3.1 An alternative to a system of resealing is to have a system of automatic recognition whereby a grant of representation made in one part of Australia is automatically recognised throughout the whole of Australia. This would overcome jurisdictional problems of personal representatives having to seek fresh authority to carry out responsibilities in each jurisdiction.
3.2 This chapter examines overseas automatic recognition schemes. It also examines existing legislation in Australia under which, in certain limited circumstances, grants can be recognised in other jurisdictions without resealing, as well as previous Australian proposals for automatic recognition.
DOMICILE
3.3 The concept of domicile is key to an understanding of the discussion of resealing in this and the following chapters. A person’s domicile operates as a connecting factor between that person and a particular legal system. Every person has a domicile at every stage of his or her life and no person may have more than one domicile for the same purpose.1 In Australia, the question of a person’s domicile is determined in each State and Territory by Domicile Acts.2 These Acts are in virtually identical terms and modify the common law of domicile in a number of important respects.3
3.4 There are three types of domicile:
- domicile of origin, which each person has at birth, by force of law;
- domicile of dependence, which is the domicile of a person, such as a child, whose domicile is determined by reference to the domicile of another person, such as a parent; and
- domicile of choice, which is the domicile acquired by a person with capacity “as the result of a voluntary choice of a new place of residence”.4
3.5 The domicile that a person has at any given time continues until the person acquires a different domicile.5 Under the Domicile Acts, a person is capable of having an independent domicile – that is, of acquiring a domicile of choice – if the person has attained the age of 18 years or is, or has at any time been, married.6
3.6 To acquire a domicile of choice, a person must have, at the same time, both a lawful physical presence in a country7 and an actual intention to make his or her home indefinitely in that country.8
OVERSEAS SCHEMES
Automatic recognition in the United Kingdom
3.7 The United Kingdom introduced a system of automatic recognition thirty years ago. The Administration of Estates Act 1971 (UK) provides that, where a person dies domiciled in England and Wales, a grant of probate of the will or letters of administration of the estate (or any part of it) made by the High Court in England and Wales noting the deceased’s domicile there shall, without being resealed, be treated, for the purposes of the law of Northern Ireland, as if it had originally been made by the High Court in Northern Ireland,9 and for the purposes of the law of Scotland, as if it were a confirmation10 made by the appropriate officer of the Scottish courts.11 There are similar provisions dealing with the automatic recognition of Northern Irish grants12 and Scottish confirmations.13
3.8 Since 1971, it has not been possible to apply in one part of the United Kingdom for the resealing of a grant made in another part of the United Kingdom;14 instead, there is now a system of issuing limited grants. If no grant has been made in the place of domicile, an application may be made for an original grant in any other part of the United Kingdom. The grant so made will be specifically limited to the deceased’s estate in the place of grant, and further limited to operate only until a grant is made in the place of domicile.15 This prevents the making of multiple grants. In normal circumstances, a person applying for a grant must state where the deceased died domiciled16 and this domicile will then be noted on the grant.17
3.9 It has been suggested that the 1971 Act is a measure of considerable importance in that it saves work for solicitors and the staff of probate registries and saves the expense involved in obtaining grants of administration.18 The Principal Registry of the Family Division of the English High Court of Justice has advised the National Committee that no reports of any difficulties with the operation of the legislation have been drawn to the attention of the Probate Registry.19
The position in the United States of America
3.10 In the United States an alternative to resealing has been developed whereby a personal representative does not have to take separate court proceedings where a deceased person has left assets in two or more states. These and other procedural sections of the Uniform Probate Code have now been adopted in 26 states.20
3.11 A personal representative appointed by the court of the deceased’s domicile may collect debts and personal property in another state without initiating separate court proceedings, provided the necessary affidavit evidence is given to the debtor or holder of the property in support of the personal representative’s claim. The affidavit is required to set out the date of death, the fact that no local administration has been commenced, and that the personal representative is entitled to payment or delivery. However, this provision does not apply to real property, which must be dealt with by a personal representative who has been authorised to act by a grant issued in the state in which the property is situated.21
3.12 A personal representative appointed by the court of the deceased’s domicile may also, upon filing authenticated copies of his or her appointment and of any official bond that he or she has given, exercise all the powers of a local personal representative and maintain actions and proceedings.22
The Hague Convention
3.13 The 1973 Hague Convention Concerning the International Administration of the Estates of Deceased Persons (“Hague Convention”) resulted from the Twelfth Session of the Hague Conference of Private International Law in 1972. The Hague Convention is in force in only three countries – the Czech Republic, Portugal and Slovakia. Australia is not a party.
3.14 The Hague Convention provides for Contracting States to issue a certificate, which may be recognised by other Contracting States, designating the person or persons entitled to administer the movable estate of a deceased person and indicating the powers of the certificate holder.23
3.15 The certificate may be issued only by the competent authority in the State in which the deceased had his or her habitual residence.24 Generally, the internal law of that State will be applied to determine who should be designated as the holder of the certificate and the powers that should be exercisable by that person, although, in certain circumstances, these issues will be determined according to the internal law of the State of which the deceased was a national.25 Recognition of the certificate in another Contracting State is not necessarily automatic. A Contracting State may establish “an expeditious procedure” for determining the recognition of certificates issued by other Contracting States,26 and the Hague Convention specifies a number of grounds on which one Contracting State may refuse to recognise a certificate issued by another Contracting State.27
3.16 The Hague Convention also includes provisions in relation to the immovable property of a deceased person. If the law that governs the issuing of the certificate gives the holder of the certificate powers over immovable property situated in another State, the issuing authority must indicate the existence of those powers in the certificate. Other Contracting States may recognise these powers in whole or in part, and must indicate the extent to which they do so.28
3.17 The Hague Convention principally deals with the needs of civil law heirs seeking authority in common law countries, it has attracted little support and appears to involve complex requirements.29 The WALRC concluded that the Hague Convention was not “suitable for adoption as between Australian States and Territories, or between Australia and other common law countries”.30
EXISTING COMMONWEALTH LEGISLATION
3.18 Under existing legislative provisions, it is unnecessary to reseal a grant of probate or letters of administration made in one Australian State or Territory in order to administer an asset situated in another Australian State or Territory, if the asset consists of:
- a share, debenture or interest in a company to which section 1091 of the Corporations Act 2001 (Cth) applies;31 or
- an amount below a statutory limit payable under a life insurance policy.32
These provisions reduce the cost, delay and inconvenience involved in resealing. It has been suggested that without provisions of this kind the number of applications for resealing would be substantially greater.33
3.19 Section 1091(7) of the Corporations Act 2001 (Cth) would appear to apply not only to a person who is a personal representative under the law of another Australian State or Territory, but also to a person who is a personal representative under the law of another country.
EARLIER AUSTRALIAN PROPOSALS
The Barwick proposals
3.20 In the early 1960’s the Commonwealth Attorney General, Sir Garfield Barwick, put forward preliminary guidelines to the Law Council of Australia for a scheme under which a grant of probate or administration made in one Australian jurisdiction would be automatically recognised throughout Australia. 34 It was proposed that:
… when an application was made either for an original grant or for resealing in an Australian State or Territory, and the applicant sought recognition of the grant or reseal in another State or Territory, he should request such recognition in making his original application for the grant or resealing. The Registrar would then file copies of such request in the courts where recognition was sought and would notify such courts of any further orders made in relation thereto. Upon receipt, the request would be sealed by the recognising court and one copy would be retained in the recognising court’s registry.35
3.21 Draft legislation was then prepared in Victoria under the direction of the Standing Committee of Attorneys General.36 However, the draft legislation departed from the Attorney General’s proposal in suggesting not recognition but a simplified resealing of grants made by Australian courts.37 No uniform legislation was enacted as a result of the proposal.38
WALRC proposals
3.22 The WALRC in its 1984 Report recommended the adoption of a scheme of automatic recognition similar to that in operation in the United Kingdom. The details of this scheme are outlined in the next chapter.
Footnotes
1. P E Nygh, Conflict of Laws in Australia (6th ed, 1995) at 200.
2. See Domicile Act 1982 (Cth) (which applies to the Australian Capital Territory, the Jervis Bay Territory and declared external territories); Domicile Act 1979 (NSW); Domicile Act (NT); Domicile Act 1981 (Qld); Domicile Act 1980 (SA); Domicile Act 1980 (Tas); Domicile Act 1978 (Vic); Domicile Act 1981 (WA).
3. P E Nygh, Conflict of Laws in Australia (6th ed, 1995) at 199.
4. P E Nygh, Conflict of Laws in Australia (6th ed, 1995) at 203.
5. Domicile Act 1982 (Cth) s 7.
6. Domicile Act 1982 (Cth) s 8.
7. Puttick v Attorney General [1980] Fam 1. See also Nygh at 207-208.
8. Domicile Act 1982 (Cth) s 10.
9. Administration of Estates Act 1971 (UK) s 2(1).
10. A confirmation is the Scottish equivalent of a grant of probate or letters of administration.
11. Administration of Estates Act 1971 (UK) s 3(1)(a).
12. Administration of Estates Act 1971 (UK) s 1(4), s 3(1)(b).
13. Administration of Estates Act 1971 (UK) s 1(1), s 2(2). Section 4 deals with evidence of grants.
14. Administration of Estates Act 1971 (UK) s 12 and Sch 7.
15. Practice Direction (Probate Grants: Sureties) [1971] 1 WLR 1790.
16. Non-Contentious Probate Rules 1987 (UK) r 8.
17. Administration of Estates Act 1971 (UK) s 1(1), (4), 2(1), (2), 3(1).
18. S Cretney, “Administration of Estates Act 1971” (1971) 115 Solicitors Journal 762.
19. Letter to Associate Professor Handford from Mr Clive Buckley of the Court Service Secretariat, Principal Registry of the Family Division, 13 May 1999.
20. By 1997, 25 states had adopted the procedural provisions of the Uniform Probate Code: see R A Stein, “Probate Reformation: The Impact of the Uniform Laws” (1997) 23 The Probate Lawyer 1 at 14, note 53. Maryland has recently become the 26th state: Letter to Associate Professor Handford from Professor J H Langbein, Chancellor Kent Professor of Law and Legal History, Yale University, a Uniform Law Commissioner from Connecticut and member of the Joint Editorial Board for the Uniform Probate Code, 14 May 1999.
21. Uniform Probate Code s 4-201.
22. Uniform Probate Code s 4-205.
23. Hague Convention Article 1.
24. Hague Convention Article 2.
25. Hague Convention Article 3.
26. Hague Convention Article 10.
27. Hague Convention Articles 13-17. Recognition may be refused in relation to all or only certain of the powers indicated in the certificate: Article 18.
28. Hague Convention Article 30.
29. WALRC Report (1984) at para 6.14.
30. WALRC Report (1984) at para 6.14.
31. In its 1984 Report, the WALRC raised the possibility of the automatic recognition of an Australian grant insofar as the property sought to be administered consisted of monies held on deposit in a bank, building society, credit union or other similar financial institution. This would be similar in effect to s 1091 of the Corporations Act 2001 (Cth).
32. Life Insurance Act 1995 (Cth) s 211-213.
33. WALRC Report (1984) at para 5.3.
34. See WALRC Report (1984) at para 6.1, 6.2.
35. WALRC Report (1984) at para 6.3. For a discussion of the reaction to these guidelines, see WALRC Report (1984) at para 6.4.
36. WALRC Report (1984) at para 6.5.
37. For a discussion of the reaction to the draft legislation, see WALRC Report (1984) at para 6.6.
38. WALRC Report (1984) at para 6.7.
