Administration of Estates of Deceased Persons, Schemes and Mind Maps of Law

Download Administration of Estates of Deceased Persons and more Schemes and Mind Maps Law in PDF only on Docsity! bs New South Wales Law Reform Commission Discussion Paper 42 UNIFORM SUCCESSION LAWS Administration of estates of deceased persons October 1999  New South Wales. Law Reform Commission. Sydney 1999 ISSN 1818-7924 (Discussion Paper) National Library of Australia Cataloguing-in-publication entry Uniform succession laws: administration of estates of deceased persons. Bibliography ISBN 0 7313 1032 2 1. Wills ~ Australia. 2. Executors and administrators — Australia. 3. Estates (Law) — Australia. 4. Probate law and practice — Australia. 5. Decedents’ estates — Australia. I. New South Wales. Law Reform Commission. (Series: Discussion paper (New South Wales. Law Reform Commission) ; 42). 346.94056  & PONS v (b} Particular types of grants of letters of administration (i) Issue considered by the National Committe (ii) The National Commitiee’s preliminary view. (c) Administration granted to guardian of minor executor.. i} Introductio: (ii) Issue considered by (ii) The National Committee’s preliminary view. 22868688 JURISDICTION TO GRANT PROBATE OR ADMINISTRATION WHERE DEATH PRESUMED INTRODUCTION ... NEW SOUTH WALE! ISSUES CONSIDERED BY THE NATIONAL COMMITTEE THE NATIONAL COMMITTEE'S PRELIMINARY VIEW.. AGESG APPOINTMENT, REMOVAL AND DELAY IN APPOINTMENT OF PERSONAL REPRESENTATIVE. INTRODUCTION ... POWER TO APPOINT ADMINISTRATOR (a} Introduction we (b) Issue considered by the National Committee. (c} The National Committee's preliminary view (i) An express power fo appoint an administrator (i) Passing over a named executor... APPOINTMENT OF PUBLIC TRUSTEE TO ADMINISTER WITHOUT STRICT PROOF OF DEATH... (a) Issue considered by the National Committee. {b) The National Committee's preliminary view .. THE COURT'S DISCRETION IN GRANTING LETTERS OF ADMINISTRATION ..... (a) Introduction (b) Issue considered by the National Committee (c) The National Committee's preliminary view .. THE CONVENTIONAL RANKING OF APPLICANTS FOR LETTERS. OF ADMINISTRATION ...,.csesssesssessesssnessrcssrersscscsessetsssesseacsseensscessesetessesensanens 51 (a) Introduction .... (b) Issue considered by the National Committee. (c) The National Committee's preliminary view CAVEATS... (a} introduction (b) issue considered by the National Committee. (c) The National Committee's preliminary view .. TRANSMISSION OF EXECUTORSHIP AND ADMINISTRATION. INTRODUCTION .... EXECUTOR OF EXECUTOR (a) Arguments for and against retention o (i) — Retention of the doctrin (i) Abolition of the doctrine {b} Retention of the doctrine, but with provision for beneficiary to object  vi {c) Renouncing the executorship by representation . (d) Issues considered by the National Committee (e) The National Committee’s pretiminary view .. ADMINISTRATOR BY REPRESENTATION... {a} Issues considered by the National Committee {b) The National Committee's preliminary view . CESSATION OF RIGHT TO PROVE WILL. AND REVOCATION OF GRANT INTRODUCTION CESSATION OF RIGHT OF EXECUTOR TO PROVE WILL.. {a} tssue considered by the National Committee (b} The National Committee's preliminary view . WITHDRAWAL OF RENUNCIATION OF PROBATI {a) Issues considered by the National Committee (b) The National Committee's preliminary view . REVOCATION OF GRANT BY COURT .. (a) Introduction... (b) tssue considered by the National Committee (c) The National Committee’s preliminary view .. PERSONAL REPRESENTATIVES .. INTRODUCTION ASSIMILATION OF THE ROLES OF EXECUTOR AND ADMINIS: (a) Assimilation of powers (i) Queensiand..... (ii) Issue considered by the National Committee (li) The National Committee's preliminary view (b) Assimilation of rights and liabilities. (@) ~ Queensfand.... {ii} Issue considered by the National Committee (iii) The National Committee's preliminary view. DUTIES OF PERSONAL REPRESENTATIVES (a) Introduction... (b) Specific duties .. (i) Duty to pay interest upon general legacies. (ii) Duty to provide inventory and to pass accounts (iii) Duty of personal representative holding property belonging to person who is not sui juris or not resident in the State to pay or deliver the property to the Public Trustee (iv) Duty to inquire about ex-nuptial children... (c) Expression of duties in a single statutory provision (i) Issue considered by the National Committee (ii) The National Committee's preliminary view. {d) The principle of the executor’s year not affected. (i) fssues considered by the National Committe tii) The National Committee’s preliminary view... (e) Liability of personal representative for breach of duty. (i) Neglect of duty... fii) Liability for waste ...... (if) Neglect or refusal to transfer or convey land or hand over legacies or bequests...  THE POWERS OF PERSONAL REPRESENTATIVES. (a) Power ta maintain spouse and issue (i) Issue considered by the Nationa: (i) The National Committee's preliminary view. (b} Power of detegation before grant to Public Trustee or trustee compan (i) Issue considered by the National Committee (i) The National Committee’s preliminary view. ({c) Relation back of powers given on grant... (i) Issue considered by the National Committee (ii) The National Committee's preliminary view. (d) Personal representatives must exercise powers (i) Issue considered by the National Committee (i) The National Committee's preliminary view. (e) Commission...... () Queensland (i} New South Wales . (iii) South Australia (iv) Issues conside: y the Ni (v) The National Committee's preliminary view. (} Obtaining the advice or direction of the court. (i} Case faw..... (ii) Authority to commence administration action (iii) Trustee legislation... (iv) Administration and probate legislation. 127 (v) {ssues considered by the National Committee 128 (vi) The National Committee’s preliminary view. 128 (g) Assent by personal representative .. 129 (i) Issues considered by the Na -133 (ii) The National Committee's prefiminary view... 133 (h) Executor may sign acknowledgment in lieu of conveyance. 134 (ij) Issues considered by the National Committee (i) The National Committee’s preliminary view... (i) Professional charges (i) issue considered by the National Committee (i) The National Committee’s preliminary view. () Additional powers... (i) issue considered by the National Committee (i) The National Committee’s preliminary view. (k)} Relinquishing grant .... (} Issues considered by the National Committee fii) The National Committee's preliminary view... LIMITS TO EXERCISE OF POWERS OF PERSONAL REPRESENTATIVE ONCE A GRANT IS MADE. (a) Introduction .. {b) Relationship between sections 49 and 54. (c} Issues considered by the National Committee PERSONAL REPRESENTATIVES AS TRUSTEES (a) Introduction (b) Relationship between personal representativesand trustee: vii  11. AeMes g N REAL PROPERTY .. {a) Introduction. (b) issue considered by the National Committee (c) The National Committee's preliminary view .. PAYMENTS BY THIRD PARTIES WITHOUT PRODUCTION O| (a) Introduction... (b) Payments by employers . {c) Other payments... {d) The National Committee's preliminary view STATUTORY PROVISIONS ENABLING ADMINISTRATION OF AN ESTATE WITHOUT A GRANT. INTRODUCTION .... ELECTION TO ADMINISTER AN ESTATE WITHOUT AGRANT..... (a) Queenslani (b) Other jurisdictions. (c) Issue considered by the National Committee (d) The National Committee's preliminary view ... ADMINISTRATION OF SMALL ESTATES OTHER THAN BY ELECTION OR BY GRANT (a) _ Introduction... ADMINISTRATION OF ESTATES PENDING GRANT , VESTING OF PROPERTY. INTRODUCTION ... DEVOLUTION OF PROPERTY ON DEATH SUMMARY OF AUSTRALIAN JURISDICTIONS QUEENSLAND: FULL VESTING IN EXECUTOR/PUBLIC TRUSTEE ON DEATH IN TESTATE ESTATES; PUBLIC TRUSTEE IN INTESTATE ESTATES ..242 NEW SOUTH WALES, THE AUSTRALIAN CAPITAL TERRITORY, THE NORTHERN TERRITORY AND WESTERN AUSTRALIA: FULL VESTING IN THE PUBLIC TRUSTEE. VICTORIA, SOUTH AUSTRALIA AND TASMANIA: LIMITED VESTING IN THE PUBLIC TRUSTEE. NEW SOUTH WALES: VES’ OF A GENERAL POWER OF APPOINTMENT STATUTORY EXECUTORSHIP AND VESTING IN THE CASE OF INTESTACY..... ISSUES CONSIDERED BY THE NATIONAL COMMITTEE THE NATIONAL COMMITTEE'S PRELIMINARY VIEW... PARTITION OF PROPERTY IN THE ESTATE. INTRODUCTION ....... ISSUE CONSIDERED BY THE NATIONAL COMMITTEE . THE NATIONAL COMMITTEE’S PRELIMINARY VIEW.. SURVIVAL OF ACTIONS INTRODUCTION QUEENSLAND...  PoE errs OTHER JURISDICTIONS... ACTIONS AGAINST BENEFICIARIES ISSUES CONSIDERED BY THE NATIONAL COMMITTEE THE NATIONAL COMMITTEE’S PRELIMINARY VIEW.. ADMINISTRATION OF ASSETS INTRODUCTION ...... AGREED PRINCIPLES DECEASED’S PROPER’ (a) Queensland provision .... (b) Issue considered by the National Committee (c) The National Committee’s pretiminary view PAYMENT OF DEBTS IN THE CASE OF INSOLVENT ESTATES (a) Introduction ..,... (b) Administration under Part 11 of the Bankruptcy Act 1966 (Cth) . (c} Administration under State or Territory law... (d) Issues considered by the National Committee .. (e} The National Committee's preliminary view RETAINER, PREFERENCE AND THE PAYMEN PERSONAL REPRESENTATIVE (a) The right of retainer... (b} The right to prefer creditors (c) Abolition of the rights of retainer and preference (d) Safeguards for personal representatives ... (e) Issues considered by the National Committee .. (f) The National Committee's preliminary view .. PAYMENT OF DEBTS IN THE CASE OF SOLVENT ESTATES (a) Introduction (b) The historical development of classes of asset (c} Development of classes — statutory lists (@) — English statutory fist fii) Victorian statutory list. (iii) Queensiand (d) Criticisms of the existing statutory classes. (i) Mixing of questions of law and fact. (i) Assumptions about the testator’s intention . iii) The preference given to residuary dispositions over property not disposed of by wil (iv) Issues considered by the National Committee (v) The National Committee's preliminary view. {e} Anew approach ... (i) Issues considered by the National Committee (i) The National Committee's preliminary view. 300 (f) Associated issues .... 301 (i) Donationes mortis causa . 304 (ii) Rateability... 302 (ii) Property the subject of a general power of appointment. (iv) Contrary intentio) (v) The need to refer to property given on pay and property given charged with the payment of debts xi  7. PAYMENT OF LEGACIES » eras as xii (a) Types of legacies (b) General legacies (c) Pecuniary tegacie: {i} What is a pecuniary legacy? fii) Payment of pecuniary legacies (d) Demonstrative legacie: (i) Advantages of a demonstrative legacy. (ii) Application of the principle of rateability to a secured demonsirative legacy... (e) .Issues considered by the National Committee .. (f} The National Committee's preliminary view (i) The payment of legacies....... (ii) Expression of a contrary intentio: {li} Application of the principle of rateability to a secured demonstrative legacy... PAYMENT OF DEBTS ON PROPERTY MORTGAGED OR CHARGED (a) Introduction... (b) Contrary intentiol (c) A possible modification to Locke King’s rule , (d) Arguments against modifying Locke King’s rule. (e) Issues considered by the National Committee . (f} ~The National Committee's preliminary view .. RIGHT TO FOLLOW ASSETS INTRODUCTION ....... RIGHT TO FOLLOW ASSETS. PROCEEDING AGAINST TRUSTEE. ERSO! REPRESENTATIVES BEFORE OTHER BENEFICIARIES. ISSUES CONSIDERED BY THE NATIONAL COMMITTEE THE NATIONAL COMMITTEE’S PRELIMINARY VIEW... ESTABLISHING DEATH AND THE ORDER OF DEATHS. INTRODUCTION ...... we PROOF AND PRESUMPTION OF DEATH {a) Introduction... (b) Missing beneficiary (c) Missing testator or intestate . (d) An alternative approach to the presumption of deat SURVIVORSHIP (a) Introduction. (b) The statutory presumption of survivorship according to seniority (c) Negative results of the statutory presumption based on seniority (d) Application of the statutory presumption to presumed deaths .. (e) Alternative statutory schemes for the distribution of estates (i) Spouses — distribution of estates separately .. (i) | General provision — two or more persons dying, property to devolve as if each testator/intestate survived the other person for a time......... 351  Terms of reference Pursuant to section 10 of the Law Reform Commission Act 1967 (NSW), the Attorney General, the Honourable Jeff Shaw QC MP, referred the following matter to the Law Reform Commission by letter dated 16 May 1995: 1. To inquire into and report on the existing law and procedure relating to succession and to recommend and draft a model State and Territories law on succession. 2. In undertaking this inquiry the Commission is to consult with the Queensland Law Reform Commission which has accepted responsibility for the coordination of a uniform succession laws project. xv  Participants Pursuant to s L2A of the Law Reform Commission Act 1967 (NSW) the Chairman of the Commission constituted a Division for the purpose of conducting the reference. The members of the Division are: The Hon Justice David Hodgson* Mr Craig Kelly Professor Michael Tilbury ( denotes Commissioner-in-Charge) Officers of the Commission Executive Director Mr Peter Hennessy Legai Research and Writing Mr Joseph Waugh Librarian Ms Aferdita Kryeziu Desktop Publishing Ms Rebecca Young xvi  Reference publications UNIFORM SUCCESSION LAWS Published by the New South Wales Law Reform Commission The law of wills New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills (Issues Paper 10, 1996) New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills (Report 85, 1998) Family provision New South Wales Law Reform Commission, Uniform Succession Laws: Family Provision (Issues Paper 11, 1996) Administration of estates of deceased persons New South Wales Law Reform Commission, Uniform Succession Laws: Administration of Estates of Deceased Persons (Discussion Paper 42, 1999) xvii  GLOSSARY administration: in general terms, the process of collecting the assets, paying the debts and distributing the balance of a deceased estate according to the will of a deceased person or the intestacy rules administrator: a person appointed by the court by a grant of letters of administration to administer a deceased estate beneficiary: the person/s entitled to a share of a deceased estate according to a will or the intestacy rules devolution of property: the passing or “handing down” of property on death domicile: the place where a person is ordinarily or permanently resident, requiring both physical presence and an actual intention to reside donatio mortis causa (or donationes as plural): a gift in contemplation of death; a gift becoming absolute on the death of the donor estate: the property of a person, comprising both real estate (land) and personal estate (goods, money) executor: a person appointed by a will to administer a deceased estate executor de son tort: “executor of his own wrong”; a person not appointed as executor by the will or as administrator by the court but who so acts family provision: provision made by way of court order for the proper maintenance of and support for a deceased person’s family or dependants from the deceased’s estate grant: an appointment or authorisation by the court officially recognising the right of an executor or an administrator to administer a deceased estate and vesting title to assets in the executor or the administrator XX  guardian: in relation to a minor person, a person with the legal right to protect the interests and property of the minor intestate: either a person dying without a will or a valid will, or the state of being without a valid will in whole or in part letters of administration of the estate: a grant by the court authorising an administrator to administer a deceased estate personal representative/s: a general term referring to the person/s who performs acts associated with the administration of a deceased estate — either an executor or administrator power of appointment: a power or authorisation given by deed or will and vested in a person/donee to dispose of property; this power can be general, special or hybrid probate: the certification from the court that a will is valid or “proved”; see grant testator: the person making a will trustee: a person who holds property on trust for another will: a formal document/s by a testator disposing of his or her property on death and normally appointing an executor to administer the estate xxi  LIST OF PROPOSALS 2. AUTHORITY TO ADMINISTER AN ESTATE Proposal 1 (page 17) The definition of “personal representative” in section 5 of the Succession Act 1987 (Qld) should be included in the model legislation in its existing form, except that the words “the estate of” should be inserted before the words “a deceased person”. Proposal! 2 (page 18) It is unnecessary to refer, in the definition of “personal representative”, to trustee corporations. Proposal 3 (page 19} The definition of “administration” in section 3 of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model Jegislation. 3. JURISDICTION OF COURT Proposal 4 (page 28) A provision to the effect of section 6 of the Succession Act 1987 (Qid) should be included in the model !egislation. If some additional express powers are to be conferred on the court in the model legistation, it is desirable that those powers should be expressed to be in addition to the broad general provision, and not in derogation from it. xxii  Proposal 14 (page 58) A provision based on subrule 52.01 of The Probate Rules 1998 (SA) should be included in the model legislation. Proposal 15 (page 58) Detailed procedural matters - such as those set out in the balance of rule 52 of The Probate Rules 1998 (SA) — should be considered by each jurisdiction for possible inclusion in their rules. Proposal 16 (page 58) Sections 144 to 146 and 148 of the Wills, Probate and Administration Act 1898 (NSW) and the Victorian caveat rules should also be considered when each jurisdiction’s rules relating to caveats are reviewed. 6. TRANSMISSION OF EXECUTORSHIP AND ADMINISTRATION Proposal 17 (page 67) The doctrine of executorship by representation should continue. Proposal 18 (page 67) It should be possible for an executor of a deceased estate to renounce the executorship of an estate of which his or her testator was executor without thereby renouncing the executorship of the estate of the executor’s own testator. XXV  Proposal 19 (page 67) It should be possible for a beneficiary of the original estate to object to the executorship by representation. 7. CESSATION OF RIGHT TO PROVE WILL AND REVOCATION OF GRANT Proposal 20 (page 73) A provision to the effect of section 46 of the Succession Act 1981 (Qlid) should be included in the model legislation. Proposal 21 (page 76) Subject to the consideration of submissions, the model legislation should include a provision to the effect of Order 71, rule 86 of the Rules of the Supreme Court 1900 (Qld) to enable the withdrawal of a renunciation of probate. Proposal 22 (page 79) If a provision to the effect of section 6 of the Succession Act 1981 (Qld) is included in the model legislation, it is not necessary to include in the model legislation a further provision dealing with the revocation of grants or the removal of executors or administrators. 8. PERSONAL REPRESENTATIVES Proposal 23 (page 85) The model legislation should include a provision to the effect of section 49(1) of the Succession Act 1981 (Qld). xxvi  Proposal 24 (page 87) A provision to the effect of section 50 of the Succession Act 1981 (Qld) should be included in the model legislation. Proposal 25 (page 90) A provision to the effect of section 52(1)(e) of the Succession Act 1981 (Qld) should be included in the model legislation. However, the provision should refer to an interest rate set by the rules (as in section 55A of the Administration and Probate Act 1929 (ACT)), rather than stipulate the interest rate. Proposal 26 (page 92) The model legislation should include a provision imposing a duty on a personal representative or other person administering a deceased estate to maintain such documents as are necessary to render an inventory and/or account to the court. Proposal 27 (page 96) A provision generally to the effect of sections 65 and 67 of the Administration and Probate Act 1919 (SA) should be included in the model legislation. However, the provision should not impose a mandatory obligation, but should simply provide for one of a number of possibilities to protect persons who are not sui juris. The model provision should not refer to property belonging to persons who are not resident within the particular jurisdiction. Proposal 28 (page 99) The model legislation should not include provisions to the effec‘ of section 47A of the Administration Act 1903 (WA) or sectioi 92(3) of the Wills, Probate and Administration Act 1898 (NSW). xxvii  Proposal 41 (page 124) Any reference to specific rates of commission should be made in the rules of court, rather than in the model legislation. Proposal 42 (page 124) The model legislation should include a provision to the effect of section 70(2)(b) of the Administration and Probate Act 1919 (SA). Proposal 43 (page 124) The words “periodically or otherwise” should be included in the commission provision in the model legislation. Proposal 44 (page 134) The model legislation should not include a provision relating to assent. Proposal 45 (page 136) A provision to the effect of section 83 of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation. Proposal 46 (page 137) A provision to the effect of section 71 of the Administration and Probate Act 1929 (ACT) should not be included in the model legislation. If that provision is considered appropriate for any jurisdiction, it should be included in that jurisdiction’s rules of court. XXX  Proposal 47 (page 139) The model legislation should include a provision to the effect of section 49(6) of the Succession Act 1981 (Qld). Proposal 48 (page 143) A provision to the effect of section 59 of the Wills, Probate and Administration Act 1898 (NSW) or section 20 of the Administration Act 1903 (WA) should not be included in the model legislation. Rather, a provision to the effect of section 34 of the Administration and Probate Act 1958 (Vic) (which is to the same effect as Order 71, rule 84 of the Rules of the Supreme Court 1900 (QId)) should be included in the model legislation. Proposal 49 (page 152) The model legislation should not include a provision dealing with the appropriation of assets by trustees to beneficiaries. Proposal 50 (page 155) A provision to the general effect of section 17A of the Administration Act 1903 (WA) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross- refer to the relevant powers in the trustee legislation of the particular jurisdiction. Proposal 51 (page 157) A provision to the general effect of section 63 of the Administration and Probate Act 1919 (SA) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction. XXxxi  Proposal 52 (page 158) A provision to the general effect of section 33(3) of the Administration and Probate Act 1935 (Tas) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction. Proposal 53 (page 160) A provision to the general effect of section 17 of the Administration Act 1903 (WA) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross- refer to the relevant powers in the trustee legislation of the particular jurisdiction. Proposal 54 (page 163) A provision to the effect of section 46D of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation. Proposal 55 (page 164) This matter should be considered in that part of the Uniform Succession Laws Project dealing with the recognition of interstate and foreign grants of probate and reseals. Proposal 56 (page 165) The model legislation should not include a provision requiring personal representatives to obtain court authority before relinquishing their trustee duties. xxxii  Proposal 65 (page 221) A provision to the general effect of section 54(2) of the Succession Act 1981 (Qld) should be included in the model legislation. However, the words “with the leave of the court” should be inserted in the mode! provision, so that the leave of the court is required before an executor who has acted in the administration of the estate without a grant may renounce his or her executorship. Proposal 66 (page 222) A provision to the effect of section 54(3) of the Succession Act 1987 (Qld) should be included in the modet legislation. Proposal 67 (page 228) Provisions to the effect of section 32 of the Administration and Probate Act 1958 (Vic) and section 71(1} of the Administration and Probate Act 1919 (SA) should not be included in the model legislation. Jurisdictions that consider them desirable should include them tn the substantive legislation to which they relate. 12. VESTING OF PROPERTY Proposal 68 (page 254) A provision to the effect of section 45(1)-(6) of the Succession Act 1981 (Qid) should be included in the model legislation. 413. PARTITION OF PROPERTY IN THE ESTATE Proposal 69 (page 258) The model fegislation should not include a provision to the effect of section 58 of the Wills, Probate and Administration Act 1898 (NSW). Any jurisdiction that wishes to enact such a provision should do so in its real property legislation. XXXV  Proposal 70 (page 266) A provision to the effect of section 66(1) to (5) of the Succession Act 19817 (Qld) should be included in the model tegistation, but in a more generic form. There should be no reference to the exceptions (for example, defamation, mentioned in section 66(1) of the Succession Act 1981 {Qld)). The exceptions, which are not uniform between the various jurisdictions reviewed by the National Committee, should be set out in separate legislation in each jurisdiction. 15, ADMINISTRATION OF ASSETS Proposal 71 (page 275) A provision to the effect of section 56(1) of the Succession Act 7981 (Qld) should be included in the model legislation. Proposal 72 (page 284) A provision to the effect of section 58(1) of the Succession Act 1981 (Qld) should be included in the model legislation. However, instead of referring simply by name to the doctrines of retainer and preference, the model legislation should state the effect of the principles that are being abolished. Proposal 73 (page 297} The term “residuary estate” should have the same meaning as is given to that term by section 55 of the Succession Act 1981 (Qld), so that it includes property not effectively disposed of by will. Xxxvi  Proposal 74 (page 301) Assets should be applied towards the payment of debts in the following order: Class 1 Assets forming part of the residuary estate (which includes assets specifically referred to in a will and which are the subject of a disposition that fails to have effect). Class 2 Specific assets. Proposal 75 (page 302) A donatio mortis causa should not be cailed in to pay the debts of a solvent estate. Proposal 76 (page 304) The principle of rateability should apply to all property within a given class. Proposal 77 (page 308) The provisions in the model legislation that are based on proposals made in this Chapter should be subject to an admissible expression of a contrary intention by the testator (whether or not it is contained in the will). Proposal 78 (page 323) Subject to the expression of a contrary intention: (1) pecuniary legacies should be paid out of the residuary estate after the payment of debts; and xxxvii  Proposal 88 (page 364) The mode! provision should not include a provision to the effect of section 120(h) of the Property Law Act 1969 (WA). Proposal 89 (page 364) The model legislation should include a provision, based on section 65 of the Succession Act 1981 (Qld) or section 120(i) of the Property Law Act 1969 (WA) encompassing the seniority rule, that is, that the younger is presumed to have survived the elder, to cover situations not covered by the operation of the provisions referred to above. Proposal 90 (page 364) The model legistation should include a provision to the effect that the above suggested provisions are to be subject to a contrary intention that appears, whether in the will or elsewhere. 18. PROCEDURAL MATTERS Proposal 91 (page 370) Individual jurisdictions should consider introducing a provision to the effect of section 42(2) to (5) of the Wills, Probate and Administration Act 1898 (NSW) in their relevant rules. However, a “signposting” provision based on section 42(1) of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model legislation to place personal representatives on notice as to the jurisdiction and powers of the court in relation to the administration of estates. xl  Proposal 92 (page 371) A provision to the effect of section 70 of the Succession Act 1981 (Qid) should not be included in the model legislation. Proposal 93 (page 372) A provision to the effect of section 72 of the Succession Act 1981 (Qld) should not be included in the model legislation. Proposal 94 (page 374) A provision to the effect of section 97 of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation. If any jurisdiction considers it necessary, it should be placed in that jurisdiction’s rules. Proposal 95 (page 376) The model legislation should not include a provision to the effect of section 8C of the Administration and Probate Act 1929 (ACT). Proposal 96 (page 378) Provisions to the effect of sections 7, 7A and 7B of the Administration and Probate Act 1929 (ACT) should not be included in the model legislation. Proposal 97 (page 380) The model legislation should not include a provision to the effect of section 140 of the Administration Act 1903 (WA). xli  19. DEALING WITH WILLS Proposal 98 (page 358) The model jegislation should include a provision to enable the court to order the production of testamentary instruments. Proposal 99 (page 388) The model legislation should include provisions to the effect of sections 150(2) and 150(3) of the Wills, Probate and Administration Act 1898 (NSW). Proposal 100 (page 389} The mode! legisiation should include a provision to the effect of section 127 of the Administration and Probate Act 1929 (ACT). Proposal 101 (page 389) The model legistation should not include a criminal offence relating to concealing, stealing or “editing” a will. This should be left to each jurisdiction’s criminal jaw. xiii  Since the National Committee was first formed there have been some changes in its membership. This was to be expected given the nature of the organisations from which most National Committee members were drawn. Also, a number of the Attorneys- General who were in office at the time the original nominations were made no longer hold office. Nevertheless, the National Committee has retained the expertise in succession law that is vital to the success of the project. Individual members of the National Committee are not necessarily plenipotentiaries of the organisations they represent, although, wherever possible, members of the National Committee have sought the views of their organisations before adopting a stance in relation to particular issues discussed at the National Committee level. The Queensland Law Reform Commission as co-ordinating body for the project is indebted to the individual members of the National Committee for their interest and efforts to date. It is hoped that the National Committee structure will continue for future uniform succession law topics to be dealt with by this project. 2. The National Committee’s Work on Wills and Family Provision In 1996 the National Committee forwarded an interim Report to the Standing Committee of Attorneys General on a number of significant issues relating to The Law of Wills.® In 1997 the National Committee forwarded a Consolidated Report to the Standing Committee of Attorneys General on the issues covered by the 1996 interim Report as well as a number of 5. National Committee for Uniform Succession Laws, Report, Uniform Succession Laws for the Australian States and Territories: Report to the Standing Committee of Attorneys General: The Law of Wills (QLRC MP 19, 1996). xlv  outstanding wills issues.‘ The Consolidated Report included model wills legislation based upon the National Committee's recommendations. The model legislation was prepared for the National Committee by the Office of New South Wales Parliamentary Counsel. The National Committee’s Report on Family Provision was presented to the Standing Committee of Attorneys General in December 1997. The Report included drafting instructions for model family provision legislation. At the date of this Discussion Paper, the Office of New South Wales Parliamentary Counsel had made significant progress in drafting the model legislation, although a number of issues remain to be resolved. The National Committee is grateful to the Office of New South Wales Parliamentary Counsel for the assistance provided by that office to this project. 3. The National Committee’s Work on the Administration of Estates The administration of estates is the third stage of the Uniform Succession Laws Project. The administration of estates stage has itself been divided into two parts to facilitate identification of issues and for ease of discussion. This Discussion Paper represents the National Committee’s work to date on the first part, which is a review of the general law relating to the administration of estates in all Australian States and Territories. The second part, which will be the subject of a separate Discussion Paper and a separate Report to the Standing Committee of Attorneys General, will concentrate on the Recognition of Interstate and Foreign Grants of Probate and Letters of Administration. A draft discussion paper on the second part is currently being prepared for the National 6. National Committee for Uniform Succession Laws, Consolidated Report to the Standing Committee of Atterneys General on the Law of Wills (QLRC MP 29, 1997); New South Wales Law Reform Commission, Report, Uniform Succession Laws: The Law of Wills (R85, 1998). xlvi  Committee by Dr Peter Handford of the Law School, University of Western Australia, pursuant to funding from the Queensland Department of Justice and Attorney-General and the Western Australian Ministry of Justice. For the first part of the administration of estates project, the National Committee has used the relevant provisions of the Succession Act 1981 (Qld) as the starting point for its deliberations. That Act represents the most recent overall revision of the law in this area. Two members of the National Committee, Professor Don Chalmers and Associate Professor Charles Rowland met with all Australian Registrars of Probate at a meeting of the Registrars in Melbourne in October 1997 to discuss the National Committee’s project with the Registrars. As a result of the interest expressed in the project by the Registrars at that meeting, the National Committee invited all Australian Registrars of Probate to participate in the project. The National Committee recognised that the Registrars would be able to make an invaluable contribution to the development of the National Committee’s recommendations in this area because of their day to day involvement with issues relating to the administration of estates. The National Committee met with the Probate Registrars in June 1998 and in November 1998. The Registrars of Probate who have contributed to the project are:? . Mrs dill Cireosta (ACT) . Ms Jenni Daniel-Yee (NT) . Mr Alured Faunce-de Laune (SA) . Mr John Finlay (NSW) . Mr Michael Halpin (VIC) 7. The National Committee also acknowledges the assistance of the Honourable Mr Justice D Harper of the Supreme Court of Victoria for his assistance in ensuring that the Registrars were able to meet with the National Committee. xivii Uniform succession laws: administration of estates 2 1. PURPOSE OF DISCUSSION PAPER 1.1 This Discussion Paper outlines, and invites comments on, the issues identified to date by the National Committee in relation to the administration of estates, with the exception of issues relating to the recognition of interstate and foreign grants of probate and letters of administration. The latter issues will be the subject of a further Discussion Paper to be prepared by the National Committee. 2. ABBREVIATIONS 1.2 Throughout this Discussion Paper, reference is made to the legislation of the Australian States and Territories, the United Kingdom and New Zealand and to the relevant rules of court of the Australian States and Territories. Unless otherwise stated, those references are to the legislation and rules set out in the following tables. To date, the National Committee has not identified and/or validated the relevant provisions in all the jurisdictions reviewed. The National Committee would be grateful for any additional information which would assist it to provide a more comprehensive coverage of the law relating to the issues under review in its Report to the Standing Committee of Attorneys General. (a) Legislation QLD Succession Act 1981 (Qld) ACT Administration and Probate Act 1929 (ACT) VIC Administration and Probate Act 1958 (Vic) NSW Wills, Probate and Administration Act 1898 (NSW) SA Administration and Probate Act 1919 (SA) WA Administration Act 1903 (WA) NT Administration and Probate Act (NT) TAS Administration and Probate Act 1935 (Tas) UK Administration of Estates Act 1925 (UK) NZ Administration Act 1969 (NZ) Introduction 3 (b) Rules of Court QLD Rules of the Supreme Court 1900 (Qld) ACT Supreme Court Rules (ACT) VIC Supreme Court (Administration and Probate) Rules 1994 (Vic) NSW Supreme Court Rules 1970 (NSW) SA The Probate Rules 1998 (SA) WA Non-Contentious Probate Rules 1967 (WA) NT Rules of the Supreme Court (NT) TAS Probate Rules 1936 (Tas) 3. COMMENTS AND SUBMISSIONS 1.3 The National Committee invites members of the public and organisations with an interest or expertise in the issues under review to comment on any issue considered by the National Committee and on the National Committee’s proposals set out at the end of the discussion of each issue or set of issues. Specific questions have also been included in this Discussion Paper. 1.4 Comments on any relevant issue not addressed in the Discussion Paper would also be welcomed. In particular, the National Committee seeks comments on issues which will need to be addressed in model legislation on the administration of estates. 1.5 Details on how to make written, electronic or oral submissions are provided at the beginning of this Discussion Paper. Uniform succession laws: administration of estates 4 Authority to administer an estate 7 2.3 Atherton and Vines describe the general law regarding the role of executors and administrators and the significance of a grant of representation:2 In all Australian jurisdictions someone is appointed to attend to the administration of the estate of a deceased person. That person is generically called a legal personal representative or personal representative, but has different specific names, depending upon whether the deceased appointed a representative or not. The deceased’s chosen representative is called an executor and any other representative is called an administrator. The essential difference is between a representative chosen by the deceased and one chosen by the court. They both administer the deceased’s estate. The executor, however, has the additional task of obtaining probate of the will, that is proving that it is the last and valid will of the deceased, the testator. The authority of the representative is officially conferred through a grant of representation: probate, for executors; letters of administration, for administrators. Even where there is a will an administrator may be required, for example if there is no executor appointed or the nominated executor has died before the testator. In such cases letters of administration with the will annexed ... will be required. (a) Probate 2.4 A grant of probate of a will is official recognition that an executor has the right to administer the deceased’s estate according to the terms of the will in question. (b) Letters of administration 2.5 An administrator acts under what is generally referred to as a grant of letters of administration, the terms and conditions of which, if any are required, are set out by the court. 2. R F Atherton and P Vines, Australian Succession Law: Commentary and Materials (1996) at para 17.1.1. Uniform succession laws: administration of estates 8 2.6 The grant of letters of administration empowers the administrator to deal with the deceased person’s property in the manner considered appropriate by the court, and otherwise according to the law. A grant of letters of administration is official recognition that an administrator has the right to administer the deceased’s estate. 2.7 Different kinds of letters of administration are granted for a number of different purposes. A grant of letters of administration is a “limited” or “special” grant if restricted in its purpose or objects; the time in which it operates; or in the extent to which it operates over the deceased person’s property. 3 If a grant of letters of administration is unrestricted, it is referred to as a “general” grant. 2.8 Legislation, rules of court or both may regulate aspects of some of these grants and the restrictions which may be attached to them. However, if the legislation is silent, the court still has the residual power to attach conditions.4 (i) General grants of letters of administration 2.9 General grants of letters of administration include:5  letters of administration cum testamento annexo – with the will annexed (cta);6  letters of administration de bonis non – of the unadministered assets (dbn).7 3. R F Atherton, P Vines and B Brown, Halsbury’s Laws of Australia (looseleaf), “Succession” at para 395-3055. 4. Id at para 395-3180. 5. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at paras 814-824. 6. Where there is no executor willing and able to act pursuant to a will, letters of administration cta will be granted by the court. A copy of the will is annexed to the letters of administration. 7. Lee describes this type of grant in the following terms (W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 815): Wherever a grant has been made and the executor or administrator can no longer act – for instance if he or she is dead or has been discharged by the court – leaving no one to represent the estate, and part of the Authority to administer an estate 9 (ii) Limited grants of letters of administration 2.10 Grants of limited (or special) administration are usually of the following kinds:  durante minore aetate – during infancy;8  durante absentia – during absence;9  during incapacity;10  pendente lite – where there is a suit pending;11  cessate – second grant upon expiry of grant of limited duration;12 estate in question is unadministered, the court will grant letters of administration de bonis non administratis – of the unadministered assets – of the estate, enabling the grantee to complete the administration of the estate. [note omitted] 8. Lee describes this type of grant as follows (id at para 817): Where the executor appointed, or where there is no executor the person entitled to the grant of letters of administration, happens to be an infant at the date of the application for the grant, a grant of letters of administration will be made to an adult until the infant attains adulthood. When a grant durante minore is made power is usually reserved to the infant to seek a grant upon attaining adulthood. [note omitted] 9. Lee describes this type of grant as follows (id at para 818): Where a representative is out of the jurisdiction, a grant may be made to her or his attorney durante absentia. The court has a discretion to make the grant elsewhere – for instance to a beneficiary. [notes omitted] 10. Lee notes (id at para 819): Where a representative is incapacitated, a grant will be made until he or she recovers. 11. Lee describes this type of grant as follows (id at para 820): Where there is a suit pending which touches upon the validity of the will, or calls for a revocation of a grant, then until that suit is determined the court may appoint an administrator, who is virtually an officer of the court, to perform certain acts in relation to the estate, although it cannot be distributed. There must be a pending suit – the existence of a caveat only being insufficient – and there must be a reason for the grant, in particular that assets require protection or administration. [notes omitted] 12. Lee describes this type of grant as follows (id at para 821): Upon the expiry of a grant of limited duration, a second or cessate grant is made to the person entitled, that is to the infant now an adult, the absentee who has returned or the incapacitated person who has recovered. If such person dies before taking out the grant, or fails to take it out, letters of administration de bonis non must be obtained. Uniform succession laws: administration of estates 12 time only by those personal representatives to whom the grant is made; and no other person shall have power to bring actions or otherwise act as personal representatives without the consent of the Court. 2.14 Grants offer the personal representatives some degree of protection from liability in the administration of the estate which they would not otherwise have. Grants may also inspire some confidence in those dealing with a personal representative in relation to property which is the subject of the grant, in that the legal authority of the personal representative to deal with the deceased person’s estate has been confirmed by the court. 4. APPLICATION FOR A GRANT 2.15 In each Australian jurisdiction, application for a grant may be made to the Supreme Court of that particular jurisdiction by the executor named in the will or by a person who wishes to be appointed as the administrator. An application can be made for a grant in either “solemn” or “common” form. (a) Grants in “common form” 2.16 Grants in common form are normally made by a Registrar of the court pursuant to his or her delegated power.18 18. Administration and Probate Act 1929 (ACT) s 10; Administration and Probate Act (NT) s 17; Supreme Court Rules (NT) r 88.05(1)(a); Supreme Court Rules 1970 (NSW) Pt 78 r 5(1)(a); Rules of the Supreme Court 1900 (Qld) O 71 r 7(1); The Probate Rules 1998 (SA) r 5, 7; Administration and Probate Act 1958 (Vic) s 12(1), 12(2); Administration Act 1903 (WA) s 5, Non-Contentious Probate Rules 1967 (WA) r 4. There is no equivalent provision in Tasmania, although s 5 of the Administration and Probate Act 1935 (Tas) preserves the court practice current at the commencement of that Act. Authority to administer an estate 13 2.17 Lee explains the basis of a grant in common form:19 A common form application is based on the assumption that there is no litigable issue arising respecting the admission of the will to probate or the grant of letters of administration. Even if there are some features of a will sought to be admitted to probate which raise a doubt, a grant in common form may still issue although the court may require affidavits in explanation to satisfy the doubt. Thus, if a will contains no attestation clause, a court may require an affidavit of due execution from at least one of the attesting witnesses, or, if that cannot be obtained, from a non-attesting witness, swearing that the due formalities of execution have been observed; or if there are alterations to a will, an affidavit may be required of someone present when the will was executed to show whether the alterations were written before the will was executed or not. (b) Grants in “solemn form” 2.18 More formality is required in relation to a grant in solemn form:20 ... it is the product of judicial proceedings where an issue touching the validity of the will has been determined, such as whether the testator had the requisite capacity or was subject to undue influence.21 ... Application for probate in solemn form may be made although probate in common form has been granted. [substance of one note preserved and noted below; other note omitted] 2.19 The purpose of seeking a grant in solemn form is to put an end to the litigable issue. Where such a grant follows the determination of a litigated issue, the parties to the issue cannot 19. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 832. 20. Ibid. 21. Lee refers to: Re Bowles [1952] QWN 41; Russell v Williams [1953] QWN 42; Re Flynn [1982] 1 WLR 310. Uniform succession laws: administration of estates 14 seek to revoke the grant because the issue is res judicata.22 The only bases upon which such a grant can be revoked are:23 (1) a later will is found to exist; (2) it is later established that subsequent to the making of the will the testator either married24 or divorced;25 (3) the order for grant was obtained by fraud;26 (4) the applicant now seeking to set aside the grant was prevented, on a sufficient basis,27 from being heard on the obtaining of the grant in solemn form. [substance of the notes preserved and noted below] 5. DEFINITIONS (a) Personal representative (i) Introduction 2.20 Section 5 of the Succession Act 1981 (Qld) defines “personal representative” in the following terms: 22. Once a matter between parties has been litigated and decided, it cannot be raised again between the same parties, although other parties are not so bound. A grant in solemn form can also bind people who are not parties to the litigation. See Tristram and Coote’s Probate Practice (28th ed 1995) at 596-598. See also Court Forms, Precedents and Pleadings (Qld) at para 56,010. 23. R F Atherton, P Vines, B Brown, Halsbury’s Laws of Australia (looseleaf), “Succession” at para 395-3435. 24. Subject to the statutory provisions that do not invalidate a will made in contemplation of marriage [reference omitted]. 25. This applies only if the applicant is the ex-spouse, whose entitlement is abrogated by statute [reference omitted]. 26. For example, see Birch v Birch [1902] P 130. 27. Atherton, Vines and Brown refer to Young v Holloway [1895] P 87 and Osborne v Smith (1960) 105 CLR 153 (except for good cause being shown, a person interested in the estate is bound by the making of a grant in solemn form). Authority to administer an estate 17 a person appointed by the court, because no person can be an administrator unless a grant has been made to that person. However, the National Committee came to the view that its concerns on this issue would be addressed by the redraft of section 54 of the Succession Act 1981 (Qld) which it considers in Chapter 10 of this Discussion Paper. 2.24 It was suggested that it would not be helpful to try to define when a personal representative becomes a trustee as, even once a personal representative holds assets as a trustee, he or she can still become the personal representative in relation to further assets or liabilities accruing to the estate. 2.25 The National Committee noted that most jurisdictions have legislation setting out the powers of trustee corporations. However, it was suggested that such provisions are more appropriately located in trustee corporation legislation, and should not be included in the model legislation. 2.26 The National Committee was of the view that the definition of “personal representative” in the model legislation should not identify trustee corporations. The purpose of the definition is to describe the types of appointment that constitute a person or entity as a personal representative, not the identity of particular entities. For example, if a trustee corporation is appointed by will as an executor, the corporation will, under the existing definition in the Succession Act 1981 (Qld), be a “personal representative” without the need for specific inclusion. Proposal 1 The definition of “personal representative” in section 5 of the Succession Act 1981 (Qld) should be included in the model legislation in its existing form, except that the words “the estate of” should be inserted before the words “a deceased person”. Uniform succession laws: administration of estates 18 Proposal 2 It is unnecessary to refer, in the definition of “personal representative”, to trustee corporations. Question for discussion 2.1 Should the definition of “grant” in section 5 of the Succession Act 1981 (Qld) be included in the model legislation? “Grant” is defined in section 5 as “grant of probate of the will or letters of administration of the estate of a deceased person and includes the grant of an order to administer and the filing of an election to administer such an estate”.28 (b) Administration (i) Introduction 2.27 Section 3 of the Wills, Probate and Administration Act 1898 (NSW) defines “administration” as follows: “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. 28. See Chapter 11 of this Discussion Paper in relation to the filing of an election to administer an estate. Authority to administer an estate 19 (ii) Issue considered by the National Committee 2.28 The National Committee considered whether the model legislation should include a definition of “administration” to the effect of the definition in section 3 of the Wills, Probate and Administration Act 1898 (NSW). (iii) The National Committee’s preliminary view 2.29 The National Committee was of the view that inclusion in the model legislation of a provision to the effect of the definition of “administration” in section 3 of the Wills, Probate and Administration Act 1898 (NSW) would highlight the existence of the different kinds of letters of administration. Proposal 3 The definition of “administration” in section 3 of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model legislation. Uniform succession laws: administration of estates 22 1. SCOPE OF STATUTORY JURISDICTION QLD ACT VIC NSW SA WA NT TAS UK 1 NZ 6 9 6, 17(1) 2 33, 40, 41A 5 4, 6, 18 3 14 13, 15, 6(5) 4 61, Sch 1 5 (a) Introduction 3.1 The jurisdiction of a court to determine matters relating to the administration of estates is determined by case law and by statute. The statutes are not consistent. The Queensland provision is in very general terms. It gives the court the jurisdiction and power to determine all matters relating to the administration of estates and making of grants. In the other States and Territories, the jurisdiction and powers of the court tend to be separated into a number of different provisions. The powers conferred on the court in these provisions are more specific because they relate to matters of detail such as the different types of grants of administration. (b) Queensland 3.2 Section 6 of the Succession Act 1981 (Qld) provides: Jurisdiction (1) Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect. 1. Supreme Court Act 1981 (UK). 2. Supreme Court Act 1986 (Vic). 3. Supreme Court Act 1935 (WA). 4. Supreme Court Civil Procedure Act 1932 (Tas). Jurisdiction of court 23 (2) 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. (3) A grant may be made to such person and subject to such provisions, including conditions or limitations, as the court may think fit. (4) Without restricting the generality of subsections (1) to (3) the court has jurisdiction to make, for the more convenient administration of any property comprised in the estate of a deceased person, any order which it has jurisdiction to make in relation to the administration of trust property under the provisions of the Trusts Act 1973. (5) This section applies whether the death has occurred before or after the commencement of this Act. 3.3 The Queensland Law Reform Commission, in a 1978 Report, stated in relation to the first limb of section 6(2) of the Succession Act 1981 (Qld):5 Today there is an additional reason for stressing that the Court has jurisdiction even though there is no estate at all at the date of the death: this is where litigation is contemplated against an “estate” where the “estate” is merely a cover for litigation against the deceased’s insurers, as in Kerr v Palfrey [1970] VR 825. 3.4 In relation to the second limb of section 6(2) of the Succession Act 1981 (Qld), the Commission noted that, in practice, probate and letters of administration were frequently granted to persons in other Australian States but that, since the language of section 6(2) was not mandatory, the court would be able to refuse to make a grant if no good reason for making the grant could be shown.6 A similar provision in New South Wales is section 41A of the Wills, 5. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 5. 6. Id at 5-6. Uniform succession laws: administration of estates 24 Probate and Administration Act 1898 (NSW), which allows probate for family provision “whether or not the deceased person left property in New South Wales”. (c) Issue considered by the National Committee 3.5 The National Committee considered whether a provision to the effect of section 6 of the Succession Act 1981 (Qld) should be included in the model legislation. (d) The National Committee’s preliminary view 3.6 The National Committee considered that a significant advantage of section 6 of the Succession Act 1981 (Qld) is that it collects all the powers and jurisdiction of the court in relation to the administration of estates and the making of grants into one section. In other jurisdictions (as in Queensland before the enactment of the Succession Act 1981 (Qld)) the court has these powers, although they are not conveniently collected. 3.7 The National Committee recognised that the powers given by the Queensland provision are wide enough to cover powers given by a large number of other provisions. Consequently, the enactment of a provision modelled on section 6 would mean that those other provisions would no longer be required. Each jurisdiction should decide which provisions in its own legislation can be repealed once a provision based on this section is enacted. 3.8 In its 1978 Report, for example, the Queensland Law Reform Commission noted that some twelve provisions of the then Queensland legislation could be eliminated by the enactment of section 6 of the Succession Act 1981 (Qld). 7 The Commission expressed the policy behind section 6(1) as follows:8 7. Id at 5. 8. Ibid. Jurisdiction of court 27 person was, at the time of death, domiciled in New South Wales. 3.14 Under section 2(1) of the Australia Act 1986 (Cth), State Parliaments are able, subject to the Constitution Act 1900 (Cth), to make laws which have extra-territorial operation. However, for a law to be valid there must be a nexus between the subject matter of the law and the State or Territory enacting the law. 3.15 In Flaherty v Girgis13 McHugh JA stated:14 Domicile, residence or even presence within the jurisdiction is always sufficient to give the legislature power to impose any liability whatsoever on the person so residing, domiciled or present. But in respect of persons who do not reside and are not domiciled or present within the State, the liability must be imposed by reference to a fact, event, thing or transaction which has a direct connection with the State. Sufficient connection can be found in the ownership or control of, or in the beneficial interest in, property situated within the jurisdiction or in the participation, directly or through an agent, in any event or transaction occurring in the jurisdiction. But it is not enough that indirectly the person upon whom the liability is imposed obtains a benefit from the use of property or the occurrence of an event within the jurisdiction. 3.16 On the other hand, it has been suggested that, where the deceased person had been domiciled in another jurisdiction but still in Australia and where the property was in another jurisdiction but still in Australia, the position adopted by Windeyer J is contrary to the concept of cross-vesting15 and the full faith and credit provisions of the Constitution.16 13. (1985) 4 NSWLR 248. 14. Id at 267-268. 15. See Bankinvest v Seabrook (1988) 14 NSWLR 711 per Street J at 713-715. 16. See Rowe v Silverstein [1996] 1 VR 509 per Batt J at 511-513. Uniform succession laws: administration of estates 28 Proposal 4 A provision to the effect of section 6 of the Succession Act 1981 (Qld) should be included in the model legislation. If some additional express powers are to be conferred on the court in the model legislation, it is desirable that those powers should be expressed to be in addition to the broad general provision, and not in derogation from it. Questions for discussion 3.1 Should a provision based on section 6 of the Succession Act 1981 (Qld) be restricted in its operation to matters involving a direct connection with the jurisdiction in which proceedings are brought? 3.2 The National Committee specifically seeks submissions on the constitutional validity of section 6 of the Succession Act 1981 (Qld) to the extent that it purports to operate extra-territorially. 2. ISSUES ARISING FROM CONFERRAL OF GENERAL JURISDICTION (a) Introduction 3.17 The adoption of a provision such as section 6 of the Succession Act 1981 (Qld) which confers jurisdiction on the court in general terms raises a number of issues about the inclusion of additional, more specific, provisions. An example of these issues is the inclusion in the model legislation of reference to the various kinds of letters of administration which the court may grant. Jurisdiction of court 29 (b) Particular types of grants of letters of administration (i) Issue considered by the National Committee 3.18 The National Committee considered whether a list of the different types of grants of letters of administration should be included in the model legislation, given the wide scope of section 6 of the Succession Act 1981 (Qld).17 (ii) The National Committee’s preliminary view 3.19 The National Committee was of the view that the court’s power to grant probate of the will or letters of administration, under section 6 of the Succession Act 1981 (Qld), is sufficiently wide to encompass the different types of general and limited grants currently recognised in the various jurisdictions. 3.20 The National Committee considered listing the different types of administration in legislation. However, the National Committee was of the view that this could limit the development of the types of letters of administration. 3.21 The National Committee was also of the view that, wherever relevant in the model legislation, Latin terminology used in relation to some kinds of grants should be replaced by an English translation. Question for discussion 3.3 Should the different types of letters of administration be set out in the model legislation? 17. The different kinds of grant and the purposes for which they are made are discussed in Chapter 2 of this Discussion Paper. Uniform succession laws: administration of estates 32 Jurisdiction ... where death presumed 33 4. Jurisdiction to grant probate or administration where death presumed  Introduction  New South Wales  Issues considered by the National Committee  The National Committee’s preliminary view Uniform succession laws: administration of estates 34 1. INTRODUCTION QLD ACT VIC NSW SA WA NT TAS UK NZ 6 9A, 9B, 32A 7-9 40A-C 15,16, 42 4.1 A number of jurisdictions have provisions which enable the court to grant probate or letters of administration on the presumption that a person has died, even though it may subsequently be discovered that the person was not dead at that time. 2. NEW SOUTH WALES 4.2 Sections 40A, 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) provide: 40A Evidence or presumption of death (1) Where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant probate of the person’s will or administration of the person’s estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant. (2) The provisions of this Act, the Testator’s Family Maintenance and Guardianship of Infants Act 1916, Part 15 of the Conveyancing Act 1919 and the Family Provision Act 1982 relative to a deceased person and of the Real Property Act 1900 relative to a deceased proprietor shall, unless the context or subject-matter otherwise indicates or requires, extend to any person with respect to whom the Court is satisfied in accordance with subsection (1) is deceased. (3) The provisions of this section shall extend to a case where the grant of probate or administration was made before, as well as to a case where the grant is made after the commencement of the Wills Probate and Administration (Amendment) Act 1932, provided that nothing in this section shall affect any action or proceeding decided before or pending at the commencement of that Act. Jurisdiction ... where death presumed 37 (2) if the model legislation should contain such provisions, provisions to the general effect of sections 40A, 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) should be included. 4. THE NATIONAL COMMITTEE’S PRELIMINARY VIEW 4.4 It was noted that grants pursuant to sections 40A, 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) are made at least 12 times a year in New South Wales. 4.5 However, the National Committee considered that sections 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) are procedural in nature, and were therefore better dealt with in the rules of court of each jurisdiction. 4.6 Further, the National Committee was of the view that a provision to the effect of section 40A of the Wills, Probate and Administration Act 1898 (NSW) would be covered by a provision based on section 6 of the Succession Act 1981 (Qld), which the National Committee has accepted for inclusion in the model legislation.1 4.7 The National Committee considered it to be unclear whether the term “presumption of death” in sections 40A and 40B of the Wills, Probate and Administration Act 1898 (NSW) covers cases referred to as “inferred death”, as well as what can properly be described as a “presumed death”. 4.8 The National Committee was of the view that it should be clear that the provisions are referring to cases where, although the bodies are not found or recovered, the deaths can be inferred from the surrounding circumstances – for example, where people drown 1. See Chapter 3 of this Discussion Paper in relation to the National Committee’s adoption of s 6 of the Succession Act 1981 (Qld). Uniform succession laws: administration of estates 38 at sea or are lost in a mine explosion – as well as to cases where the court applies the presumption of death.2 Proposal 6 Provisions based on sections 40A, 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation. Proposal 7 Each jurisdiction should consider including in its rules of court provisions to the effect of sections 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW). Proposal 8 A more appropriate term than “presumption of death” should be used, so that it is clear such provisions (wherever located) would cover what the cases refer to as an “inferred death”, as well as to what can properly be described as a “presumed death”. Proposal 9 It should be made clear that the provisions are referring to a death where the body is not found or recovered. 2. See Chapter 17 of this Discussion Paper. Appointment ... of personal representative 39 5. Appointment, removal and delay in appointment of personal representative  Introduction  Power to appoint administrator  Appointment of Public Trustee to administer without strict proof of death  The court’s discretion in granting letters of administration  The conventional ranking of applicants for letters of administration  Caveats Uniform succession laws: administration of estates 42 (c) The National Committee’s preliminary view 5.7 The National Committee was of the view that the jurisdiction conferred on the court by section 6 of the Succession Act 1981 (Qld) gives the court very wide general powers in relation to the administration of estates and the granting of probate and administration and that sections 74 and 75 of the Wills, Probate and Administration Act 1898 (NSW) do not really add anything to those general powers. 5.8 Moreover, section 74 of the Wills, Probate and Administration Act 1898 (NSW) overlaps with other provisions in that Act, which may cause difficulties of interpretation. For example, there is an overlap between sections 74 and 63 of the New South Wales Act.5 Both of these sections give the court the power to make a general or limited grant. However, they differ in a number of respects, including the scope of their application and the extent of the discretion conferred on the court as to whom to appoint. Section 74 confers a wide discretion on the court. However, section 63 gives a more restricted discretion, where a person dies intestate, to appoint an administrator. It does not allow for the passing over of the surviving spouse and next of kin except in certain limited circumstances, yet the court retains its wide discretion under section 74 to appoint a person lower down the order of preference.6 In practice, however, courts have resolved the discrepancy by requiring that special circumstances exist before a person normally entitled to administration is passed over.7 5. Section 63 of the Wills, Probate and Administration Act 1898 (NSW) is set out at para 5.29 of this Discussion Paper. 6. See para 5.26-5.33 of this Discussion Paper in relation to the conventional order of ranking of applicants for letters of administration. 7. See R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1996) at para 74.02; Re Chave (1930) 30 SR (NSW) 180; Re McCormack (1902) 2 SR (NSW) B & P 48. See also s 13(b) of the Administration and Probate Act 1935 (Tas) (“special circumstances”). Appointment ... of personal representative 43 5.9 The National Committee considered that sections 74 and 75 of the Wills, Probate and Administration Act 1898 (NSW) provide examples of the kinds of situations in which the power of the court to make grants and to limit them can be used and that, as long as it is made clear that the provisions in no way detract from or modify the powers given by the general jurisdiction provision in the model legislation based on section 6 of the Succession Act 1981 (Qld), it may be useful to have similar provisions in the model legislation. (i) An express power to appoint an administrator 5.10 The National Committee was of the view that, although under section 6 of the Succession Act 1981 (Qld) the court would have the power to appoint an administrator, it may nevertheless be desirable to set out in the model legislation particular circumstances in which an administrator could be appointed. This may be of some assistance to lay people. The Probate Registrars agreed with this view. 5.11 The following draft provision, which is an amalgamation of sections 74 and 75 of the Wills, Probate and Administration Act 1898 (NSW), was considered by the National Committee: (1) Without derogating from the generality of section 6(1) [Succession Act 1981 (Qld)], where the court finds that there is a reasonable likelihood that were probate to be granted to the executor named in the will the grant would subsequently have to be revoked, the court may – (a) refuse temporarily or permanently to grant probate to the person named in the will; and (b) grant probate to some other person named in the will as executor, or grant administration to some other person; and (c) make such other orders as to the court seem fit. (2) Without derogating from the generality of section 6(1), the court may, in any case where a person dies – (a) intestate; or (b) leaving a will, but without having appointed an executor thereof; or Uniform succession laws: administration of estates 44 (c) leaving a will and having appointed an executor thereof, where – (i) such executor is not willing and competent to take probate; or (ii) such executor is resident out of [the jurisdiction]; if it considers it necessary or convenient, appoint some person to be the administrator of the estate of the deceased or of any part thereof, upon the appointed person giving such security (if any) as the court directs, and any such administration may be limited as the court thinks fit. 5.12 The National Committee generally accepted this redraft. However, it was considered that, with the greater ease of communication over distances, it was no longer appropriate to include as a ground for the appointment of an administrator that the executor was resident out of the particular jurisdiction. It was agreed that it was more appropriate to refer to an executor who was resident out of Australia. The Probate Registrars concurred with this position. (ii) Passing over a named executor 5.13 The National Committee was also generally of the view that it would be desirable to give the court a discretion, in certain circumstances, to pass over a named executor and appoint an administrator.8 Although it was acknowledged that the executor was chosen by the testator, it was also recognised that beneficiaries have a very real interest in the efficiency and cost effectiveness of the administration of estates. 5.14 In some cases, a particular executor may be chosen because the beneficiaries are minors at the time the will is made. However, 8. The Court will not lightly interfere with the testator’s choice of executor, particularly in cases where the beneficiaries are opposed to the appointment of an executor by the testator who, at the time the will is made, is aware of the circumstances and position of the executor: Re Jensen [1998] 2 Qd R 374 (hostility on the part of beneficiaries due to religious intolerance towards executor held not to be sufficient). Appointment ... of personal representative 47 3. APPOINTMENT OF PUBLIC TRUSTEE TO ADMINISTER WITHOUT STRICT PROOF OF DEATH QLD ACT VIC NSW 9 SA 10 WA NT 11 TAS UK NZ 23 9(2) 40 5.19 Section 23 of the Public Trustee Act 1913 (NSW) provides that, where there is reasonable ground to suppose that a person has died, the court has power to appoint the Public Trustee to administer the estate of the deceased person without requiring strict proof of the death. The section reads: When there is reasonable ground to believe that any person has died intestate leaving property in the jurisdiction, the Public Trustee may obtain order to administer without strict proof of death (1) Whenever it is made to appear to the Court that there is reasonable ground to suppose that any person has died either in or out of the jurisdiction of the Court intestate, leaving property within such jurisdiction, the Court may order and empower the Public Trustee to administer the estate of such person both real and personal. (2) Every such order shall be valid until revoked, and shall empower the Public Trustee to: (a) collect, manage, and administer the personal estate of such supposed deceased person; and (b) enter upon and receive the rents and profits and otherwise manage the real estate; and (c) pay and discharge the debts and liabilities of such person, in like manner as if such person were certainly dead and the Public Trustee had obtained a grant of probate or letters of administration under the provisions of section 18. 9. Public Trustee Act 1913 (NSW). 10. Public Trustee Act 1995 (SA). 11. Public Trustee Act (NT). Uniform succession laws: administration of estates 48 (3) The Public Trustee shall not proceed to any distribution of the assets without an order of the Court specially authorising the Public Trustee to make such distribution. (a) Issue considered by the National Committee 5.20 The National Committee considered whether the model legislation should give jurisdiction to the court to enable the Public Trustee to administer an estate without strict proof of death, or whether such a provision would be more appropriately located in Public Trustee legislation. (b) The National Committee’s preliminary view 5.21 The National Committee considered that a provision to the effect of section 23 of the Public Trustee Act 1913 (NSW) should not be included in the model legislation. This would be consistent with the National Committee’s recommendation in Chapter 17 of this Discussion Paper that the model legislation include a statutory formulation of Re Benjamin orders. However, the National Committee did consider that if such a provision were to be retained it should be made clear that the court can impose such terms and conditions on the grant as it considers appropriate. Proposal 11 A provision to the effect of section 23 of the Public Trustee Act 1913 (NSW) should not be included in the model legislation. However, if it is retained by individual jurisdictions, whether in probate and administration legislation or in Public Trustee legislation, the following words should be added, by way of clarification of the court’s powers: and the Appointment ... of personal representative 49 Court may impose such terms and conditions as the Court deems fit. 4. THE COURT’S DISCRETION IN GRANTING LETTERS OF ADMINISTRATION QLD ACT VIC NSW SA WA NT TAS UK NZ 13 6 (a) Introduction 5.22 Tasmania and New Zealand have provisions that set out the matters to which the court must have regard in granting letters of administration. Section 13 of the Administration and Probate Act 1935 (Tas) provides: Discretion of Court as to persons to whom administration is to be granted and limitation of grant In granting letters of administration the Court shall have regard to the rights of all persons interested in the real and personal estate of the deceased person, or the proceeds of sale thereof and, in particular, administration with the will annexed may be granted to a devisee or legatee, and any such administration may be limited in any way the Court thinks fit. Provided that – (a) where the deceased died wholly intestate as to his real and personal estate, administration shall, if application is made for that purpose, be granted to some one or more of the persons interested in the residuary estate of the deceased; and (b) if, by reason of the insolvency of the estate of the deceased or of any other special circumstances, it appears to the Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this provision, would by law have