not considered appropriate for inclusion in the model legislation because it would place an undue burden on personal representatives. The National Committee was of the view that personal representatives should have the protection of a provision to the effect of section 47A of the Administration Act 1903 (WA), but that such a provision should be located in status of children legislation.

Proposal 28

The model legislation should not include provisions to the effect of section 47A of the Administration Act 1903 (WA) or section 92(3) of the Wills, Probate and Administration Act 1898 (NSW).

8.37 In Queensland, a number of the personal representatives’ duties have been expressed in a single provision namely, section 52(1) of the Succession Act 1981 (Qld). The Queensland Law Reform Commission explained its decision to recommend legislating in this way:²⁴

It seems desirable to set out the duties of personal representatives and a recent precedent has been furnished by the English Administration of Estates Act 1971, which we recommend should be repeated in paragraphs (a), (b) and (c) of subsection (1). We have added paragraph (d) to restore to the law the provision of the Statute of Distributions of 1670 that the personal representative is not under a duty to distribute the estate less than a year after the death of the deceased. ... Paragraph (e) also states in positive terms that interest is payable upon legacies unpaid twelve months after the death of the deceased.

The duties of personal representatives

The personal representative of a deceased person shall be under a duty to –

(a) collect and get in the real and personal estate of the deceased and administer it according to law;

(b) when required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court;

(c) when required to do so by the court, deliver up the grant of probate or letters of administration to the court;

(d) distribute the estate of the deceased, subject to the administration thereof, as soon as may be;

(e) pay interest upon any general legacy –


(i) from the first anniversary of the death of the testator until payment of the legacy; or

(ii) in the case of a legacy that is, pursuant to a provision of the will, payable at a future date – from that date until payment of the legacy;


at the rate of 8% per annum or at such other rate as the court may either generally or in a specific case determine, unless any contrary intention respecting the payment of the interest appears by the will.

(i) Issue considered by the National Committee

8.40 The National Committee considered whether a provision referring to the general duties of personal representatives should be included in the model legislation.

(ii) The National Committee’s preliminary view

8.41 The National Committee generally agreed that having a list of general duties set out in one provision in the legislation, whilst not detracting from any further duties derived from case law, would at least put personal representatives on notice about their legal responsibilities.

8.42 The National Committee acknowledged the advantage for people working in this area to have set out conveniently and in broad terms the duties of administration imposed on all personal representatives, as appears in section 52(1) of the Succession Act 1981 (Qld) (and to a lesser extent in section 43 of the Administration Act 1903 (WA) and section 25 of the Administration of Estates Act 1925 (UK)).

Proposal 29

A provision to the effect of section 52(1) of the Succession Act 1981 (Qld) (as modified by the National Committee’s recommendations in relation to particular duties) should be included in the model legislation so that the general duties of a personal representative are set out.

QLD	52(1A)	WA
ACT		NT
VIC	49	TAS	43
NSW		UK	44
SA		NZ

8.43 Atherton and Vines note:²⁵

As a general guide the representative is allowed the executor’s year to complete the administration of the estate. The principle, derived from the Statute of Distributions [1670], is statutory in Queensland, Tasmania and Victoria. [note omitted]

[The subsection] ensures that the different drafting approach adopted does not affect rules dependent upon the principle of the executor’s year such as apportionments under the rule in Howe v Dartmouth.²⁸

Nothing in subsection (1) abrogates any rule or practice deriving from the principle of the executor’s year or any rule or practice under which a beneficiary is entitled to receive interest upon any legacy from the date of the testator’s death.

Power to postpone distribution: Executor’s year

(1) Subject to the foregoing provisions of this Act, a personal representative is not bound to distribute the estate of the deceased before the expiration of one year from the death.

(2) Upon application as prescribed, a judge may, if he thinks it expedient and prudent so to do, empower the personal representative to –


(a) postpone, for such period as the judge may think expedient, the realization of the estate of the deceased or any part thereof;

(b) carry on, for such period as the judge may think expedient, the business or affairs of the deceased, and for that purpose use his estate or such part thereof as the judge directs.


(3) A personal representative acting in pursuance of leave given under this section shall not be answerable for consequent loss, except in case of breach of trust, negligence, or wilful default.

(i) Issues considered by the National Committee

8.48 The National Committee considered whether:

(1) it is desirable to include a provision in the model legislation to the effect of section 52(1A) of the Succession Act 1981 (Qld) so as not to affect the principle of the executor’s year;

(2) the possibility of an extension of the executor’s year as provided for in the Tasmanian provision should be included in the model legislation.

(ii) The National Committee’s preliminary view

8.49 The National Committee was of the view that no change should be made to the principle of the executor’s year.

8.50 The National Committee did not reach a conclusion about the Tasmanian provision enabling an extension of the executor’s year.

Proposal 30

A provision to the effect of section 52(1A) of the Succession Act 1981 (Qld) should be included in the model legislation.

Question for discussion

8.4 Should the provision in the model legislation based on section 52(1A) of the Succession Act 1981 (Qld) incorporate a provision to the effect of section 43(2) of the Administration and Probate Act 1935 (Tas)?

(i) Neglect of duty

8.51 Although a number of jurisdictions have provisions relating to the failure of the personal representative to fulfil one or another of his or her duties,³⁰ only Queensland appears to have a general provision imposing liability on a personal representative for neglect of duty.

8.52 Section 52(2) of the Succession Act 1981 (Qld) reads:

If the personal representative neglects to perform his or her duties as aforesaid the court may, upon the application of any person aggrieved by such neglect, make such order as it thinks fit including an order for damages and an order requiring the personal representative to pay interest on such sums of money as have been in the personal representative’s hands and the costs of the application.

Subsection (2) derives from the former section 6 of the Probate Act of 1867. It is probably unnecessary, apart from the provision for the payment of interest which may be desirable and which should be stated expressly.

8.54 A. Issue considered by the National Committee.

The National Committee considered whether:

(1) it is desirable to include a provision to the effect of section 52(2) of the Succession Act 1981 (Qld) in relation to the liability of a personal representative for neglect of duty;

(2) a general provision such as section 52(2) should be subject to any contrary provision in the will exempting the executors from liability for, say, negligence.

8.55 B. The National Committee’s preliminary view. Although the National Committee was of the view that it was desirable to include in the model legislation a provision to the effect of section 52(2) of the Succession Act 1981 (Qld) in relation to the liability of a personal representative for neglect of duty, the question was raised as to whether the scope of section 52(2) was sufficiently broad. Reference was made to the terminology used in section 43(3) of the Administration and Probate Act 1935 (Tas), which imposes liability, in certain circumstances, for “breach of trust, negligence or wilful default”.³⁴

8.56 The general view of the National Committee was that the term “neglect” would include the concepts of “breach of trust, negligence, or wilful default”.

8.57 The National Committee did not consider it appropriate for there to be a provision in the model legislation making the equivalent to section 52(2) of the Succession Act 1981 (Qld) subject to a contrary intention in the will exempting executors from liability for negligence.

Proposal 31

The model legislation should include a provision to the effect of section 52(2) of the Succession Act 1981 (Qld).

(ii) Liability for waste

QLD	52A	WA	26(6)
ACT	19	NT	27
VIC	33(2)	TAS	30
NSW35	15	UK	29
SA		NZ

8.58 Section 52A of the Succession Act 1981 (Qld) reads:

Liability of executors for waste

Where a personal representative in his or her own wrong wastes or converts to his or her own use any part of the estate of the deceased person and dies, his or her personal representative shall to the extent of the available assets of the defaulter be liable and chargeable in respect of such waste or conversion in the same manner as the defaulter would have been if living.

8.59 Section 52A of the Succession Act 1981 (Qld) ensures that, where an executor de son tort (that is, a person who administers the estate without having been appointed executor in the will or administrator by grant) wastes or converts estate property and dies, the personal representative of the defaulter is liable to the extent of the assets of the defaulter in respect of the waste or conversion.

8.60 Section 52A and its counterparts in the other jurisdictions originated in English legislation.⁴⁰ The New South Wales Law Reform Commission, in recommending the reproduction of these provisions in the Imperial Acts Application Act 1969 (NSW), merely noted that:⁴¹

These Imperial Acts deal with the liability for waste (to the extent of the assets) of a personal representative whether of an executor or administrator of right or of an executor de son tort (cf. The Imperial Administration of Estates Act, 1925 section 29).

Formerly, the executor of an executor could not be charged by a devastavit committed by the first executor, although to the prejudice of the king, for it was held to be a tort, and, therefore, to die with the party. But, by the stat. 4 & 5 W & M c 24 s 12 an executor of an executor shall be liable on a devastavit committed by his testator, in the same manner as he would have been if living.

8.62 A. Issue considered by the National Committee. The National Committee considered whether a provision to the effect of section 52A of the Succession Act 1981 (Qld) should be included in the model legislation.

8.63 B. The National Committee’s preliminary view. The National Committee was of the view that section 52A of the Succession Act 1981 (Qld) was, at most, only declaratory. Given that the question of the survival of causes of action is already dealt with by specific legislation, the National Committee was of the view that it was not necessary to include a provision to the effect of section 52A of the Succession Act 1981 (Qld) in the model legislation.

8.64 This view is supported by the Law Reform Commission of Western Australia,⁴⁵ which cited Lee’s opinion that the provision is otiose because of legislation now providing for the survival of causes of action.⁴⁶

Proposal 32

A provision to the effect of section 52A of the Succession Act 1981 (Qld) should not be included in the model legislation.

(iii) Neglect or refusal to transfer or convey land or hand over legacies or bequests

QLD	O 74 r 1	WA	42
ACT		NT	88
VIC		TAS
NSW	84	UK
SA		NZ

8.65 Section 84 of the Wills, Probate and Administration Act 1898 (NSW) provides for summary applications to be made for the payment of legacies or conveyances of devised land. That section reads:

Application for legacy etc

If the executor or administrator, after requesting in writing, neglects or refuses to:

(a) sign such acknowledgment;⁴⁷ or

(b) execute a conveyance of land devised to the devisee; or

(c) pay or hand over to the person entitled any legacy or residuary bequest,

the Court may, on the application of such devisee or person, make such order in the matter as it may think fit. [note added]

It seems that the section should be used only where the matter is free from doubt,⁴⁹ where there is no conflict of rights of rival demands⁵⁰ and there are liquid assets sufficient to meet the legacy or bequest.⁵¹ Section 84 cannot be used as a substitute for an administration suit.⁵²

8.68 A. Issues considered by the National Committee.

The National Committee considered whether:

(1) the model legislation should include a provision enabling summary applications to be made for the payment of legacies or conveyances of devised land, or whether such a provision would be more appropriately located in rules of court (as it is in Queensland);

(2) if such a provision should be included in the model legislation, section 88 of the Administration and Probate Act (NT) or section 42 of the Administration Act 1903 (WA) – which do not contain an equivalent to paragraph (a) of section 84 of the Wills, Probate and Administration Act 1898 (NSW) – should be used as the basis for the model provision.

8.69 B. The National Committee’s preliminary view. The National Committee was aware of only one application under the Queensland equivalent to section 84 of the Wills, Probate and Administration Act 1898 (NSW).

Proposal 33

A provision to the effect of section 84 of the Wills, Probate and Administration Act 1898 (NSW),

if considered necessary by an individual jurisdiction, should be included in that jurisdiction’s rules of court and not the model legislation.

8.70 Obviously, personal representatives need the authority to fulfil the duties they must undertake. That authority is found in case law and in statute. The legislative provisions are not uniform. The powers raised with the National Committee as issues to be addressed are discussed below.

(a) Power to maintain spouse and issue

8.71 Section 49(3) of the Succession Act 1981 (Qld) confers on personal representatives the power to use the estate, in the period immediately after the death of the deceased, to maintain certain dependants of the deceased. It reads:

The personal representatives may, during and after the period of 30 days after the death of a deceased person, make reasonable provision out of the estate for the maintenance (including hospital and medical expenses) of any spouse or issue of the deceased who would, if the person survived the deceased for a period of 30 days, be entitled to a share in the estate, and any sum so expended shall be deducted from that share; but if any spouse or issue of the deceased for whom any provision has been so made does not survive the deceased for a period of 30 days any sum expended in making such provision shall be treated as an administration expense.

8.72 The National Committee considered whether a provision to the effect of section 49(3) of the Succession Act 1981 (Qld) should be included in the model legislation.

(ii) The National Committee’s preliminary view

8.73 The National Committee noted that the substance of section 49(3) of the Succession Act 1981 (Qld) has been reproduced, in a slightly modified form, in recommendations made by the National Committee in both the wills and family provision stages of this project.⁵³ The National Committee was therefore of the view that it should not be considered further in this stage of the project.

Proposal 34

The model legislation should not include a provision to the effect of section 49(3) of the Succession Act 1981 (Qld).

8.74 Most Australian jurisdictions provide for the delegation of office by the executor to the Public Trustee or to certain trustee companies. New South Wales includes these provisions in its administration of estates legislation. Other jurisdictions include the provisions in their trustee legislation.

8.75 Section 75A of the Wills, Probate and Administration Act 1898 (NSW) makes detailed provision for an executor who has not taken out a grant or who has not renounced to delegate the executorship of the will to the Public Trustee or a trustee company. Section 75A reads, in part:

Delegation

(1) Any person who has been appointed executor of the will of a deceased person and has not renounced or taken probate thereof may by deed appoint the Public Trustee or a trustee company to be executor of the will in the person’s place or stead or as a co-executor with the person or with the continuing executors (including the appointor), as the case may be, and upon the registration and filing by subsections (8) and (9) directed such will shall be construed and take effect in all respects as if the name of the appointee had been originally inserted in such will as the executor or one of the executors thereof in lieu of the person in whose stead it has been appointed or as an additional executor thereof, as the case may be.

(2) Any executor who has obtained probate or any administrator who has obtained letters of administration notwithstanding that the executor or administrator has acted in the administration of the deceased’s estate and notwithstanding the existence of any other executor or administrator may by deed appoint the Public Trustee or a trustee company to be executor or administrator in the executor’s or administrator’s place or stead or as co-executor ...

...

8.76 The National Committee considered whether a provision to the effect of section 75A of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model legislation, or whether such a provision would be more appropriately located in Public Trustee legislation or trustee company legislation in each jurisdiction.

(ii) The National Committee’s preliminary view

8.77 The National Committee considered that it would be more appropriate for such a provision to appear, if at all, in legislation specific to the body to which the delegation is made or which would be able to administer the estate in the circumstances referred to in the New South Wales provision. The National Committee also noted that section 75A of the Wills, Probate and Administration Act 1898 (NSW) is rarely used. A deterrent to using the provision appears to be the requirement to serve notice on the beneficiaries. The National Committee concluded that the costs and inconvenience involved with the provision may outweigh any benefit it would have.

Proposal 35

A provision to the effect of section 75A of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation.

8.78 Section 49(4) of the Succession Act 1981 (Qld) ensures that the powers of the personal representative to whom a grant is made relate back to the date of death. This accords with section 45(4) of the Succession Act 1981 (Qld), which provides that, on grant, the title of the administrator relates back to the date of death.

8.79 Section 49(4) reads:

Subject to the grant, the powers of those personal representatives to whom a grant is made 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 grant.

8.80 The National Committee considered whether the model legislation should include a provision to the effect of section 49(4) of the Succession Act 1981 (Qld).

(ii) The National Committee’s preliminary view

8.81 The National Committee agreed that, on the making of a grant, the powers of the personal representative should relate back to the death of the deceased.

Proposal 36

The model legislation should include a provision to the effect of section 49(4) of the Succession Act 1981 (Qld).

8.82 Under the general law some powers of executors may be exercised by them severally – that is, by an individual executor acting independently of any of the other executors. This can create difficulties for persons who want to deal with the executors, and can create conflicts between executors and between an executor and beneficiaries.

8.83 Section 49(5) of the Succession Act 1981 (Qld) requires that, where there is more than one personal representative, they must act together rather than individually. It reads:

The powers of personal representatives shall be exercised by them jointly.

(i) Issue considered by the National Committee

8.84 The National Committee considered whether the model legislation should include a provision to the effect of section 49(5) of the Succession Act 1981 (Qld).

(ii) The National Committee’s preliminary view

8.85 The National Committee considered it an advantage of the existing Queensland provision that it assimilates the position of personal representatives to that of trustees, who have to act jointly.

8.86 The National Committee could see no advantage in treating personal representatives differently from trustees in this respect. On the contrary, it agreed that uniformity is desirable in the light of the fact that executors are normally appointed testamentary trustees as well. It seems anomalous that the testator’s nominees should be able to act severally while they are executors, but that when they become trustees they have to act jointly.

Proposal 37

The model legislation should include a provision to the effect of section 49(5) of the Succession Act 1981 (Qld).

8.87 A will might provide that the personal representative is entitled to commission in addition to any professional or other fees associated with the administration of the estate. In other cases the will might be silent as to the payment of commission. If a legacy is made to a personal representative in a will, the question arises whether the personal representative is entitled to commission in addition to the legacy. The weight of authority appears to favour the view that whether or not the personal representative is entitled to both commission and the legacy is to be determined by reference to the intention of the testator as disclosed by the will:⁶³

It is only if the intention is that the legacy should represent recompense to the executor for his time and trouble that he will not be allowed commission, unless he either rejects the legacy; or if it is so inadequate in amount as to be illusory (Re Gibbon’s Will (1889) 3 QLJ 120).

(i) Queensland

8.89 Section 68 of the Succession Act 1981 (Qld) reads as follows:

Commission

The court may authorise the payment of such remuneration or commission to the personal representative for his or her services as personal representative as it thinks fit, and may attach such conditions to the payment thereof as it thinks fit.

8.90 Section 86 of the Wills, Probate and Administration Act 1898 (NSW) reads:⁶⁴

Executors etc. may be allowed commission

(1) The Court may allow out of the assets of any deceased person to the deceased person’s executor, administrator, or trustee for the time being, in passing the accounts relating to the deceased person, such commission or percentage for the executor’s, administrator’s or trustee’s pains and trouble as is just and reasonable, and subject to such notices (if any) as the Court may direct.

(2) No such allowance shall be made to any executor, administrator, or trustee who neglects or omits without good reason to pass the accounts relating to the estate of the deceased person pursuant to the rules or an order of the Court.

(3) Where any executor, administrator or trustee renounces the executor’s, administrator’s or trustee’s right to such commission in respect of any particular year, the executor, administrator, or trustee shall be entitled to indemnity out of the said assets for the amount of the executor’s, administrator’s or trustee’s solicitor’s charges and disbursements, as moderated in accordance with the relevant professional scale, for non-professional work performed in that year, to an amount not exceeding that which the executor, administrator or trustee would have been in the opinion of the Court allowed by way of such commission for that year had the executor, administrator, or trustee not so renounced but had applied therefor.

(iii) South Australia

8.91 Section 70 of the Administration and Probate Act 1919 (SA) reads:

Commission may be allowed to executors, administrators or trustees

(1) The court may allow to any executor, administrator, or trustee, whether of the estate of a deceased person or otherwise, such commission or other remuneration out of the estate or trust property, and either periodically or otherwise, as is just and reasonable.

(2) No allowance shall be made to any administrator who neglects –


(a) to deliver the statement and account required by s 56, as by such section required, or within such reasonable time as is allowed by the Court; or

(b) to dispose of any estate with which he is chargeable according to the due course of administration.

...

8.92 The National Committee considered whether:

(1) the model legislation should include a provision relating to commission;

(2) the reference to commission for the trustee (as mentioned in section 86 of the Wills, Probate and Administration Act 1898 (NSW) and section 70 of the Administration and Probate Act 1919 (SA)) should be retained in the provision relating to commission in the model legislation, or whether, as is the case in Queensland, the provision should be restricted to personal representatives;

(3) given that some persons who administer estates professionally have been known to charge both professional fees and commission, all grants of commission should be made by the court on an individual basis (irrespective of any provision in the will referring to commission), generally by the Registrar acting as the court, and the court should be given and be encouraged to use strong powers to moderate and control grants of commission;

(4) a provision to the effect of section 70(2)(b) of the Administration and Probate Act 1919 (SA) should be included in the model legislation;

(5) the words “periodically or otherwise” in section 70(1) of the Administration and Probate Act 1919 (SA) should be included in the model legislation.

(v) The National Committee’s preliminary view

8.93 The National Committee was generally concerned that some solicitors charge both a commission and fees in relation to the administration of estates. The Commission views such conduct as oppressive. It understands that, in some jurisdictions, Law Societies have issued directives to the effect that the charging of commission and professional fees under the same will is unethical.

8.94 The National Committee was of the view that the model legislation should include a provision relating to the payment of commission and that the provision should extend to trustees since personal representatives become trustees upon completing their executorial duties.

8.95 The National Committee considered that section 86(3) of the Wills, Probate and Administration Act 1898 (NSW) is useful.⁶⁶ That provision covers the situation where an executor renounces the right to commission and engages a solicitor to undertake executorial duties of a non-professional nature. The executor is entitled to an indemnity out of the estate for the solicitor’s charges for non-professional work performed up to the amount the court might have allowed the executor by way of commission. The National Committee believed that such a provision might help to keep under control how much the estate is charged.

8.96 The National Committee also considered that the words “for his or her services” in the Queensland provision are sufficient to guide the court as to the basis for the award of commission, in that, like “for the pains and trouble”, it shows that commission is to be paid for the actual work of the personal representative to whom commission is being awarded.

8.97 The National Committee was of the view that section 70(2)(b) of the Administration and Probate Act 1919 (SA) is a valuable provision, and should be included in the model legislation. The National Committee was also of the view that the words “periodically or otherwise” in section 70(1) of the Administration and Probate Act 1919 (SA) could be useful.

Proposal 38

The model legislation should include a provision relating to the payment of commission. The provision should refer to commission for trustees. It should not be restricted to personal representatives.

Proposal 39

The model legislation should provide that a commission clause in a will must be approved by the court before it can be relied upon. The court should be able to make such orders as it considers appropriate in the circumstances.

Proposal 40

A provision to the effect of section 86(3) of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model legislation.

Proposal 41

Any reference to specific rates of commission should be made in the rules of court, rather than in the model legislation.

Proposal 42

The model legislation should include a provision to the effect of section 70(2)(b) of the Administration and Probate Act 1919 (SA).

Proposal 43

The words “periodically or otherwise” should be included in the commission provision in the model legislation.

Questions for discussion

8.5 How would the National Committee’s proposals apply to the Public Trustee and trustee companies where the will is administered by them as if there were a grant?⁶⁷

8.6 Should a maximum rate of commission be set?

QLD	O 4 r 11-16	WA	45; O 58 r 2-470
ACT	51 (re real estate), 97, 97A and 98 (relate specifically to the Public Trustee); O 57 r 1, O 58 r 1, 2	NT	82 (re real estate); O 54
VIC68	) 54	TAS	64; O 6571
NSW	O 54 57 (re real estate); Pt 68 r 2, 8	UK
SA69	s 69, 90, 91	NZ

8.98 The liberty of personal representatives to approach the court for advice or direction relating to the administration of an estate has a variety of sources.

(i) Case law

8.99 In Re Atkinson (deceased),⁷² Gillard J described the relevant law as follows:⁷³

Where an executor or trustee is in doubt as to the course of action it should adopt it is always entitled to take the opinion of the court as to what it should do. If in doubt as to whether or not it should take legal proceedings, then it is entitled to apply to the court for directions on the matter ... If the executor or trustee then followed the direction of the court, it would be protected from any claim by a beneficiary or creditor arising from its action or inaction in accordance with the court’s direction ... In cases of real doubt, the proper course for a personal representative or trustee to adopt is to seek the court’s decision as to whether or not action should be brought, otherwise the representative or trustee might find itself paying the costs of any proceedings which a court might subsequently say were not “properly incurred” ...

8.100 There is case law and statutory authority in a number of jurisdictions for an interested person to commence an administration action. Lee describes the administration action as follows:⁷⁴

The duty of representatives is to administer the estate as a whole; and the court has an inherent jurisdiction to order the estate of a deceased person to be administered. Any person having an interest in the administration may commence an administration action. Normally it will be a creditor or beneficiary but it may be one of the personal representatives. ... [A]n administration action may [also] be instituted where ... for instance ... there are merely difficulties of an administrative nature confronting representatives. In other words, an administration action can be “friendly”.

(1) Proceedings may be brought for any relief which could be granted in administration proceedings.⁷⁶

(2) Proceedings may be brought for the determination of any question which could be determined in administration proceedings, including any question:


(a) arising in the administration of an estate or in the execution of a trust;

(b) as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or

(c) as to the rights or interests of a person claiming to be:

(i) a creditor of an estate;

(ii) entitled under the will or on the intestacy of a deceased person; or

(iii) beneficially entitled under a trust. [note added]

...

8.102 In most jurisdictions trustee legislation permits trustees to approach the court.⁷⁷ The trustee legislation extends the definition of “trustee” to include personal representatives,⁷⁸ so that this avenue is also available to personal representatives.

(iv) Administration and probate legislation

8.103 In some jurisdictions, the relevant administration and probate legislation allows the court to give directions, as in an administration suit. For example, section 57 of the Wills, Probate and Administration Act 1898 (NSW) reads:

Court may make special order

The Court may upon the application of the administrator, or in the case of partial intestacy the executor or administrator with the will annexed, as the case may be, or of any person beneficially interested, and after such previous notice to other parties and inquiry as may seem fit, order and direct the course of proceedings which shall be taken in regard to:

(a) the time and mode of sale of any real estate,

(b) the letting and management thereof until sale,

(c) the application for maintenance or advancement or otherwise of shares or income of shares of infants,

(d) the expediency and mode of effecting a partition if applied for,

and generally in regard to the administration of such real estate for the greatest advantage of all persons interested.

8.104 The National Committee considered whether:

(1) a provision enabling personal representatives to seek advice or directions from the court in relation to the administration of an estate should be included in the model legislation or whether such a provision would be more appropriately located in rules of court;

(2) if such a provision should be included in the model legislation, it would suffice for the legislation to contain a broad power enabling an application for advice and directions to be made;

(3) some provisions presently in rules of court should be included in the model legislation;

(4) section 57 of the Wills, Probate and Administration Act 1898 (NSW) is an appropriate provision to include in the model legislation, in addition to the broad provision suggested in (2) above.

(vi) The National Committee’s preliminary view

8.105 The National Committee noted that, although trustee legislation may give a similar power to the court, such legislation will not enable advice or directions to be given in contested cases and that succession legislation would have to be resorted to in those situations.

8.106 The National Committee did not come to a preliminary decision on the issues raised, and agreed to seek further input on these issues.

Questions for discussion

8.7 Should the model legislation include a provision to enable personal representatives to seek advice or directions from the court in relation to the administration of an estate, or should such a provision be in rules of court?

8.8 If such a provision should be in the model legislation, should it be expressed in broad terms – simply enabling an application to be made for advice and directions?

8.9 Would a provision based on section 57 of the Wills, Probate and Administration Act 1898 (NSW) be appropriate to include in the model legislation?

8.107 During the period of the administration of a deceased estate, beneficiaries have no proprietary rights in the assets left to them by the deceased. However, as Lee explains:⁸¹

... there comes a point when it becomes clear to the representative that a particular beneficiary is entitled to the benefit left to her or him, the duties of administration having been completed, or those remaining having no bearing on that particular beneficiary’s entitlement.

8.108 Lee explains the ramifications of the executor’s assent:⁸³

The representative then becomes trustee of any specific asset,⁸⁴ or debtor of any money payable and the remedies appropriate to the obligations of trustees and debtors become available to the beneficiary.⁸⁵ Even if the representative merely indicates to the beneficiary that the asset or sum of money is transferable, the same consequences will follow, such indication being called an assent. An assent may be inferred from conduct.⁸⁶

8.110 Queensland retains the doctrine of assent, although it is impliedly extended by section 49(1) of the Succession Act 1981 (Qld) to administrators as well as executors, and to real as well as personal property.⁸⁸

8.111 Section 36 of the Administration of Estates Act 1925 (UK) extended the principle of assent from executors to administrators, and to real, as well as personal, property. Section 41 of the Administration and Probate Act 1958 (Vic) and section 36 of the Administration and Probate Act 1935 (Tas) followed the United Kingdom approach although, for real property, the Tasmanian provision requires that the assent must be in the “proper form”.

8.112 Section 36 of the Administration and Probate Act 1935 (Tas) reads:

Effect of assent or conveyance by personal representative

(1) A personal representative may –


(a) in relation to real estate that is not subject to the Land Titles Act 1980, assent, in the form set out in Schedule IV; and

(b) in relation to real estate that is subject to that Act, assent in the prescribed form -

to the vesting in any person who, whether by devise, bequest, devolution, or appropriation, may be entitled thereto, either beneficially or as a trustee or personal representative, of any estate or interest in real estate to which the testator or intestate was entitled or over which he exercised a general power of appointment by his will, and which devolved upon the personal representative.


(2) The assent shall operate to vest in that person the estate or interest to which the assent relates, and, unless a contrary intention appears, the assent shall relate back to the death of the deceased.

(3) The statement in an assent that a person assents as personal representative shall have the like effect as regards implied covenants as would follow from the like statement in a deed of conveyance.

(4) An assent to the vesting of any estate or interest shall be in writing, signed by the personal representative, and shall name the person in whose favour it is given, and shall operate to vest in that person the estate to which it relates.

(5) An assent to the vesting in a named person of a partial interest in property shall operate as an assent in favour of the remaindermen.

(5A) An assent by a personal representative in respect of a legal estate shall, in favour of a purchaser from the person in whose favour the assent is made or his successor in title, be taken as sufficient evidence that that person is entitled to have the legal estate vested in him, and upon the proper trusts, if any, but shall not otherwise prejudicially affect the claim of any person rightfully entitled to the estate vested or any charge thereon.

(5B) Subsection (5A) applies whether the assent was made before or after the commencement of that subsection.

(5C) Nothing in subsection (5A) prejudices the rights of any person under the Registration of Deeds Act 1935 in priority to the conveyance to a purchaser.

(6) A conveyance of an estate or interest by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have been discharged or provided for.

(7) An assent or conveyance given or made by a personal representative shall not, except in favour of a purchaser of an estate or interest, prejudice the right of the personal representative or any other person to recover the estate or interest to which the assent or conveyance relates, or to be indemnified out of such estate or interest against any duty, debt, or liability to which such estate or interest would have been subject if there had not been any assent or conveyance.

(8) A personal representative may, as a condition of giving an assent or making a conveyance, require security for the discharge of any such duty, debt, or liability, but shall not be entitled to postpone the giving of an assent merely by reason of the subsistence of any such duty, debt, or liability, if reasonable arrangements can be made for discharging the same; and an assent may be given subject to any estate or charge by way of mortgage.

(9) In this section “purchaser” means a purchaser for money or money’s worth.

(10) No stamp duty shall be payable in respect of an assent given as provided by subsection (1).

8.113 The National Committee considered whether:

(1) the model legislation should specifically extend the doctrine of assent, so that assent may be given by administrators as well as by executors, and given in respect of real as well as personal property;

(2) if yes to (1), assent in relation to real property should be required to be in a prescribed form;

(3) section 36 of the Administration and Probate Act 1935 (Tas) would be an appropriate basis for a model provision.

(ii) The National Committee’s preliminary view

8.114 The National Committee was of the view that there is no longer any need for assent provisions. It was also of the view that it is difficult to apply the principles of assent in practice.

Proposal 44

The model legislation should not include a provision relating to assent.

Questions for discussion

8.10 How often, and in what circumstances, is the process of assent used in particular Australian jurisdictions?

8.11 Should the model legislation abolish the doctrine of assent?

8.12 If assent should be retained in the model legislation, should it be extended to administrators?

8.13 If assent should be retained in the model legislation, should it be extended to apply to real property?

8.115 Legislation in the Australian Capital Territory and New South Wales provides that an executor or administrator may, instead of executing a conveyance of old system land, simply sign an acknowledgment in the form provided for in the Rules. Section 83 of the Wills, Probate and Administration Act 1898 (NSW) reads:

Executor may sign acknowledgment in lieu of conveyance

(1) When any real estate not under the provisions of the Real Property Act 1900 is devised to any person by a will duly proved under the provisions of this Part, the executor of the will or the administrator with the will annexed may, as such executor or administrator, instead of executing a conveyance to such person, sign an acknowledgment in the form prescribed by the rules that the devisee is entitled to such real estate for the estate for which the same is devised for the devisee.

(2) Such acknowledgment may be registered under the Acts in force regulating the registration of deeds; and upon registration thereof such real estate shall vest in the devisee for such estate as aforesaid in the same way and subject to the same trusts and liabilities as if the executor or administrator had executed a conveyance of the same.

8.116 The National Committee considered whether:

(1) as section 83 of the Wills, Probate and Administration Act 1898 (NSW) deals with old system land, it would be appropriate for each jurisdiction to make its own arrangements in this regard, rather than to include a provision to that effect in the model legislation;

(2) if a provision to the effect of section 83 of the Wills, Probate and Administration Act 1898 (NSW) is included in the model legislation, the equivalent to section 46E(2)(a) of the Wills, Probate and Administration Act 1898 (NSW) should also be included. That section reads:

Real estate mentioned in section 83 shall not, as against a purchaser in good faith from an executor or administrator, be held to have been divested from the executor or administrator and vested in another person entitled thereto, except by a registered conveyance or by an acknowledgment operating under that section.

8.117 The National Committee was of the view that there is no need for a provision to the effect of section 83 of the Wills, Probate and Administration Act 1898 (NSW) in the model legislation. Rather, each jurisdiction should consider its relevance in the context of its legislation relating to old system land.

Proposal 45

A provision to the effect of section 83 of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation.

8.118 Section 71 of the Administration and Probate Act 1929 (ACT) prescribes a scale of charges for solicitors’ professional services rendered in connection with the obtaining of a grant of probate or administration.

8.119 In other jurisdictions the charging of fees for professional services related to the administration of the estate is covered by the rules of court, such as Order 9 of the Supreme Court (Administration and Probate) Rules 1994 (Vic) or by more general legislative provisions such as, in Queensland, section 101(2) of the Trusts Act 1973 (Qld).

8.120 Order 9, rule 1 of the Supreme Court (Administration and Probate) Rules 1994 (Vic) reads:⁸⁹

Subject to this Order, the professional charges which may be paid and allowed out of the estate of a deceased person to a solicitor in obtaining a grant of representation or the re-sealing in Victoria of a grant made in another jurisdiction shall be as set out in Appendix 3-A.⁹⁰ [note added]

In the absence of a direction to the contrary in the instrument creating the trust,⁹¹ a trustee,⁹² being a person engaged in any profession or business for whom no benefit or remuneration is provided in the instrument, is entitled to charge and be paid out of the trust property all usual professional or business charges for business transacted, time expended, and acts done by the person or the person’s firm in connection with the trust, including acts which a trustee not being in any profession or business could have done personally; and, on any application to the court for remuneration under subsection (1), the court may take into account any charges that have been paid out of the trust property under this subsection. ... [notes added]

8.122 The National Committee considered whether a provision to the effect of section 71 of the Administration and Probate Act 1929 (ACT) should be included in the model legislation, or whether rules of court are a more appropriate place for such a provision.

(ii) The National Committee’s preliminary view

8.123 The National Committee was of the view that such matters are better placed in the rules of court than in the model legislation.

Proposal 46

A provision to the effect of section 71 of the Administration and Probate Act 1929 (ACT) should not be included in the model legislation. If that provision is considered appropriate for any jurisdiction, it should be included in that jurisdiction’s rules of court.

8.124 It is important for the due and proper administration of an estate that the personal representatives have all the powers necessary and convenient for that purpose. As Jeune P said in Goods of Loveday:⁹³

After all, the real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto.

The court may confer on a personal representative such further powers in the administration of the estate as may be convenient.

8.126 The National Committee considered whether the model legislation should include a provision to the effect of section 49(6) of the Succession Act 1981 (Qld).

(ii) The National Committee’s preliminary view

8.127 The National Committee considered that it may be useful to express in the model legislation the principle that the court may confer further powers on the personal representative as may be convenient in the administration of the estate, as found in section 49(6) of the Succession Act 1981 (Qld).⁹⁴

Proposal 47

The model legislation should include a provision to the effect of section 49(6) of the Succession Act 1981 (Qld).

8.128 In a number of jurisdictions administration and probate legislation provides that a personal representative cannot be forced to continue as trustee by managing property during an “enforced suspension of sale”. During the suspension the personal representative can relinquish his or her trust to such person as the court may order. The Australian Capital Territory, New South Wales and Northern Territory provisions are in similar terms. Section 59 of the Wills, Probate and Administration Act 1898 (NSW) reads:

Personal representative not required to continue to act against the personal representative’s own consent

No personal representative shall be required against the personal representative’s own consent to continue the duty of a trustee by managing the property during an enforced suspension of sale, but shall be entitled upon such suspension being ordered to relinquish the personal representative’s trust to such person as the Court may appoint.

Sect 59 (which also comes from Lang’s Act) is one which, so far as I know, has never been interpreted, and I am not disposed unnecessarily to attempt the solution of the enigma. But I may say that, whatever the section may mean, it does not in my opinion mean, by a casual and unexplained allusion to “an enforced suspension of sale” and “to such suspension being ordered”, to effect a far-reaching alteration in the law and give to the Court such a free hand as is suggested.

Personal representative may relinquish trust

(1) A personal representative may at any time, by leave of the Court, and on such conditions as the Court may impose, relinquish his trust to such person as the Court may appoint.

(2) Notwithstanding any such order, such personal representative shall continue liable for all acts and neglects whilst he was acting as executor or administrator, but not otherwise or further.

(i) Issues considered by the National Committee

8.131 The National Committee considered whether:

(1) there is any reason for including a provision to the effect of either section 59 of the Wills, Probate and Administration Act 1898 (NSW) or section 20 of the Administration Act 1903 (WA) in the model legislation;

(2) if such a provision is desirable, it would be more appropriately placed in trustee legislation.

(ii) The National Committee’s preliminary view

8.132 The New South Wales, Australian Capital Territory and Northern Territory provisions apply only in the case of “enforced suspension of sale”. However, it is unclear what that phrase means. The Western Australian provision refers to the personal representative “relinquishing his trust”. Again, it is unclear what that means.

8.133 The National Committee considered that these provisions enable personal representatives to retire from their role, even though they were in the middle of the process of administering the deceased estate. However, the National Committee did not believe that it should be easy for a personal representative to relinquish a grant, and was of the view that the appropriate time to avoid the responsibilities involved in being a personal representative was when deciding whether or not to take up the duties in the first place. On the other hand, it was suggested that it is never a good thing to “lock a personal representative in”, as he or she may tend to “slacken off” in his or her responsibilities.

8.134 In any event, provisions already exist to enable a personal representative to retire before completion of the administration of the estate. For example, Order 71, rule 84 of the Rules of the Supreme Court 1900 (Qld) reads:

(1) The Court may revoke a grant of probate or administration upon motion, without action brought, or may make a limited grant to such person and on such terms as it may think fit, in any of the following cases –

(a) if it appears that the executor or administrator is no longer capable of acting in the administration, or cannot be found;

(b) if the administrator is desirous of retiring from the administration;

(c) if it appears that the grant was made upon a mistake of fact or of law.


(2) Upon the hearing of the motion the Court may direct that an action shall be brought for revocation of the grant.

Discharge or removal of executor or administrator

(1) Notwithstanding anything contained in any Act where an executor or administrator to whom probate or administration has been granted whether before or after the commencement of this Act or where an administrator who has been appointed under this section or any corresponding previous enactment -


(a) remains out of Victoria for more than two years;

(b) desires to be discharged from his office of executor or administrator; or

(c) after such grant or appointment refuses or is unfit to act in such office or is incapable of acting therein –

the Court upon application in accordance with the Rules of Court may order the discharge or removal of such an executor or administrator and also if the Court thinks fit the appointment of some proper person or trustee company as administrator in place of the executor or administrator so discharged or removed upon such terms and conditions as the Court thinks fit; and may make all necessary orders for vesting the estate in the new administrator and as to accounts and such order as to costs as the Court thinks fit.


(2) Notice of such application may be served if the Court thinks it necessary upon such persons as it directs.

(3) An executor or administrator so removed or discharged shall from the date of the order cease to be liable as such for acts and things done after that date.

(4) Upon such appointment the property and rights vested in and the liabilities properly incurred in the due administration of the estate by the executor or administrator so discharged or removed shall become and be vested in and transferred to the administrator appointed by such order who shall as such have the same privileges rights powers duties discretions and liabilities as if probate or administration had been granted to him originally.

Proposal 48

A provision to the effect of section 59 of the Wills, Probate and Administration Act 1898 (NSW) or section 20 of the Administration Act 1903 (WA) should not be included in the model legislation. Rather, a provision to the effect of section 34 of the Administration and Probate Act 1958 (Vic) (which is to the same effect as Order 71, rule 84 of the Rules of the Supreme Court 1900 (Qld)) should be included in the model legislation.

(a) Introduction

8.136 Section 49(2) of the Succession Act 1981 (Qld) provides that, once a grant has been made, only personal representatives to whom the grant has been made are empowered to act in the estate unless the court otherwise orders. This means that an executor to whom the right to prove has been reserved is not empowered to act in the estate until he or she comes to court and proves the will. Section 49(2) of the Succession Act 1981 (Qld) provides:

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 representative without the consent of the court.

8.137 Section 49(2) of the Succession Act 1981 (Qld) may arguably affect the protection given to informal administrators by section 54 of that Act.⁹⁷ Section 54 is expressed to apply to “any person, not being a person to whom a grant is made” who acts in the administration of an estate. By providing that, once a grant has been made, the powers of a personal representative may be exercised only by personal representatives with a grant and that no other person may act as a personal representative, section 49(2) may prevent the application of section 54 in a situation where a grant, which has not been revoked, has been made to a person who is still alive.

8.138 By way of example, a grant may be made to a member of the family of the deceased person, who becomes incapable of proceeding with the administration. The work is carried on by another member of the family without getting the original grant revoked and a new grant issued. Assuming that the person acting informally does the work properly, and debts are paid and assets sold or distributed in the same way that a properly authorised personal representative would have done them, the question arises, whether these acts should be deprived of validity and effectiveness, as would appear to be the effect of section 49(2).

8.139 If it is decided that a person acting informally when a grant has already been made has no power to act in relation to the estate because of the wording in section 49(2), then it follows that such a person cannot effectively “make any payment which might properly be made by a personal representative to whom a grant is made” as provided for under section 54. It could be argued that section 49(2) prevents section 54 from protecting such a person.

(c) Issues considered by the National Committee

8.140 The National Committee considered whether:

(1) once a grant has been made, there should be a limit on the powers of persons other than those to whom the grant was made who act as personal representatives;

(2) if yes to (1), whether a provision to the effect of section 49(2) of the Succession Act 1981 (Qld) should be included in the model legislation;

(3) if yes to (2), the provision based on section 49(2) of the Succession Act 1981 (Qld) should be expressed to be subject to the equivalent of section 54(1) of the Succession Act 1981 (Qld) (assuming that such a provision is also included in the model legislation).

Questions for discussion

8.14 Once a grant has been made, should there be a limit on the powers of persons other than those to whom the grant was made who act as personal representatives?

8.15 If yes to 8.14, should a provision to the effect of section 49(2) of the Succession Act 1981 (Qld) be included in the model legislation?

8.16 If yes to 8.15, should that provision be subject to the equivalent of section 54(1) of the Succession Act 1981 (Qld) if the later provision is adopted?

(a) Introduction

8.141 Administration of estates legislation appears to have become a repository for many provisions which would be more appropriately placed in other legislation or in rules. For example, there are a number of provisions currently in administration and probate legislation which refer to personal representatives in their capacity as trustee. Some of those provisions may be better placed in trustee legislation – particularly if their primary focus is concerned with the role of trustee and not with the role of executor or administrator of an estate. A policy adopted by the National Committee in other contexts during this project has been that provisions should be located in the legislation that is most relevant to the focus of those provisions, and that procedural matters should be found in rules – not the primary statute.

(b) Relationship between personal representatives and trustees

8.142 The role and duties of personal representatives are, in a number of respects, significantly distinct from those of trustees, yet in other respects they are similar. This may cause confusion about whether the law which governs certain situations should be trust law or succession law. For example, where an estate has been completely administered (that is, assets called in and debts paid out) but the personal representative is simply holding property for the purpose of transferring it to a beneficiary, the personal representative is regarded at law as a trustee and not as a personal representative.

8.143 A personal representative may also be in the position of being a trustee for some purposes and an executor for others – such as in the situation where a personal representative is appointed trustee of specific trusts under the will.

8.144 In the case of an intestacy, the personal representative is trustee for any beneficiaries who are not sui juris. Also, statute provides in the case of a partial intestacy arising under provisions of a will that the executor is to hold the residuary estate on trust for the persons entitled to it.⁹⁸

8.145 Lee observes that it is quite normal for the duties of the trustee to “overtake and displace the duties of the personal representative, and whether this has occurred is a question of fact to be determined by reference to the particular asset with which one is concerned”.⁹⁹ Lee explains:¹⁰⁰

... it may be clear to the personal representative that he or she will have no need of a certain asset, left by the testator on specific trusts, for the payment of the debts of the estate, and he or she may accordingly appropriate that asset for the trust of which he or she has been appointed trustee by the will and deal with it accordingly. The position as personal representative in relation to that asset is displaced by the position as trustee.

The powers which the law allows personal representatives cannot be limited by the deceased’s will; whereas, although in Queensland many of the powers conferred by the Trusts Act upon trustees override the provisions of the trust instrument,¹⁰² the settlor does have large powers of control over the trustee in many respects.

A representative can never be made personally liable for debts or liabilities incurred by the deceased. If the debts of the estate exceed its assets, the estate will be wound up in bankruptcy. A representative is, however, personally liable for debts or liabilities incurred in the administration of a deceased estate, although he or she has a priority right of recourse against the assets of the estate. A trustee is always personally liable for debts and liabilities incurred, although he or she, too, has rights of recourse against the trust estate. But while there is a concept of the bankrupt deceased estate, there is no concept of a bankrupt trust.

... so specific provisions which provide relief from liability to “trustees” may extend to representatives. This is a statutory jurisdiction and may apply whether the initial liability be considered one at law or in equity.

8.149 A beneficiary entitled to an aliquot share of a deceased estate may prefer to receive a particular asset of the deceased estate rather than a sum of money. Ford and Lee explain the law in this situation:¹¹²

The principle upon which trustees have power to appropriate any specific part of a residuary estate towards satisfying a legacy or share of residue is that they have power to sell the particular asset to the legatee, and to set off the purchase money against the legacy.¹¹³

... where the trustee may sell an asset to that beneficiary without breach of trust and the beneficiary is entitled to demand immediate payment or appropriation of a sum equal to the purchase money.

8.150 Ford and Lee also note that trustees have the power to:¹¹⁵

... appropriate specific investments to any settled share, for instance a share settled upon a life tenant, without making any corresponding appropriation to other shares; but where the appropriated fund is to be held in trust it must take the form of authorised trustee securities. [notes omitted]

8.151 All States and Territories except South Australia¹¹⁶ have enacted legislation empowering personal representatives to make appropriations of assets to beneficiaries. Queensland, New South Wales, Western Australia and the Australian Capital Territory do this in their trustee legislation.

8.152 By way of example, section 33(1)(l) and (m) of the Trusts Act 1973 (Qld) reads:

Miscellaneous powers in respect of property

(1) Every trustee, in respect of any trust property, may –

...


(l) appropriate any part of the property in or towards satisfaction of any legacy payable thereout or in or towards satisfaction of any share of the trust property (whether settled, contingent or absolute) to which any person is entitled, and for that purpose value the whole or any part of the property in accordance with section 51; but –
(i) the appropriation shall not be made so as to affect adversely any specific gift; and

(ii) before any such appropriation is effectual, notice thereof shall be given to all persons not under a disability who are interested in the appropriation, and to the parent or guardian of any infant who is interested in the appropriation, and to the person having the care and management of the estate of any person who is not of full mental capacity, and any such person may within 1 month after receipt of the notice or, upon the person’s application to the court within that month, within such extended period as the court may allow, apply to the court to vary the appropriation, and the appropriation shall be conclusive save as varied by the court; and

(m) where provision is made in any instrument creating a trust for payment of an annuity or other periodic payment, and notwithstanding that the annuity or payment may by the instrument be charged upon the trust property or upon any part thereof – set aside and appropriate out of property available for payment of the annuity and invest a sum sufficient in the opinion of the trustee at the time of appropriation to provide out of the income thereof the amount required to pay the annuity or periodic payment, and so that after the appropriation shall have been made –
(i) the annuitant shall have the same right of recourse to the capital and income of the appropriated sum as the annuitant would have had against the trust property if no appropriation had been made; and

(ii) the trustee may forthwith distribute the residue of the trust property and the income thereof (which residue and income shall no longer be liable for the annuity) in accordance with the trusts declared of and concerning the same; ...

(a) enable the trustee to appropriate any part of the trust property in or towards satisfaction of a legacy or of any share of the trust property;

(b) require the trustee, in making an appropriation, to have regard to the rights of other beneficiaries;

(c) enable the trustee to appropriate, to satisfy an annuity, property sufficient at the time of the appropriation to provide out of the income thereof the annuity given; and

(d) enable the trustee to make valuations of the trust property for the purpose of making the appropriation.

8.154 The National Committee considered whether provisions dealing with appropriation should be included in the model legislation, or whether they would be more appropriately located in each jurisdiction’s trustee legislation.

(ii) The National Committee’s preliminary view

8.155 The National Committee considered that the rules allowing appropriation should be common to both trustees and personal representatives. Already, most of the provisions relating to personal representatives are in the trustee legislation, there being many provisions in that legislation that relate both to trustees and to personal representatives. There would be nothing unexpected in having appropriation provisions there too. On the other hand, it would be most unusual to place legislation common to trustees and personal representatives in administration and probate legislation, where trustees would not expect it to be located.

8.156 The National Committee was of the view that such a provision would be more appropriately located in each jurisdiction’s trustee legislation.

Proposal 49

The model legislation should not include a provision dealing with the appropriation of assets by trustees to beneficiaries.

8.157 The statutory powers of appropriation referred to in (c) above,¹¹⁹ would enable trustees to appropriate in favour of all beneficiaries – whether they are minors or adults. Other statutory provisions enable trust property to be distributed upon trust for minor beneficiaries. For example, in New South Wales, Victoria, Tasmania, Western Australia and the United Kingdom, there are provisions enabling the personal representative to appoint a trust company or a number of individuals (at least two but no more than four) to be trustee or trustees of the legacy or devise to a minor. Ford and Lee note:¹²⁰

The appointment of the trustees and the transfer of the devise or legacy to them effectively discharges the personal representative’s liability in relation to the legacy. [note omitted]

8.158 The Western Australian provision is typical. Section 17A of the Administration Act 1903 (WA) reads:

Power to appoint trustees of infant’s property

(1) Subject to subsection (5), where an infant is absolutely entitled under the will or on the intestacy of a person (in this section called “the deceased”) to a devise or legacy, or to the residue of the estate of the deceased, or any share therein, and that devise, legacy, residue or share is not, under the will (if any) of the deceased, devised or bequeathed to trustees for the infant, the personal representatives of the deceased may appoint a trustee corporation (including the Public Trustee) or 2 or more individuals not exceeding 4 (whether or not including the personal representatives or one or more of them) to be the trustee or trustees of that devise, legacy, residue or share for the infant, and may execute or do any assurance, act or thing requisite for vesting that devise, legacy, residue or share in the trustee or trustees so appointed.

(2) On the vesting of the devise, legacy, residue or share mentioned in subsection (1) in the trustee or trustees appointed under this section, the personal representatives as such are discharged from all further liability in respect of that devise, legacy, residue or share.

(3) Trustees appointed under this section may retain any property transferred to them pursuant to the provisions of this section in its existing condition or state of investment, or may convert it into money, and upon conversion shall invest the money as trust funds may be invested under Part III of the Trustees Act 1962.

(4) Where a personal representative has, before 1 January 1963, retained or sold any such devise, legacy, residue or share as is mentioned in subsection (1), and has invested it or the proceeds thereof (as the case may be) in any investments in which he was authorized to invest money subject to the trust, then, subject to any order of the Court made before that date, he shall be deemed not to have incurred any liability on that account or by reason of not having paid or transferred the money or property into Court.

(5) The power of appointing trustees conferred upon personal representatives by this section is subject to any direction or restriction contained in the will of the deceased.

8.159 The National Committee considered whether a provision to the effect of section 17A of the Administration Act 1903 (WA) should be included in the model legislation or whether such a provision would be more appropriately located in Public Trustee legislation.

(ii) The National Committee’s preliminary view

8.160 The National Committee noted that section 17A of the Administration Act 1903 (WA) has only limited application as it applies only where the minor is absolutely entitled and where the will does not leave the property to trustees for the minor.

8.161 However, the National Committee considered whether it would be appropriate to refer to trustee powers in administration and probate legislation. The National Committee was of the view that it would be helpful to at least cross-refer to the relevant provisions of trustee legislation in the administration and probate legislation to lessen the confusion between the administration powers and the trustee powers of personal representatives.

Proposal 50

A provision to the general effect of section 17A of the Administration Act 1903 (WA) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction.

8.162 Section 63 of the Administration and Probate Act 1919 (SA) enables the personal representative to seek an order from the court to sell property held on behalf of a minor, if the court considers the sale to be for the infant’s benefit. Section 63 reads:

Court may order sale of infant’s property

The Court may, on the application by petition, summons, or otherwise of any executor, administrator, or trustee in whom any real or personal property, whether specifically devised or bequeathed or not, belonging to any infant is vested, or on the like application of the guardian of the estate or the next friend of any infant beneficially entitled to any real or personal property, whether specifically devised, or bequeathed or not, order that such property, or any part thereof, be sold in any case in which the Court considers it for the benefit of the infant that such sale should be effected.

8.163 The National Committee considered whether a provision to the effect of section 63 of the Administration and Probate Act 1919 (SA) should be included in the model legislation, or whether such a provision would be more appropriately located in trustee legislation.

(ii) The National Committee’s preliminary view

8.164 The National Committee noted that a personal representative who has completed the administration of an estate and is holding property for the benefit of a minor is trustee of that property and is subject to the powers and responsibilities of a trustee under trustee legislation. A minor’s property held on trust in Queensland can already be sold under section 32(1) of the Trusts Act 1973 (Qld) which reads:

Subject to the provisions of this section, every trustee, in respect of any trust property, may –

(a) sell the property or any part of the property; ...

Proposal 51

A provision to the general effect of section 63 of the Administration and Probate Act 1919 (SA) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction.

8.165 A provision relating to the investment of a minor’s property being held on trust by a personal representative appears in the Tasmanian administration and probate legislation. Section 33(3) of the Administration and Probate Act 1935 (Tas) reads:

During the minority of any beneficiary or the subsistence of any life interest, and pending the distribution of the whole or any part of the estate of the deceased, the personal representatives may invest the residue of the said money, or so much thereof as may not have been distributed, in any investments for the time being authorized by law for the investment of trust money, with power at the discretion of the personal representatives, to change such investments for others of a like nature.

8.166 The National Committee considered whether a provision to the effect of section 33(3) of the Administration and Probate Act 1935 (Tas) should be included in the model legislation.

(ii) The National Committee’s preliminary view

8.167 Trustees already have a general duty to invest trust funds so as to make them productive. In all Australian jurisdictions except Queensland and the Australian Capital Territory, trustees are no longer limited to statutorily authorised investments.¹²⁴ For example, section 5 of the Trustee Act 1958 (Vic) reads:

Investments of trust funds

A trustee may, unless expressly prohibited by the instrument creating the trust –

(a) invest trust funds in any form of investment; and

(b) at any time, vary an investment.

Investment decisions are now the exclusive responsibility of the trustees, observing the strictures of the prudent person rule.

Proposal 52

A provision to the general effect of section 33(3) of the Administration and Probate Act 1935 (Tas) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction.

8.169 A provision in the Western Australian administration and probate legislation enables the court to distribute payments to minors for their “maintenance, advancement and education”. Section 17 of the Administration Act 1903 (WA) reads:

Court may deal with interest of infants in certain cases

(1) Where a person dies leaving infant issue and the value of the share of the real and personal property of the deceased person to which an infant is entitled in distribution does not exceed $10 000 the Court may, on the application of any such infant, or of any person on his behalf, authorize the executor or administrator to expend the whole or any part of the share of such infant in his maintenance, advancement, or education.

(3) The power or authority that the Court may confer under this section on an executor or administrator is in addition to any other power or authority, statutory or otherwise, that the executor or administrator may have to pay or apply capital money or assets, or the income thereof, to or on behalf of an infant.

8.170 The National Committee considered whether, given the powers of advancement found in trustee legislation¹²⁶ and the fact that clause 53 of the model uniform Wills Bill 1997¹²⁷ would permit a distribution for the maintenance of a dependant who had an entitlement under a will, it would be necessary to include a provision to the effect of section 17 of the Administration Act 1903 (WA) in the model legislation.

(ii) The National Committee’s preliminary view

8.171 Under the legislation in the various Australian jurisdictions, including Western Australia, trustees already have the power to advance capital sums to beneficiaries, including minors.¹²⁸ Most trustee legislation permits the trustee to advance up to half of the capital to the beneficiary minor. For example, section 62(1) of the Trusts Act 1973 (Qld) reads:

Power to apply capital for advancement etc.

Where under a trust a person is entitled to the capital of the trust property or any share thereof, the trustee, in such manner as the trustee in the trustee’s absolute discretion thinks fit, may from time to time out of that capital pay or apply for the maintenance, education (including past maintenance or education), advancement or benefit of that person, an amount not exceeding in all $2,000 or one-half that capital (whichever is the greater) or with the consent of the court an amount greater than that amount.

Proposal 53

A provision to the general effect of section 17 of the Administration Act 1903 (WA) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction.

8.172 The effect of these provisions is to abolish the rule in Allhusen v Whittell.¹³² The rule has been abolished in all Australian jurisdictions except South Australia and Tasmania. In the Australian Capital Territory, New South Wales and the Northern Territory the rule has been abolished by a provision in the administration and probate legislation; in other jurisdictions it has been abolished by trustee legislation.¹³³

8.173 Section 46D of the Wills, Probate and Administration Act 1898 (NSW) reads:

Application of income of settled residuary real or personal estate

(1) Where, under the provisions of the will of a person dying after the commencement of the Conveyancing (Amendment) Act 1930 (in this section called “the deceased”), any real or personal estate included (either by specific or general description) in a residuary gift is settled by way of succession, no part of the income of that property shall be applicable in or towards the payment of the funeral, testamentary, and administrative expenses, debts, and liabilities, or of the interest (if any) thereon up to the date of the death of the deceased, or of any legacies bequeathed by such will.

(2) The income of the settled property shall be applicable in priority to any other assets in payment of the interest (if any) accruing due on the funeral, testamentary, and administrative expenses, debts, liabilities and legacies, after the date of the death of the deceased and up to the payment thereof, and the balance of such income shall be payable to the person for the time being entitled to the income of the property.

(3) Where, after the death of the deceased, income of assets which are ultimately applied in or towards payment of the funeral, testamentary, and administrative expenses, debts, liabilities and legacies arises pending such application, that income shall, for the purposes of this section, be deemed income of the residuary estate of the deceased.

(4) This section shall only affect the rights of beneficiaries under the will as between themselves, and shall not affect the rights of creditors of the deceased.

(5) This section shall have effect, subject to the provisions (if any) to the contrary contained in the will and to the provisions of any Act as to charges on property of the deceased.

8.174 The National Committee considered whether a provision to the effect of section 46D of the Wills, Probate and Administration Act 1898 (NSW) – which abolishes the rule in Allhusen v Whittell – should be included in the model legislation, or whether such a provision would be more appropriately located in trustee legislation.

(ii) The National Committee’s preliminary view

8.175 The National Committee recognised that this is old law which possibly should be replaced by legislation requiring, but also conferring a discretion on, the trustee to maintain fairness between capital and income accounts. In jurisdictions which still maintain the distinction between trusts for sale and settled land it is arguable that this belongs in administration legislation. However, the most suitable place for this type of provision is in trustee legislation where it is located in most jurisdictions.

Proposal 54

A provision to the effect of section 46D of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation.

8.176 Section 142 of the Administration Act 1903 (WA) reads:

Payment of balance of estate to Curator or Public Trustee of State or Colony where deceased was domiciled. Public Trustee may receive any part of estate from outside the State

(1) Where the Public Trustee of Western Australia is administering the estate of any person who at the time of his death was domiciled in any other part of the Commonwealth or in New Zealand, and whose estate is being administered by the Curator or Public Trustee of the State or Colony in which the deceased was domiciled, the balance of the estate, after payment of local creditors, commission fees, and expenses, may be paid over to such last named Curator or Public Trustee.

(2) Where any part of the estate of a deceased person, whose estate is being administered by the Public Trustee of Western Australia, is situated outside the limits of Western Australia, such Public Trustee may receive any part of such estate so situated, and, when received, the same shall be dealt with according to the law of Western Australia.

8.177 The National Committee considered whether a provision to the effect of section 142 of the Administration Act 1903 (WA) should be included in the model legislation, or whether such a provision would be more appropriately located in Public Trustee legislation, given that it deals only with estates being administered by the Public Trustee.

(ii) The National Committee’s preliminary view

8.178 The National Committee noted that the next part of the Administration of Estates stage of the Uniform Succession Laws Project will be the recognition of interstate and foreign grants of probate and reseals and that this provision might be better discussed in the context of that part of the project.

Proposal 55

This matter should be considered in that part of the Uniform Succession Laws Project dealing with the recognition of interstate and foreign grants of probate and reseals.

8.179 The National Committee considered the need for a provision to deal with the situation where a personal representative who has completed the duties of administration and become a trustee of any of the deceased’s property remaining in his or her hands wishes to be relieved of his or her responsibilities. There may well be trusts affecting such property, perhaps created by will, or imposed because a beneficiary is incapacitated.

(i) Issue considered by the National Committee

8.180 The National Committee considered whether the model legislation should include a provision requiring the court’s consent before personal representatives who have completed administration of the estate but remain trustees of estate assets may relinquish their trust duties.

(ii) The National Committee’s preliminary view

8.181 In the view of the National Committee, the personal representative, as trustee, has the same powers to “relinquish” the trusteeship as has any other trustee, for instance, by appointing another person or persons as new trustees. In the view of the National Committee there is no reason to insist on the court’s consent. To do so would be inconsistent with trustee legislation.

Proposal 56

The model legislation should not include a provision requiring personal representatives to obtain court authority before relinquishing their trustee duties.

(a) Limiting the number of personal representatives to whom a grant can be made

8.182 In most jurisdictions reviewed by the National Committee, there is no restriction on the number of personal representatives to whom a grant may be made. However, in Queensland, Tasmania and the United Kingdom, a grant of probate or administration may be made to no more than four persons.

8.183 In the United Kingdom there is a further requirement that there be a minimum number of personal representatives appointed where there is a minority or life interest under a will.

8.184 Section 48 of the Succession Act 1981 (Qld) reads:

Provisions as to the number of personal representatives

(1) A grant shall not be made to more than 4 persons at any one time and where a testator appoints more than 4 persons as executors the order of their entitlement to a grant shall be the order in which they are named.

(2) This section shall apply to grants made after the commencement of this Act whether the testator or intestate died before or after such commencement.

8.186 An additional reason given by the Queensland Law Reform Commission in its 1978 Report for limiting the number of executors to four is that that number corresponded to the maximum number of trustees permitted in the case of a private trust.¹³⁷ A number of other Australian jurisdictions also limit the number of trustees to a maximum of four.¹³⁸

(i) Issue considered by the National Committee

8.187 The National Committee considered whether the model legislation should include a provision to the effect of section 48 of the Succession Act 1981 (Qld) so that a grant may not be made to more than four persons and, if a testator appoints more than four persons as executors, they should to be entitled to a grant in the order in which they are named.

(ii) The National Committee’s preliminary view

8.188 Although the general feeling of the Registrars of Probate was that applications for multiple grants were rare and, in practice, did not present a problem, the National Committee was of the view that there should be a limit on the number of executors who should be allowed to prove a will or on the number of persons who should be able to be granted letters of administration.

8.189 Elsewhere in this Discussion Paper,¹³⁹ the National Committee has recommended that a provision in terms similar to section 49(5) of the Succession Act 1981 (Qld) be included in the model legislation. That provision reads:

The powers of personal representatives shall be exercised by them jointly.

Proposal 57

A provision to the effect of section 48 of the Succession Act 1981 (Qld) should be included in the model legislation.

8.191 In section 14 of the Administration and Probate Act 1935 (Tas) and section 114(1) of the Supreme Court Act 1981 (UK) at least two persons or a trustee company are required to be appointed where there is a minority or life interest arising under the will or intestacy.¹⁴¹

(i) Issue considered by the National Committee

8.192 The National Committee considered whether the model legislation should include a provision requiring a minimum of two personal representatives where there is a minority interest arising under a will or on intestacy.

(ii) The National Committee’s preliminary view

8.193 The National Committee acknowledged that minority interests were vulnerable to being neglected or ignored. There was, however, concern as to how protection of such interests could best be achieved.

8.194 The view was expressed that, in some cases, there would not be two people available for appointment. Even if there were, it would not guarantee that the personal representatives would act appropriately.

8.195 It was suggested that a range of other measures, such as a discretion as to the imposition of certain conditions on the administration of the deceased estate, may need to be available to the court to ensure that each case is dealt with in an appropriate manner.

Proposal 58

The model legislation should include a provision to the effect that, where there is a minority interest, the court may make such order as to the protection of that interest as it considers appropriate. It should be possible for the court to require bonds, sureties, the passing of accounts, or the appointment of multiple personal representatives.

(a) Introduction

8.196 Victoria and New Zealand have enacted provisions to deal with the liability of a local attorney – administrator for a foreign principal.¹⁴²

8.197 Section 86 of the Administration and Probate Act 1958 (Vic) reads:

Administrator under power of attorney

Notwithstanding anything contained in this Act a person duly authorised by power of attorney under the provisions of this Part who –

(a) has obtained the seal of the Court to any probate or letters of administration or grant or order;

(b) has paid all charges duties and fees under the Probate Duty Act 1962;

(c) has satisfied or provided for the debts and claims of all persons resident in Victoria of whose debts or claims he has had notice (whether before or after notice given by him as required by the Trustee Act 1958) –

may pay over or transfer to or as directed by the executor or administrator of the estate in the country in which the deceased was domiciled at the date of his death or to or as directed by the donor of the power of attorney the balance of the estate without seeing to the application thereof and without incurring any liability in regard to such payment or transfer and shall duly account to such executor or administrator or donor (as the case may require) for his administration.

8.198 The section also provides that, in distributing among persons locally entitled, the local attorney must, in order to enjoy the advantage of the section – that is, to be able to remit the remaining assets to the donor of the power without incurring personal liability – pay all charges and fees under the Act, and must satisfy or provide for the debts and claims of all persons living within the local jurisdiction.

8.199 Sundberg notes that the Victorian provision raises some questions of its own.¹⁴³ In particular, does the word “claims” in the section include the claim of a person to family provision, or the right of a spouse of an intestate to preferential treatment in relation to the intestate’s interest in the matrimonial home?

8.200 Section 42 of the Administration Act 1969 (NZ) reads:

Liability of agent of administrator

No person appointed administrator upon an application made by him as the attorney or agent for an administrator absent from New Zealand shall be liable to account or pay money, or transfer property, to anyone in respect of his administratorship excepting only to the administrator whose attorney or agent he was, or to any person who, after his appointment as administrator upon an application so made, is appointed administrator of the same estate.

8.202 Further, the Victorian provision is limited to reseals, and does not apply to the primary grant. It is a safeguard for the attorney.

8.203 The Victorian Registrar of Probates has informed the National Committee that he is not aware of the provision ever having been used. There is an argument that inaccessible law is poor law, particularly where it is rarely used.

(b) Issue considered by the National Committee

8.204 The National Committee considered whether there would be any benefit in including in the model legislation a provision along the lines of either the New Zealand or Victorian provision in relation to both a grant and a reseal of a grant.

(c) The National Committee’s preliminary view

8.205 The National Committee did not reach a conclusion on this issue, but agreed to seek submissions on the matter.

Question for discussion

8.17 Should the model legislation include a provision to the effect of either the New Zealand or Victorian provisions set out above in relation to both a grant and a reseal of a grant?

(a) Introduction

8.206 Legislation in the Northern Territory provides that, where a deceased person has named a Public Trustee in another jurisdiction as executor, the local court may grant probate to that Public Trustee. Section 20 of the Administration and Probate Act (NT) reads:

Court may grant probate to public trustee named as executor

Where a deceased person has named the public trustee of a State or Territory of the Commonwealth as an executor of his will, the Court may grant probate of the will to that public trustee.

8.207 The National Committee considered whether:

(1) the model legislation should include a provision to the effect of section 20 of the Administration and Probate Act (NT) allowing the court to grant probate to a Public Trustee in another jurisdiction who has been named as executor in the will of a deceased person;

(2) the definition of “personal representative” should include reference to the Public Trustee or equivalent position in the particular jurisdiction.

(c) The National Committee’s preliminary view

8.208 The National Committee was of the view that it was not necessary to include a provision to the effect of section 20 of the Administration and Probate Act (NT) in the model legislation. This is because section 6 of the Succession Act 1981 (Qld), the adoption of which has already been proposed by the National Committee¹⁴⁵ and which gives the court power to make grants, is wide enough to allow the court to make a grant of this kind.

8.209 Furthermore, for the same reasons expressed in the discussion of trustee corporations,¹⁴⁶ the National Committee is of the view that the term “personal representative” should not be defined to include Public Trustees.

Proposal 59

In light of the National Committee’s earlier proposal that a provision to the effect of section 6 of the Succession Act 1981 (Qld) should be included in the model legislation, it is not necessary to include a provision to the effect of section 20 of the Administration and Probate Act (NT). The term “personal representative” should not be defined to include Public Trustees.

Questions for discussion

8.18 Given that Public Trustees can administer deceased estates other than by being appointed executor by a will or administrator by the court, is it necessary for the term “personal representative” to be defined to cover Public Trustees acting in that capacity? (An appropriate definition might include words such as: “and includes any other person who by statute has the powers and functions of an executor or administrator”.)

8.19 Should a provision to this effect be in Public Trustee legislation rather than in administration and probate legislation?

1. See Chapter 2 of this Discussion Paper.

2. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 32.

3. The term “trustee” is defined in s 5 of the Trusts Act 1973 (Qld) to include, inter alia, “a personal representative”.

4. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 32.

5. Id at 32-33.

6. See the discussion of the executor by representation in Chapter 6 of this Discussion Paper. In particular, see the discussion of s 44(2) of the Wills, Probate and Administration Act 1898 (NSW) at para 6.18-6.23 of this Discussion Paper. That section extends the doctrine of administrator by representation to the Public Trustee and trustee companies.

7. See the discussion of the types of grants of letters of administration in Chapter 2 of this Discussion Paper.

8. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 32.

9. Imperial Acts (Substituted Provisions) Act 1986 (ACT).

10. Imperial Acts Application Act 1969 (NSW).

11. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 33.

12. Rees v Hughes [1946] KB 517 per Scott LJ at 524.

13. As specified by Succession Act 1981 (Qld) s 52(1)(d). A similar provision applies to the spouse’s statutory legacy under the intestacy rules – Succession Act 1981 (Qld) Schedule 2, Pt 1.

14. For example, Administration and Probate Act 1919 (SA) s 70(3); Administration Act 1903 (WA) s 143A.

15. See also, for example, Wills, Probate and Administration Act 1898 (NSW) s 84A; Administration Act 1969 (NZ) s 39.

16. Administration and Probate Act 1935 (Tas) s 26 reads:

The personal representative of a deceased person shall, when lawfully required so to do, exhibit on oath in the Court a true and perfect inventory and account of the real and personal estate of the deceased, and the Court shall have power as heretofore to require personal representatives to bring in inventories. [emphasis added]
See also Administration and Probate Act 1958 (Vic) s 28.

An executor, administrator or trustee of the estate of a deceased person (being an estate in respect of which probate or administration has been granted or sealed by the Court) shall, in accordance with the rules, disclose to the Court any assets or liabilities of the deceased person (not being assets or liabilities previously disclosed under this section) which come to his knowledge while acting in that capacity. [emphasis added]

Every person to whom probate or administration is granted shall be under a duty to –

...

(b) file an inventory of the estate of the deceased, and pass his accounts relating thereto within such time, and from time to time, and in such manner as may be prescribed by the rules or as the Court may order ... [emphasis added]

See also Administration and Probate Act 1929 (ACT) s 58.

(1) The Court may, on the application of the Public Trustee, grant to the Public Trustee an order to collect and administer the estate of any deceased person leaving real or personal estate within the jurisdiction in any of the following cases:

...


(e) Where the estate or any portion thereof is liable to waste and the executor, any spouse or the next of kin-
(i) is absent from the locality of the estate; or

(ii) is not known; or

(iii) has not been found; or

(iv) requests the Public Trustee in writing to apply for the order;

...

A similar provision is s 19 of the Public Trustee Act 1930 (Tas).

21. The effect of s 12A of the Administration Act 1903 (WA) is that, for the purposes of determining entitlement to a distribution on intestacy, the relationship between a child and his or her father and mother (and other relationships) shall be determined irrespective of whether the child’s parents are, or have been, married to each other.

22. The effect of Part 9 of the Wills Act 1970 (WA) is that, for the purposes of determining entitlement to a distribution under a will, the relationship between a child and his or her father and mother (and other relationships) shall be determined irrespective of whether the child’s parents are, or have been, married to each other.

23. See also Status of Children Act 1974 (Vic) s 6; Status of Children Act 1974 (Tas) s 6; Status of Children Act (NT) s 7 (cf Family Relationships Act 1975 (SA) s 12).

24. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 36.

25. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 18.8.1.

26. The principle of the executor’s year does not create a binding rule, but rather a general principle. Case law already provides that the estate need not necessarily be distributed within one year. See R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1996) at para 48.24.

27. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 36.

28. Howe v Earl of Dartmouth (1802) 7 Ves 137; 32 ER 56.

29. Section 92 notices are discretionary. See the discussion of s 92 notices at para 9.49-9.52 of this Discussion Paper.

30. For example, Wills, Probate and Administration Act 1898 (NSW) s 75 (neglect to prove will); Administration and Probate Act 1958 (Vic) s 15 (neglect to prove, renounce or bring in will); Administration and Probate Act (NT) s 91 (neglect to file inventory or pass accounts); Administration Act 1903 (WA) s 42 (neglect or refusal to transfer land or to pay legacies etc).

31. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 36.

32. Re Hill (Unreported, Sup Ct of Qld, Carter J, No 1079 of 1987, 6 and 7 June; 17 June 1988).

33. Id at 7-8.

34. The section is set out at para 8.46 of this Discussion Paper.

35. Imperial Acts Application Act 1969 (NSW).

36. Administration and Probate Act 1958 (Vic) s 33(2).

37. Imperial Acts Application Act 1969 (NSW) s 15.

38. Administration and Probate Act 1935 (Tas) s 30.

39. Section 26(6) of the Administration Act 1903 (WA), s 19 of the Administration and Probate Act 1929 (ACT) and s 27 of the Administration and Probate Act (NT) apply only to court appointed administrators who have been required to provide a surety. Section 26(6) of the Administration Act 1903 (WA) provides:

If, upon the application of a surety who has given a guarantee as required by subsection (1), it appears to the Court that –

(a) the estate is being wasted, or is in danger of being wasted;

(b) the surety is being in any way prejudiced, or is in danger of being prejudiced, by the act or default of the person administering the estate; or

(c) any surety desires to be relieved from further liability,

the Court may grant such relief as it thinks fit.

The other two sections are in similar terms.

41. New South Wales Law Reform Commission, Report, The Application of Imperial Acts (R 4, 1967) at 39.

42. S Toller, The Law of Executors and Administrators (3rd ed 1814) at 430. The cases cited as authority are Beynon v Gollins (1788) 2 Bro CC 323; 29 ER 177 and Sir Brian Tucke’s Case 3 Leonard 241; 74 ER 659.

43. See Chapter 14 of this Discussion Paper in relation to survival of causes of action.

44. Succession Act 1981 (Qld) s 66; Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1); Law Reform (Miscellaneous Provisions) Act 1955 (ACT) Part 2; Administration and Probate Act 1958 (Vic) s 29; Survival of Causes of Action Act 1940 (SA); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4; Law Reform (Miscellaneous Provisions) Act 1956 (NT) Part 2; and Administration and Probate Act 1935 (Tas) s 27.

45. Law Reform Commission of Western Australia, Report on United Kingdom Statutes in Force in Western Australia (Project No 75, 1994) at 55 referring to W A Lee, Manual of Queensland Succession Law (3rd ed 1991) at para 924, note 67.

46. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 924, note 69.

47. This refers to s 83 of the Wills, Probate and Administration Act 1898 (NSW). See para 8.115 of this Discussion Paper.

48. R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1996) at para 84.01.

49. The authors noted: Will of Cowell (1895) 16 LR (NSW) B & P 51; Re Anderson (1953) 53 SR (NSW) 520; Will of Gannon (1915) 15 SR (NSW) 251 at 255.

50. The authors noted: Higstrim v Ray (1895) 16 LR (NSW) Eq 1; Re Anderson (1953) 53 SR (NSW) 520.

51. The authors noted: Re Anderson (1953) 53 SR (NSW) 520.

52. Ibid.

53. See cl 53 of the draft model Wills Bill 1997 (Personal representatives may make maintenance distributions within 30 days) in National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills (QLRC MP 29, 1997); New South Wales Law Reform Commission, Report, Uniform Succession Laws: The Law of Wills (R 85, 1998); and the Drafting Instructions for the model Family Provision Bill in National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (QLRC MP 28, 1997) Appendix 1 at 22-23 (Protection of distributions).

Clause 53 of the draft Wills Bill 1997 reads:

Personal representatives may make maintenance distributions within 30 days

(1) If a surviving person who is wholly or substantially dependent on the testator has an entitlement under a will that does not become absolute until 30 days after the testator’s death, the personal representative may make a distribution for the maintenance, support or education of that person within that 30 day period.

(2) The personal representative is not liable for any such distribution that is made in good faith.

(3) The personal representative may make such a distribution even though the personal representative knew at the time the distribution was made of a pending application under the [insert the name of the Act of the jurisdiction that deals with family provision].

(4) Any sum distributed is to be deducted from any share of the estate to which the person receiving the distribution becomes entitled, but if any person to whom any distribution has been made does not survive the testator for 30 days any such distribution is to be treated as an administration expense.

55. Trustee Company Act 1947 (ACT).

56. Trustee Companies Act 1984 (Vic).

57. Public Trustee Act 1995 (SA).

58. Public Trustee Act 1941 (WA). See also Trustee Companies Act 1987 (WA) s 6.

59. Public Trustee Act (NT).

60. Public Trustee Act 1930 (Tas).

61. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 33.

62. Trustees Act 1962 (WA).

63. Re Lack [1983] 2 Qd R 613 per McPherson J at 614.

64. Section 70 of the Administration and Probate Act 1929 (ACT) is similar to s 86 of the Wills, Probate and Administration Act 1898 (NSW), except that, in the Australian Capital Territory, where the court’s jurisdiction to allow commission is being exercised by the Registrar, the commission or percentage allowed shall not exceed five per cent. In Tasmania and Victoria a blanket limit of a maximum of 5% is placed on commission: Administration and Probate Act 1935 (Tas) s 64; Administration and Probate Act 1958 (Vic) s 65.

65. In New South Wales, the Registrar is empowered to exercise this jurisdiction of the court: Supreme Court Rules 1970 (NSW) Pt 78 r 5.

66. See Will of Douglas (1951) 51 SR (NSW) 282.

67. See Chapter 11 of this Discussion Paper.

68. General Rules of Procedure in Civil Proceedings 1996 (Vic).

69. Trustee Act 1936 (SA).

70. Rules of the Supreme Court 1971 (WA).

71. Rules of the Supreme Court (Tas).

72. [1971] VR 612.

73. Id at 615.

74. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 929.

75. Further examples include O 57 r 1 and O 58 r 1, 2 of the Supreme Court Rules (ACT) and s 51 of the Administration and Probate Act 1929 (ACT).

76. “Administration proceedings” is defined in Part 68 r 1 of the Supreme Court Rules 1970 (NSW) as “... proceedings for the administration of an estate or the execution of a trust under the direction of the Court”.

77. Trusts Act 1973 (Qld) s 96 (s 97 protects the trustee or personal representative when acting under the direction or advice); Trustee Act 1925 (NSW) s 63; Trustee Act 1925 (ACT) s 63; Administration and Probate Act 1919 (SA) s 69; Trustee Act 1936 (SA) s 90, 91; Trustees Act 1962 (WA) s 92; Public Trustee Act 1930 (Tas) s 74.

78. Trusts Act 1973 (Qld) s 5; Trustee Act 1925 (NSW) s 5; Trustee Act 1925 (ACT) s 5; Trustee Act 1936 (SA) s 4; Trustees Act 1962 (WA) s 6. The Trustee Act 1898 (Tas) s 4 defines “trustee” to include “(a) any person seised or possessed of or entitled to any property subject to any trust as aforesaid; ... (e) any representative in any way possessed of or entitled to any property subject to any trust express or implied”; “trust” is defined in s 4 to include “the duties incident to the office of representative of a deceased person”; “representative” is defined in s 4 so as to include “the devisee or devisees, or the executor or executors, administrator or administrators, or the curator of the intestate estate of any deceased person”.

79. In relation to leases and agreements for leases.

80. In relation to leases and agreements for leases.

81. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 1009.

82. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 18.8.3.

83. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 1009.

84. Lee refers to Dix v Burford (1854) 19 Beav 409; 52 ER 408.

85. Lee refers to Sloper v Cottrell (1856) 6 E & B 497; 119 ER 950; Harvell v Foster [1954] 2 QB 367.

86. Lee refers to Attenborough v Solomon [1913] AC 76.

87. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 18.8.3.

88. Section 49(1) of the Succession Act 1981 (Qld) reads:

Subject to this Act a personal representative represents the real and personal estate of the deceased and has in relation to all such estate from the death of the deceased all the powers hitherto exercisable by an executor in relation to personal estate and all powers conferred on personal representatives by the Trusts Act 1973.
Section 50 of the Succession Act 1981 (Qld) would extend the power to administrators, but only in respect of personal property.

90. The Supreme Court (Administration and Probate) Rules 1994 (Vic) Appendix 3A provides a table of the remuneration that is chargeable where the gross value of the estate does not exceed $10,000 through to estates of unlimited value.

91. In the Trusts Act 1973 (Qld) the phrase “instrument creating the trust” is defined in s 5 to include any will and “trust” is defined to include “the duties incidental to the office of a personal representative”.

92. In the Trusts Act 1973 (Qld) the term “trustee” is defined in s 5 to include “a personal representative” and the term “personal representative” is defined to mean “the executor, original or by representation, or the administrator for the time being of the estate of a deceased person”.

93. [1900] P 154 at 156.

94. The National Committee’s attention was drawn in this regard to s 64 of the Administration and Probate Act 1935 (Tas), which reads:

Power of Court to make orders for due administration of estate of deceased person

The Court may make all such orders as may be necessary for the due administration of the real and personal estate and effects of any deceased person, and also for the payment out of such real and personal estate and effects to the persons administering the same of any costs, charges, and expenses which may have been lawfully incurred by them, and also such commission or percentage, not exceeding 5 per cent, for their pains and trouble therein as shall be just and reasonable; and if any executor or administrator shall neglect to pass his accounts, or dispose of the real and personal estate and effects of any deceased person, at the time and in the manner directed, it shall be lawful for the Court, on the application of any person aggrieved by such neglect, to order and direct that such executor or administrator shall pay interest at a rate not exceeding 8 per cent per annum for such sums of money as from time to time shall have been in his hands, and the costs occasioned by the application.

96. Id at 15.

97. Section 54(1) is set out at para 10.14 of this Discussion Paper. Section 54(2) is set out at para 10.38 of this Discussion Paper. Section 54(3) is set out at para 10.42 of this Discussion Paper.

98. For example, Succession Act 1981 (Qld) s 38.

99. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 901.

100. Ibid.

101. Ibid.

102. Lee refers to H A J Ford and W A Lee, Principles of the Law of Trusts (supplemented book) at para 12010.

103. See the discussion of personal representatives relinquishing grants at para 8.128-8.135 of this Discussion Paper.

104. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 901.

105. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 18.9.2.

106. Trusts Act 1973 (Qld).

107. Trustee Act 1925 (NSW) in its application to the Territory by virtue of s 8 of the Trustee Act 1957 (ACT) whereby the provisions of the Trustee Act 1925 (NSW) apply in the Australian Capital Territory.

108. Trustee Act 1958 (Vic).

109. Trustee Act 1925 (NSW).

110. Trustees Act 1962 (WA).

111. Trustee Act 1956 (NZ).

112. H A J Ford and W A Lee, Principles of the Law of Trusts (supplemented book) at para 16200.

113. Ford and Lee refer to Re Beverly [1901] 1 Ch 681 and Wigley v Grozier (1909) 9 CLR 425 at 438.

114. H A J Ford and W A Lee, Principles of the Law of Trusts (supplemented book) at para 16200.

115. Ibid.

116. See Re Pearce [1936] SASR 137.

117. H A J Ford and W A Lee, Principles of the Law of Trusts (supplemented book) at para 16220.

118. Conveyancing Act 1919 (NSW).

119. See para 8.149-8.156 of this Discussion Paper.

120. H A J Ford and W A Lee, Principles of the Law of Trusts (supplemented book) at para 16240.

121. Ibid.

122. See Trustee Act 1925 (NSW) s 81; Trustee Act 1958 (Vic) s 63; Trustee Act 1936 (SA) s 59B; Trustees Act 1962 (WA) s 89; Trustee Act 1898 (Tas) s 47; Trustee Act (NT) s 50A. See also the general power in the court to authorise the sale of property under s 94 of the Trusts Act 1973 (Qld).

123. Beneficiaries of full age and capacity can authorise the trustee to sell without further authority: H A J Ford and W A Lee, Principles of the Law of Trusts (supplemented book) at para 12270.

124. Trustee Act 1925 (NSW) s 14; Trustee Act 1898 (Tas) s 6; Trustee Act 1958 (Vic) s 5; Trustee Act 1936 (SA) s 6; Trustees Act 1962 (WA) s 17; Trustee Act (NT) s 5; Trustee Act 1956 (NZ) s 13A. In Queensland, the Trusts (Investments) Amendment Bill 1999 (Qld) was introduced on 8 June 1999. The Bill proposes the repeal and replacement of Part 3 of the Trusts Act 1973 (Qld) (Investments). If the Bill is passed, the statutory list approach to trustee investments will be replaced by the “prudent person rule”.

125. H A J Ford and W A Lee, Principles of the Law of Trusts (supplemented book) at para 10070.

126. See, for example, Trusts Act 1973 (Qld) s 61 (Power to apply income for maintenance etc and to accumulate surplus income during a minority) and s 62 (Power to apply capital for advancement etc). Section 62 permits a trustee to apply capital not exceeding in all $2000 or one-half of the capital (whichever is the greater) or, with the consent of the court, a greater amount.

127. National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills (QLRC MP 29, 1997) at 19, 115-117; New South Wales Law Reform Commission, Report, Uniform Succession Laws: The Law of Wills (R 85, 1998) at 186-190, 219.

128. Trustee Act 1925 (NSW) s 44(1), (2); Trustee Act 1958 (Vic) s 38(2); Trusts Act 1973 (Qld) s 62(2), (3); Trustee Act 1936 (SA) s 33A(2); Trustees Act 1962 (WA) s 59; Trustee Act 1898 (Tas) s 29(1).

129. Trusts Act 1973 (Qld).

130. Trustee Act 1958 (Vic).

131. Trustees Act 1962 (WA).

132. (1867) LR 4 Eq 295.

133. For further information see C J Rowland and G M Tamsitt, Hutley’s Australian Wills Precedents (5th ed 1994) at para 2614; H A J Ford and W A Lee, Principles of the Law of Trusts (supplemented book) at paras 11060-11100.

134. Supreme Court Act 1981 (UK).

135. See Chapter 6 of this Discussion Paper in relation to the chain of representation.

136. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 31.

137. Ibid.

138. See, for example, Trustee Act 1925 (NSW) s 6(5)(b), (c) and 7(5); Trustee Act 1958 (Vic) s 40; and Trustees Act 1962 (WA) s 7(2), (5).

139. See Proposal 37 and para 8.85 and 8.86 of this Discussion Paper.

140. Ibid.

141. That requirement was expressly rejected by the Queensland Law Reform Commission in its 1978 Report. See Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 31, 32.

142. Prior to the enactment of statutory provisions in Victoria, the law was exemplified by the case of Permezel v Hollingworth [1905] VLR 321 (see also Re Ralston [1906] VLR 689). The Court in that case decided that an attorney who had a reseal was under a duty not to remit the assets to the donor of the power (who will often but not always be the foreign personal representative) but to distribute them directly to the persons beneficially entitled to those assets.

143. R A Sundberg, Griffith’s Probate Law and Practice in Victoria (3rd ed 1983) at 138.

144. Id at 137-138. The author gives the history of the section and notes that it was enacted to deal with problems with the case law. The author criticises the section, suggesting that it leaves questions unanswered.

145. See proposal 4 of this Discussion Paper.