• The National Committee on Uniform Succession Laws
• This review
• Previous proposals: the WALRC Report
• Outline of Issues Paper

THE NATIONAL COMMITTEE ON UNIFORM SUCCESSION LAWS

1.1 In 1991 the Standing Committee of Attorneys General (SCAG) approved the development of uniform succession laws for the whole of Australia. In 1995 a National Committee on Uniform Succession Laws was established to review the existing state laws relating to succession and to propose model national uniform laws. The Committee comprises representatives from the various jurisdictions in Australia and the Queensland Law Reform Commission (QLRC) is the co-ordinating agency. The New South Wales Attorney General asked the New South Wales Law Reform Commission (NSWLRC) to participate in the deliberations of the National Committee under terms of reference that were issued on 5 May 1995:

To inquire into and report on the existing law and procedure relating to succession and to recommend and draft a model State and Territories law on succession.

• the law of wills;¹
• family provision (or Testator’s family maintenance);²
• administration of estates of deceased persons;³ and
• intestate estates.⁴

1.3 This Issues Paper, on the recognition of interstate and foreign grants of probate and letters of administration, is part of the review of the administration of estates of deceased persons and is a brief summary of the issues raised in the Discussion Paper produced by the Queensland Law Reform Commission.⁵

1.4 This Issues Paper raises, and invites comments on, a number of issues in relation to the recognition of interstate and foreign grants of probate and letters of administration. The preliminary views expressed in this Issues Paper have been suggested by Associate Professor Handford. The views are not necessarily those of the National Committee which is yet to adopt a position in relation to the issues discussed. The National Committee invites members of the public and organisations with an interest or expertise in the issues under review to comment on the issues raised or any other issues that should be addressed.

PREVIOUS PROPOSALS: THE WALRC REPORT

1.5 The National Committee has decided to use, as the starting point for its consideration of the issues, the recommendations made by the Western Australian Law Reform Commission (WALRC) in its 1984 Report on the subject.⁶ The Western Australian Law Reform Commission had undertaken its work with a view to proposing uniform legislation throughout Australia. The Report recommended that there should be a uniform code of procedure for the resealing of grants, and it set out the general principles that should be incorporated in such a code. It also recommended that a grant made by the court of the Australian State or Territory in which the deceased was domiciled at the time of his or her death should be automatically recognised, without any need for resealing, in each other Australian State and Territory.

1.6 The WALRC Report was tabled at a SCAG meeting in 1985. A number of SCAG Officers’ Papers were subsequently prepared and a Committee of Parliamentary Counsel commenced drafting a uniform code of procedure as recommended by the WALRC. During this process the WALRC proposals were not followed and it was then proposed that all grants of probate and letters of administration made in any Australian State or Territory (rather than a grant issued in the jurisdiction in which the deceased died domiciled) should receive automatic recognition throughout Australia.⁷ At a conference of Probate Registrars held in May 1990, the Probate Registrars rejected the revised scheme as completely unacceptable, and expressed a clear preference for the original WALRC scheme.⁸ The matter was subsequently removed from the SCAG agenda, and no further steps have been taken to implement the recommendations of the WALRC.

OUTLINE OF ISSUES PAPER

1.7 The chapters in this Issues Paper mirror those set out in the National Committee’s Discussion Paper. Readers should consult the Discussion Paper for further details on the issues raised in each chapter.

Automatic recognition

1.8 The first part of this Issues Paper deals with the question of automatic recognition:

• Chapter 2 outlines the present system of resealing;
• Chapter 3 examines some possible alternatives to resealing; and
• Chapter 4 suggests a scheme of automatic recognition.

1.9 The second part of this Issues Paper deals with the question of resealing which may still be necessary at least with respect to some Australian grants and all foreign grants:

• Chapter 5 sets out provisional proposals for a uniform resealing procedure; and
• Chapter 6 outlines proposals for a uniform approach to the question of the countries whose grants should be able to be resealed.

1.10 Finally, this Issues Paper addresses a number of issues that raise a question of conflict of laws:

• Chapter 7 discusses proposals for uniform rules to determine whether a court has jurisdiction to make or reseal a grant;
• Chapter 8 examines proposals for the reform of the choice of law rules dealing with the appointment of personal representatives; and
• Chapter 9 examines the existing statutory restrictions that apply in some Australian jurisdictions if the grant that is sought to be resealed has been issued from a jurisdiction in which the deceased was not domiciled immediately prior to his or her death.

1. See NSWLRC, Uniform Succession Laws: The Law of Wills (Issues Paper 10, 1996); NSWLRC, Uniform Succession Laws: The Law of Wills (Report 85, 1998).

2. See NSWLRC, Uniform Succession Laws: Family Provision (Issues Paper 11, 1996); National Committee on Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (QLRC, Miscellaneous Paper 28, 1997).

3. See NSWLRC, Uniform Succession Laws: Administration of Estates of Deceased Persons (Discussion Paper 42, 1999).

4. Work has not yet commenced on this stage.

5. QLRC, Uniform Succession Laws: Recognition of Interstate and Foreign Grants of Probate and Letters of Administration (Discussion Paper WP 55, 2001).

6. WALRC, Report on Recognition of Interstate and Foreign Grants of Probate and Administration (Project 34 Part 4, 1984). See also WALRC, Working Paper on Recognition of Interstate and Foreign Grants of Probate and Letters of Administration (Project 34 Part 4, 1980).

7. Report of the Conference of Probate Registrars (1990) at 13-14, referring to para 4 and 5 of the Report of the Parliamentary Counsel’s Committee (6 September 1989).