8.1 When a court has jurisdiction to make or to reseal a grant of probate or letters of administration, it can also determine to whom the grant should be made or on whose application the grant may be resealed (sometimes referred to as “official succession”).1
8.2 Where the deceased died domiciled in a jurisdiction other than the one in which the grant is sought, it is necessary to decide whether the grant should be made according to the law of the jurisdiction in which the grant is sought or the law of the jurisdiction in which the deceased died domiciled.
8.3 If legislation were introduced under which a grant made by the Australian jurisdiction in which the deceased died domiciled would be automatically recognised in all other Australian jurisdictions then the discretion presently exercised in relation to grants made in another State or Territory by the resealing jurisdiction would disappear.
ORIGINAL GRANTS
Most Australian jurisdictions
8.4 In all Australian jurisdictions other than South Australia, the test for determining who is entitled to a grant depends on whether the estate consists entirely of movables, or whether it consists of, or includes, immovables.
Movable property
8.5 Where the estate within the jurisdiction of the court where the grant is sought consists of movable property, the court will generally follow the rules of the domicile and make a grant to the person entitled under that law (for reasons of convenience and expediency).2
8.6 When a grant has already been made by the court of the deceased’s last domicile, the court of the jurisdiction in which a grant is subsequently sought will usually, without further investigation, follow the existing grant and make a grant to the person who has been recognised as the personal representative in the domicile.3 If a grant has not been made in the domicile, a grant will normally be made to the person who would be entitled to a grant under the law of the domicile.4
8.7 If the law of the domicile does not recognise executors and administrators as understood by the common law, the court must follow the law of the domicile as closely as it can and appoint the person whose function it is to administer the estate under the law of the domicile.5
8.8 The granting court retains a residual discretion to refuse to make a grant, or to refuse to make a grant to a particular applicant, in exceptional cases.
Immovable property
8.9 Where the estate within the jurisdiction of the court where a grant is sought consists of or includes immovable property, the situation is different. The High Court has held that the only law that can determine the title to land is the law of the jurisdiction where the property is situated (the “lex situs”).6
8.10 Accordingly, in Australian jurisdictions other than South Australia, where the assets within the jurisdiction consist of or include immovables, the court will not simply follow the grant made in the domicile, but must decide for itself questions concerning the validity of any will and entitlement to a grant. This means that, in determining who is entitled to a grant of probate or letters of administration, it will follow its own rules.
South Australia
8.11 In South Australia, the situation depends on whether the deceased died domiciled in an Australian jurisdiction or overseas. The South Australian rules7 were amended with the aim of adopting the practice that applied in England8 and provide that where the deceased died domiciled outside Australia:
- the grant will normally follow the law of the deceased’s domicile, not only where the estate consists entirely of movables, but also where it consists of both movables and immovables;9
- where the estate in South Australia consists entirely of immovables, the court may follow the lex situs and make a grant, limited to the immovable property in South Australia, in accordance with the law that would have applied if the deceased had died domiciled in South Australia;10
8.12 It is presumed that where the deceased died domiciled in another Australian jurisdiction and:
- the estate consists of movable property, the grant will normally follow the law of the deceased’s domicile; and
- the estate consists of or includes immovable property within South Australia, the grant will normally follow the lex situs.
England
8.13 The law in England differs from the law that applies in Australian jurisdictions (except in South Australia where the deceased died domiciled overseas) in that it allows a grant to be made to the personal representative appointed by the law of the domicile, even where the estate includes immovable property.
8.14 The considerations that weighed strongly with the High Court in relation to the disposition of land11 have been outweighed by the advantage of having the administration of the estate in the same hands in both the domicile and the place where the property is situated.12
New Zealand
8.15 In New Zealand also, it appears that the court will follow the grant made by the court of the deceased’s domicile, and will make no distinction between whether the estate consists entirely of movables or consists of, or includes, immovables.13
RESEALING
8.16 In determining whether to reseal a grant Australian courts apply the same principles as those that govern the making of an original grant.14 Consequently, where an application is made for the resealing of a grant and the property within the resealing jurisdiction consists only of movables, the court may reseal the grant on the application of the personal representative appointed by the court of the deceased’s domicile.
8.17 Where an application is made for the resealing of a grant and the estate within the resealing jurisdiction consists of, or includes, immovable property, then the court will look to its own law as the lex situs of the property. This means that the court will not reseal a grant dealing with immovables situated within its jurisdiction unless the grant was made to a person who would be entitled to receive an original grant from that court.
South Australia
8.18 It is presumed that, in South Australia, where the deceased died domiciled outside Australia, the court may reseal a grant on the application of the person entitled to the grant by the law of the place where the deceased died domiciled both when the estate consists entirely of movables and also when it includes immovables.
England
8.19 In England a grant cannot be resealed, except by leave of a registrar, unless it was made:
- to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled;
- where no such person has been entrusted – to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled; or
- in the case of a will that is admissible in England and Wales – to the executor named in the will (where the will is in English or Welsh) or to the executor according to the tenor of the will (regardless of the language in which the will is made).15
8.20 This rule applies both where the estate in England and Wales consists of movables, and where it includes immovables.
PRELIMINARY VIEW
8.21 A number of factors support the adoption of a uniform rule based on the English rule:
- the convenience, as a general rule, of having the whole administration carried on by the same person irrespective of where the estate is situated;
- the unanimous support of the Probate Registrars for such a rule;16 and
- the fact that the Australian Law Reform Commission has also concluded that, in matters of succession, it is undesirable to have different rules for succession to movables and immovables, and recommended that a single rule should be adopted referring all questions of succession to the law of the deceased’s last domicile.17
8.22 A uniform rule should, therefore, be adopted to specify the persons to whom a grant may be made where the deceased has died domiciled outside the State or Territory in which the grant is sought. The rule should be based on the English provisions,18 rather than on the South Australian rule (which applies only to cases where the deceased died domiciled outside Australia).
8.23 This is contrary to the recommendation of the WALRC which concluded that no change was desirable in the existing law.19
Footnotes
1. See E I Sykes and M C Pryles, Australian Private International Law (3rd ed, 1991) at 735.
2. See Lewis v Balshaw (1935) 54 CLR 188.
3. Lewis v Balshaw (1935) 54 CLR 188 at 193 (Rich, Dixon, Evatt and McTiernan JJ).
4. In the Goods of Whitelegg [1899] P 267.
5. In the Goods of Meatyard [1903] P 125.
6. Lewis v Balshaw (1935) 54 CLR 188 at 195 (Rich, Dixon, Evatt and McTiernan JJ). See also Zerefos v Panagos (NSW, Supreme Court, No PD 11 of 1979, Waddell J, 4 December 1985, unreported).
7. Probate Rules 1998 (SA) r 40.01.
8. See Non-Contentious Probate Rules 1954 (UK) r 29.
9. Probate Rules 1998 (SA) r 40.01.
10. Probate Rules 1998 (SA) r 40.01 proviso (2).
11. See Lewis v Balshaw (1935) 54 CLR 188.
12. A V Dicey, Dicey and Morris on the Conflict of Laws (13th ed, 2000) vol 2 at 1010-1011; and G C Cheshire, Cheshire and North’s Private International Law (13th ed, 1999) at 978.
13. Re O’Driscoll [1952] NZLR 890 at 891. See also Re the Will of Ronaldson (1891) 10 NZLR 228.
14. Re Carlton [1924] VLR 237.
15. Non-Contentious Probate Rules 1987 (UK) r 39(3).
16. Report of the Conference of Probate Registrars (1990) at 19, 21, 22.
17. Australian Law Reform Commission, Choice of Law (Report 58, 1992) at para 9.7-9.9. It also recommended that the rule should apply to both interstate and international issues.
18. Non-Contentious Probate Rules 1987 (UK) r 30.
19. WALRC Report (1984) at para 9.41 and recommendation 34.
