THE CURRENT LAW
6.1 There is considerable diversity among the various Australian jurisdictions as to the countries whose grants may be resealed. The legislative techniques used to prescribe the countries whose grants may be resealed also differ considerably, and some operate more successfully than others. Those that adopt the option of setting out lists of countries in regulations or other subordinate legislation1 are particularly vulnerable to political developments concerning the status and allegiance of particular countries, which render the lists out of date unless they are regularly reviewed. However, the use of general expressions such as “Commonwealth country”2 and “Her Majesty’s dominions”,3 rather than a list approach, may not be any more satisfactory, since political changes can affect the original intentions of the drafter as to the countries intended to be included.
6.2 In South Australia, the Supreme Court may, amongst other things, reseal “any probate or administration granted by a foreign court”4 which is defined as:
… any document as to which the Registrar [of the Supreme Court] 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.5
SOME PROPOSALS
6.3 Clause 3(1) of the Commonwealth Secretariat draft model bill6 provided for the resealing of “a grant of probate or letters of administration of the estate of any deceased person … made by a court in any part of the Commonwealth or in any other country”.
6.4 The draft model bill did not restrict in any way the countries whose grants could be resealed; instead, the issue turned on whether the grant in the country in question had a sufficiently similar effect to a grant of probate or letters of administration made in the resealing jurisdiction. Much depended on the definition of “grant of administration”:
… a probate or letters of administration or any instrument having, within the jurisdiction where it was made, the effect of appointing or authorising a person (in this Act referred to as “the grantee”) to collect and administer any part of the estate of a deceased person and otherwise having in that jurisdiction an effect equivalent to that given, under the law of ________, to a probate or letters of administration.7
The WALRC recommended that all Australian States and Territories should adopt a provision based on that in the Commonwealth Secretariat draft model bill.8
6.5 In 1990, the Probate Registrars suggested that:
All Australian States and Territories should by uniform legislation allow the resealing of a grant of probate or administration made by a court of competent jurisdiction in any country gazetted from time to time by the Minister for Foreign Affairs.9
This alternative, while it relies on the list approach, would at least ensure that the countries recognised for this purpose by Australian jurisdictions remained uniform.
PRELIMINARY VIEW
6.6 There are two principal alternatives for prescribing the countries whose grants may be resealed. Grants of probate and administration could be recognised when they have been made by a competent court either:
- in any part of the Commonwealth of Nations or any other country; or
- in any country gazetted from time to time by the Commonwealth Minister for Foreign Affairs.
6.7 The first alternative makes it unnecessary to have an official list of countries and keep it up to date. It would rely on the courts to determine whether particular grants were sufficiently similar to Australian grants of probate and administration to be recognised. Over time, a body of precedent would accumulate which would assist in this process. There is, however, no certainty that the courts of all Australian jurisdictions would make the same decision in relation to instruments issued from a particular country.
6.8 The second alternative relies on the Minister for Foreign Affairs to keep the list up to date. It would be necessary, however, for Commonwealth legislation to be passed conferring on the Minister for Foreign Affairs the power to proclaim certain countries for this purpose.
Footnotes
1. For example, British Probates Act 1898 (Qld) s 3; Administration and Probate Act 1919 (SA) s 20; Administration and Probate Act 1958 (Vic) s 81(1), s 88; Administration and Probate Act 1935 (Tas) s 53(1); Administration and Probate Act (NT) s 6(1) and s 111(1).
2. For example, Administration and Probate Act 1929 (ACT) s 80(1).
3. For example, Wills, Probate and Administration Act 1898 (NSW) s 107(1); Administration Act 1903 (WA) s 61(1).
4. Administration and Probate Act 1919 (SA) s 17. The phrase “probate or administration granted by a foreign court” is defined in s 19(1) of the Administration and Probate Act 1919 (SA).
5. Administration and Probate Act 1919 (SA) s 19(1).
6. The Commonwealth Secretariat draft model bill is reproduced in Appendix A to this Issues Paper.
7. Commonwealth Secretariat draft model bill cl 2(1).
8. WALRC Report (1984) at para 4.22, 4.23 and recommendation 20.
9. Report of the Conference of Probate Registrars (1990) at 10.
