7.1 When a court is considering whether to make an original grant of probate or letters of administration, or to reseal a grant made in another jurisdiction, it may have to consider whether it has the power to make or reseal the grant. At present, some jurisdictions require that the deceased should have left assets within the jurisdiction as a condition of making a grant of probate or letters of administration, while others do not.
7.2 If the deceased died domiciled in a jurisdiction in which he or she had no assets, in the absence of a rule allowing a court to make a grant whether or not the deceased left property in that jurisdiction, there would be no jurisdiction capable of making a grant that would be entitled to automatic recognition.
ORIGINAL GRANTS
7.3 In five Australian jurisdictions, the court cannot make a grant unless the deceased left property within the jurisdiction.1 In the remaining jurisdictions, the court may make a grant despite the absence of property.2 In the United Kingdom3 and in New Zealand,4 the court may also make a grant despite the absence of property within the jurisdiction. For example, in Queensland:
The court may in its discretion grant probate of the will or letters of administration of the estate of a deceased person notwithstanding that the deceased person left no estate in Queensland or elsewhere or that the person to whom the grant is made is not resident or domiciled in Queensland.5
RESEALING
7.4 In Tasmania and Victoria, the requirement that the deceased should have left property within the resealing jurisdiction is specifically stated in the legislative provisions on resealing.6
7.5 In New South Wales, South Australia and Western Australia, which require that the deceased must leave property within the particular jurisdiction for an original grant, the legislation does not expressly impose a property requirement for the resealing of a grant. The question whether the courts in these jurisdictions can reseal a grant where there is no property within the jurisdiction turns on the interpretation of the relevant legislation.7
7.6 In Queensland, the Australian Capital Territory and the Northern Territory, where property within the jurisdiction is not required for an original grant, the resealing provisions do not specifically require property within the resealing jurisdiction. Consequently it can be assumed that a grant may be resealed in these jurisdictions despite the absence of property within the particular jurisdiction.
7.7 The WALRC suggested that, in a number of circumstances, the making of an original grant or the resealing of a grant was desirable, despite the absence of property within the jurisdiction:8
(a) The making of a grant may have effects on foreign revenue laws beneficial to the estate.
(b) If a testator died leaving property in one jurisdiction, but none in a second, and his executor obtained a grant only after a trespasser had removed the testator’s movable property from the first to the second, probate could not be resealed in the second, if property there was required.
(c) Certain foreign countries apparently require a grant by the country of nationality of the deceased before themselves making a grant.
(d) Where a will only appoints a testamentary guardian, the will is not admissible to probate.
(e) There may be litigation to which the deceased estate may be a party but where in reality any judgment would be payable by the deceased’s insurers.
7.8 The WALRC also noted the comments of the Victorian Registrar of Probates, who said that in Victoria the problem could be overcome by filing an affidavit that the deceased left personal property within the jurisdiction to a value of say $10. The WALRC considered such artifices undesirable and an indication of the need for reform.9
Preliminary view
7.9 The jurisdictional requirements for the making of original grants have already been considered by the National Committee in its Discussion Paper on the administration of estates, where it was proposed that a provision based on the Succession Act 1981 (Qld) should be adopted by all States and Territories.10 It is clearly desirable for all jurisdictions to be able to reseal a grant in similar circumstances. The model legislation should contain a provision giving the court jurisdiction to reseal a grant despite the absence of property within the jurisdiction, using wording consistent with section 6 of the Succession Act 1981 (Qld).11
Footnotes
1. Wills, Probate and Administration Act 1898 (NSW) s 40; Administration and Probate Act 1919 (SA) s 5; Supreme Court Civil Procedure Act 1932 (Tas) s 6(5); Administration and Probate Act 1958 (Vic) s 6; Administration Act 1903 (WA) s 6. It appears, however, that the court may grant letters of administration de bonis non despite the absence of property within the jurisdiction, provided there is property somewhere that remains to be administered: See Wimalaratna v Ellies (WA, Supreme Court, Full Court, No 167 of 1984, 9 October 1984, unreported).
2. Administration and Probate Act 1929 (ACT) s 9(2); Administration and Probate Act (NT) s 14(2); Succession Act 1981 (Qld) s 6(2).
3. Supreme Court Act 1981 (UK) s 25(1).
4. Administration Act 1969 (NZ) s 5(2).
5. Succession Act 1981 (Qld) s 6(2).
6. Administration and Probate Act 1935 (Tas) s 48(1); Administration and Probate Act 1958 (Vic) s 81(1).
7. See, for example, Re Carlton [1924] VLR 237; In the Will of Buckley (1889) 15 VLR 820. But see R Hastings and G Weir, Probate Law and Practice (2nd ed, 1948) at 310; R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1996) at 625.
8. WALRC Report (1984) at para 9.27.
9. WALRC Report (1984) at para 9.28, note 1.
10. QLRC, Discussion Paper MP 37 at 18; NSWLRC, Discussion Paper 42 at 28, Proposal 4.
11. For background see WALRC Report (1984) at para 9.30-9.31; Report of the Conference of Probate Registrars (1990) at 19.
