INTRODUCTION
2.1 Under Australian law a deceased person does not continue to possess a legal personality.1 Therefore, when a person dies, someone has to be appointed to deal with the person’s assets.
The person appointed is a “personal representative”2 who is either:
- an executor, appointed by the deceased’s will; or
- an administrator, appointed by a court where the deceased did not leave a will or did not name an executor.
2.2 A court may need to grant an executor probate to give him or her full power to deal with the estate.3 An administrator, being appointed by the court, cannot act until the court makes a grant of letters of administration.4
2.3 Many people die leaving assets not only in the State or Territory in which they have their permanent home, but also in other States and Territories, or other countries. Some people also die leaving claims by or against them in litigation, actual or potential, in other jurisdictions.
2.4 Even if a personal representative has authority to deal with the estate in which the deceased died domiciled, that authority does not by itself allow the personal representative to deal with the estate or otherwise act as personal representative, for example in litigation, elsewhere.5
2.5 Indeed, a person, including a foreign executor, who fails to take out a local grant of probate or letters of administration and intermeddles with the estate in another jurisdiction may become liable to suit in that jurisdiction as an “executor de son tort” (executor of his own wrong). This situation applies equally between Australian States and Territories as it does between Australian and overseas jurisdictions.6
RESEALING
2.6 Each Australian State and Territory has introduced provisions under which a grant made elsewhere – either in another Australian jurisdiction or overseas – can be “resealed” in the jurisdiction in question.7 Resealing – that is, certification by a competent probate authority – overcomes the need for an executor or administrator to obtain a fresh grant of probate or letters of administration in every jurisdiction in which the deceased left assets and is simpler than obtaining an original grant because it does not involve the investigation of the title of the grantee.8 Each statute provides that a grant of probate or letters of administration, once resealed, is as effective as if the original grant had been obtained in that jurisdiction.9
Statistics on resealing
2.7 In 2000 566 reseals were made in Australian jurisdictions, compared with 51,757 original grants of probate. The number of reseals represents a substantial drop from the figure of around 1,000 in 1978-1980.10
2.8 The proportion of resealing applications that relate to overseas grants of probate in 2000 ranges from nil in the Northern Territory to 75% in New South Wales.
The cost of resealing
2.9 Making an application for the resealing of a grant of probate or letters of administration involves the payment of court filing fees. These fees, which vary quite considerably, are set out in the following table:
Fees payable for filing an application for the resealing of a grant
| JURISDICTION | FEES |
| Australian Capital Territory11 | All estates | $547 |
| New South Wales12 | Gross value of estate: |  |
| less than $50,000 | Nil |
| $50,000 to less than $250,000 | $495 |
| $250,000 to less than $500,000 | $624 |
| $500,000 to less than $1,000,000 | $938 |
| $1,000,000 and above | $1,250 |
| Northern Territory13 | All estates | $300 |
| Queensland14 | All estates | $220 |
| South Australia15 | All estates | $503 |
| Tasmania16 | Gross value of estate: | |
| less than $20,000 | $25 |
| $20,000 to less than $50,000 | $50.50 |
| $50,000 and above | $116 |
| Victoria17 | Gross value of estate: | |
| $10,000 to less than $100,000 | $250 |
| $100,000 and above | $500 |
| Western Australia18 | Value of estate: | |
| Less than $10,000 | $125 |
| $10,000 to less than $100,000 | $250 |
| $100,000 and above | $500 |
2.10 The cost of resealing is not limited to these court fees. Estates may also have to pay lawyers’ fees if a personal representative engages lawyers to act on behalf of the estate in the resealing jurisdiction and additional fees if the lawyers have to engage an agent in one of the capital cities. In addition, most Australian jurisdictions also require an applicant for resealing to publish a notice advising of his or her intention to apply for resealing, thus incurring further costs.
The need for resealing
2.11 A fundamental question is whether resealing remains the best way of dealing with the problem of estates that have assets in several Australian jurisdictions.
2.12 Given that it is common for Australians to move from one State or Territory to another and acquire property in various different places and given there is substantial uniformity between the laws of succession in each State and Territory, it seems unnecessary that, in order to administer an estate with property in several jurisdictions within Australia, a personal representative should have to seek fresh authority to carry out his or her responsibilities in each different jurisdiction.
The need for uniformity in relation to resealing
2.13 Even if resealing is to be retained for Australian grants the present legislation governing resealing is in need of reform. The procedure for resealing, and the applicable rules, differ quite considerably from one jurisdiction to another. There are also considerable variations as to the countries whose grants may be resealed, and the jurisdictional requirements. If the rules and procedures could be made uniform, it would simplify the task of a personal representative who was administering an estate that had assets located in several jurisdictions.
Footnotes
1. See O Wood and N C Hutley, Hutley, Woodman and Wood: Cases and Materials on Succession (3rd ed, 1984) at 1. Even though this might be the case under the law of the deceased’s domicile: Banque Internationale de Commerce de Petrograd v Goukassow [1923] 2 KB 682 at 691 (Scrutton LJ).
2. The role of the personal representative is to collect the assets of the deceased, pay the debts and distribute the remainder of the estate to those entitled under the deceased’s will or according to the rules of intestacy. See Administration of Estates Discussion Paper (1999).
3. See N Crago, “Executors of Unproved Wills: Status and Devolution of Title in Australia” (1993) 23 University of Western Australia Law Review 235.
4. Where the deceased left a will but named no executor, the court makes a grant of administration cum testamento annexo, that is, with the will annexed.
5. See, for example, Blackwood v The Queen (1882) 8 App Cas 82 at 92; Arnot v Chapman (1884) 5 LR (NSW) Eq 66; The New York Breweries Company, Limited v The Attorney-General [1899] AC 62; Re Fitzpatrick [1952] Ch 86; Re Ricketson (1917) 17 SR (NSW) 233; Whyte v Rose (1842) 3 QB 493 at 507 (Tindal CJ), 114 ER 596 at 602; Electronic Industries Imports Pty Ltd v Public Curator of the State of Queensland [1960] VR 10; Boyd v Leslie [1964] VR 728; Cash v The Nominal Defendant (1969) 90 WN (Pt I) (NSW) 77 at 78-79; Degazon v Barclays Bank International Ltd [1988] 1 FTLR 17; Re the Estate of Webb (SA, Supreme Court, No 1554 of 1990, Mohr J, 2 August 1991, unreported).
6. See Pedersen v Young (1964) 110 CLR 162 at 170 (Windeyer J).
7. Administration and Probate Act 1929 (ACT) s 80-83; Wills, Probate and Administration Act 1898 (NSW) s 107-110; Administration and Probate Act (NT) s 111-114; British Probates Act 1898 (Qld); Administration and Probate Act 1919 (SA) s 17-20; Administration and Probate Act 1935 (Tas) s 47A-53; Administration and Probate Act 1958 (Vic) s 80-88; Administration Act 1903 (WA) s 61-62.
8. See S Cretney, “Administration of Estates Act 1971” (1971) 115 Solicitors Journal 762 at 763.
9. Administration and Probate Act 1929 (ACT) s 80(2); Wills, Probate and Administration Act 1898 (NSW) s 107(2); Administration and Probate Act (NT) s 111(4); British Probates Act 1898 (Qld) s 4(1); Administration and Probate Act 1919 (SA) s 17; Administration and Probate Act 1935 (Tas) s 48(2); Administration and Probate Act 1958 (Vic) s 81(2); Administration Act 1903 (WA) s 61(2).
10. The drop in numbers is most likely the result of the abolition of succession duty by the States, the Northern Territory and the Commonwealth between 1977 and 1984.
11. Supreme Court Act 1933 (ACT) s 37(1), Combined Determination of Fees and Explanatory Memorandum, No 105 of 2001, Sch 3, Item 203.
12. Supreme Court Regulation 2000 (NSW) cl 4, Sch 1, Item 1(3).
13. Supreme Court Regulations (NT) reg 4, Sch, Item 1 (Fees payable for all other proceedings in the Supreme Court). In addition, a $4 file search fee is imposed.
14. Uniform Civil Procedure (Fees) Regulation 1999 (Qld) s 3(1), Sch 1, Item 1(b).
15. Supreme Court (Probate Fees) Regulations 1999 (SA) reg 5(1), Sch, Item 1(b).
16. Tasmanian Government Gazette, 15 June 1999 at 660 (notification made under s 8(1) of the Fees Units Act 1997 (Tas)).
17. Supreme Court (Fees) Regulations 2001 (Vic) reg 6, Sch 2, Item 2.1.
18. Supreme Court (Fees) Regulations 2002 (WA) reg 4, Sch 3, Item 1.
