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Where am I now? Lawlink > Law Reform Commission > Publications > Discussion Paper 42 (1999) - Uniform Succession Laws: Administration of Estates of Deceased Persons

Discussion Paper 42 (1999) - Uniform Succession Laws: Administration of Estates of Deceased Persons

TABLE OF CONTENTS
 
    The text of this Discussion paper was prepared by the Queensland Law Reform Commission on behalf of the National Committee for Uniform Succession Laws and has also been published by the Queensland Law Reform Commission – Administration of Estates of Deceased Persons (Queensland Law Reform Commission, Miscellaneous Paper 37, 1999). This paper contains consequential changes necessary to conform to the New South Wales Law Reform Commission’s style of publications.
 
Terms of reference
Participants
Reference publications
Submissions
Glossary
List of proposals
 
PREFACE
 
1. INTRODUCTION
1. PURPOSE OF DISCUSSION PAPER
2. ABBREVIATIONS
    (a) Legislation
    (b) Rules of Court
3. COMMENTS AND SUBMISSIONS
 
2. AUTHORITY TO ADMINISTER AN ESTATE
1. INTRODUCTION
2. PERSONAL REPRESENTATIVES
    (a) Probate
    (b) Letters of administration
      (i) General grants of letters of administration
      (ii) Limited grants of letters of administration
3. PURPOSE OF A GRANT
4. APPLICATION FOR A GRANT
    (a) Grants in “common form”
    (b) Grants in “solemn form”
5. DEFINITIONS
    (a) Personal representative
      (i) Introduction
      (ii) Issues considered by the National Committee
      (iii) The National Committee’s preliminary view
    (b) Administration
      (i) Introduction
      (ii) Issue considered by the National Committee
      (iii) The National Committee’s preliminary view
 
3. JURISDICTION OF COURT
1. SCOPE OF STATUTORY JURISDICTION
    (a) Introduction
    (b) Queensland
    (c) Issue considered by the National Committee
    (d) The National Committee’s preliminary view
    (e) Issues for discussion
2. ISSUES ARISING FROM CONFERRAL OF GENERAL JURISDICTION
    (a) Introduction
    (b) Particular types of grants of letters of administration
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (c) Administration granted to guardian of minor executor
      (i) Introduction
      (ii) Issue considered by the National Committee
      (iii) The National Committee’s preliminary view
 
4. JURISDICTION TO GRANT PROBATE OR ADMINISTRATION WHERE DEATH PRESUMED
1. INTRODUCTION
2. NEW SOUTH WALES
3. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
4. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
 
5. APPOINTMENT, REMOVAL AND DELAY IN APPOINTMENT OF PERSONAL REPRESENTATIVE
1. INTRODUCTION
2. POWER TO APPOINT ADMINISTRATOR
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
      (i) An express power to appoint an administrator
      (ii) Passing over a named executor
3. APPOINTMENT OF PUBLIC TRUSTEE TO ADMINISTER WITHOUT STRICT PROOF OF DEATH
    (a) Issue considered by the National Committee
    (b) The National Committee’s preliminary view
4. THE COURT’S DISCRETION IN GRANTING LETTERS OF ADMINISTRATION
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
5. THE CONVENTIONAL RANKING OF APPLICANTS FOR LETTERS OF ADMINISTRATION
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
6. CAVEATS
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
 
6. TRANSMISSION OF EXECUTORSHIP AND ADMINISTRATION
1. INTRODUCTION
2. EXECUTOR OF EXECUTOR
    (a) Arguments for and against retention of the doctrine
      (i) Retention of the doctrine
      (ii) Abolition of the doctrine
    (b) Retention of the doctrine, but with provision for beneficiary to object
    (c) Renouncing the executorship by representation
    (d) Issues considered by the National Committee
    (e) The National Committee’s preliminary view
3. ADMINISTRATOR BY REPRESENTATION
    (a) Issues considered by the National Committee
    (b) The National Committee’s preliminary view
     
7. CESSATION OF RIGHT TO PROVE WILL AND REVOCATION OF GRANT
1. INTRODUCTION
2. CESSATION OF RIGHT OF EXECUTOR TO PROVE WILL
    (a) Issue considered by the National Committee
    (b) The National Committee’s preliminary view
3. WITHDRAWAL OF RENUNCIATION OF PROBATE
    (a) Issues considered by the National Committee
    (b) The National Committee’s preliminary view
4. REVOCATION OF GRANT BY COURT
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
 
8. PERSONAL REPRESENTATIVES
1. INTRODUCTION
2. ASSIMILATION OF THE ROLES OF EXECUTOR AND ADMINISTRATOR
    (a) Assimilation of powers
      (i) Queensland
      (ii) Issue considered by the National Committee
      (iii) The National Committee’s preliminary view
    (b) Assimilation of rights and liabilities
      (i) Queensland
      (ii) Issue considered by the National Committee
      (iii) The National Committee’s preliminary view
3. DUTIES OF PERSONAL REPRESENTATIVES
    (a) Introduction
    (b) Specific duties
      (i) Duty to pay interest upon general legacies
      (ii) Duty to provide inventory and to pass accounts
      (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
      (iv) Duty to inquire about ex-nuptial children
    (c) Expression of duties in a single statutory provision
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (d) The principle of the executor’s year not affected
      (i) Issues considered by the National Committee
      (ii) The National Committee’s preliminary view
    (e) Liability of personal representative for breach of duty
      (i) Neglect of duty
      (ii) Liability for waste
      (iii) Neglect or refusal to transfer or convey land or hand over legacies or bequests
4. THE POWERS OF PERSONAL REPRESENTATIVES
    (a) Power to maintain spouse and issue
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (b) Power of delegation before grant to Public Trustee or trustee company
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (c) Relation back of powers given on grant
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (d) Personal representatives must exercise powers jointly
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (e) Commission
      (i) Queensland
      (ii) New South Wales
      (iii) South Australia
      (iv) Issues considered by the National Committee
      (v) The National Committee’s preliminary view
    (f) Obtaining the advice or direction of the court
      (i) Case law
      (ii) Authority to commence administration action
      (iii) Trustee legislation
      (iv) Administration and probate legislation
      (v) Issues considered by the National Committee
      (vi) The National Committee’s preliminary view
    (g) Assent by personal representative
      (i) Issues considered by the National Committee
      (ii) The National Committee’s preliminary view
    (h) Executor may sign acknowledgment in lieu of conveyance
      (i) Issues considered by the National Committee
      (ii) The National Committee’s preliminary view
    (i) Professional charges
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (j) Additional powers
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (k) Relinquishing grant
      (i) Issues considered by the National Committee
      (ii) The National Committee’s preliminary view
5. LIMITS TO EXERCISE OF POWERS OF PERSONAL REPRESENTATIVE ONCE A GRANT IS MADE
    (a) Introduction
    (b) Relationship between sections 49 and 54
    (c) Issues considered by the National Committee
6. PERSONAL REPRESENTATIVES AS TRUSTEES
    (a) Introduction
    (b) Relationship between personal representativesand trustees
    (c) Appropriation of estate to beneficiaries by personal representative
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (d) Power to appoint trustees of minor’s property
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (e) Court may order sale of minor’s property
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (f) Investment of minor’s property
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (g) Court may authorise payments for maintenance of minors
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (h) Application of income of settled residuary real or personal estate
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (i) Public Trustees to be able to remit assets to public trustees outside the jurisdiction, and to receive assets remitted to them
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (j) Retiring as trustee
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
7. THE NUMBER OF PERSONAL REPRESENTATIVES
    (a) Limiting the number of personal representatives to whom a grant can be made
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
    (b) Number of personal representatives where minority interest
      (i) Issue considered by the National Committee
      (ii) The National Committee’s preliminary view
8. LIABILITY OF ATTORNEY OF PERSONAL REPRESENTATIVE
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
9. GRANTS TO PUBLIC TRUSTEES IN OTHER JURISDICTIONS
    (a) Introduction
    (b) Issues considered by the National Committee
    (c) The National Committee’s preliminary view
     
9. ADMINISTERING AN ESTATE PURSUANT TO A GRANT
1. PERSONS WITH AN INTEREST IN THE ADMINISTRATION OF AN ESTATE
    (a) Beneficiaries
    (b) Creditors
    (c) Family provision claimants
    (d) Personal representatives
2. BALANCING THE VARIOUS INTERESTS
3. INVENTORIES
    (a) Nature and function of an inventory
    (b) Current statutory requirements for an inventory
    (c) Issue considered by the National Committee
    (d) The National Committee’s preliminary view
4. ADMINISTRATION BONDS AND SURETIES
    (a) Introduction
    (b) Present requirements for administration bonds and sureties
    (c) Arguments in favour of abolishing administration bonds and sureties
      (i) Only administrators affected
      (ii) Expense
      (iii) Infrequency of recourse to the surety
      (iv) Imposition of liability on the innocent
    (d) Issues considered by the National Committee
    (e) The National Committee’s preliminary view
5. THE PASSING OF ACCOUNTS
    (a) Introduction
6. PROTECTION OF PERSONAL REPRESENTATIVE IN RESPECT OF ACTS DONE PURSUANT TO A GRANT
    (a) Protection afforded to a personal representative in the event of subsequent revocation of the grant
    (b) Notices of intended distribution
    (c) Barring of claims
    (d) Issues considered by the National Committee
    (e) The National Committee’s preliminary view
 
10. ADMINISTERING AN ESTATE WITHOUT A GRANT
1. INTRODUCTION
2. EXECUTOR DE SON TORT
3. POTENTIAL LIABILITY OF A PERSON ADMINISTERING AN ESTATE WITHOUT A GRANT
4. RECOGNITION OF PERSONS ADMINISTERING AN ESTATE WITHOUT A GRANT
    (a) Introduction
    (b) Terminology
    (c) Arguments in favour of administering an estate without a grant
    (d) Arguments against administering an estate without a grant
      (i) Lack of scrutiny by the court
      (ii) Prejudice to potential family provision applicants
    (e) Issues considered by the National Committee
    (f) The National Committee’s preliminary views
      (i) Protection afforded by section 54(1) of the Succession Act 1981 (Qld)
      (ii) Additional protection
5. RENUNCIATION OF EXECUTORSHIP
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
6. RATIFICATION OF ACTS DONE WITHOUT A GRANT
    (a) Introduction
    (b) The National Committee’s preliminary view
7. REAL PROPERTY
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
8. PAYMENTS BY THIRD PARTIES WITHOUT PRODUCTION OF GRANT
    (a) Introduction
    (b) Payments by employers
    (c) Other payments
    (d) The National Committee’s preliminary view
     
11. STATUTORY PROVISIONS ENABLING ADMINISTRATIONS OF AN ESTATE WITHOUT A GRANT
1. INTRODUCTION
2. ELECTION TO ADMINISTER AN ESTATE WITHOUT A GRANT
    (a) Queensland
    (b) Other jurisdictions
    (c) Issue considered by the National Committee
    (d) The National Committee’s preliminary view
3. ADMINISTRATION OF SMALL ESTATES OTHER THAN BY ELECTION OR BY GRANT
    (a) Introduction
4. ADMINISTRATION OF ESTATES PENDING GRANT
 
12. VESTING OF PROPERTY
1. INTRODUCTION
2. DEVOLUTION OF PROPERTY ON DEATH
3. SUMMARY OF AUSTRALIAN JURISDICTIONS
4. QUEENSLAND: FULL VESTING IN EXECUTOR/PUBLIC TRUSTEE ON DEATH IN TESTATE ESTATES; PUBLIC TRUSTEE IN INTESTATE ESTATES
5. NEW SOUTH WALES, THE AUSTRALIAN CAPITAL TERRITORY, THE NORTHERN TERRITORY AND WESTERN AUSTRALIA: FULL VESTING IN THE PUBLIC TRUSTEE
6. VICTORIA, SOUTH AUSTRALIA AND TASMANIA: LIMITED VESTING IN THE PUBLIC TRUSTEE
7. NEW SOUTH WALES: VESTING OF PROPERTY THE SUBJECT OF A GENERAL POWER OF APPOINTMENT
8. STATUTORY EXECUTORSHIP AND VESTING IN THE CASE OF INTESTACY
9. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
10. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
 
13. PARTITION OF PROPERTY IN THE ESTATE
1. INTRODUCTION
2. ISSUE CONSIDERED BY THE NATIONAL COMMITTEE
3. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
 
14. SURVIVAL OF ACTIONS
1. INTRODUCTION
2. QUEENSLAND
3. OTHER JURISDICTIONS
4. ACTIONS AGAINST BENEFICIARIES
5. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
6. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
 
15. ADMINISTRATION OF ASSETS
1. INTRODUCTION
2. AGREED PRINCIPLES
3. DECEASED’S PROPERTY IS ASSETS FOR THE PAYMENT OF DEBTS
    (a) Queensland provision
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
4. PAYMENT OF DEBTS IN THE CASE OF INSOLVENT ESTATES
    (a) Introduction
    (b) Administration under Part 11 of the Bankruptcy Act 1966 (Cth)
    (c) Administration under State or Territory law
    (d) Issues considered by the National Committee
    (e) The National Committee’s preliminary view
5. RETAINER, PREFERENCE AND THE PAYMENT OF DEBTS BY THE PERSONAL REPRESENTATIVE
    (a) The right of retainer
    (b) The right to prefer creditors
    (c) Abolition of the rights of retainer and preference
    (d) Safeguards for personal representatives
    (e) Issues considered by the National Committee
    (f) The National Committee’s preliminary view
6. PAYMENT OF DEBTS IN THE CASE OF SOLVENT ESTATES
    (a) Introduction
    (b) The historical development of classes of assets
    (c) Development of classes – statutory lists
      (i) English statutory list
      (ii) Victorian statutory list
      (iii) Queensland
    (d) Criticisms of the existing statutory classes
      (i) Mixing of questions of law and fact
      (ii) Assumptions about the testator’s intention
      (iii) The preference given to residuary dispositions over property not disposed of by will
      (iv) Issues considered by the National Committee
      (v) The National Committee’s preliminary view
    (e) A new approach
      (i) Issues considered by the National Committee
      (ii) The National Committee’s preliminary view
    (f) Associated issues
      (i) Donationes mortis causa
      (ii) Rateability
      (iii) Property the subject of a general power of appointment
      (iv) Contrary intention
      (v) The need to refer to property given on trust to pay debts
      and property given charged with the payment of debts
7. PAYMENT OF LEGACIES
    (a) Types of legacies
    (b) General legacies
    (c) Pecuniary legacies
      (i) What is a pecuniary legacy?
      (ii) Payment of pecuniary legacies
    (d) Demonstrative legacies
      (i) Advantages of a demonstrative legacy
      (ii) Application of the principle of rateability to a secured
      demonstrative legacy
    (e) Issues considered by the National Committee
    (f) The National Committee’s preliminary view
      (i) The payment of legacies
      (ii) Expression of a contrary intention
      (iii) Application of the principle of rateability to a secured demonstrative legacy
8. PAYMENT OF DEBTS ON PROPERTY MORTGAGED OR CHARGED
    (a) Introduction
    (b) Contrary intention
    (c) A possible modification to Locke King’s rule
    (d) Arguments against modifying Locke King’s rule
    (e) Issues considered by the National Committee
    (f) The National Committee’s preliminary view
     
16. RIGHT TO FOLLOW ASSETS
1. INTRODUCTION
2. RIGHT TO FOLLOW ASSETS
3. PROCEEDING AGAINST TRUSTEES AND PERSONAL REPRESENTATIVES BEFORE OTHER BENEFICIARIES
4. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
5. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
 
17. ESTABLISHING DEATH AND THE ORDER OF DEATHS
1. INTRODUCTION
2. PROOF AND PRESUMPTION OF DEATH
    (a) Introduction
    (b) Missing beneficiary
    (c) Missing testator or intestate
    (d) An alternative approach to the presumption of death
3. SURVIVORSHIP
    (a) Introduction
    (b) The statutory presumption of survivorship according to seniority
    (c) Negative results of the statutory presumption based on seniority
    (d) Application of the statutory presumption to presumed deaths
    (e) Alternative statutory schemes for the distribution of estates
      (i) Spouses – distribution of estates separately
      (ii) General provision – two or more persons dying, property to devolve as if each testator/intestate survived the other person for a time
      (iii) General provisions – beneficiary not surviving testator/intestate for 30 days, property to devolve as if beneficiary died before testator/intestate
      (iv) Property held under joint tenancy – to devolve as if held by tenants in common
    (f) The devolution of property in specific situations
      (i) The devolution of property the subject of gift made in anticipation of death
      (ii) The devolution of proceeds of insurance
      (iii) Devolution of property that is left to the survivor of a class of persons
      (iv) Devolution of the right to exercise a power of appointment where the power is conferred on the survivor of a class of persons
      (v) Antilapse
4. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
5. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
    (a) Fixing the date of presumed deaths
    (b) Survival period of 30 days
    (c) Thirty day survivorship rule and Benjamin orders
    (d) Presumption of death based on seniority
    (e) Presumed deaths and actual deaths
    (f) The devolution of property where deceased persons held property jointly
    (g) The devolution of the proceeds of an insurance policy
    (h) The devolution of property that is left to the survivor of a class of persons
    (i) The devolution of a power of appointment that is conferred on the survivor of a class of persons
    (j) Antilapse
     
18. PROCEDURAL MATTERS
1. APPLICATION FOR PROBATE OR ADMINISTRATION TO BE MADE IN ACCORDANCE WITH THE RULES
    (a) Introduction
    (b) Issues considered by the National Committee
    (c) The National Committee’s preliminary view
2. PRACTICE
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
3. SERVICE
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
4. DEEMED RESIDENCE
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
5. COURT TO MAKE FINDING WITH RESPECT TO DOMICILE OF DECEASED PERSON
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
6. THE REGISTRAR
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
7. CREATION OF OFFICE OF REGISTRAR OF PROBATE, DEPUTY REGISTRARS OF PROBATE AND REGISTRAR’S SEAL AND STAMPS
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
8. RECORD OF GRANT
    (a) Introduction
    (b) Issue considered by the National Committee
    (c) The National Committee’s preliminary view
     
19. DEALING WITH WILLS
1. INTRODUCTION
2. WHO MAY SEE A WILL
3. CONCEALMENT OF A WILL
4. FRAUDULENTLY DEALING WITH A WILL AND STATUTORY CAUSE OF ACTION
5. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE
6. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW
 
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