5.1 Even if a scheme of automatic recognition were adopted, there would still be a need for resealing. Since the scheme proposed in Chapter 4 would be confined to the recognition of grants made in an Australian State or Territory by the court of the deceased’s last domicile, resealing will continue to be required for any other Australian grants and also for all overseas grants. If it is decided not to introduce a scheme of automatic recognition, all grants will continue to require resealing.
5.2 Regardless of whether a scheme of automatic recognition is introduced, it remains desirable to unify the present resealing procedure. The statutory provisions in each jurisdiction have a number of basic similarities, reflecting the fact that in most cases they were originally based on English legislation such as the Colonial Probates Act 1892 (UK). However, the process of gradual amendment of both the legislation and the probate rules in each jurisdiction has resulted in considerable differences of detail. These differences of detail present problems for anyone applying for the resealing of a grant. Lawyers well versed in the rules of their own jurisdiction will encounter differences when they need to have a grant resealed in another State or Territory. A uniform procedure for resealing would considerably simplify the process, reducing the delay and expense involved.
5.3 In putting forward proposals for a uniform resealing procedure, particular consideration has been given to the earlier work of the WALRC as well as comments on the WALRC proposals made by the Probate Registrars at their 1990 conference and also the model resealing legislation drawn up on behalf of the Commonwealth Secretariat between 1975 and 1980 in an attempt to unify the law of resealing in the Commonwealth of Nations. The Commonwealth Secretariat’s draft model bill is reproduced in Appendix A to this Issues Paper.
PERSONS ENTITLED TO APPLY FOR THE RESEALING OF A GRANT
General provisions
5.4 All jurisdictions provide that the following persons are entitled to apply for the resealing of a grant:
- an executor named in the grant of probate;
- an administrator named in the letters of administration; and
- a person authorised by the executor or administrator under a power of attorney.1
Executor or administrator by representation
5.5 Legislation in a number of Australian jurisdictions provides expressly for the transmission of the office of executor upon the death of a sole or last surviving executor.2 In these jurisdictions, the executor of a deceased executor becomes the executor of any estate that was being administered by the deceased executor. The executor of a deceased executor is known as an executor by representation.
5.6 In addition, legislation in New South Wales provides, in limited circumstances, for the transmission of the office of administrator. Where the public trustee or a trustee company is appointed administrator of an estate, the public trustee or trustee company, as the case may be, becomes the administrator by representation of any estate of which the deceased person had been granted administration.3
5.7 Neither an executor by representation nor an administrator by representation is the executor or administrator named in the original grant. Whether such a person can apply under the existing legislation in the Australian States and Territories for the resealing of a grant turns on the construction of the particular provisions.
A public trustee to whom an order to collect and administer is made
5.8 Legislation in the Australian Capital Territory and in the Northern Territory expressly provides that, in the case of an order to collect and administer an estate, a public trustee in the country or part of a country to whom the order was granted may apply to have the order resealed.4
Preliminary view
5.9 The following persons should be able to apply for the resealing of a grant:5
1. In the case of probate of a will:
(a) the executor named in the grant of probate;
(b) the executor by representation, provided that person is recognised as the executor by representation in the jurisdiction in which probate was granted, and probate of the will of every deceased executor in the chain of representation has been granted or resealed in the resealing jurisdiction;
(c) a person appointed under a power of attorney and authorised to apply for the resealing of the grant by the executor named in the grant or by the executor by representation.
2. In the case of letters of administration of an estate:
(a) the administrator named in the grant of letters of administration;
(b) the administrator by representation, provided that person is recognised as the administrator by representation in the jurisdiction in which administration was granted, and administration of the deceased administrator’s estate has been granted or resealed in the resealing jurisdiction by his or her administrator;
(c) a person appointed under a power of attorney and authorised to apply for the resealing of the grant by the administrator named in the grant or by the administrator by representation.
5.10 To cater for jurisdictions that distinguish between a grant of administration and an order to administer, or an order to collect and administer, made in favour of a public trustee or similar officer, a public trustee or similar officer should also be able to apply for resealing.
5.11 The legal representative of the executor or administrator should not be an applicant for the resealing of a grant unless he or she is authorised under a power of attorney given by the executor or administrator for that purpose.
APPLICATIONS FOR RESEALING: PROCEDURAL ISSUES
Multiple personal representatives
5.12 Where a grant is made to two or more executors or administrators, the question arises as to whether the application for resealing may be made by only one, or by some, of the executors or administrators, or whether it must be made by all the executors or administrators named in the grant.
5.13 Generally, where the grant was made to several persons, all persons to whom the grant was made must apply for the resealing of the grant.6 There are, however, exceptions to this general rule. For example, if the other executor(s) are deceased7 or have been discharged and no longer hold office,8 or where the application is made with the consent of the other executors.9 In South Australia, the rules provide that an application for the resealing of a grant may be made:
by the executor or administrator, or by one of the executors or administrators with the consent by affidavit of the co-executors or co-administrators to whom the grant was made.10
Preliminary view
5.14 A grant made to several personal representatives should be resealed on the application of only one or some of them, provided the consent of the others has been obtained, and is evidenced by affidavit.11
ISSUE 10
(a) Should it be possible for a grant made to several personal representatives to be resealed on the application of only one or some of them?
(b) If so, what conditions should be required before such an application can be made?
Grants of double probate
5.15 Where a number of executors are named in a will, a grant of probate may be made to one or more of those executors, reserving leave to the other or others who have not renounced to apply for probate in the future.12 Where an executor to whom leave was reserved subsequently applies for a grant of probate, the grant obtained is called a grant of “double probate”. A grant of double probate “runs concurrently with the first grant if any of the first grantees are still living”.13
5.16 Where double probate has been granted, two issues arise for consideration:
- who should be able to apply for resealing; and
- which instrument or instruments should be resealed.
5.17 No Australian jurisdiction has an express provision dealing with this situation. However, in England, the practice is that:14
An exemplification which contains copies of a probate and a double probate may be resealed, provided that the application is at the instance of all parties. … If a probate and double probate are brought in together, both may be resealed.
An exemplification is an official copy of a document made under the seal of a court which “contains an exact copy of the will (if any), and a virtual, though not an exact, copy of the grant”.15
Preliminary view
5.18 Where a grant of double probate has been made, it should be possible to reseal:16
- the probate (or an exemplification of probate) and the double probate (or an exemplification of the double probate), provided both instruments are deposited together in the court; or
- an exemplification that contains copies of the probate and the double probate.
5.19 An application to reseal grants of probate and double probate, or an exemplification of probate and double probate, should be able to be made by:
Substituted executors or administrators
5.20 In some Australian jurisdictions, a court may substitute an executor or administrator for an executor or administrator named in an original grant.17 Similar legislation exists in New Zealand18 and in England.19 The effect of these provisions is that the original grant remains on foot, but, by a separate order of the court, an executor or administrator is substituted for some or all of those named in the original grant.
5.21 Because an executor or administrator so appointed is not named in the original grant, the question arises as to whether an application for the resealing of the original grant can be made by an executor or administrator who has been appointed in substitution for the executor or administrator named in the original grant.
5.22 No Australian jurisdiction has an express provision to deal with the situation where a court has appointed a substitute personal representative to replace a personal representative who has been discharged and an application is subsequently made for the resealing of the grant. However, the Supreme Court of Victoria has held that an order substituting an executor should be considered as an addition to, or a variation of, the original probate and should be read as part of the probate, so that resealing could be applied for.20
Preliminary view
5.23 Where an order has been made substituting an executor or administrator for an executor or administrator named in an original grant, it should be possible to reseal:21
- an exemplification that contains copies of the grant and the order by which an executor or administrator is substituted; or
- the grant and the order, or exemplifications of either or both, provided both instruments are deposited together in the court.
5.24 In these circumstances, an application for resealing should be able to be made by:
Application by a trustee company for resealing
5.25 Legislation in each Australian State and Territory enables certain specified trustee companies to be appointed as executors or, in certain circumstances, to be appointed as administrators in the jurisdiction in question.22 This raises the question of whether a trustee company that has been appointed as executor or administrator in one jurisdiction can apply to have the grant under which it has been appointed resealed in another State or Territory.
5.26 Grants made in favour of foreign trustee companies have been resealed in New South Wales and in Queensland,23 even though the companies were not ones to which original grants would have been made in those jurisdictions.24 It has been held, however, that, where the executor is a foreign trustee company, the application should be made by a person appointed by the executor under a power of attorney for that purpose.25 In South Australia, the rules provide that, where a trustee company is the executor, administrator or attorney, application for the resealing of the grant may be made:
by an officer of such corporation who must depose in the oath to his or her authority to make the application and such officer must lodge with the application a certified copy of the resolution of the board of directors of such corporation authorising such officer to make the application for the re-sealing of the grant.26
5.27 The Commonwealth Secretariat draft model bill defined “personal representative” to include a corporation named in the probate or letters of administration as executor or administrator.27
Preliminary view
5.28 It is proposed that a model rule based on the South Australian rule should be adopted. It has the merit of stating the precise procedure to be adopted when a trustee company has been appointed executor or administrator or has been given a power of attorney by an executor or administrator.
Non-resident applicants for resealing
No need to be within the jurisdiction of the resealing court
5.29 The legislation in Tasmania and Victoria expressly provides that an executor or administrator who applies for resealing need not be within the jurisdiction of the resealing court.28 There is no express provision to that effect in the other Australian jurisdictions, although some legislation appears to contemplate that an applicant for resealing need not be resident in the jurisdiction in which resealing is sought.
Preliminary view
5.30 An executor or administrator need not be resident within the jurisdiction of the resealing court and it should also be clear that a person appointed to apply for a reseal under a power of attorney given by an executor or administrator need not be resident within the jurisdiction of the resealing court.29
Deemed residence of, and service on, a non-resident applicant for resealing
5.31 Some jurisdictions deem every executor or administrator who applies for resealing to be resident within the jurisdiction in which resealing is sought and requires non-resident executors or administrators to file a local address for service at which notices, processes or documents may be served. Any notice, process or document served at that address is deemed to have been served personally on the executor or administrator.30 Such provisions ensure that an executor or administrator is amenable to legal proceedings that may be brought against the estate in the jurisdiction in question.31
5.32 Other jurisdictions require the filing of an address for service regardless of whether the executor or administrator is resident outside the jurisdiction but do not deem an executor or administrator who applies for the resealing of a grant to be resident within the jurisdiction in which resealing is sought.32
Preliminary view
5.33 A non-resident executor or administrator should be deemed to be resident in the jurisdiction in which resealing is sought and must file an address for service in that jurisdiction. Service of any notice or process at that address should be deemed to be personal service on the executor or administrator. Such a provision should also apply to a person appointed under a power of attorney given by an executor or administrator who applies for the resealing of a grant.33
INSTRUMENTS THAT MAY BE RESEALED
All grants of probate and administration
5.34 Legislation in all Australian jurisdictions provides that a grant of probate or letters of administration may be resealed, provided the conditions imposed are satisfied.34 In the Australian Capital Territory, New South Wales, the Northern Territory, Victoria and Western Australia, “administration” is defined to include a grant made for a general, special or limited purpose.35 In the remaining jurisdictions, it is provided in the rules that a special, limited or temporary grant is not to be resealed except by order of a judge or, in South Australia, the registrar.36
Preliminary view
5.35 It should be possible to reseal all grants of probate and administration, including grants made for special, limited and temporary purposes.37
Instruments given an effect similar to grants of probate and administration
5.36 The extent to which any type of instrument, other than a grant of probate or letters of administration, may be resealed in a particular jurisdiction depends on the definitions of “probate” and “administration” in that jurisdiction and on whether the legislation is otherwise expressed in terms that are sufficiently broad to apply to an instrument that has a similar effect to a grant of probate or letters of administration.
5.37 Whereas, in some jurisdictions, legislation is directed to the type of document that is sufficient evidence of a grant of probate or administration, in other jurisdictions legislation is framed in broader terms and refers to the effect of the instrument in question.
Provisions directed to the type of instrument
5.38 In some jurisdictions the terms “probate” and “administration” are defined in almost identical terms.38 For example, the New South Wales definitions allow the resealing of an instrument other than a grant of probate or letters of administration:
Administration includes all letters of administration of the real and personal estate and effects of deceased persons whether with or without the will annexed, and whether granted for general, special, or limited purposes, also exemplification of letters of administration or such other formal evidence of the letters of administration purporting to be under the seal of a Court of competent jurisdiction as is in the opinion of the Court deemed sufficient.
Probate includes “exemplification of probate” or any other formal document purporting to be under the seal of a court of competent jurisdiction which, in the opinion of the Court, is deemed sufficient.39
5.39 Some of these jurisdictions also specifically include Scottish confirmations in the definitions.40 However, the terms of the definitions in all these jurisdictions suggest that resealing is possible only where there has been a grant of probate or administration in the foreign court.
Provisions referring to the effect of the instrument
5.40 In Queensland “probate” and “letters of administration” are defined to include:
“probate” and “letters of administration” include confirmation in Scotland, and any instrument having in any part of Her Majesty’s dominions the same effect which under the law of Queensland is given to probate and letters of administration respectively.41
5.41 In the South Australian legislation, the definitions of “probate” and “administration” are substantially the same as the definitions in the New South Wales legislation except that it refers to the opinion of the registrar, rather than to the opinion of the court.42 However, the South Australian legislation also enables certain instruments to be resealed if they “correspond” to a grant of probate or letters of administration in South Australia:
“probate or administration granted by a foreign Court” means any document as to which the Registrar is satisfied that it was issued out of a court of competent jurisdiction in a foreign country other than an Australasian State, or the United Kingdom, and that in such country it corresponds to a probate of a will or to an administration in this State.43
5.42 In Victoria, the term “letters of administration” is defined to include “exemplification of letters of administration” and the term “probate” is defined to include “exemplification of probate”.44 However, in addition to providing for the resealing of probate or administration granted by a court of competent jurisdiction in the United Kingdom or in any of the Australasian States, the legislation provides for the resealing of:
- probate of the will or administration of the estate of any deceased person; or
- a grant or order appointing a person executor of the will or giving a person authority to administer the estate of any deceased person,
issued by a court of competent jurisdiction in a country specified under section 88 of the Victorian legislation.45
Preliminary view
5.43 Instruments that have a similar effect to a grant of probate or administration should be capable of being resealed.46 Such a provision is broad enough to include, for example, Scottish confirmations, without singling them out for special mention as is currently the case in some jurisdictions.
Orders to administer and elections to administer
Orders to administer
5.44 Legislation in a number of Australian jurisdictions provides that, in certain circumstances, the court may make an order authorising the public trustee in that jurisdiction to administer the estate of a deceased person.47 The terminology differs slightly from jurisdiction to jurisdiction but such orders are here referred to collectively as “orders to administer”.
5.45 There are some differences between the jurisdictions as to the circumstances in which a public trustee may apply for an order to administer. So, for example, in some jurisdictions a public trustee may apply for an order to administer in respect of the estate of a person who died leaving property in that jurisdiction if:
- the deceased died intestate (in varying circumstances);48
- the deceased left a will, but there is no executor resident in the jurisdiction who is willing and capable of acting;49
- no application for probate or administration is made, or probate or administration is not obtained within a specified time after the death of the deceased.50
5.46 The effect of an order to administer is that the public trustee is in the same position as if administration or probate or letters of administration had been granted to the public trustee.51
5.47 Only in the Australian Capital Territory and in the Northern Territory is specific provision made that an order to collect and administer may be resealed.52 Consequently, in the other jurisdictions, whether an order to administer may be resealed will depend on the interpretation of the definitions of “probate” and “administration” and on whether the legislation is otherwise expressed in terms that are sufficiently broad to apply to an order to administer.
Elections to administer
5.48 Legislation in all Australian jurisdictions except South Australia provides that, in certain circumstances, where a person has died leaving property in that jurisdiction, the gross value of which does not exceed a specified relatively low amount, the public trustee or similar officer in that jurisdiction may file an election to administer the estate of the deceased person.53 Generally, the effect of filing an election is that the public trustee or similar officer is deemed to be the executor or administrator of the estate.54
5.49 Provision is also made so that when the gross amount of the estate exceeds the specified amount the public trustee must file a notice in the registry and either the election is revoked (and the public trustee may reapply)55 or the public trustee must proceed in the ordinary manner to obtain probate or letters of administration.56
5.50 In New South Wales, Queensland, Tasmania, Victoria and Western Australia, certain trustee companies are also empowered to file an election to administer the estate of a deceased person.57
5.51 No Australian jurisdiction provides expressly for the resealing of an election to administer made by a public trustee or similar officer or by a trustee company.
5.52 The National Committee, in its work on administration of estates, has proposed that elections should be abolished and that, if an estate cannot be effectively administered informally, a grant should be sought.58
Preliminary view
5.53 The resealing of orders to administer would be covered by the provision already proposed, under which the instruments that can be resealed would include instruments that are given an effect similar to a grant of probate or administration by the law of the country where the instrument was first filed or issued. However, it should not be possible to reseal an election to administer, as only documents issued under the seal of a court of competent jurisdiction should be capable of being resealed.59
ISSUE 18
Should it be possible to reseal an order to administer made in favour of a public trustee or similar officer?
ISSUE 19
(a) Should it be possible to reseal an election to administer?
(b) If so, what provision should be made in relation to resealing an election to administer?
THE RESEALING PROCESS
Applying in person or through a legal representative
5.54 In some jurisdictions there are provisions that permit an application for resealing to be made in person or through a legal practitioner.60
5.55 In other jurisdictions provisions merely permit an application for the resealing of a grant to be made by the executor or administrator or person authorised by power of attorney either in person or through a legal practitioner.61
Preliminary view
5.56 It is appropriate to provide that an applicant for resealing should be able to apply either in person or through a legal practitioner.
Resealing by the court or the registrar
5.57 In each of the Australian States and Territories, the legislative provisions on resealing provide that a grant of probate or letters of administration or other instrument is ultimately to be sealed with the seal of the court.62 However, most of the statutes give the registrar an important role in the process – for example, requiring that the necessary documents be produced to, and copies lodged with, the registrar.63 In some jurisdictions the rules specifically provide that the registrar can exercise the powers of the court,64 and in the other jurisdictions it appears that this is assumed to follow from the statutory references to the part played by the registrar.
5.58 In some jurisdictions the registrar’s power is subject to specific limitations, for example, where a caveat against resealing has been filed,65 where the registrar has referred an application for resealing to the court,66 or where the original grant is a special, limited or temporary one.67
Preliminary view
5.59 The registrar should:68
Commencing an application for resealing
5.60 Each jurisdiction has its own rules setting out how to commence an application for resealing using a variety of prescribed forms, affidavits, summonses, statements of claim and other forms of application.69
5.61 If a deceased leaves assets in several jurisdictions, a personal representative is likely to have to bring proceedings in each of those jurisdictions more or less simultaneously. The variety of different procedural rules is likely to cause problems for such applicants that would be avoided if all jurisdictions had a common form of initiating applications.
Preliminary view
5.62 A uniform procedure for resealing would be a considerable advantage.
ISSUE 23
(a) Should there be a uniform procedure for initiating a resealing application?
(b) If so, what form should it take?
Documents that must be produced to the court
5.63 In all jurisdictions the applicant is required to produce the grant of probate or letters of administration (or other order) to the registrar, and deposit a copy with the registrar or, in the case of Queensland, with the Supreme Court.70 In all jurisdictions, except Queensland, a reference to a grant of probate or administration includes an exemplification of probate or letters of administration.71
5.64 In some jurisdictions, the rules contain further provisions about other relevant documentation. The required documents must be produced either in original72 or copy form,73 depending on the jurisdiction. The rules in most jurisdictions also contain provisions setting out the matters that must be included in the affidavit or oath sworn by the applicant.74
Preliminary view
5.65 An applicant for resealing should be required to:75
- produce to the registrar:
- the grant of probate or letters of administration; or
- an exemplification or duplicate of the grant of probate or letters of administration, provided it is sealed with the seal of the granting court; or
- a copy of the grant of probate or letters of administration, or exemplification or duplicate or either, provided it is certified under seal as a correct copy by or under the authority of the granting court; and
- deposit a copy of the grant of probate or letters of administration with the registrar.
The applicant should also be required to produce a copy of the will (if there is one), if this is not included in the document required as a precondition for resealing.
The power to reseal
5.66 The core provision of the resealing legislation, which is in essence the same in all jurisdictions, allows the court to reseal the grant if the various conditions dealt with above have been satisfied – namely, the making of a grant of probate or administration or similar order by a court of competent jurisdiction in a recognised country, the production of the specified documents, and the deposit of copies with the court.76 It is clear that the relevant provisions in all States and Territories give the court a discretion whether or not to reseal the grant, even if the specified conditions are satisfied.
Preliminary view
5.67 It is important to make it clear that the court has a discretion in the matter of resealing. The model legislation should provide that, if the specified conditions are satisfied, the court may reseal a grant.77
Finding as to domicile
5.68 There are three different types of provisions concerned with evidence of the deceased’s domicile in force in various jurisdictions:
- the court may not make or reseal a grant unless it has made a finding with respect to the deceased’s domicile;78
- the court may require evidence of the domicile of the deceased, if it appears in proceedings for a grant or for resealing that the deceased was domiciled out of the jurisdiction, and the court may also require evidence of the law of the domicile as to the validity of any will made by the deceased, and the law of the domicile as to the persons entitled on distribution of the estate;79
- if the domicile of the deceased as sworn to in the affidavit differs from that suggested by the description in the grant, the registrar shall or may, require further evidence as to the deceased’s domicile.80
Preliminary view
5.69 No preliminary view is expressed on this issue.
Time limits
5.70 In Tasmania, the rules provide that, if an application for the resealing of a grant is made after a lapse of three years from the death of the deceased, the reason for the delay must be certified to the registrar, who, if not satisfied with the certificate, “shall require such proof of the cause of delay as he may think fit”.81 No other jurisdiction has an equivalent provision.
5.71 In the Northern Territory, if an application for resealing is made after a lapse of two or more years from the death of the deceased, the affidavit in support of the application must state whether a prior application for resealing has been made in connection with the estate.82
Preliminary view
5.72 It is not proposed to adopt these provisions as model rules of procedure, as they are not considered necessary.
EFFECTS OF RESEALING
5.73 Legislation in all jurisdictions deals with the effects of resealing a grant. The main effects of the legislation are outlined in the following paragraphs.
Force and effect of a resealed grant
5.74 A grant, when resealed, has the same force, effect and operation as if it had been originally granted by the resealing court.83
Preliminary view
5.75 The model legislation should provide that a grant, when resealed, has the same force, effect and operation as if it had been originally granted by the resealing court.84
ISSUE 28
Should the model legislation provide that a grant, when resealed, is to have the same force, effect and operation as if it had been originally granted by the resealing court?
Imposition of duties and liabilities of a personal representative
5.76 Legislation in all jurisdictions except Queensland provides that, on the resealing of a grant of probate or letters of administration, certain specified persons (usually the applicant for resealing) are to perform the same duties and be subject to the same liabilities as if the grant of probate or letters of administration had been originally granted by that court.85 In addition to duties and liabilities, some jurisdictions also refer to “rights” of personal representatives.86
5.77 The main differences between the provisions in the various jurisdictions concern the persons on whom the various duties and liabilities are imposed and the terms in which those duties and liabilities are expressed. For example, in New South Wales, Western Australia and South Australia, although the attorney of an executor or administrator may apply for a reseal,87 the relevant duties and liabilities are expressed to apply only to the executor or administrator and not to a person authorised under a power of attorney.88
Preliminary view
5.78 In relation to persons who are entitled to apply for the resealing of a grant the relevant duties and liabilities should be imposed on:
- the personal representative or grantee, where the application was made by the personal representative or grantee or by a legal practitioner on behalf of the personal representative or grantee; or
- the person authorised by power of attorney given by the personal representative or grantee, where the application was made by the authorised person or by a legal practitioner on his or her behalf.
5.79 The person who obtains the resealing of a grant should also have the rights and powers of a personal representative.89
Applicant deemed to be the personal representative of the estate
5.80 In some jurisdictions on the resealing of a grant, the person who applies for the reseal is deemed, for all purposes, to be the personal representative of the estate within the resealing jurisdiction.90 The effect of this deeming is that an attorney who applies for the resealing of a grant is not merely the agent of the foreign executor or administrator, but is placed in the position of an original personal representative in the resealing jurisdiction. Consequently, where the attorney dies after obtaining the reseal, but before completing the administration of the estate, the office of executor will devolve to his or her executor.91 In addition, an attorney will be allowed a commission on the passing of the accounts92 and, in the absence of legislation allowing a different course, must see to the distribution of the estate in the resealing jurisdiction.93
Preliminary view
5.81 It is desirable to remove any doubt as to whether, on a grant being resealed, the applicant for resealing is, for all purposes, the personal representative of all the estate in the resealing jurisdiction, or merely subject to the duties and liabilities of a personal representative.
5.82 In addition to conferring on the applicant the rights, powers, liabilities and duties of a personal representative, an applicant for resealing should, on the resealing of a grant, be deemed for all purposes to be the personal representative of the estate within the resealing jurisdiction.94
DUTIES AND LIABILITIES OF A PERSON AUTHORISED BY POWER OF ATTORNEY
5.83 Victoria has a specific provision dealing with the duties and liabilities of a person, authorised under a power of attorney, who obtains the resealing of a grant of probate or letters of administration.95 This provision applies to an attorney who has obtained the resealing of a grant and has satisfied or provided for the debts and claims of which the attorney has notice. It allows such an attorney to pay or transfer the balance of the estate to the personal representative of the estate in the country in which the deceased died domiciled, to the donor of the power of attorney, or as directed by either of such persons, rather than requiring the attorney to see to the distribution of those assets personally. No other jurisdiction has an equivalent provision.
Preliminary view
5.84 It is proposed that a provision to the effect of section 86 of the Administration and Probate Act 1958 (Vic) should be included in the model legislation.96
CAVEATS
5.85 A person who wishes to object to the making or resealing of a grant of probate or letters of administration in a particular jurisdiction does so by lodging a caveat with the registrar. The provisions dealing with lodging a caveat against resealing vary from one jurisdiction to another.
5.86 Some jurisdictions essentially provide that a caveat against resealing has the same effect and is dealt with in the same manner as if it were a caveat against an original grant.97 Others, however, do not expressly provide that such a caveat shall have the same effect and shall be dealt with in the same manner as a caveat against the making of a grant.98
5.87 The WALRC, despite noting that, in practice, caveats against resealing are rare99 recommended, in light of submission supporting their retention, that there should be a uniform rule-making provision for the lodgment of caveats against resealing, and that the consequences of lodgment should be the same as for a caveat against an original grant.100
Preliminary view
5.88 There should be a uniform rule-making provision for the lodgment of caveats against resealing. It is proposed that the following provisions be included in the model legislation:
(1) Any person who wishes to oppose the resealing of a grant of administration shall, by the date specified in the advertisement published pursuant to section 3(3), lodge a caveat against the sealing.
(2) A caveat under subsection (1) shall have the same effect and shall be dealt with in the same manner as if it were a caveat against the making of a grant of probate or letters of administration by the Supreme Court.
(3) The Registrar shall not, without an order of the Supreme Court, proceed with an application under section 3 if a caveat has been lodged under this section.101
5.89 The South Australian rules provide a suitable model for further provisions to be set out in the rules.102
ISSUE 32
(a) What provision, if any, should be made in relation to caveats against resealing?
(b) What effect should any such caveats have?
ADVERTISEMENT OF INTENTION TO RESEAL
5.90 The question whether a person who applies for the resealing of a grant should be required to advertise his or her intention to do so has occasioned considerable controversy. In some jurisdictions, advertising an intention to reseal is mandatory.103 However in Queensland, it is not necessary to publish or serve a notice of intention to apply for the resealing of a grant unless there are debts owing in Queensland at the date of the application or the court or registrar requires it for another reason.104 In South Australia, if the registrar so requires, notice of the application shall be advertised in such manner as he or she may direct.105 In Western Australia there is no requirement that the applicant advertise his or her intention to apply for resealing.
5.91 The WALRC expressed the view that advertising was often ineffective and caused delay and expense:
Part of the ineffectiveness of advertising was seen to arise out of the method of advertising. Advertisements may appear in any place on any date in any one of several newspapers. ... It thus seems to be merely a matter of chance whether an advertisement comes to the attention of interested persons.106
Preliminary view
5.92 Advertising should be at the discretion of the registrar in each jurisdiction. It is envisaged that, where an applicant is directed to advertise notice of the resealing application, the direction would have a similar effect to the issuing by the registrar of a requisition in relation to the application.107
SECURITY
5.93 All jurisdictions have legislative provisions dealing with the provision of security in connection with an application for resealing, but the provisions are not uniform.108
5.94 In relation to original grants of administration, there has been a legislative trend away from the provision of administration bonds, or at least away from the mandatory requirement for the provision of such bonds. Administration bonds have been abolished in England,109 Western Australia110 and Victoria.111 Both administration bonds and sureties have been abolished in Queensland.112 In South Australia, although administration bonds have not been abolished, they are not required in every case where a grant of administration is made.113 Similarly, in New Zealand, there is no longer a mandatory requirement for an administrator to enter into an administration bond, although the court may make a grant of administration (other than the probate of a will) conditional upon the person to whom the grant is made giving such security as the court may require.114
5.95 In its Discussion Paper on the administration of estates, the National Committee proposed that the provision of bonds and sureties should not be mandatory, but should be among the options that may be ordered by the court in an appropriate case.115
Preliminary view
5.96 The model legislation should provide that:
NOTIFICATION TO COURT OF ORIGINAL GRANT
5.97 The rules in Queensland, South Australia and Tasmania require that notification of resealing must be given to the court that made the original grant, and that, if the court is informed – or, in Queensland, if the registrar believes – that an original grant issued by it has been resealed elsewhere, the registrar should inform the resealing court of any revocation or alteration of that grant.117 These rules are not expressed to be confined in their operation to a grant issued in another Australian jurisdiction. Although there is no requirement to this effect in the Western Australian rules, it is nevertheless the practice in that jurisdiction for notification to be given to the court that has made an original grant when that grant is resealed in Western Australia.118
Preliminary view
5.98 Notice of the resealing should be given by the resealing court to the court of original grant; and the court of original grant, having been informed of resealing, should notify the resealing court of any revocation or alteration of the original grant.119 The resealing court should notify the granting court of the application for resealing at the time the application was made, so that any notice of revocation or alteration of the original grant could be conveyed to the resealing court prior to the resealing of the grant.120
5.99 A national register of grants that are entitled to automatic recognition (already discussed above121 ) could also serve to inform all Australian jurisdictions of other grants, and of reseals, made in each State and Territory, of revocations and alterations of grants, and of caveats.
DISCLOSURE OF ASSETS AND LIABILITIES
5.100 Various provisions in a number of States and Territories require a person who applies for a grant or resealing of a grant to provide the court with a statement of the deceased’s assets and liabilities.122
5.101 In its Discussion Paper on the administration of estates, the National Committee proposed that provisions based on the South Australian legislation should be included in the model legislation on administration of estates.123 The South Australian legislation requires an executor, administrator or trustee to disclose to the Court the assets known to them at various stages, including when the application for a grant or reseal is made, or at any other time during the administration of the estate.124 The South Australian legislation also provides that assets of an estate shall not be disposed of unless they have been disclosed and sets out penalties for an executor, administrator or trustee who fails to comply with the provisions.125
Preliminary view
5.102 The South Australian provisions should be adopted provided that such legislation makes it clear that what is required is disclosure of all assets and liabilities of the deceased wherever they are, and that they should be listed so as to establish the jurisdiction where each is located.126
SUCCESSION DUTY
5.103 In the Australian Capital Territory, New South Wales, the Northern Territory, South Australia and Tasmania, the legislation provides that the seal of the court shall not be affixed until such succession duties have been paid as would have been payable if the probate or administration had originally been granted by the court.127 The Queensland legislation requires the filing of a certificate to the effect that “adequate security has been given for payment of all probate and succession duty”.128
5.104 Between 1976 and 1983, the Commonwealth Government, the Australian States and the Northern Territory passed legislation abolishing the payment of succession or estate duty.129 In each case, however, the legislation was expressed to apply in respect of the estate of a person who died after a particular date. The legislation did not of itself extinguish the liability of an estate of a person who died before the relevant date.
5.105 In South Australia, the legislation under which succession duty is levied is still in force.130 In New South Wales, the Northern Territory, Queensland and Tasmania, despite the repeal of the relevant legislation,131 the estate of a person who died before the date from which succession duty was abolished in the particular jurisdiction will still be liable to succession duty. It is therefore possible that there are still some unadministered estates that will be subject to the payment of succession duty when they are eventually administered.
5.106 In Victoria and Western Australia, legislation has since been passed repealing the Acts in those jurisdictions under which succession duty was levied and extinguishing any existing liability in respect of the payment of succession duty.132
Preliminary view
5.107 In view of the fact that succession duty may still be payable in respect of estates in five Australian jurisdictions, it is proposed that the model legislation should contain a provision to the effect of clause 5(1)(a) of the Commonwealth Secretariat draft model bill.133
Footnotes
1. Administration and Probate Act 1929 (ACT) s 80(1); Administration and Probate Act (NT) s 111(1); Probate Rules 1998 (SA) r 50.01; Wills, Probate and Administration Act 1898 (NSW) s 107(1); Administration and Probate Act 1935 (Tas) s 48(1); Administration and Probate Act 1958 (Vic) s 81(1); Administration Act 1903 (WA) s 61(1). Queensland provides that an application for resealing may also be made by “a person lawfully authorised for the purpose by the executor or administrator”: Uniform Civil Procedure Rules 1999 (Qld) r 616.
2. Imperial Acts (Substituted Provisions) Act 1986 (ACT) s 3, Sch 2, Pt 3; Imperial Acts Application Act 1969 (NSW) s 5, s 13, Sch 1; Wills, Probate and Administration Act 1898 (NSW) s 44(2)(a); Succession Act 1981 (Qld) s 47; Administration and Probate Act 1935 (Tas) s 10; Administration and Probate Act 1958 (Vic) s 17. In South Australia and Western Australia, the relevant legislation is an Imperial Act, (1351-52) 25 Edw 3 st 5 c 5. See also QLRC, Discussion Paper MP 37 at 40-45; NSWLRC, Discussion Paper 42 at para 6.1-6.17.
3. Wills, Probate and Administration Act 1898 (NSW) s 44(2)(b).
4. Administration and Probate Act 1929 (ACT) s 80(1)(c); Administration and Probate Act (NT) s 111(1)(c).
5. For background see Commonwealth Secretariat draft model bill cl 2(1), cl 3(2); WALRC Report (1984) at para 3.23 and recommendation 4; Report of the Conference of Probate Registrars (1990) at 3-5.
6. In the Will of Rofe (1904) 29 VLR 681.
7. In the Will of Rofe (1904) 29 VLR 681 at 682.
8. In the Will of Vivian (1901) 23 ALT 37.
9. Re Benn [1905] QWN 30. See also T H Tristram, Tristram and Coote’s Probate Practice (28th ed, 1995) at para 18.94.
10. The Probate Rules 1998 (SA) r 50.01(a).
11. For background see WALRC Report (1984) at para 3.25(b) and recommendation 6(b); Report of the Conference of Probate Registrars (1990) at 5.
12. See for example Administration and Probate Act 1929 (ACT) s 10B; Wills, Probate and Administration Act 1898 (NSW) s 41; Administration and Probate Act (NT) s 19; Administration Act 1903 (WA) s 7. See also the Probate Rules 1936 (Tas) r 60.
13. T H Tristram, Tristram and Coote’s Probate Practice (28th ed, 1995) at para 13.122.
14. Tristram at para 18.101.
15. Tristram at para 21.35.
16. For background see WALRC Report (1984) at para 3.25(c); Report of the Conference of Probate Registrars (1990) at 6.
17. Administration and Probate Act 1929 (ACT) s 32(1); Administration and Probate Act (NT) s 41(1); Administration and Probate Act 1958 (Vic) s 34(1).
18. Administration Act 1969 (NZ) s 21.
19. Administration of Justice Act 1985 (UK) s 50.
20. Re Bell [1929] VLR 53 at 55.
21. For background see WALRC Report (1984) at para 3.25(d).
22. See Trustee Companies Act 1947 (ACT) s 4-8; Trustee Companies Act 1964 (NSW) s 4-6; Companies (Trustees and Personal Representatives) Act (NT) s 14-17; Trustee Companies Act 1968 (Qld) s 5-7; Trustee Companies Act 1988 (SA) s 4; Trustee Companies Act 1953 (Tas) s 5, 6, 8-10; Trustee Companies Act 1984 (Vic) s 9-11; Trustee Companies Act 1987 (WA) s 5-8.
23. See Re Galletly (1900) 10 QLJ 74 and In the Will of Thornley (1903) 4 SR (NSW) 246.
24. See In the Will of Finn (1908) 8 SR (NSW) 32 at 33 (Street J).
25. Re Sutherland [1936] QWN 20. See also Re Galletly (1900) 10 QLJ 74.
26. The Probate Rules 1998 (SA) r 50.01(c).
27. Commonwealth Secretariat draft model bill cl 2(1).
28. Administration and Probate Act 1935 (Tas) s 48(1)(a); Administration and Probate Act 1958 (Vic) s 81(1)(a).
29. For background see WALRC Report (1984) at para 3.24 and recommendation 5.
30. Administration and Probate Act 1929 (ACT) s 69; Wills, Probate and Administration Act 1898 (NSW) s 97; Administration and Probate Act (NT) s 101; Administration Act 1903 (WA) s 53.
31. Wills Probate and Administration Service New South Wales (Butterworths) at para 1489.1.
32. Uniform Civil Procedure Rules 1999 (Qld) r 17(1), r 597(1), r 617(2); Probate Rules 1998 (SA) r 59.01; Supreme Court (General Civil Procedure) Rules 1996 (Vic) r 5.07.
33. For background see WALRC Report (1984) at para 3.35 and recommendation 13.
34. Administration and Probate Act 1929 (ACT) s 80(1); Wills, Probate and Administration Act 1898 (NSW) s 107(1); Administration and Probate Act (NT) s 111(1); 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(1).
35. Administration and Probate Act 1929 (ACT) s 5(1); Wills, Probate and Administration Act 1898 (NSW) s 3; Administration and Probate Act (NT) s 6(1); Administration and Probate Act 1958 (Vic) s 5(1); Administration Act 1903 (WA) s 3. See QLRC, Discussion Paper MP 37 at 5-6; NSWLRC, Discussion Paper 42 at para 2.10-2.11.
36. Uniform Civil Procedure Rules 1999 (Qld) r 619; The Probate Rules 1998 (SA) r 50.08; Probate Rules 1936 (Tas) r 53.
37. For background see WALRC Report (1984) at para 3.26 and recommendation 7.
38. Administration and Probate Act 1929 (ACT) s 5(1); Wills, Probate and Administration Act 1898 (NSW) s 3; Administration and Probate Act (NT) s 6; Administration and Probate Act 1935 (Tas) s 3(1) (which refers to the opinion of a judge); Administration Act 1903 (WA) s 3.
39. Wills, Probate and Administration Act 1898 (NSW) s 3. Emphasis added.
40. Administration and Probate Act 1929 (ACT) s 83(b); Administration and Probate Act (NT) s 114(b).
41. British Probates Act 1898 (Qld) s 2.
42. Administration and Probate Act 1919 (SA) s 20.
43. Administration and Probate Act 1919 (SA) s 19(1).
44. Administration and Probate Act 1958 (Vic) s 80.
45. Administration and Probate Act 1958 (Vic) s 81(1).
46. For background see Commonwealth Secretariat draft model bill cl 2(1), cl 3(1); WALRC Report (1984) at para 3.27 and recommendation 8.
47. Administration and Probate Act 1929 (ACT) s 88, s 92; Public Trustee Act 1913 (NSW) s 23; Public Trustee Act 1978 (Qld) s 29, s 31; Public Trustee Act 1995 (SA) s 9; Public Trustee Act 1941 (WA) s 10(1).
48. Public Trustee Act 1978 (Qld) s 29(1)(a); Administration and Probate Act 1929 (ACT) s 88(1)(a); Public Trustee Act 1995 (SA) s 9(1)(b); Public Trustee Act 1941 (WA) s 10(1)(ab); Public Trustee Act 1913 (NSW) s 23(1); Administration and Probate Act 1929 (ACT) s 92; Public Trustee Act 1995 (SA) s 9(2).
49. Administration and Probate Act 1929 (ACT) s 88(1)(a); Public Trustee Act 1978 (Qld) s 29(1)(b)(iii), (iv); Public Trustee Act 1995 (SA) s 9(1)(c)(i); Public Trustee Act 1941 (WA) s 10(1)(a).
50. Administration and Probate Act 1929 (ACT) s 88(1)(c); Public Trustee Act 1978 (Qld) s 29(1)(b)(v); Public Trustee Act 1995 (SA) s 9(1)(d), (e); Public Trustee Act 1941 (WA) s 10(1)(c).
51. Administration and Probate Act 1929 (ACT) s 89; Public Trustee Act 1995 (SA) s 9(8); Public Trustee Act 1941 (WA) s 10(3); Public Trustee Act 1913 (NSW) s 23(2); Public Trustee Act 1978 (Qld) s 32.
52. Administration and Probate Act 1929 (ACT) s 80(1); Administration and Probate Act (NT) s 111(1).
53. See Administration and Probate Act 1929 (ACT) s 87C; Public Trustee Act 1913 (NSW) s 18A; Public Trustee Regulation 2001 (NSW) cl 34(1); Public Trustee Act (NT) s 53, s 54, Public Trustee Regulations (NT) reg 7, Sch 3 and 4); Public Trustee Act 1978 (Qld) s 30-33; Public Trustee Act 1930 (Tas) s 20; Trustee Companies Act 1984 (Vic) s 4, 6, 11A and Sch 2; and Public Trustee Act 1941 (WA) s 10, s 14.
54. However, in the Australian Capital Territory, the public trustee has the powers he or she would have had if the court had granted an order to collect and administer: Administration and Probate Act 1929 (ACT) s 87C(4).
55. In the Australian Capital Territory and Tasmania.
56. In New South Wales, Northern Territory, Queensland, Tasmania, Victoria, Western Australia.
57. Trustee Companies Act 1964 (NSW) s 15A; Trustee Companies Act 1968 (Qld) s 12, s 13; Trustee Companies Act 1953 (Tas) s 10A; Trustee Companies Act 1984 (Vic) s 11A; Trustee Companies Act 1987 (WA) s 10.
58. QLRC, Discussion Paper MP 37 at 163-164; NSWLRC, Discussion Paper 42 at para 11.10-11.12.
59. For background on the English practice, see: Registrar’s Direction, 24 March 1958 (referred to in T H Tristram, Tristram and Coote’s Probate Practice (28th ed, 1995) at para 18.86); Registrar’s Direction (Consolidated Direction), 20 November 1972; Registrar’s Direction, 18 June 1979; Practice Direction (Resealing: Elections to Administer), 2 March 1982 (1982) 126 Solicitors Journal 176. For other background see: WALRC Report (1984) at para 3.28-3.30 and recommendation 9; Report of the Conference of Probate Registrars (1990) at 7.
60. Although the relevant rules are ones of general application and are not limited in their operation to applications for resealing. See Supreme Court Rules (ACT) O 8 r 1; Rules of the Supreme Court 1970 (NSW) Pt 4 r 4; Supreme Court Rules (NT) r 1.14, 88.01(2); Uniform Civil Procedure Rules 1999 (Qld) r 985(1); Rules of the Supreme Court 1971 (WA) O 4 r 3; Non-contentious Probate Rules 1967 (WA) r 3(1).
61. Administration and Probate Act 1935 (Tas) s 48(1); Administration and Probate Act 1958 (Vic) s 81(1); Probate Rules 1998 (SA) r 50.01(b).
62. Administration and Probate Act 1929 (ACT) s 80(1); Wills, Probate and Administration Act 1898 (NSW) s 107(1); Administration and Probate Act (NT) s 111(1); 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(1).
63. The British Probates Act 1898 (Qld) s 4 is the only statute in which the registrar receives no mention.
64. Supreme Court Rules 1970 (NSW) Pt 78 r 5(1)(a); Uniform Civil Procedure Rules 1999 (Qld) r 601, 617(2); Non-contentious Probate Rules 1967 (WA) r 4.
65. Uniform Civil Procedure Rules 1999 (Qld) r 601(1)(a), r 617(2); Administration and Probate Act 1929 (ACT) s 80(1A), Supreme Court Rules (ACT) O 72 r 19(a)(i); Administration and Probate Act (NT) s 111(3)(a), Supreme Court Rules (NT) r 88.89(1)(a).
66. Administration and Probate Act 1929 (ACT) s 80(1B); Uniform Civil Procedure Rules 1999 (Qld) r 601(2), r 617(2).
67. Uniform Civil Procedure Rules 1999 (Qld) r 619; Probate Rules 1936 (Tas) r 53. But see Probate Rules 1998 (SA) r 50.08.
68. For background see Commonwealth Secretariat draft model bill cl 4(3), cl 5(1), cl 5(2); WALRC Report (1984) at para 3.32 and recommendation 10.
69. See Supreme Court Rules (ACT) O 72 r 5, r 14A; Supreme Court Rules 1970 (NSW) Pt 4 r 1, Pt 78 r 8(1), Pt 78 r 36; Supreme Court Rules (NT) r 88.07; Uniform Civil Procedure Rules 1999 (Qld) r 597, r 617(2); Probate Rules 1998 (SA) r 50.02; Probate Rules 1936 (Tas) r 46; Administration and Probate Rules 1994 (Vic) r 2.02; Non-contentious Probate Rules 1967 (WA) r 6(1).
70. Administration and Probate Act 1929 (ACT) s 80(1); Wills, Probate and Administration Act 1898 (NSW) s 107(1); Administration and Probate Act (NT) s 111(1); British Probates Act 1898 (Qld) s 4(1); Administration and Probate Act 1919 (SA) s 17; Administration and Probate Act 1935 (Tas) s 48(1); Administration and Probate Act 1958 (Vic) s 81(1); Administration Act 1903 (WA) s 61(1).
71. Administration and Probate Act 1929 (ACT) s 5(1); Wills, Probate and Administration Act 1898 (NSW) s 3; Administration and Probate Act (NT) s 6(1); Administration and Probate Act 1919 (SA) s 20; Administration and Probate Act 1935 (Tas) s 3(1); Administration and Probate Act 1958 (Vic) s 80; Administration Act 1903 (WA) s 3. The Queensland legislation provides that a duplicate of any probate or letters of administration, sealed with the seal of the granting court, or a copy certified as correct by or under the authority of the granting court, is sufficient: British Probates Act 1898 (Qld) s 4(4).
72. Supreme Court Rules 1970 (NSW) Pt 78 r 28(4); Supreme Court Rules (NT) r 88.26(4).
73. Uniform Civil Procedure Rules 1999 (Qld) r 618(1); Probate Rules 1936 (Tas) r 51; The Probate Rules 1998 (SA) r 50.07; Non-contentious Probate Rules 1967 (WA) r 43(1).
74. Supreme Court Rules (ACT) O 72 r 14A; Supreme Court Rules 1970 (NSW) Pt 78 r 28; Supreme Court Rules (NT) r 88.26; The Probate Rules 1998 (SA) r 50.02; Probate Rules 1936 (Tas) r 46. In Queensland, the Uniform Civil Procedure Rules 1999 (Qld) do not contain a rule setting out the matters to be included in the oath, although there is an approved form for an affidavit in support of an application for resealing (Form 113).
75. For background see: Commonwealth Secretariat draft model bill cl 3(4)(a) and (b); WALRC Report (1984) at para 3.33 and recommendation 11; Report of the Conference of Probate Registrars (1990) at 7.
76. Administration and Probate Act 1929 (ACT) s 80(1); Wills, Probate and Administration Act 1898 (NSW) s 107(1); Administration and Probate Act (NT) s 111(1); 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(1).
77. For background see: Commonwealth Secretariat draft model bill cl 5(1); WALRC Report (1984) at para 3.22 and recommendation 3.
78. Administration and Probate Act 1929 (ACT) s 8C.
79. Supreme Court Rules 1970 (NSW) Pt 78 r 12; Supreme Court Rules (NT) r 88.11.
80. Probate Rules 1936 (Tas) r 49; Probate Rules 1998 (SA) r 50.0.
81. Probate Rules 1936 (Tas) r 52.
82. Supreme Court Rules (NT) r 88.26(1)(b)(iv).
83. Administration and Probate Act 1929 (ACT) s 80(2)(a); Wills, Probate and Administration Act 1898 (NSW) s 107(2); Administration and Probate Act (NT) s 111(4)(a); 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).
84. For background see: Commonwealth Secretariat draft model bill cl 6(1); and WALRC Report (1984) at para 3.53 and recommendation 17.
85. Administration and Probate Act 1929 (ACT) s 80(2)(b); Wills, Probate and Administration Act 1898 (NSW) s 107(2); Administration and Probate Act (NT) s 111(4)(b); Administration Act 1903 (WA) s 61(2).
86. Administration and Probate Act 1935 (Tas) s 48(2); Administration and Probate Act 1958 (Vic) s 81(3); Administration and Probate Act 1919 (SA) s 17.
87. Wills, Probate and Administration Act 1898 (NSW) s 107(1); Administration Act 1903 (WA) s 61(1); Probate Rules 1998 (SA) r 50.01(b)
88. Wills, Probate and Administration Act 1898 (NSW) s 107(2); Administration Act 1903 (WA) s 61(2); Administration and Probate Act 1919 (SA) s 17.
89. For background see: Commonwealth Secretariat draft model bill cl 6(2); WALRC Report (1984) at para 3.25(a), 3.54, recommendation 6(a) and 18; Report of the Conference of Probate Registrars (1990) at 9.
90. Administration and Probate Act 1935 (Tas) s 52; Administration and Probate Act 1958 (Vic) s 85.
91. See Re Watmough [1913] VLR 435.
92. See Re Welch (1894) 16 ALT 95.
93. See Permezel v Hollingworth [1905] VLR 321.
94. For background see: Commonwealth Secretariat draft model bill cl 6(2).
95. Administration and Probate Act 1958 (Vic) s 86.
96. See also Commonwealth Secretariat draft model bill cl 7.
97. Administration and Probate Act 1929 (ACT) s 81; Administration and Probate Act (NT) s 112; Administration and Probate Act 1935 (Tas) s 49(2); Administration and Probate Act 1958 (Vic) s 82. In Queensland, the rules about the lodging of a caveat against the making of an original grant also apply to the lodging of a caveat against the resealing of a grant:Uniform Civil Procedure Rules 1999 (Qld) r 623-628.
98. Administration Act 1903 (WA) s 63(1); Supreme Court Rules 1970 (NSW) Pt 78 r 61; Probate Rules 1998 (SA) r 52.01.
99. WALRC Report (1984) at para 3.45.
100. WALRC Report (1984) at recommendation 15. See also WALRC Report (1984) at para 3.45.
101. Commonwealth Secretariat draft model bill cl 4.
102. The Probate Rules 1998 (SA) r 52.02-52.13.
103. Administration and Probate Act 1929 (ACT) s 82(3); Wills, Probate and Administration Act 1898 (NSW) s 109; Administration and Probate Act (NT) s 113(3); Administration and Probate Act 1935 (Tas) s 49(1); Administration and Probate Act 1958 (Vic) s 83. For additional provisions in rules of court see Supreme Court Rules 1970 (NSW) Pt 78 r 10; Supreme Court Rules (NT) r 88.09.
104. Uniform Civil Procedure Rules 1999 (Qld) r 617(1).
105. The Probate Rules 1998 (SA) r 50.03.
106. WALRC Report (1984) at para 3.38.
107. For background see: Commonwealth Secretariat draft model bill cl 3(3); WALRC Report (1984) at para 3.42; Report of the Conference of Probate Registrars (1990) at 8.
108. See Administration and Probate Act 1929 (ACT) s 80(4), 82(2); Administration and Probate Act (NT) s 111(6), s 113(2); Wills, Probate and Administration Act 1898 (NSW) s 107(3), s 108(2); British Probates Act 1898 (Qld) s 4(3); Administration and Probate Act 1935 (Tas) s 50, s 51 and Probate Rules 1936 (Tas) r 47; Administration and Probate Act 1919 (SA) s 18(1) and Probate Rules 1998 (SA) r 50.04; Administration and Probate Act 1958 (Vic) s 84; Administration Act 1903 (WA) s 62.
109. Supreme Court Act 1981 (UK) s 120(1), s 152(4) and Sch 7.
110. See Administration Act 1903 (WA) s 26.
111. See Administration and Probate Act 1958 (Vic) s 57.
112. Succession Act 1981 (Qld) s 51.
113. See Administration and Probate Act 1919 (SA) s 31(2).
114. Administration Act 1969 (NZ) s 6(5) and (6).
115. QLRC, Discussion Paper MP 37 at 135; NSWLRC, Discussion Paper 42 at para 9.42-9.43 and Proposal 61.
116. For background see: Commonwealth Secretariat draft model bill cl 5(1)(b); WALRC Report (1984) at para 3.52.
117. Uniform Civil Procedure Rules 1999 (Qld) r 620, r 641; The Probate Rules 1998 (SA) r 50.09, r 50.10; Probate Rules 1936 (Tas) r 54, r 55. Revocation of the grant by the jurisdiction that issued it empowers the resealing jurisdiction to revoke the reseal: Re Hall [1930] VLR 309.
118. Letter from the Registrar of the Supreme Court of Western Australia to the Queensland Law Reform Commission, 12 November 2001.
119. See WALRC Report (1984) at recommendation 19.
120. See Report of the Conference of Probate Registrars (1990) at 9-10.
121. See para 4.35.
122. Administration and Probate Act 1929 (ACT) s 58(1)(a), s 80(2)(b), Supreme Court Rules (ACT) O 72 r 37; Wills, Probate and Administration Act 1898 (NSW) s 81A, s 107(2), Supreme Court Rules 1970 (NSW) r 28A; Administration and Probate Act (NT) s 111(4)(b), Supreme Court Rules (NT) r 88.27; Administration and Probate Act 1919 (SA) s 121A, and see also s 44; The Probate Rules 1998 (SA) r 8.01-8.03; Administration and Probate Act 1935 (Tas) s 26, Probate Rules 1936 (Tas) r 63; Administration Act 1903 (WA) s 61(2), Non-contentious Probate Rules 1967 (WA) r 9B.
123. QLRC, Discussion Paper MP 37 at 128-129; NSWLRC, Discussion Paper 42 at para 9.19-9.21 and Proposal 60.
124. Administration and Probate Act 1919 (SA) s 121A(1) and s 121A(2).
125. Administration and Probate Act 1919 (SA) s 121A(3) and s 121A(5).
126. For further background see: WALRC Report (1984) at para 3.34 and recommendation 12; Report of the Conference of Probate Registrars (1990) at 8.
127. Administration and Probate Act 1929 (ACT) s 82(1); Wills, Probate and Administration Act 1898 (NSW) s 108(1); Administration and Probate Act (NT) s 113(1); Administration and Probate Act 1919 (SA) s 18(2); Administration and Probate Act 1935 (Tas) s 50(1).
128. British Probates Act 1898 (Qld) s 4(2).
129. Duty was abolished on the estates of persons dying on or after the following dates: Commonwealth: 1 July 1979 (Estate Duty Assessment Amendment Act 1978 (Cth)); New South Wales: 31 December 1981 (Stamp Duties (Further Amendment) Act 1980 (NSW)); Northern Territory: 1 July 1978 (Succession Duties Repeal Ordinance 1978 (NT)); Queensland: 1 January 1977 (Succession and Gift Duties Abolition Act 1976 (Qld)); South Australia: 1 January 1980 (Succession Duties Act Amendment Act 1979 (SA)); Tasmania: 1 October 1982 (Deceased Persons’ Estates Duties Amendment Act 1982 (Tas)); Victoria: 1 January 1984 (Probate Duty (Amendment) Act 1983 (Vic)); Western Australia: 1 January 1980 (Death Duty Assessment Act Amendment Act 1978 (WA)).
130. See Succession Duties Act 1929 (SA). The Act applies to the administrator of the estate of a person who died before 1 January 1980: Succession Duties Act 1929 (SA) s 4E.
131. Stamp Duties (Amendment) Act 1991 (NSW) s 3, Sch 3, Item (11); Succession Duties Repeal Ordinance 1978 (NT) s 3; Statute Law Revision Act 1995 (Qld) s 5(1), Sch 6; Deceased Persons’ Estates Duties Amendment Act 1982 (Tas) s 10, SR 48 of 1997.
132. State Taxation Acts (Miscellaneous Amendments) Act 2000 (Vic) s 4; Statutes (Repeals and Minor Amendments) Act 1997 (WA) s 5.
133. For further background see: Commonwealth Secretariat draft model bill cl 5(1)(a); WALRC Report (1984) at para 7.42.
