4.1 This chapter sets out the essential elements of the proposals in the WALRC’s 1984 Report. It also sets out details of an alternative scheme developed by the Parliamentary Counsel’s Committee when it was asked to prepare draft legislation on instructions from SCAG Officers. The revised scheme proposed by the Parliamentary Counsel’s Committee did not limit automatic recognition to grants made in the Australian State or Territory in which the deceased was domiciled at the time of death.
WALRC RECOMMENDATION
Automatic recognition of a grant made where the deceased died domiciled
4.2 The WALRC recommended that:
- the Australian States and Territories should enact uniform legislation so that a grant of probate or letters of administration made by the court of the Australian State or Territory in which the deceased died domiciled will be automatically recognised as effective in every other Australian State or Territory, without being resealed;1 and
- a grant of probate or letters of administration made by the court of an Australian State or Territory other than that in which the deceased died domiciled should not be automatically recognised within Australia.2
4.3 The WALRC’s primary concern was to develop a system based on certainty that would avoid the jurisdictional disputes that were likely to arise if automatic recognition were extended to grants based on other connecting factors, for example, permanent residence or the existence of assets within the jurisdiction.3
The resealing of other Australian grants
4.4 If a grant is applied for in a jurisdiction where the deceased did not die domiciled, under the WALRC proposal such a grant would not be automatically recognised. As such, the WALRC recommended that “it should remain possible for Australian grants other than those made by the court of the deceased’s domicile to be resealed”.4 This recommendation was a departure from the United Kingdom system of limited grants.5
4.5 The WALRC expressed the view that “in Australia resealing would operate more satisfactorily than a system of limited grants”.6 It pointed out that it “is common practice for persons living close to some State borders to use professional advisers and appoint executors resident in an adjacent State”. For example, persons resident at Broken Hill (in New South Wales) are often advised by solicitors and trustee companies in Adelaide and appoint them as executors. The South Australian executor would usually obtain a grant in South Australia and then apply (generally by means of an agent) to have the grant resealed in New South Wales, where the assets are situated.7
4.6 The certainty provided by the existence of a single grant is the most important factor in favour of the WALRC proposal.
4.7 However, while under the WALRC scheme only one grant would be entitled to automatic recognition throughout Australia, it would still be possible for two grants to be operative in a particular jurisdiction. This could arise if grants were made both in the jurisdiction in which the deceased died domiciled and in another Australian jurisdiction. However, this situation could be avoided by requiring evidence that a grant had not already been made in the State or Territory in which the deceased had died domiciled. This would usually necessitate making a search in only one jurisdiction.
PARLIAMENTARY COUNSEL’S COMMITTEE
Automatic recognition of all Australian grants
4.8 The Parliamentary Counsel’s Committee proposed that there should be automatic recognition throughout Australia of any grant made by an Australian State or Territory Court, regardless of the place of domicile.8 To avoid the situation where there might be more than one grant that would be effective throughout Australia, the Committee proposed that courts should have the power to decline to make a grant if it appeared that another court was the more appropriate forum.9 These proposals would eliminate the need to reseal any Australian grant as each grant would be effective throughout Australia as if it were an original grant made in the jurisdiction in question.
4.9 An advantage of this scheme is that there would be no need to identify domicile for the approximately 52,000 grants made annually in Australia since the question of their effect in other Australian jurisdictions will be relevant only to a small percentage of those grants. Applications for the resealing of grants represent little more than one per cent of the total number of applications for original grants made annually.10
4.10 A further advantage of this scheme is that resealing would not be necessary in relation to any grant made by the court of an Australian State or Territory. However, if grants made in two or more jurisdictions were automatically recognised throughout Australia, there would be the possibility of competing grants dealing with the same property as well as the possibility of grants being made to different personal representatives. One way of avoiding such problems would be to have a register of grants that would have to be searched each time a grant was made to ensure that a grant had not already been made in another State or Territory.
4.11 The need for further provisions to deal with the possibility of multiple grants that would all be entitled to recognition throughout Australia is the chief disadvantage of this scheme.
ARGUMENTS FOR AND AGAINST A SYSTEM OF AUTOMATIC RECOGNITION
4.12 Arguments in favour of adopting a scheme of automatic recognition include:
- Cost savings in not incurring costs in the resealing jurisdictions, including court filing fees and solicitor’s and advertising fees.
- Reduction in delay and inconvenience, not just in the time taken for the courts to approve an application but also the time spent in preparing the documentation for each resealing court.
4.13 The main argument against the adoption of the proposed scheme of automatic recognition is that certain safeguards afforded by the resealing process would be lost, in particular, opportunities:
- for the resealing court to scrutinise the foreign grant, both as to the validity of any will and as to the person appointed under the grant;
- for the resealing court to order that the applicant for resealing provide security in relation to the administration of the estate within the resealing jurisdiction; and
- for a person opposed to the resealing to lodge a caveat in the resealing jurisdiction.
4.14 The WALRC was aware that, under a system of automatic recognition, certain safeguards afforded by the resealing process would disappear.11 However, it considered that some of these safeguards, such as the giving of security, could be accommodated within the scheme of automatic recognition.12 Although it acknowledged that other safeguards, such as the court’s discretion to decline to reseal a grant, would disappear under a system of automatic recognition, it questioned whether these safeguards were needed where the grant in question had been made in another Australian State or Territory.13
4.15 The WALRC concluded that the advantages of the automatic recognition scheme outweighed “any possible adverse effects resulting from the disappearance of these safeguards”.14
Preliminary view
Automatic recognition
4.16 If a scheme of automatic recognition is to be adopted, automatic recognition should be given only to a grant made by the court of the Australian jurisdiction in which the deceased died domiciled, and not to any other Australian grant.
Continued resealing of Australian grants
4.17 Courts should still be able to reseal a grant made by the court of a State or Territory in which the deceased was not domiciled.
ISSUE 1
(a) Should there be a scheme of automatic recognition of Australian grants of probate or letters of administration?
(b) If so, what form should that scheme take?
AUTOMATIC RECOGNITION OF OVERSEAS GRANTS
4.18 The WALRC recommended that:
- a grant of probate or letters of administration made by a court outside Australia should not be automatically recognised in Australia, whether or not the deceased died domiciled in the jurisdiction in which the grant was made;15 and
- such a grant should, as at present, be recognised as effective in a particular Australian State or Territory only when resealed by the court of that State or Territory.16
4.19 Automatic recognition is suitable only for jurisdictions within a federation such as Australia where the law of succession is substantially similar in all jurisdictions. This is not necessarily so in the case of overseas jurisdictions. Even in jurisdictions that follow the common law tradition, such as England, there are a number of differences, for example, in the acceptance of informal wills17 and in the interpretation of the concept of domicile.18
4.20 The WALRC’s recommendation was supported by the conclusions of the Commonwealth Secretariat on the recognition and enforcement of judgments and orders within the Commonwealth of Nations. The Secretariat concluded that:
… automatic recognition without judicial intervention was not appropriate as between independent countries. Resealing provided safeguards that, between independent countries, were important. It allowed local claimants to object that the personal representative was not validly appointed; it ensured due compliance with local estate duty laws; and it facilitated the taking of security to protect creditors.19
Preliminary view
4.21 There should be no automatic recognition of any overseas grants of probate or letters of administration.
ISSUE 2
(a) Are there any circumstances in which grants of probate or letters of administration made by the courts of overseas countries should be entitled to automatic recognition?
(b) What arrangements should be made for the resealing of overseas grants?
AUTOMATIC RECOGNITION OF GRANTS RESEALED IN THE DECEASED’S DOMICILE
4.22 The WALRC recommended that, if a grant (Australian or overseas) was resealed by the court of the Australian State or Territory in which the deceased died domiciled, “that grant, when resealed, should be automatically recognised as effective throughout Australia in the same way as an original grant made by” that court.20 The WALRC suggested that this recommendation was consistent with the fundamental objective of a scheme of automatic recognition which is “to allow the court of the domicile to have a decisive say in whether a grant should be issued”.21
Preliminary view
4.23 This proposal does not constitute an essential part of the automatic recognition scheme. The scheme could be confined to automatic recognition of an original grant made in the domicile of the deceased, and grants made in other Australian jurisdictions or overseas could simply be resealed in as many Australian jurisdictions as is necessary. However, there does not seem to be any fundamental objection to the proposal. Once a grant had been resealed in the Australian jurisdiction of domicile, there would be no need to reseal it in any other Australian jurisdiction.
ISSUE 3
Should a grant of probate or letters of administration that has been resealed by the court of the Australian jurisdiction in which the deceased died domiciled
be automatically recognised in all other Australian jurisdictions?
DETAILS OF THE SCHEME
Matters to be notified on the grant
4.24 The WALRC recommended that, when a grant was made or resealed by the court of the Australian State or Territory in which the deceased died domiciled, the deceased’s domicile should be notified on the grant.22 This recommendation was based on the similar requirement under the United Kingdom scheme of automatic recognition. It serves the obvious purpose that it clearly identifies the grant as one made or resealed by the court of the domicile.
4.25 This proposal is contrary to the National Committee’s current general proposal in relation to the administration of estates of deceased persons that there is no need to require the courts to determine the deceased’s domicile.23 However, if a scheme of automatic recognition were introduced, different considerations might apply when the grant was made in the deceased’s domicile.
4.26 The WALRC also recommended that, when a grant or reseal was made by the court of the deceased’s domicile a short statement in simple language should be added, setting out the effect of the grant – namely, that it was effective in each other Australian State and Territory without any need for resealing.24
Preliminary view
4.27 The WALRC’s recommendations should be adopted.
ISSUE 4
When a grant or reseal is made by the court of the Australian jurisdiction in which the deceased died domiciled:
(a) should the deceased’s domicile be notified on the grant or reseal;
(b) should the grant or reseal contain a short statement, in simple language, of the effect of automatic recognition?
Automatic recognition of elections and orders to administer
4.28 In certain circumstances, generally where there is no proper person available or willing to administer an estate, the public trustee in some Australian jurisdictions may apply for an order authorising that officer to administer the estate of a deceased person. Such an order in general confers on the public trustee the same powers, rights and obligations as a grant of administration.
4.29 In most jurisdictions, in cases involving estates under a prescribed value, the public trustee or a trustee company may also file an election to administer the estate without any need for a grant of probate or letters of administration.
4.30 The WALRC recommended that “orders to administer” and “elections to administer” should be automatically recognised when made in the deceased’s domicile.25
4.31 Orders to administer made in favour of a public trustee present no special problem since they involve the making of an order by a court of competent jurisdiction, and this process provides the necessary safeguards for those interested in the administration of the estate.
4.32 However, an “election to administer” results in what is in effect a deemed grant, but without the benefit of the court’s scrutiny and directions. The different status of an election to administer was recognised by the Probate Registrars who, at a conference in 1990, suggested that resealing should be limited to documents issued under the seal of the court, and that elections should therefore not be resealed.26 Although elections were developed as a cheaper and quicker way of administering a small estate, this has not been the universal result. The National Committee, in its work on the administration of estates of deceased persons, has proposed that elections be abolished.27
Preliminary view
4.33 Automatic recognition should be given to orders to administer estates. However, elections to administer estates should not be automatically recognised.
ISSUE 5
Should automatic recognition be given to:
(a) orders to administer made in favour of a public trustee (or similar officer) by the court of the Australian jurisdiction in which the deceased died domiciled;
(b) elections to administer estates that are filed by a public trustee (or similar officer) or by a trustee company in the court of the Australian jurisdiction in which the deceased died domiciled?
Notification to other jurisdictions
4.34 The WALRC considered the possibility of having a system whereby the making of a grant, and any revocation or alteration of its terms, could be notified to other jurisdictions but concluded that it was “not necessary, as part of the proposed system of automatic recognition, for the court of the State or Territory of domicile, having made an original grant, to notify the courts of the other States and Territories”,28 suggesting that:
The slight disadvantage of having to address enquiries to the court of grant rather than the local Supreme Court is not felt to be sufficient to warrant the expense and inconvenience of insisting upon such a proposal.29
4.35 However, in 1990, the Probate Registrars suggested that a national register of grants and caveats would be essential for the proper administration of the proposed scheme of automatic recognition.30
Preliminary view
4.36 If the notification of grants made is found to be necessary to the proposed scheme of automatic recognition, a system to achieve this should be easier to establish and maintain than it would have been in 1984 when the WALRC considered the matter.
4.37 Some suggestions for implementing a system of notification include:
- Details of grants and other relevant information could be entered on a computer database available to all Australian State and Territory Supreme Courts.
- A court could be required, if it made a grant in respect of the estate of a deceased person who did not die domiciled in that jurisdiction, to notify the court of the jurisdiction in which the deceased died domiciled that it had made a grant.
The advantage of the latter suggestion is that, if a grant were subsequently sought in the jurisdiction in which the deceased died domiciled, the court in that jurisdiction would be aware that a grant had already been made elsewhere.
ISSUE 6
(a) Is it necessary to a scheme of automatic recognition to establish a system of notification of grants and other appropriate details?
(b) If so, what form should the system of notification take?
AUTOMATIC RECOGNITION AND SAFEGUARDS IN THE RESEALING PROCESS
4.38 There are a number of aspects of the resealing process that are said to be safeguards for persons with an interest in the proper administration of an estate. The decision whether or not to adopt the proposed scheme for the automatic recognition of certain Australian grants requires a consideration of:
- the importance of these safeguards where the grant in question is made in an Australian State or Territory, rather than in an overseas country;
- the extent to which particular safeguards that are considered important can be accommodated within the proposed scheme; and
- the impact of the proposed scheme of automatic recognition on other areas of succession law.
These issues are considered in the balance of this chapter.
Advertising
4.39 Requirements in relation to giving notice of an intention to make an application for resealing vary from jurisdiction to jurisdiction. Some, including New South Wales,31 require a person applying for the resealing of a grant of probate or letters of administration to publish an advertisement in the jurisdiction in question. In others32 no advertisement is necessary unless required by the registrar. There is no requirement to advertise in Western Australia.
4.40 Under a system of automatic recognition, there would no longer be an opportunity to advertise notice of intention to apply for the resealing of an Australian grant. It would still be possible, however, to require an applicant to advertise before an original grant can be made.
4.41 The WALRC suggested that advertising “is often ineffective and causes undue expense and delay without providing sufficient compensating advantages to beneficiaries, creditors or anyone else”33 but concluded that a uniform rule on advertising in relation to an original grant was not essential for the proposed automatic recognition scheme, and that each jurisdiction could continue its own practice.34
Caveats
4.42 At present, it is possible in all jurisdictions to lodge a caveat against the making of a grant of probate or letters of administration and against the resealing in that jurisdiction of a grant made elsewhere.35 If a scheme of automatic recognition were introduced, it would no longer be possible to lodge a caveat against the resealing of a grant. It would, however, remain possible to lodge a caveat against the making of the original grant.36
4.43 The WALRC expressed the view that, in practice, caveats against resealing were rarely used (a fact confirmed by information given by the Probate Registrars to the National Committee), and it did not regard the loss of the opportunity to lodge a caveat as a reason for not adopting a scheme of automatic recognition.37
Preliminary view
4.44 There is no reason why a person wishing to lodge a caveat could not do so in the jurisdiction of domicile prior to the making of the original grant, since in all but very exceptional cases the domicile of the person in question would be readily apparent. The loss of the opportunity to lodge a caveat against the resealing of a grant is not a sufficient objection to the introduction of a scheme of automatic recognition.
AUTOMATIC RECOGNITION AND OTHER AREAS OF SUCCESSION LAW
4.45 There will obviously be an interaction between any scheme of automatic recognition and other areas of succession law such as the formal validity of wills, family provision, intestacy and administration of estates. However, in most cases a scheme of automatic recognition will either have little or no impact on the other substantive areas of succession law or work positively with them.38
Footnotes
1. WALRC Report (1984) at recommendation 21. See also WALRC Report (1984) at para 7.1-7.4.
2. WALRC Report (1984) at para 7.5 and recommendation 22.
3. WALRC Report (1984) at para 9.55.
4. WALRC Report (1984) at para 7.17.
5. Which allows a grant to be made in a country within the United Kingdom in which the deceased did not die domiciled and operates only until a grant is made in the place of domicile: see para 3.8. See also T H Tristram, Tristram and Coote’s Probate Practice (28th ed, 1995) at para 12.23.
6. WALRC Report (1984) at para 7.14.
7. WALRC Report (1984) at para 7.15.
8. Report of the Conference of Probate Registrars (1990) at 13, referring to para 4 of the Report of the Parliamentary Counsel’s Committee (6 September 1989) and s 73 of draft bill no 10.
9. Report of the Conference of Probate Registrars (1990) at 14, referring to para 5 of the Report of the Parliamentary Counsel’s Committee (6 September 1989).
10. Although, it is doubtful whether such an advantage would be realised in practice. The proposal that courts should have the power to decline to make a grant if it appeared that the court of another jurisdiction was the more appropriate forum for the application would presumably lead courts to require evidence as to the deceased’s domicile.
11. WALRC Report (1984) at para 7.25.
12. WALRC Report (1984) at para 7.32-7.35.
13. WALRC Report (1984) at para 7.27.
14. WALRC Report (1984) at para 7.25.
15. WALRC Report (1984) at para 7.6 and recommendation 22.
16. WALRC Report (1984) at para 7.11 and recommendation 22.
17. See W J Williams, Williams on Wills (7th ed, 1995) vol 1 at 109.
18. For example, in England a person may acquire a domicile of choice at 16 or earlier if the person marries before attaining that age: Domicile and Matrimonial Proceedings Act 1973 (UK) s 3.
19. Commonwealth Secretariat, Recognition and Enforcement of Judgments and Orders and the Service of Process within the Commonwealth: A Report of a Working Meeting held at Basseterre, St Kitts, 24-28 April 1978 at 18. See also WALRC Report (1984) at para 7.10.
20. WALRC Report (1984) at para 7.18 and recommendation 23.
21. WALRC Report (1984) at para 7.19.
22. WALRC Report (1984) at para 7.20 and recommendation 24.
23. QLRC, Discussion Paper MP 37 at 262; NSWLRC, Discussion Paper 42 at para 18.17 and Proposal 95.
24. WALRC Report (1984) at para 7.21 and recommendation 24.
25. See WALRC Report (1984) at para 3.30, 7.23 and recommendation 25.
26. Report of the Conference of Probate Registrars (1990) at 6-7.
27. QLRC, Discussion Paper MP 37 at 163-164; NSWLRC, Discussion Paper 42 at para 11.10-11.12.
28. WALRC Report (1984) at recommendation 29.
29. WALRC Report (1984) at para 7.36.
30. Report of the Conference of Probate Registrars (1990) at 16.
31. As well as the Australian Capital Territory, the Northern Territory, Tasmania and Victoria.
32. Queensland and South Australia.
33. WALRC Report (1984) at para 7.29. See also WALRC Report (1984) at para 3.37-3.42.
34. WALRC Report (1984) at para 7.29.
35. See also QLRC, Discussion Paper MP 37 at 37-39; NSWLRC, Discussion Paper 42 at para 5.34-5.39.
36. See WALRC Report (1984) at para 7.31 and recommendation 27.
37. WALRC Report (1984) at para 7.30.
38. The effect of a scheme of automatic recognition on other areas of succession law is discussed in more detail in QLRC, Uniform Succession Laws: Recognition of Interstate and Foreign Grants of Probate and Letters of Administration (Discussion Paper, WP 55, 2001) at 62-68 and 203-210.
