Chapter 3. Grants of Representation

Updates and background for this project (Digest)

• Part 1 Supreme Court’s jurisdiction
• Part 2 Caveats
• Part 3 Renunciation
• Part 4 Particular provisions for probate and executors
• Part 5 Particular provisions for letters of administration
• Part 6 Elections to administer—simplified procedure for small estates
• Part 7 Automatic recognition
• Part 8 Chain of representation
• Part 9 Passing over
• Part 10 Foreign domicile
• Part 11 Resealing foreign grants of representation
• Part 12 Disposition under a grant of representation affected by a defect
• Part 13 Revocation, ending or ceasing of effect of a grant of representation

PART 1 SUPREME COURT’S JURISDICTION

3.1 This Part, in collecting together all of the relevant provisions relating to the Supreme Court’s jurisdiction, draws substantially on s 6 of the Succession Act 1981 (Qld). The National Committee identified a number of advantages of such a collection including:

• the convenience of having all of the powers and jurisdiction of the court gathered in one place;¹ and
• the consequential elimination of a large number of subsequently unnecessary provisions that dealt with specific circumstances where the Court could make a grant and the conditions to which Court can make a grant subject^.2

Division 1 General jurisdiction

300 Application of part

This part applies in relation to a deceased person whether the person died before or after the commencement of this section.

3.4 The Queensland Law Reform Commission, in proposing the original provision, noted that the retrospective operation of the widened jurisdiction of the Supreme Court was desirable “so that if there are more convenient modes of practice which the Court wishes to adopt, it may do so as soon as the Act commences, and in relation to existing deceased estates”.⁶

301 Jurisdiction

(1) Subject to this Act, the Supreme Court has jurisdiction, including jurisdiction for all purposes the court considers appropriate—

(a) to make and revoke a grant of probate of the will or letters of administration of the estate of any deceased person; and

(b) to hear and decide all testamentary matters; and

(c) to hear and decide all matters relating to the estate and the administration of the estate of any deceased person.


(2) The Supreme Court may make any declaration, and make and enforce any order, that may be necessary or convenient in the exercise of its jurisdiction under this Act.

3.6 In proposing s 6(1), in 1978, the Queensland Law Reform Commission explained that the underlying intention of the provision was “to give the Court plenary jurisdiction in respect of all matters in this area of the law”.⁸

3.7 The current NSW provision unhelpfully states that the Court is invested with the “jurisdiction and authority ... vested in or exercised by the Court or by the Primary Judge in Equity in respect of the estates of deceased persons” that applied before the commencement of the Probate Act 1890 (NSW).⁹

Revocation of a grant

3.8 Paragraph 301(1)(a) gives the Court power to revoke a grant of representation. Currently, in NSW, the Court’s power to revoke a grant of probate depends on the Court’s inherent jurisdiction,¹⁰ while the Court may revoke a grant of administration under s 66(a) of the Probate and Administration Act 1898 (NSW). The National Committee concluded that there was no need to include any further provisions in the draft legislation relating to the Court’s power to revoke a grant.¹¹ Part 13 of this Chapter deals with the effect of the revocation of a grant.¹²

302 Jurisdiction is not dependent on particular factors relating to property, residence or domicile

(1) The Supreme Court may make a grant of probate of the will or letters of administration of the estate of a deceased person even though—

(a) the deceased left no estate in this jurisdiction or elsewhere; or

(b) the person to whom the grant is made is not resident or domiciled in this jurisdiction.


(2) However, a person who is not resident in this jurisdiction must file with the application for the grant a notice giving an address for service in this jurisdiction.

(3) Service of a document relating to the administration of the estate, or a proceeding relating to the administration of the estate, at the address for service given under subsection (2) is taken to be personal service of the document on the holder of the grant.

Example of a document for a proceeding relating to the administration of the estate—


an originating process

3.9 Clause 302(1) provides that the Supreme Court’s jurisdiction is not dependant on:

• the deceased leaving any property in his or her estate;
• the deceased leaving property in the Court’s jurisdiction;
• the person to whom the grant of representation is made being resident in the jurisdiction; or
• the person to whom the grant of representation is made being domiciled in the jurisdiction.

3.10 It differs significantly from the current NSW provision which merely states that the Court shall have jurisdiction with respect to the estate of “any deceased person leaving property ... in New South Wales”.¹³

3.11 The National Committee gave particular consideration to the question of the presence of property of the deceased in the jurisdiction and concluded that there were a number of reasons why it was desirable that the Court’s jurisdiction not be dependent upon the presence of property within the jurisdiction, including:

• it allows the Court to grant representation for the purposes of litigation against an “estate” where the litigation is really against the deceased’s insurers;¹⁴
• it allows a personal representative to give directions about the disposal of the deceased’s body even when the deceased left no property in the jurisdiction;¹⁵
• it allows the Court to grant representation in the case of a will that only appoints a testamentary guardian;¹⁶
• foreign revenue laws may be beneficial to the estate if the Court grants representation;¹⁷
• some jurisdictions may require a grant from the deceased’s country of nationality before making a grant themselves;¹⁸ and
• the first stage of the National Committee’s proposals for the automatic recognition of grants of representation within Australia¹⁹ would be rendered unworkable if the Court in the jurisdiction in which the deceased died domiciled was not able to make a grant because the deceased did not leave any property in the jurisdiction.²⁰

3.12 The range of possibilities that cl 302(1)(b) presents for the location of an estate’s personal representative has necessitated provisions that require a personal representative who is not resident in the Court’s jurisdiction to provide an address for service with his or her application for the grant.²¹ Sub-clauses 302(2) and (3), are based on part of the NSW provision which deems every executor or administrator applying for resealing of a grant of representation to be resident in NSW and makes provision for service when they were not actually resident.²² However, unlike the NSW provision, the service here is of documents and proceedings that relate only to the administration of the estate in question. It has been said that the NSW provision ensures that personal representatives are amenable to court process without the need for those seeking to effect service to rely on rules of court and Commonwealth legislation dealing with interstate service of process.²³

303 Grant of probate and letters of administration may be made subject to limitations

(1) The Supreme Court may make a grant of probate or letters of administration to any person and may make the grant subject to any conditions or limitations that the court considers appropriate.

(2) Subsection (1) is subject to section 312.

3.14 In recommending the original provision, in 1978, the Queensland Law Reform Commission noted that it would enable the Court to “continue its practice of making limited grants, such as grants ad colligenda bona, ad litem, durante minore, and so on” and would, in fact, enlarge the Court’s jurisdiction by enabling it to “attach any provisions to the grant it thinks fit”.²⁵

3.15 The broad reach of this provision renders unnecessary several specific NSW provisions including those that deal with:

• a grant of administration that has effect until an executor turns 18;²⁶
• a grant to a person acting under a power of attorney for a person residing out of the jurisdiction;²⁷
• an administrator appointed by the Court pending any suit touching the validity of a will or the “obtaining, recalling, or revoking” of a grant of probate or administration, or during a “contested right to administration” (that is, pendente lite);²⁸ and
• the appointment of a special administrator if the executor or administrator are absent from the jurisdiction.²⁹

3.17 Given its broad reach, it is necessary for cl 303(2) to state that this clause is subject to the limitations on grants of representation in cl 312 with respect to the age of personal representatives and the number who may hold office at any one time.

304 Grant of representation—[Queensland] domicile

(1) If, in making a grant of representation, the Supreme Court is satisfied that the deceased person died domiciled in this jurisdiction, the court must endorse the grant to that effect.

(2) In this section—


grant of representation does not include an election to administer.

3.19 Sub-clause 304(2), in expressly excluding elections to administer,³⁵ makes it clear that this provision only extends to grants of probate and letters of administration and orders to administer the estate of a deceased person.³⁶ The express exclusion of elections to administer is not strictly necessary since cl 304(1) refers to the “making” of a grant of representation. The exclusion of elections to administer from this provision preserves the particular safeguards for small estates that arise from court supervision under the election to administer regime.³⁷

305 Grant of representation—domicile other than [Queensland]

(1) This section applies if, in making a grant of representation (the local grant), the Supreme Court—

(a) is satisfied that the deceased person died domiciled in an interstate jurisdiction; or

(b) does not make a finding about where the deceased died domiciled.


(2) The Supreme Court must endorse the local grant to the effect that it ceases to have effect if a later interstate grant of representation is endorsed by the court making it to the effect that the deceased person died domiciled in the interstate jurisdiction in which the court is situated.

(3) In this section—


grant of representation does not include an election to administer.

3.21 Like cl 304(2), this provision only extends to grants of probate and letters of administration and orders to administer the estate of a deceased person.⁴¹

306 Application for grant of probate or letters of administration to be made as provided under the rules of court

An application for a grant of probate or letters of administration must be made in the way prescribed under the rules of court.

3.23 The National Committee considered that it was not necessary to include in the model legislation the remaining sub-sections of s 42 (which deal with the application procedure) as they are more appropriately contained in the rules of court.⁴² In particular, the National Committee, while noting doubts about the utility of advertising in newspapers,⁴³ left it to individual jurisdictions to consider whether the rules of court should make such provision as is necessary for a person to advertise his or her intention to apply for a grant of representation.⁴⁴

3.24 Rules of court in relation to the administration of estates are discussed further in relation to cl 611.⁴⁵

307 Supreme Court’s jurisdiction extends to making of orders available under the [insert local equivalent of Trusts Act 1973 (Qld)]

(1) The Supreme Court may make, for the proper administration of any property in a deceased person’s estate, any order that it may make for the administration of trust property under [insert local equivalent of the Trusts Act 1973 (Qld)].

(2) Subsection (1) does not limit sections 301 to 303.

3.26 In a recent Queensland Supreme Court case, the judge considered that s 6(4) combined with s 80 of the Trusts Act 1973 (Qld) would give the Court power to appoint an executor or administrator in place of an existing one “as it would be an order it would have jurisdiction to make in relation to the administration of trust property under the Trusts Act”. However, he concluded that the Court’s powers under s 6(1) were “clearly wide enough to include the removal of an executor who had not taken out probate and the appointment of an administrator in his stead”.⁴⁹ This raises a question about the necessity for this clause.

Division 2 Grants of representation on inference or presumption of death

3.27 This Division deals with grants of representation when the Court has no actual evidence of a body (usually proved by a death certificate), but must rather infer or presume that a person has died.⁵⁰

3.28 A court may, in certain circumstances, presume that a person has died. For the presumption to operate at common law, at least seven years must have elapsed since the person was “last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him [or her] or to have learned of his [or her] whereabouts, were he [or she] living”, and there must be no evidence to the contrary.⁵¹ The presumption operates only to prove the fact of death for the purposes of the relevant legal proceedings⁵² and does not set any particular date on or before which the person is presumed to have died.⁵³

3.29 Depending on the nature of the available evidence, a court may, rather than relying on the common law presumption, infer from the circumstances of the case that a person has died and also set a date on or about which the death occurred. Examples of such circumstances might include where the person was a passenger on a ship that was wrecked;⁵⁴ the person was washed out to sea while fishing;⁵⁵ or the person was lost on a diving expedition.⁵⁶

308 Definition for division

In this division—

grant of representation does not include an election to administer.

309 Validity if death is inferred or presumed

(1) This section applies if the Supreme Court—

(a) infers that a person has died or declares, in relation to a person, that the common law presumption of death is satisfied; and

(b) makes a grant of representation of the person’s estate.


(2) The grant is valid even though it may subsequently be established that the person whose death was inferred or who was presumed to be dead was living when the grant was made.

Note—


See section 372 if the person was living when the grant of representation was made.

3.32 The National Committee, however, decided not to include a provision to the effect of s 9A(1) of the Administration and Probate Act 1929 (ACT). Sub-section 9A(1) confers power on the Court to make a grant where it is “satisfied, by direct evidence or by evidence supporting a presumption of death” that a person has died. The Committee considered that the effect of s 9A(1) could be achieved by adjusting the definition of “deceased person” to include a person whose death the Court has inferred or presumed at common law.⁵⁷ The equivalent provision in NSW is s 40A(1) of the Probate and Administration Act 1898 (NSW).

3.33 Consideration will also need to be given to ensuring that the new definition of “deceased person” applies to the relevant provisions in statutes listed in s 40A(2) of the Probate and Administration Act 1898 (NSW) – the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW),⁵⁸ Part 15 of the Conveyancing Act 1919 (NSW), the Succession Act 2006 (NSW) and the Real Property Act 1900 (NSW). The National Committee’s view was that a provision to the effect of s 40A(2) was not necessary as “the grant itself would be sufficient evidence of the death of a person to found ... an application for family provision or a conveyance of the person’s property”.⁵⁹

310 Endorsement if death is presumed

If the Supreme Court makes a grant of representation on the presumption of a person’s death, the grant must be endorsed by the court to the effect that it has been made on the presumption of the person’s death.

3.35 Previously, in NSW, the provision had been necessary because of the effect that a presumed death will have on the operation of the seniority rule. The seniority rule has been held not to apply in cases where one of the deaths has been presumed.⁶⁰ It was, therefore, said to be important in such cases that a presumption of death should be obvious on the face of the grant.⁶¹ However, this reason will no longer apply since the National Committee has recommended that the survivorship provisions are to apply regardless of whether a death has been presumed.⁶²

3.36 The National Committee has concluded that there is a practical reason for the retention of such a provision. If a grant is made on the presumption of death, it will not be possible for the date of death of the deceased to be recorded on the grant. The same requirement is said not to be necessary in the case of inferred deaths because “in many instances, the court will be able to infer that the deceased person died on or about a particular date”.⁶³

311 Imposition of conditions

(1) The Supreme Court may impose conditions on a grant of representation made on an inference or presumption of death.

Example of a condition—


that the personal representative not distribute any part of the estate to a beneficiary unless the beneficiary gives an undertaking or security to restore or return any property the beneficiary receives from the estate, or its value, to the person entitled if the grant is subsequently revoked because the person was alive when the grant was made

(2) If the grant is subject to a condition, the Supreme Court may revoke or vary the condition at any time on the application of the personal representative or a person affected by the condition.

(3) This section does not limit section 303.

3.38 Secondly, it empowers the Court, on the application of the personal representative or person affected by any conditions imposed under cl 311(1), to revoke or vary these conditions. This provision is based on s 16(7) of the Administration and Probate Act (NT).

3.39 Clause 311, unlike its counterparts in various Australian jurisdictions, applies to inferred deaths as well as presumed one. This is because the National Committee considers that, while it is more likely that a person whose death has been presumed may be alive at the date of grant, there is still a risk, albeit a small one, that a person whose death has been inferred may be alive at the date of the grant.⁶⁵

3.40 The NSW provisions dealing with notice requirements and caveats for grants made on a presumption of death⁶⁶ have not been included in the model bill. The National Committee is of the view that the general provisions dealing with notice requirements and caveats⁶⁷ should be drafted so as to accommodate applications for grants in relation to inferred or presumed deaths.⁶⁸

3.41 This provision also states that it does not limit the operation of cl 303. Given the broad operation of cl 303, this provision simply draws attention to the desirability of the Court imposing conditions in certain circumstances when it presumes or infers that a person has died.

Division 3 Limitations

312 Grants of probate and letters of administration

(1) The Supreme Court may make a grant of probate or letters of administration of a deceased person’s will or estate to an individual only if the individual is an adult.

(2) Not more than 4 persons may hold a grant of probate or letters of administration of a deceased person’s will or estate at any 1 time.

(3) If more than 4 persons are named as executors of a deceased person’s will, the order of their entitlement to a grant of probate is the order in which they are named.

Note—


See section 318 about reserving leave to apply for a grant of probate.

• the Court may make a grant to an individual only if the individual is an adult;
• the Court may not appoint more than four personal representatives at any one time;
• where a will names more than four executors, their order of entitlement to a grant of probate is the order in which they are named.

3.44 Clause 312(2) is based on the first half of s 48(1) of the Succession Act 1981 (Qld). The Queensland Law Reform Commission, in its 1978 report, considered that it was desirable to restrict the number of personal representatives to whom a grant could be made because “personal representatives must act together and the larger the number the greater the possibility of disagreement or failure of communication”.⁷² The limitation is particularly desirable in light of the recommendation that personal representatives be required to act jointly.⁷³ There is currently no provision in NSW limiting the number of executors, but the proposed limitation is consistent with provisions in the Trustee Act 1925 (NSW) which limit to four the number of trustees that can be appointed for a private trust.⁷⁴

3.45 The National Committee decided not to follow the Tasmanian precedent⁷⁵ of requiring more than one administrator in certain situations, including where there is a minority or life interest in an estate.⁷⁶

3.46 Clause 312(3) is based on the second half of s 48(1) of the Succession Act 1981 (Qld) and simply provides the Court with the priority to be applied where more than four executors are named in a will.

PART 2 CAVEATS

313 Person objecting to grant of representation

(1) A person may, at any time before a grant of representation of a deceased person’s estate is made, file with the registrar a caveat against the making of a grant.

(2) The caveat must be filed as required under the rules of court.

(3) The rules of court may provide for how a caveat filed under this section may be dealt with by the Supreme Court.

(4) In this section—


grant of representation includes a foreign grant of representation.

make, a grant of representation, includes reseal a foreign grant of representation.

3.48 The model provision is based on s 44 of the Administration and Probate Act (NT). In NSW, the current provisions similarly allow a person to lodge a caveat against an application for a grant “at any time previous to such probate or administration being granted, or to the sealing of any such probate or letters of administration”.⁷⁸ However, there are also additional provisions in the Administration and Probate Act 1898 (NSW) that set out the form and content of a caveat against an application for a grant, and the procedures for dealing with them,⁷⁹ in addition to further provisions in the Supreme Court Rules 1970 (NSW).⁸⁰

3.49 The National Committee is of the view that it is desirable that the model bill flag the possibility of lodging a caveat.⁸¹ However, it also considered that questions of the form and content of the caveats and the procedures for dealing with them would be more appropriately dealt with in the relevant rules of court.⁸² The model provision is, therefore, based on the Northern Territory provision and does not contain the other material currently included in the Administration and Probate Act 1898 (NSW).

3.50 The National Committee was further of the view that the caveat provisions should also extend to caveats lodged against the resealing of a grant.⁸³ This is consistent with the approach in the current NSW provisions which cover applications for resealing as well as for original grants.

PART 3 RENUNCIATION

3.51 This Part deals with issues surrounding an executor’s renunciation of his or her executorship and a person’s renunciation of his or her entitlement to seek a grant of letters of administration.⁸⁴ Unlike cl 315 in relation to executors, there is no express provision dealing with a person’s ability to renounce his or her entitlement to apply for letters of administration. However, cl 316 and cl 317 refer to the ability to renounce an entitlement to apply for letters of administration.

314 Application of part

This part only applies in relation to a deceased person who dies after the commencement of this section.

315 Renunciation of executorship

(1) An executor named in the will of a deceased person may renounce his or her executorship of the deceased’s will.

(2) Subsection (1) applies whether or not the executor has intermeddled in the administration of the estate.

(3) However, the renunciation may only be made before a grant of probate of the deceased’s will has been made to the executor.

3.54 In NSW, the general position is that an executor who has intermeddled in an estate cannot ordinarily renounce the executorship because the intermeddling is taken to be an “indication of an intention to accept the executorship and will constitute an acceptance of that office”.⁸⁸ In such circumstances, the Court may compel the executor to accept the executorship.⁸⁹ However, there is a significant body of case law identifying what acts may amount to intermeddling and so prevent an executor from renouncing. The National Committee considered that much of this law displays “a considerable degree of inconsistency”.⁹⁰

3.55 In recommending the model provision, the National Committee accepted that there was no doubt that a person named as executor in a will could renounce that executorship but considered that a general provision in the model bill would be of assistance to lay executors.⁹¹ The National Committee presented a number of arguments for allowing a named executor who has intermeddled in an estate to renounce the executorship, namely that:

• “it must, as a matter of principle, be undesirable to compel the person to do so for the sole reason that he or she has intermeddled in the estate”;⁹²
• it would be consistent with the policy behind cl 435 of the model bill which deals with the liability of people who administer an estate informally;⁹³
• it would be consistent with the National Committee’s policy of assimilating the roles of executors and administrators since a person entitled to letters of administration may renounce their entitlement even if he or she has already acted in the estate;⁹⁴ and
• it will avoid the need for the Court to make an assessment of an executor’s acts so as to determine whether the executor can renounce the executorship.⁹⁵

316 Limited ability to apply for a grant of representation in another capacity

A person who has renounced the executorship of the will or administration of the estate of a deceased person in 1 capacity may not be the holder of a grant of representation of the deceased’s estate in another capacity unless the Supreme Court otherwise directs.

3.58 The model provision is based on rule 28 of the Non-Contentious Probate Rules 1967 (WA), except that it specifies the Supreme Court rather than the Registrar may otherwise direct, leaving it to individual jurisdictions to allocate responsibility between judges, associate judges and registrars.¹⁰⁰ In NSW, the rules of court currently provide that a person who has renounced probate or administration in one capacity cannot be granted representation in another capacity.¹⁰¹

3.59 The National Committee considered that such a provision would avoid the need for a person who is entitled to apply for administration of an estate to “clear off” a person with a higher entitlement who has already renounced the executorship. The Committee also considered that the WA provision, in permitting the Registrar to allow a renouncing executor to apply in an appropriate case, preserved a desirable degree of flexibility in the system.¹⁰²

317 Retraction

(1) This section applies if a person has renounced the executorship of the will or administration of the estate of a deceased person and applies to the Supreme Court to retract the renunciation.

(2) The Supreme Court may permit the person to retract the renunciation if the court is satisfied that the retraction would be for the benefit of the estate or persons interested in the estate.

(3) However, if a grant of letters of administration of the deceased’s estate has been made to someone (the current administrator) lower in priority than the person, the Supreme Court may permit the retraction only if the court is satisfied that it would be to the detriment of the estate or persons interested in the estate for the current administrator to continue as administrator.

Note—


See sections 321 and 322 for the order of priority for letters of administration.

• where the Court has not granted administration to a person lower in priority; and
• where the Court has granted administration to a person lower in priority. ¹⁰³

3.62 When the Court has not granted administration to a person lower in priority, the Court may permit the person to retract if it is satisfied that the retraction would be for the benefit of the estate or those interested in it.

3.63 When the Court has granted administration to a person lower in priority, the Court may permit the person to retract if it is satisfied that detriment would be caused to the estate or those interested in it if the current administrator continued in that role. The National Committee recommended the different test in such circumstances because of the potentially disruptive effect that a change in personal representatives would have on an estate that was already being administered, especially in situations where the current administrator is an executor or administrator by representation. In recommending that the Court must be satisfied that it would be to the detriment of the estate or those interested in it for the current administrator to continue, the National Committee rejected the formulations used in Tasmania and South Australia that only permitted retraction in “exceptional circumstances”.¹⁰⁵

3.64 In NSW, retraction of a renunciation of probate or administration is currently governed by general law principles.¹⁰⁶

PART 4 PARTICULAR PROVISIONS FOR PROBATE AND EXECUTORS

318 Leave to apply for a further grant of probate

(1) This section applies if an application is made for a grant of probate by some, but not all, of the executors named in a deceased person’s will.

(2) The Supreme Court may—


(a) make a grant of probate to 1 or more of the executors who apply for the grant; and

(b) reserve leave to the executor or executors who have not applied for the grant and have not renounced their executorship to apply for a grant of probate at a later time.

3.66 The National Committee considered that, while there was no doubt that the Court had inherent jurisdiction to grant probate to one or more of the executors named in a will and to reserve leave to those who had not renounced to apply in future, it would assist lay executors if the model legislation included an express power.¹⁰⁷

3.67 The clause is based on s 41 of the Probate and Administration Act 1898 (NSW), but differs from it to the extent that it would appear to allow the Court to reserve leave only for those executors who have not applied for a grant. The NSW provision appears also to allow the Court to reserve leave for those who have applied but who have not received a grant. The model provision would, therefore, exclude a fifth-named executor who applied with four others but could not be appointed because of the operation of cl 312(2) and (3).

319 When an executor’s right to prove the will ends

(1) This section applies if a person appointed executor by a will—

(a) survives the testator but dies without having a grant of probate being made to him or her; or

(b) renounces his or her executorship of the will; or

(c) after being required by the Supreme Court, including by citation or summons, to apply for a grant of probate, fails to apply for the grant as required by the court.


(2) The person’s rights in relation to the executorship end.

(3) The testator’s personal representative is to be determined, and the administration of the testator’s estate is to be dealt with, as if the person had never been appointed executor.

Examples of ways in which a testator’s personal representative may be determined—


• by operation of law

• on application to the Supreme Court for a grant of representation


(4) Nothing in this section affects the person’s liability for an act or omission happening before the person’s rights in relation to the executorship end.

• survives the testator but dies before the Court grants probate;
• renounces the executorship; or
• fails to apply for a grant when the Court requires it.

3.69 The current NSW provision¹⁰⁸ covers the same ground as s 46 of the Succession Act 1981 (Qld) on which the model provision is based.

3.70 The National Committee recommended a provision based on s 46 of the Succession Act 1981 (Qld) because it would provide “certainty as to those circumstances that, of themselves, bring to an end an executor’s entitlement to a grant of probate”.¹⁰⁹ The National Committee also recommended the inclusion of a new provision, which does not have a counterpart in any Australian jurisdiction, to confirm that nothing in this clause affects the named executor’s liability for an act or omission happening before the right to prove the will ends.¹¹⁰

PART 5 PARTICULAR PROVISIONS FOR LETTERS OF ADMINISTRATION

3.71 This part sets out the priority of people to whom the Court may make a grant of letters of administration. In general, the practice of the Court has been to favour the person with the largest beneficial interest in the estate.¹¹¹ The largest beneficial interest will be determined, when the deceased has died without leaving a will, by the rules of distribution on intestacy and, when the Court grants letters of administration with the will annexed, it will be determined by the terms of the will. Clause 321, therefore, sets out the priority that the Court should follow when granting letters of administration with the will annexed and cl 322 sets out the priority where the deceased dies without leaving a will.

320 Application of part

(1) This part applies if a person dies—

(a) intestate; or

(b) leaving a will, but without having appointed an executor; or

(c) leaving a will and having appointed an executor or executors, if the executor, or if more than 1 executor is appointed, each of the executors either—


(i) renounces his or her executorship of the will; or

(ii) lacks legal capacity to act as executor; or

(iii) is not willing to act.

(2) For this part, it does not matter whether the person’s death happens before or after the commencement of this section.

(3) Nothing in this part limits the Supreme Court’s jurisdiction under section 301.

3.73 It is based on s 74 of the Probate and Administration Act 1898 (NSW). However, the model provision omits s 74(c)(ii) which allows the Court to appoint an administrator where the appointed executor is resident out of NSW. This provision was omitted as no longer appropriate because communication over distance is now much easier than it was when the provision was first framed, at the end of the 19th century.¹¹² As cl 303 deals with the Court’s power to appoint an administrator, it was not necessary to include the provisions in s 74 that deal with conditions upon which the Court may appoint an administrator.¹¹³

321 Priority for grant—will and [Queensland] domicile

(1) This section applies if a person dies domiciled in this jurisdiction.

(2) The priority of persons to whom the Supreme Court may make a grant of letters of administration with the will annexed of the estate of the deceased person is stated in descending order in schedule 1.

(3) If 2 or more persons have the same priority, the order of priority must be decided according to which of them has the greater interest in the estate.

(4) An applicant for the grant must establish that any person higher than the applicant in the order of priority is not entitled to priority because of death, lack of legal capacity or renunciation.

(5) This section does not limit section 303.

3.75 It is based on the provisions in rule 603 of the Uniform Civil Procedure Rules 1999 (Qld). The National Committee considered that setting out an order of priority for the granting of letters of administration would “create certainty” and simplify the administration of estates.¹¹⁴ It further decided that it was in the interests of accessibility to include these provisions in the model bill.¹¹⁵

3.76 However, the National Committee decided to vary some aspects of rule 603 so that the model provision should:

• simply provide that the applicant must establish that any person of higher priority is not entitled because of death, lack of legal capacity or renunciation because it considered it unnecessary to state, as r 603(4) does, that an applicant must establish his or her priority “by providing evidence” that any person of higher priority is not entitled for the reasons listed;¹¹⁶
• not include a provision to the effect of r 603(5) as this is more appropriately located in court rules;¹¹⁷ and
• not include a provision to the effect of r 603(6) as it is unnecessary to establish priority for a person of equal or lower priority than the applicant.¹¹⁸

3.78 The term “renunciation” in cl 321(4), which derives from r 603(4) of the Uniform Civil Procedure Rules 1999 (Qld), refers to an executor’s renunciation of his or her executorship and a person’s renunciation of an entitlement to apply for administration both of which are dealt with under Part 3 of Chapter 3.¹²⁰

3.79 NSW does not currently have a provision that establishes a priority for applicants for a grant of administration with the will annexed. This leaves the question of priority to be governed by relevant case law which can be quite complex and technical.¹²¹

322 Priority for grant—intestacy and [Queensland] domicile

(1) This section applies if a person dies domiciled in this jurisdiction.

(2) The priority of persons to whom the Supreme Court may make a grant of letters of administration on intestacy of the estate of the deceased person is stated in descending order in schedule 2.

(3) A person who represents a person mentioned in schedule 2 has the same priority as the person represented.

(4) An applicant for the grant must establish that any person higher than the applicant in the order of priority is not entitled to priority because of death, lack of legal capacity or renunciation.

(5) The applicant must file in the Supreme Court an affidavit, sworn by the applicant or someone else with relevant knowledge, about the existence or nonexistence and beneficial interest of any spouse or a person claiming to be a spouse.

(6) This section does not limit section 303.

Example for subsection (6)—


If there is more than 1 surviving spouse, the Supreme Court may make the grant to 1 or more of them, or to a person lower than the surviving spouse or spouses in the order of priority.

3.81 It is based on the provisions in rule 610 of the Uniform Civil Procedure Rules 1999 (Qld). The National Committee considered that setting out an order of priority for the granting of letters of administration would “create certainty” and simplify the administration of estates.¹²² It further decided that it was in the interests of accessibility to include these provisions in the model bill.¹²³

3.82 The priority set out in Schedule 2 is broadly consistent with the National Committee’s recommendations about the distribution of estates on intestacy¹²⁴ which have now been adopted in NSW.¹²⁵ Details are discussed in the commentary to Schedule 2.¹²⁶

3.83 The current NSW provision sets out a simplified order of priority of people to whom the Court may grant letters of administration on intestacy, which, after listing the spouse of the deceased merely refers to “one or more of the next of kin”.¹²⁷ The National Committee was of the view that the more detailed priority list in Schedule 2 would “greatly simplify the issue of the ranking of applicants for letters of administration, especially in those jurisdictions where the matter is still largely governed by case law”.¹²⁸

3.84 The National Committee also decided to vary some aspects of rule 610 so that the model provision should:

• simply provide that the applicant must establish that any person of higher priority is not entitled because of death, lack of legal capacity or renunciation because it considered it unnecessary to state, as r 610(5) does, that an applicant must establish his or her priority “by providing evidence” that any person of higher priority is not entitled for the reasons listed;¹²⁹
• not include a provision to the effect of r 610(6) as this is more appropriately located in court rules;¹³⁰ and
• not include a provision to the effect of the first part of r 610(7) as it is unnecessary to establish priority for a person of equal or lower priority than the applicant.¹³¹

3.86 The term “renunciation” in cl 322(4), which derives from r 610(5) of the Uniform Civil Procedure Rules 1999 (Qld), refers to an executor’s renunciation of his or her executorship and a person’s renunciation of an entitlement to apply for administration, both of which are dealt with under Part 3 of Chapter 3.¹³³

323 Endorsement if grant made to creditor

(1) This section applies if a grant of letters of administration is made to a person who applies for the grant as a creditor of the deceased person’s estate.

(2) The grant must be endorsed by the Supreme Court to the effect that it has been made to the administrator of the deceased’s estate as a creditor of the estate.

PART 6 ELECTIONS TO ADMINISTER—SIMPLIFIED PROCEDURE FOR SMALL ESTATES

3.88 An election to administer, which involves filing a prescribed notice with the Court, is a simple and less expensive way for certain specified people to obtain authority to administer small estates under a specified value, without the need to apply to the Court for a grant of representation.

3.89 The National Committee has decided to retain elections to administer as they “provide a cheaper and more convenient method ... to administer an estate having a relatively low value”. In particular, elections to administer are seen as a means of avoiding the greater costs involved in applying for a grant of probate or letters of administration.¹³⁷

3.90 In most jurisdictions, other than the NT, the provisions relating to elections to administer are contained in the relevant public trustee and trustee company legislation. In NSW, the provisions are contained in the NSW Trustee and Guardian Act 2009 (NSW) and the Trustee Companies Act 1964 (NSW) and the NSW Trustee and the trustee companies are the only bodies in NSW currently entitled to file an election to administer.¹³⁸ The National Committee decided that the provisions relating to elections to administer should be included in the model legislation rather than in the relevant public trustee and trustee company legislation because of the proposals to follow the position in the NT and include legal practitioners among those who are entitled to file elections to administer.¹³⁹ The National Committee considered that the model provisions should generally be based on s 110B and s 110C of the Administration and Probate Act (NT).¹⁴⁰

3.91 Consistent with the general position that elections to administer provide a simpler and cheaper means of administering small estates, the National Committee has decided not to include the advertising requirements currently contained in s 110B(4) of the Administration and Probate Act (NT). The National Committee was of the view that the cost involved in giving public notice either before or after the filing of an election to administer under either cl 326 or cl 330 was not justified. The National Committee observed that in a number of jurisdictions, including NSW,¹⁴¹ such provisions are primarily concerned with proof of authority to act in the administration of the estate. The National Committee considered that the professional administrator could prove authority to act by obtaining an authenticated copy of the filed document.¹⁴²

3.92 In recommending the provisions in this Part, the National Committee also considered the inclusion of a provision to facilitate the administration of small estates without the need to obtain a grant or file an election to administer.¹⁴³ NSW currently has provisions that allow the NSW Trustee to administer small estates up to a value of $20,000 as if the Court had made a grant of representation in the NSW Trustee’s favour.¹⁴⁴ The National Committee gave particular attention to new NT provisions that allow a “professional personal representative” (that is, the public trustee, a trustee company or a legal practitioner) to administer a small estate without a grant of representation and without filing an election.¹⁴⁵ The National Committee, however, concluded that such provisions were not necessary in light of the provisions in this Part that:

• allow a public trustee, trustee companies and legal practitioners to file an election to administer;
• increase the number of estates that can be administered under an election to administer (by increasing the maximum prescribed value); and
• simplify the process for filing by removing the public notice requirements.¹⁴⁶

3.94 The provisions in this Part are divided, in divisions 2 and 3, according to whether there has or has not been a previous grant of representation in relation to the estate.

Division 1 Preliminary

324 Application of part

This part applies in relation to a deceased person whether the person died before or after the commencement of this section.

325 Definitions for part

In this part—

CPI means the all groups consumer price index, being the weighted average of the 8 capital cities, published by the Australian statistician.

CPI indexed, in relation to an amount for a preceding calendar year, means the amount is increased by the percentage change in CPI for the [September] quarter for the calendar year immediately before the preceding calendar year and the [September] quarter for the preceding calendar year.

preceding calendar year, in relation to a later calendar year, means the calendar year immediately preceding the later calendar year.

prescribed amount means—

(a) for the calendar year ending 31 December [insert relevant year]—$100000; or

(b) for a later calendar year—the amount for the preceding calendar year, CPI indexed.

3.97 Currently, in NSW, the gross value of an estate for which the NSW Trustee or a trustee company may file an election to administer can be no more than $100,000.¹⁵⁰ This figure was increased from $50,000¹⁵¹ in 2008.¹⁵²

3.98 The National Committee decided to adopt the approach of CPI indexing in the expectation that a fixed amount was unlikely to be reviewed on a regular basis and that this approach would ensure that the prescribed amount would retain its current value in real terms.¹⁵³

Division 2 No previous grant of representation

3.99 This division deals with the filing of elections to administer in situations where there has been no previous grant of representation either in this jurisdiction or in another Australian jurisdiction the grants of which are recognised automatically under cl 335.

326 Filing an election to administer

A professional administrator may file in the Supreme Court an election to administer the estate of a deceased person if—

(a) the professional administrator is entitled to have a grant of probate of the deceased’s will or letters of administration of [or an order to administer] the deceased’s estate made to the professional administrator; and

(b) the professional administrator estimates that the net value of the estate in this jurisdiction at the time of filing the election to administer is not more than the prescribed amount; and

(c) no grant of representation of the estate has been made in this jurisdiction; and

(d) no interstate grant of representation of the estate has been made that is effective in this jurisdiction under section 335.

• the professional administrator’s estimate of the net value of the estate must be no more than the prescribed amount;¹⁵⁵
• no grant of representation has been made in this jurisdiction; and
• no grant of representation has been made in another Australian jurisdiction that is automatically recognised under cl 335.

Existing entitlement to a grant or an order to administer

3.102 The requirement in cl 326(a), that a professional administrator can only file an election to administer if he or she is entitled, in relation to the estate, to a grant of probate or letters of administration or an order to administer,¹⁵⁷ has been included as an appropriate restriction upon a procedure that provides an alternative to obtaining a grant.¹⁵⁸

3.103 In NSW, existing provisions require that, in order to file an election to administer, the public trustee must be entitled to obtain a grant of probate¹⁵⁹ and a trustee company must be entitled to obtain a grant.¹⁶⁰

3.104 The reference to the professional administrator’s entitlement is intended to extend beyond merely being named as executor in the deceased’s will to cover situations where:

• the public trustee has a statutory entitlement to apply for a grant or an order to administer;¹⁶¹
• the person otherwise entitled to apply for a grant has authorised a trustee company to do so;¹⁶² and
• the person otherwise entitled to apply for a grant has authorised a legal practitioner under a power of attorney to apply for the grant.¹⁶³

3.105 Unlike the current NSW provisions, which refer to gross value,¹⁶⁴ the model provision refers to the net value of the estate. The National Committee considered that a reference to gross value was not desirable in the context since an estate with a high gross value (for example, consisting of a house with a large mortgage) might have a relatively small net value.¹⁶⁵ The prescribed amount is defined in cl 325, above.

Pre-existing grants

3.106 In NSW, the current provisions include a restriction on filing an election to administer if the Court has granted representation to another person in the jurisdiction.¹⁶⁶

3.107 The condition in cl 326(d) in relation to interstate grants of probate has been included to accommodate the automatic recognition provisions set out below.¹⁶⁷

327 Form and content of election to administer

(1) An election to administer filed under section 326 must be in writing and state the following matters—

(a) the deceased’s name, address, occupation and date of death;

(b) details of the deceased’s estate;

(c) whether the deceased died leaving a will or without leaving a will;

(d) if the deceased died leaving a will, a statement that, after making proper inquiries, the professional administrator believes—


(i) that the document annexed to the election to administer is the deceased’s last will or a certified copy of the deceased’s last will; and

(ii) that the will has been properly executed.

(2) If the form of an election to administer is approved for use under section 619, the election to administer must be in the approved form.

(3) In this section—


properly executed, in relation to a will, means executed in accordance with the law governing the execution of the will.

3.109 The equivalent provisions in NSW are contained in s 26(1) and (2) of the NSW Trustee and Guardian Act 2009 (NSW) and apply to the NSW Trustee and trustee companies.¹⁶⁹ The only significant difference from the model provision is that the NSW provision refers only to the will of the deceased and not to a certified copy.

3.110 The assessment that must be made as to the validity of the deceased’s will under cl 327(1)(d) requires particular legal knowledge and is one of the reasons why the professional administrator must be the public trustee, a trustee company or a legal practitioner.

328 Status of professional administrator after filing an election to administer

On filing the election to administer, the professional administrator is taken to be—

(a) if the deceased died leaving a will and the professional administrator is an executor of the will—the holder of a grant of probate of the will; or

(b) if the deceased died leaving a will and the professional administrator is not an executor of the will—the holder of a grant of letters of administration with the will annexed; or

(c) if the deceased died without leaving a will—the holder of a grant of letters of administration on intestacy of the deceased’s estate.

3.112 It is generally based on s 110B(3) of the Administration and Probate Act (NT). This is consistent with the decision of the National Committee that the provisions relating to elections to administer should be included in the model legislation and should generally be based on s 110B of the Administration and Probate Act (NT).¹⁷⁰

3.113 The model provision is consistent with the current NSW provision which states that upon filing an election the public trustee or the trustee company “is taken to have been appointed by the Supreme Court as the executor of the estate or the administrator of the estate”.¹⁷¹

329 Value of estate must not exceed prescribed amount

If, after filing the election to administer, the professional administrator discovers that the net value of the estate in this jurisdiction is more than 150% of the prescribed amount, the professional administrator must—

(a) file in the Supreme Court a memorandum stating the value of the estate in this jurisdiction; and

(b) apply for a grant of probate or letters of administration [or an order to administer].

3.115 The model provision is consistent with the current NSW provision which, however, rather than specifying a percentage, merely states that the trustee must apply for a grant of representation if the gross value of the estate exceeds “the amount prescribed for the purposes of making an election”.¹⁷³ The regulations currently prescribe an amount in excess of $120,000.¹⁷⁴

Division 3 Previous grant of representation

3.116 This division allows professional administrators to file elections to administer in situations where there has been a previous grant of representation either in this jurisdiction or in another Australian jurisdiction the grants of which are recognised automatically under cl 335 and the last remaining holder of that grant of representation has ceased to hold office. This involves dealing with the property that remains in the estate at the time when the personal representative ceases to hold office. This remaining property is referred to as the “unadministered” part of an estate.

3.117 The National Committee considered the inclusion of the provisions in this division particularly desirable because the estate that remains to be distributed in some cases may be very small and the filing of an election to administer may avoid the costs associated with obtaining a grant of administration of the unadministered estate (referred to as “administration de bonis non”).¹⁷⁵

330 Filing election to administer

A professional administrator may file in the Supreme Court an election to administer the unadministered part of a deceased person’s estate if—

(a) a grant of representation of a deceased person’s estate has been made to a person (the last personal representative) but, because of the death or loss of legal capacity of the last personal representative, the estate has been left unadministered; and

(b) the professional administrator is entitled to have a grant of letters of administration [or an order to administer] of the unadministered estate made to the professional administrator; and

(c) the professional administrator estimates that the net value of the unadministered estate in this jurisdiction at the time of filing the election to administer is not more than the prescribed amount; and

(d) no grant of representation of the unadministered estate as been made since the death or loss of legal capacity of the last personal representative; and

(e) no interstate grant of representation of the unadministered estate has been made that is effective in this jurisdiction under section 335.

• the professional administrator’s estimate of the net value of the estate must be no more than the prescribed amount;¹⁷⁶
• the Court has not already granted representation in this jurisdiction; and
• no interstate grant of representation has been made that is automatically recognised under cl 335.

3.120 These provisions are similar to those in cl 326 and the comments in relation to the provisions in cl 326¹⁷⁹ apply equally to them.

331 Form and content of election to administer

(1) An election to administer filed under section 330 must be in writing and state details of the following matters—

(a) the last grant of representation;

(b) the death or loss of legal capacity of the last personal representative;

(c) the estate in this jurisdiction left unadministered.


(2) If the form of an election to administer is approved for use under section 619, the election to administer must be in the approved form.

(3) A statement by the professional administrator in the election to administer giving details of the death or loss of legal capacity of the last personal representative—


(a) is evidence of the details stated; and

(b) in the absence of evidence to the contrary, is to be accepted by all courts and persons, whether acting under an Act or not, without further proof.

3.122 Sub-clause 331(1) is generally based on s 110C(2) of the Administration and Probate Act (NT) and cl 331(3) is generally based on s 110C(5) of the Administration and Probate Act (NT). This is consistent with the decision of the National Committee that the provisions relating to elections to administer the unadministered part of an estate should be included in the model legislation and should generally be based on s 110C of the Administration and Probate Act (NT).¹⁸⁰

3.123 The equivalent provision in NSW is contained in s 27(1) of the NSW Trustee and Guardian Act 2009 (NSW) and applies to the NSW Trustee and trustee companies.¹⁸¹ However, the NSW provisions do not include a provision to the effect of cl 331(3).

332 Status of professional administrator

(1) On filing the election to administer, the professional administrator is taken to be the administrator of the unadministered estate as if a grant of letters of administration of the unadministered estate had been made to the professional administrator.

(2) However, if the professional administrator filed the election to administer because of the last personal representative’s lack of legal capacity, subsection (1) applies only for the period of the lack of legal capacity.

3.125 It is generally based on s 110C(3) of the Administration and Probate Act (NT). However, while the NT provision merely states that the professional administrator has the status of an administrator de bonis non, the model provision instead essentially follows the courts’ practice in granting administration de bonis non by stating that the professional administrator retains the status of administrator only so long as the personal representative continues to lack legal capacity.¹⁸²

3.126 The model provision is consistent with the current NSW provision which states that, upon filing an election, the NSW Trustee or a trustee company is “taken to have been appointed by the Supreme Court as the administrator de bonis non of the estate”.¹⁸³

333 Value of unadministered estate must not exceed prescribed amount

If, after filing the election to administer, the professional administrator discovers that the net value of the unadministered estate in this jurisdiction is more than 150% of the prescribed amount, the professional administrator must—

(a) file in the Supreme Court a memorandum stating the value of the unadministered estate in this jurisdiction; and

(b) apply for letters of administration of [or an order to administer] the unadministered estate.

3.128 It is generally based on s 110C(4) of the Administration and Probate Act (NT). The National Committee¹⁸⁴ included the model clause in this form for consistency with the views expressed in relation to cl 329.¹⁸⁵

Division 4 Estate administration fees

334 Fees that may be charged under this part

(1) A professional administrator who administers an estate under this part may charge a fee for the administration.

(2) A regulation may prescribe the maximum fee that a professional administrator may charge under this section.

(3) If a maximum fee is not prescribed, a professional administrator may charge a fee that is not more than the amount that the [public trustee] is entitled to charge according to the [insert local equivalent of scale of commission and fees prescribed under section 74(5) of the Public Trustee Act (NT)].

3.130 The National Committee considered that such a provision provides a “useful cap” on costs where an estate is being administered under an election to administer.¹⁸⁸

3.131 Sub-clause 334(3) refers to the scale of commission and fees prescribed under s 74(5) of the Public Trustee Act (NT). This reference results from a drafting error in s 110D(3) of the Administration and Probate Act (NT). The correct reference is s 74(2), which allows the minister, by notice in the Gazette, to determine the commission and fees that the Public Trustee may charge against an estate or trust for services that he or she provides. In NSW, s 111(2) of the NSW Trustee and Guardian Act 2009 (NSW) allows that fees charged in respect of the functions of the NSW Trustee may be determined “by way of percentage or otherwise” and must be prescribed by the regulations.¹⁸⁹

PART 7 AUTOMATIC RECOGNITION

3.132 Currently, in NSW, a grant of representation made in another Australian jurisdiction can only become effective in NSW if the Supreme Court reseals it.¹⁹⁰ A system of automatic recognition simply allows a grant of representation made in another Australian jurisdiction to become automatically effective in NSW, thereby avoiding the need for the Supreme Court to reseal it.¹⁹¹ The National Committee was not satisfied that the process of resealing was necessary in the case of grants made by the courts in other Australian jurisdictions.¹⁹² Adopting a scheme of automatic recognition is consistent with the National Committee’s aim that, to the greatest extent possible, the uniform legislation should “endeavour to simplify, and reduce the expense involved in, the administration of estates”.¹⁹³

3.133 The National Committee has generally followed the United Kingdom legislation that provides for automatic recognition of grants of representation as the basis for the model provisions.¹⁹⁴ However, some modifications to the UK scheme are necessary because, unlike the UK, no one parliament in Australia can require that a grant made in one jurisdiction must be recognised by all other Australian jurisdictions.¹⁹⁵ In Australia, for a scheme of automatic recognition to have full effect, each jurisdiction must legislate for the recognition of grants made in all other Australian jurisdictions.

3.134 The National Committee has proposed a two-stage implementation of automatic recognition of grants made by other Australian jurisdictions. The first stage involves a system of automatic recognition of grants issued by the Court in the jurisdiction where the deceased died domiciled. The second stage involves a system of automatic recognition of grants issued by a court in any Australian jurisdiction regardless of domicile. The second stage has been delayed pending the introduction of procedures to protect the interests of people with an interest in the proper administration of an estate. The National Committee considered it possible that, under a scheme of automatic recognition regardless of domicile combined with the removal of the jurisdictional requirement that the deceased leave property in the jurisdiction,¹⁹⁶ a person could deliberately seek a grant of representation in a jurisdiction where the application may not come to the attention of people who might oppose the grant.¹⁹⁷ In order to guard against such a scenario, it is necessary to set up a network of searchable, publicly accessible databases across all jurisdictions that record:

• notices of intention to apply for a grant of representation;
• the fact of grants having been made; and
• the existence of caveats against the making of a grant.¹⁹⁸

335 Effect of an interstate grant of representation for an Australian domicile

(1) This section applies if, after the commencement of this section—

(a) the Supreme Court has not made a grant of representation endorsed under section 304 to the effect that the deceased person died domiciled in this jurisdiction; and

(b) an interstate grant of representation (the interstate grant) is made and endorsed by the court making it to the effect that the deceased person died domiciled in the interstate jurisdiction in which the court is situated.


(2) On the endorsing of the interstate grant—

(a) the interstate grant has the same force, effect and operation in this jurisdiction as it would have if it had been originally made by the Supreme Court; and

(b) the force, effect and operation of the interstate grant in this jurisdiction is subject to the Supreme Court’s jurisdiction; and

(c) each of the following ceases to have effect—


(i) a grant of representation of the deceased’s estate previously made by the Supreme Court and endorsed under section 305;

(ii) an election to administer the deceased’s estate previously filed in the Supreme Court by a professional administrator;

(iii) a foreign grant of representation of the deceased’s estate previously resealed by the Supreme Court under section 353.

(3) For this section, it does not matter whether the deceased died before or after the commencement of this section.

• the grant will operate in this jurisdiction in the same way as if it had been originally granted by the Supreme Court in this jurisdiction;
• the grant will be subject to this jurisdiction’s Supreme Court; and
• the following grants, if previously made, will cease to have effect:

  - any grant endorsed by the Supreme Court under cl 305, that is, to the effect that the deceased died domiciled in another jurisdiction or the court made no finding as to domicile;

  - an election to administer filed by a professional administrator under Chapter 3 part 6; and

  - a foreign grant of representation resealed by the Supreme Court under cl 353.

3.136 For the purposes of this clause, “interstate grant of representation” is defined, in accordance with the dictionary in schedule 3, as including grants of probate, letters of administration and orders to administer, but as excluding elections to administer. Orders to administer have been included because they have a very similar effect to a grant and are made under the seal of the Court.²⁰⁰ Elections to administer²⁰¹ have been specifically excluded from the operation of the automatic recognition scheme (notwithstanding their inclusion in the resealing proposals) because they are an alternative to seeking a grant of representation and, as they do not require Court approval, will not be subject to the safeguards imposed under cl 355 when they are resealed.²⁰²

3.137 This is a new provision that implements the National Committee’s recommendations relating to the automatic recognition of grants made in other Australian jurisdictions. While based on the UK legislation, the drafting of this provision has been tailored to accommodate the fact that no Australian jurisdiction can legislate to require the other States and Territories to recognise its grants of representation. An Australian jurisdiction can only legislate to recognise, within its own jurisdiction, the grants of representation of other jurisdictions.²⁰³

3.138 This provision currently depends on the granting jurisdiction endorsing the grant with respect to domicile. This will be unnecessary when stage two of the scheme is implemented so that any grant made by the court of another Australian jurisdiction will be recognised without the need for domicile to be endorsed on the grant.²⁰⁴

3.139 The National Committee, in recommending the current domicile requirement, has acknowledged that evidence of the deceased’s domicile will need to be included in any application for a grant of representation but considers that this is not an “unreasonable requirement given the benefits that the implementation of the first stage of the scheme will provide”.²⁰⁵

3.140 Paragraph 335(2)(c) is necessary to avoid having two instruments effective in the same jurisdiction, that is, the automatically recognised interstate grant, and a limited local grant, a resealed foreign or interstate grant or an election to administer.²⁰⁶

336 Review

(1) The Minister must review the operation of provisions of this Act providing for automatic recognition of interstate grants of representation—

(a) to decide their effectiveness; and

(b) to ascertain whether the further recommendations for automatic recognition of interstate grants of representation contained in the Law Reform Report can be implemented.


(2) The review must be started within 5 years after the commencement of this section.

(3) As soon as practicable, but within 1 year after the end of the 5 year period, the Minister must table a report about the review in the Legislative Assembly.

(4) In this section—


Law Reform Report means the Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General published by the Queensland Law Reform Commission.

Editor’s note—

The report is Report 65 and the recommendations are R 38-14 to 38-16 and 38-20 to 38-21.

3.142 The National Committee has included this new provision to ensure that timely consideration is given to implementing stage two of the proposals on automatic recognition of interstate grants of representation.²⁰⁸

3.143 As the model bill has been drafted in the form of a bill for the Queensland Parliament, cl 336(3) refers only to tabling in the Legislative Assembly. This is because Queensland only has one house of parliament. The practice in NSW is for legislation to require that reports of legislative reviews be tabled in each House of Parliament.²⁰⁹

Changes to be made when stage 2 is implemented

3.144 The second stage of the National Committee’s proposed scheme involves the automatic recognition of grants made by a court in any Australian jurisdiction regardless of domicile. If the review finds that the conditions have been met for the implementation of the second stage, then a number of changes will have to be made to the legislation.

3.145 First, the legislation should be amended to provide that a grant made by the court of any other Australian jurisdiction has the same force, effect and operation in this jurisdiction as if it had been made by the Court in this jurisdiction.²¹⁰

3.146 Secondly, provisions relating to the effectiveness of a grant endorsed to the effect that the deceased died domiciled in the jurisdiction of the court making the grant, should be repealed.²¹¹

3.147 Thirdly, the National Committee considered it necessary to give the Court an express power to decline to make a grant on the ground that another Australian jurisdiction is the more appropriate forum. The Committee doubted that, notwithstanding the discretionary nature of the Court’s power, the Court could simply decline an application that was otherwise properly made.²¹²

PART 8 CHAIN OF REPRESENTATION

3.148 The chain of representation refers to the process whereby the executor of a deceased executor’s estate becomes the executor of the estates of which the deceased executor was executor at his or her death. The chain of representation avoids the cost and complexity involved in someone having to seek a grant of administration de bonis non in order to complete the administration of an estate left partially administered at the death of its executor. Traditionally it has only been possible to have executors by representation. In NSW, this general position is currently set out in s 13 of the Imperial Acts Application Act 1969 (NSW). Executorship by representation was justified by the “special confidence” that the deceased reposes in his or her executor.

3.149 In general, the chain of representation has not been available for estates where an administrator has died before completing the administration, neither has it been available where the Court has granted letters of administration in relation to a deceased executor’s estate. However, in NSW, a limited form of administratorship by representation currently exists by virtue of s 44(2) of the Probate and Administration Act 1898 (NSW) which allows it where the NSW Trustee or a trustee company is appointed executor or administrator of an estate and the deceased was, at the time of death, the administrator of another estate.

3.150 The National Committee decided to retain the doctrine of executorship by representation because of its potential to simplify and reduce the cost of completing the administration of an estate that is only partially administered when its last surviving or sole executor dies. It would do this principally by eliminating the need to apply for the appointment of an administrator de bonis non with respect to the unadministered estate.²¹³

3.151 The National Committee further decided that the factors that justified the retention of the doctrine of executorship by representation also justified the extension of the doctrine to cover estates that are in the hands of an administrator who dies before the administration of the estate has been completed.²¹⁴ It was also noted that the distinction between executors and administrators, with respect to the devolution of office, could no longer be justified.²¹⁵ This is consistent with the National Committee’s policy to assimilate as far as possible the offices of administrator and executor.²¹⁶

3.152 The provisions in this Part will, therefore, make it possible for the office of personal representative to be transmitted from executor to executor, from administrator to administrator, from executor to administrator and from administrator to executor.²¹⁷

3.153 Whether the holder of a transmitted office is called an executor by representation or an administrator by representation will depend on the designation of the original grant. So if a deceased person is first represented by an administrator, subsequent representation of that deceased person’s estate, if determined by the chain of representation, will always be referred to as “administratorship by representation”. Likewise, a deceased person who is first represented by an executor will, following the death of the executor and any subsequent personal representatives, always be represented by an “executor by representation” regardless of whether the person is an executor of any other estate in the chain.

3.154 The National Committee, in proposing this scheme, acknowledged that a person may, by chain of representation, become an executor or administrator of an estate of a deceased person with whom he or she had no connection. However, in relation to this, it observed that the existing doctrine of executorship by representation could achieve the same undesirable result and that the model provisions relating to the cessation of the office of executor or administrator by representation²¹⁸ may help in ameliorating such outcomes.²¹⁹

3.155 The following provisions deal with:

• becoming an executor or administrator by representation (division 2);
• the rights and liabilities of such a person (division 3);
• renouncing the office (division 4); and
• ceasing to hold office (division 5).

337 Definitions for part

In this part—

deceased personal representative means a deceased person who, immediately before his or her death, was—

(a) the last surviving, or sole, executor of a deceased person’s will and was the holder of a grant of probate of the will; or

(b) the last surviving, or sole, administrator of a deceased person’s estate.

grant of representation, of the estate of a deceased personal representative, does not include—

(a) a grant of letters of administration made only because the administrator is a creditor of the estate; or

(b) [an order to administer]; or

(c) an election to administer.

Deceased personal representative

3.157 The definition of “deceased personal representative” makes it clear, for the purposes of these provisions, that the deceased personal representative, immediately before his or her death, must be the last surviving or sole personal representative of the estate.²²⁰

Grant of representation

3.158 The definition of “grant of representation” makes it clear that the usual definition of “grant of representation” contained in the dictionary in schedule 3 does not apply. Therefore, “grant of representation”, for the purposes of this Part, means a grant of probate or letters of administration made by the Supreme Court but not if the grant is made to a person only because he or she is a creditor of the estate. This ensures that a person who has become administrator solely because he or she is a creditor of the deceased’s estate does not also become an executor or administrator by representation of any other deceased estate.²²¹

3.159 Orders to administer and elections to administer are also excluded from the definition of grant of representation because, their aims of providing simple, cost-effective procedures for the administration of small estates are not consistent with the administration of multiple estates under a chain of representation.

Division 2 Becoming an executor or administrator by representation

338 Executor or administrator by representation

(1) If, after the commencement of this section, the Supreme Court makes a grant of probate or letters of administration of the will or estate of a deceased personal representative to a person, the person is, on the making of the grant of probate or letters of administration—

(a) an executor by representation of any will of which the deceased personal representative was, at the time of the representative’s death, the last surviving, or sole, executor under a grant of probate; and

(b) an administrator by representation of any estate of which the deceased personal representative was, at the time of the representative’s death, the last surviving, or sole, administrator; and

(c) an executor by representation of any will of which the deceased personal representative was, at the time of the representative’s death, the last surviving, or sole, executor by representation; and

(d) an administrator by representation of any estate of which the deceased personal representative was, at the time of the representative’s death, the last surviving, or sole, administrator by representation.


(2) However, subsection (3) applies if—

(a) after the death of the deceased personal representative; and

(b) before the grant of probate or letters of administration is made of the will or estate of the deceased personal representative;

a grant of probate or letters of administration is made of the will or estate of any person (the other person) of whose will or estate the deceased personal representative was the executor, administrator, or executor or administrator by representation.


(3) The person to whom a grant of probate or letters of administration is made of the will or estate of the deceased personal representative does not, on the making of the grant, become the executor or administrator by representation of—

(a) the will or estate of the other person; or

(b) any will or estate of which the other person was the executor, administrator, or executor or administrator by representation.

• an executor by representation of any estate of which the person was the last surviving or sole executor or executor by representation; or
• an administrator by representation of any estate of which the person was the last surviving or sole administrator or administrator by representation.

Division 3 Rights and liabilities of executor or administrator by representation

339 Rights and liabilities

An executor or administrator by representation—

(a) has the same rights in relation to any estate of which the person is the executor or administrator by representation that the deceased personal representative of the estate would have had if living; and

(b) is, to the extent to which any estate mentioned in paragraph (a) has come under his or her control, accountable in the same way as the person would be if he or she were an original executor or administrator of the estate.

Division 4 Renouncing executorship or administratorship by representation

340 Renunciation

(1) This section applies to a person who is an executor of the will or administrator of the estate of a deceased personal representative.

(2) The person may renounce the executorship or administratorship by representation of the will or estate (the other estate) of which the deceased personal representative was the executor, the administrator, or the executor or administrator by representation.

(3) The renunciation may be made without renouncing the executorship or administratorship of the will or estate of the deceased personal representative.

(4) The renunciation must be filed in the Supreme Court and may be made before or after a grant of representation of the deceased personal representative’s estate has been made.

(5) However, the renunciation must be made before the person takes any active step in the administration of the other estate.

(6) In this section—


active step, in the administration of the other estate, does not include any of the following—

(a) an act of necessity;

(b) an act taken to protect or preserve any property in the estate;

(c) an act of a minor character that is for the estate’s benefit;

(d) an act taken for the purpose of arranging disposal of the deceased person’s remains.

3.164 The model provision is generally based on s 47(5) of the Succession Act 1981 (Qld) which was originally enacted to overcome the harshness of the rule that a person seeking to renounce an executorship by representation also had to renounce his or her executorship under the deceased personal representative’s will. The Queensland Law Reform Commission, in its 1978 report, considered that, while it might be convenient to have an executor undertake the executorship by representation of the estate of someone to whom he or she was a total stranger, the executor should not be forced to undertake all of the executorships or none of the executorships.²²⁶ Other law reform bodies have reached similar conclusions.²²⁷ The National Committee generally adopted this approach.²²⁸

3.165 The provision has been drafted so that the personal representative is not forced to renounce all of the executorships or administratorships by representation in the chain, if he or she wishes only to renounce some of them.²²⁹

3.166 However, under this provision, a person cannot renounce the executorship or administratorship by representation if he or she has taken an “active step” in the administration of the estates he or she seeks to renounce. The National Committee decided it was appropriate to restrict the executor or administrator by representation’s right to renounce because he or she is “formally constituted as the executor”. This is to be compared with cl 315(3) which applies to original executors and allows an executor to renounce, even if he or she has acted in the administration of the estate, but only before the Court has granted probate. Once the Court has granted probate, the executor can only retire from office with court approval.²³⁰ Clause 340, therefore, grants a concession in that an executor or administrator by representation, although “formally constituted” as such, may still renounce in some circumstances even after the Court has granted representation of the deceased personal representative’s estate.²³¹

3.167 The National Committee decided to use the term “active step” to identify what would and would not be an act on the part of an executor or administrator by representation that is sufficient to prevent renunciation. This approach was preferred over making “any” step sufficient to prevent renunciation as this would be “a stricter test than currently determines what acts will amount to intermeddling in the context of an ordinary executor who wishes to renounce”.²³² The list of exclusions set out in cl 340(6) has been provided to bring greater certainty and to clarify what acts would not be sufficient to prevent an executor from renouncing an executorship or administratorship by representation.²³³

3.168 So long as the executor or administrator by representation has not taken an active step in the administration of the estate he or she wishes to renounce, it should not matter that the renunciation takes place after the Court has granted representation of the deceased personal representative’s estate. Clause 340(4), therefore, provides that the renunciation may be made “before or after a grant of representation of the deceased personal representative’s estate has been made”.²³⁴

3.169 Clause 344 deals with the effect of the renunciation of an executorship or administratorship by representation.

Division 5 Ceasing to hold office as executor or administrator by representation

3.170 This division essentially sets out the circumstances (arising under other provisions in the model bill) that can result in an executor or administrator by representation ceasing to hold office.

341 Grant of probate to someone else—leave reserved

(1) This section applies if—

(a) the Supreme Court—

(i) has made a grant of probate to only 1 or some of the executors named in a deceased person’s will (the proving executors); and

(ii) reserved leave to apply for a grant of probate at a later time to other executors who have not renounced their executorship (the non-proving executors); and


(b) the last surviving, or sole, proving executor dies; and

(c) a person becomes the executor by representation of the deceased person’s will under section 338.


(2) On the making of a grant of probate by the Supreme Court to 1 or more of the non-proving executors, the executor by representation of the deceased person’s will stops being—

(a) an executor by representation of the deceased’s will; and

(b) an executor or administrator by representation of any will or estate of which the deceased was the executor, the administrator, or the executor or administrator by representation.

3.172 Clause 341 is generally based on s 47(1A) of the Succession Act 1981 (Qld) but modified to accommodate the possibility of administrators by representation. The equivalent provision in NSW may be found in s 13(1) of the Imperial Acts Application Act 1969 (NSW).²³⁵ Such provisions generally reflect the view that the testator’s choice of executor is to be preferred over an executor chosen by the testator’s executor²³⁶ or, under the provisions in this model bill, an administrator appointed to administer that executor’s estate.

342 Grant of letters of administration to someone else—s 350 or 351 applies

A person who is an executor or administrator by representation of the will or estate of a deceased person stops being—

(a) an executor or administrator by representation of the deceased’s will or estate; and

(b) an executor or administrator by representation of any will or estate of which the deceased was the executor, the administrator, or the executor or administrator by representation;

if section 350 or 351 applies and the Supreme Court makes a grant of letters of administration of the deceased’s estate to another person.

• to pass over an executor or administrator by representation where all the adult beneficiaries of the estate agree that the Court should grant letters of administration to a person other than the executor or administrator by representation of the estate (cl 350); or
• to grant letters of administration to a person who would otherwise be entitled to letters of administration notwithstanding that there is already an executor or administrator by representation of the estate (cl 351).

343 Grant of representation is revoked, ends or ceases to have effect

(1) Subsection (2) applies if a person is the holder of a grant of representation of a deceased personal representative’s estate and the grant is revoked, ends or ceases to have effect.

(2) The person stops being an executor or administrator by representation of any will or estate of which the deceased personal representative was the executor, the administrator, or the executor or administrator by representation.

3.176 The National Committee recommended this provision because a revocation, ending, or ceasing to have effect, of a grant of representation of the deceased personal representative’s estate would remove “the very foundation” for being the executor or administrator by representation of another estate in the chain of representation.²³⁸

344 Renunciation

(1) This section applies to a person who—

(a) is the holder of a grant of representation of a deceased personal representative’s estate; and

(b) renounces the executorship or administratorship by representation of the will or estate of any deceased person of which the deceased personal representative was the executor, the administrator, or the executor or administrator by representation.


(2) The person stops being an executor or administrator by representation of—

(a) the deceased person’s will or estate; and

(b) any will or estate of which the deceased person was the executor, the administrator, or the executor or administrator by representation.

PART 9 PASSING OVER

3.178 This Part deals with the power of the Court to “pass over” a nominated executor or a person who is entitled to apply for a grant of letters of administration.²⁴⁰

3.179 The provisions in this part give the Court a general discretion to pass over a person otherwise entitled to the grant of representation (cl 347) but also deal with some specific circumstances in which the Court may appoint someone in place of the person otherwise entitled (cl 348-351).

3.180 In framing these provisions, the National Committee was “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”.²⁴¹ It also balanced the desirability of giving effect to the wishes of the testator with the very real interest that beneficiaries have in the efficiency and cost-effectiveness of the administration of estates.²⁴²

3.181 The provisions in this Part all involve giving the Court the discretion to pass over administrators as well as executors.²⁴³

3.182 A particular reason for the discretion arises in relation to the provisions that allow the Court to pass over those entitled to apply for letters of administration and to appoint another person, nominated by the beneficiaries, in their place (cl 349 and cl 350). In these cases, usually involving intestate estates, the Court has historically been unwilling to grant letters of administration to a stranger to the estate, even if that person is nominated by beneficiaries who, in the case of intestacy, would normally be the very people entitled to apply for letters of administration.²⁴⁴ The National Committee considered that the Court’s discretion should not be constrained by these earlier decisions and considered it desirable to make it clear that, in the case of intestacy, the Court may grant letters of administration to anyone, including a person nominated by all of the beneficiaries.²⁴⁵

345 Application of part

(1) This part applies in relation to a deceased person whether the person died before or after the commencement of this section.

(2) This part does not limit section 301, 302, 303 or 307.

In this part—

lawful authority includes authority under a law of another State [or Territory].

prescribed provision means section 349(1)(b) or 350(1)(c).

substitute decision-maker, for a beneficiary of an estate who lacks legal capacity to enter into an agreement under a prescribed provision, means a person, other than a person who is also a beneficiary of the estate, who has lawful authority to make binding decisions for the beneficiary for the agreement.

· in accordance with cl 349, to a person or persons other than those entitled to the grant of representation of the estate; and

· in accordance with cl 350, to a person or person other than those who are executors or administrators by representation of the estate.

3.184 The National Committee considered it important that someone other than a person who also has a personal interest as a beneficiary of the estate should represent the interests of those beneficiaries who lack capacity.²⁴⁶ The definition of substitute decision-maker has, therefore, been drafted to exclude anybody who is already a beneficiary of the estate.

347 Supreme Court’s general discretion

(1) This section applies if the Supreme Court, on application, considers it appropriate to make a grant of probate or letters of administration of a deceased person’s will or estate to a person other than the person, or all of the persons, otherwise entitled to the grant of probate or letters of administration—

(a) for the proper administration of the deceased’s estate; and

(b) in the interests of the persons who are, or may be, interested in the deceased’s estate.


(2) The Supreme Court may refuse to make a grant of probate or letters of administration of the will or estate to a person otherwise entitled to the grant and make the grant to—

(a) without limiting paragraph (b), if there is more than 1 person entitled to the grant—any or all of the other persons entitled; or

(b) any person the court considers appropriate.

3.186 An express provision setting out the Court’s general discretion is necessary, despite cl 303 of the model bill,²⁴⁷ because the Supreme Court of Queensland has held that the equivalent Queensland provision²⁴⁸ does not permit the Court to pass over a prior claim and make a grant to some other person on the grounds of necessity or expediency.²⁴⁹

3.187 The drafting of cl 347(1)(a) and (b) draws on the expression of the principle said to underlie the Court’s exercise of its inherent power, in limited circumstances, to pass over a named executor:

the real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto.²⁵⁰

3.188 In proposing this clause, the National Committee also gave some consideration to an English provision that enables the High Court, if “by reason of any special circumstances” it considers it “necessary or expedient”, to pass over a person who would otherwise be entitled to a grant and appoint another person as administrator.²⁵² The National Committee, however, considered that the Court’s power should not be limited by the requirement of “special circumstances” as this could be construed restrictively.²⁵³

3.189 This provision renders unnecessary provisions dealing with specific circumstances where the Court may pass over the person who would otherwise be entitled to the grant of representation, for example, the current NSW provision that deals with situations where the executor named in a will neglects or refuses to prove the will or to renounce probate.²⁵⁴

348 Offences relating to the deceased’s death

(1) This section applies if the Supreme Court, on application, considers there are reasonable grounds for believing that a person otherwise entitled to a grant of probate or letters of administration of a deceased person’s will or estate has committed an offence relating to the deceased’s death.

(2) The Supreme Court may refuse to make a grant of probate or letters of administration of the will or estate to a person otherwise entitled to the grant and make the grant of probate or letters of administration to—


(a) without limiting paragraph (b), if there is more than 1 person entitled to the grant—any or all of the other persons entitled; or

(b) any person the court considers appropriate.

3.191 This is a new provision. It is consistent with the practice of the courts. In NSW, for example, the Court has passed over an executor who was convicted of murdering the testator and was serving a term of imprisonment for the crime.²⁵⁵

349 Person entitled to original grant of probate or letters of administration

(1) This section applies if—

(a) all the beneficiaries of a deceased person’s estate are adults; and

(b) all the beneficiaries agree that a grant of probate or letters of administration of the deceased’s will or estate should be made to a person or persons, other than the person or all of the persons otherwise entitled to the grant, nominated by the beneficiaries.


(2) The Supreme Court may, on application, make the grant of probate or letters of administration to the person or persons nominated by all the beneficiaries.

(3) However, the Supreme Court may not make the grant of probate or letters of administration unless it is satisfied that the applicant for the grant, or someone else with relevant knowledge, reasonably believes that the deceased’s estate is sufficient to pay, in full, the debts of the estate.

(4) For subsection (1)(b), if a beneficiary lacks legal capacity to enter into the agreement, a reference to the beneficiary is taken to be a reference to the beneficiary’s substitute decision-maker.

3.193 The National Committee acknowledged that, in the case of testate estates, this provision operates to override the intentions of the testator. However, it considered that, in the circumstances outlined, the passing over of all or some of those nominated as executor might “result in a more harmonious administration than where the beneficiaries are hostile to the executor”.²⁵⁶ It is important to note that the provision cannot operate if any of the following circumstances applies:

• one or more of the beneficiaries is under the age of 18;
• one or more of the beneficiaries is an adult who lacks capacity and does not have a substitute decision-maker; or
• the beneficiaries and/or substitute decision-makers cannot reach a unanimous decision.

3.195 The National Committee’s reasons for including cl 349(2), which allows the Court to appoint a person nominated by all the beneficiaries, are discussed above.²⁵⁹

3.196 The National Committee was also of the view that the wishes of the beneficiaries are irrelevant in situations where the estate is unable to meet its debts in full. Sub-clause 349(3) has been framed to address the difficulty, in some cases, of identifying whether an estate is solvent or not.²⁶⁰

3.197 The definition of “substitute decision-maker”, as mentioned in cl 349(4), is discussed in relation to cl 346.²⁶¹

350 Person who is executor or administrator by representation

(1) This section applies if—

(a) there is an executor or administrator by representation of a deceased person’s will or estate; and

(b) all the beneficiaries of the deceased’s estate are adults; and

(c) all the beneficiaries agree that a grant of letters of administration of the deceased’s estate should be made to—


(i) without limiting subparagraph (ii), if there is more than 1 executor or administrator by representation—1 or more executors or administrators by representation nominated by the beneficiaries; or

(ii) another person or other persons nominated by the beneficiaries.

(2) The Supreme Court may, on application, make the grant of letters of administration of the estate to the person or persons nominated by all the beneficiaries.

(3) However, the Supreme Court may not make the grant of letters of administration unless it is satisfied that the applicant for the grant, or someone else with relevant knowledge, reasonably believes that the deceased’s estate is sufficient to pay, in full, the debts of the estate.

(4) For subsection (1)(c), if a beneficiary lacks legal capacity to enter into the agreement, a reference to the beneficiary is taken to be a reference to the beneficiary’s substitute decision-maker.

3.199 Much of the commentary for cl 349 applies to this clause.²⁶³ The National Committee, in recommending this provision, also acknowledged that, while the doctrine of executorship or administratorship by representation can promote the efficient administration of estates, it can also result in an estate being administered by a person with no connection to either the testator or the beneficiaries of the estate.²⁶⁴ For this reason, the National Committee supported provisions to the same effect as cl 349 being applied to executors and administrators by representation.²⁶⁵

3.200 Sub-clause 350(2) is also necessary for the operation of cl 342.²⁶⁶

351 Executor or administrator by representation—other applications

(1) This section applies if—

(a) there is an executor or administrator by representation of a deceased person’s will or estate; and

(b) a person who, if there were no executor or administrator by representation of the will or estate, would be entitled to a grant of letters of administration applies to the Supreme Court for a grant of letters of administration.


(2) The Supreme Court may make the grant of letters of administration to the person mentioned in subsection (1)(b).

3.202 The National Committee observed that this provision “merely preserves the ordinary order of entitlement for a grant that would apply in the absence of an executor or administrator by representation”.²⁶⁷ It is also necessary for the operation of cl 342.

PART 10 FOREIGN DOMICILE

352 Grant of representation when deceased person dies domiciled outside this jurisdiction

(1) This section applies if a person dies domiciled outside this jurisdiction, including outside Australia.

(2) For this section, it does not matter whether the person’s death happens before or after the commencement of this section.

(3) The Supreme Court may make a grant of representation of the deceased person’s estate under subsection (4) or (6) as it considers appropriate.

(4) The Supreme Court may make a grant of representation to any of the following persons—


(a) the person entrusted with the administration of the estate by the court (the domiciliary court) having jurisdiction at the place where the deceased died domiciled;

(b) the person entitled to administer the estate by the law of the place where the deceased died domiciled;

(c) a person to whom the domiciliary court could entrust the administration of the estate;

(d) another person the Supreme Court considers appropriate to administer the estate if—


(i) there is no person who meets the description of a person mentioned in paragraph (a), (b) or (c); or

(ii) the court considers the circumstances of the case require it.

(5) However, the Supreme Court may not make a grant of representation under subsection (4) if—

(a) the deceased appointed 1 or more executors in this jurisdiction to administer the deceased’s estate in this jurisdiction; and

(b) the executor or executors have legal capacity and are willing to administer the estate.


(6) The Supreme Court may—

(a) if the deceased left a will admissible to proof in this jurisdiction, make a grant of probate of the will to—

(i) an executor named in the will; or

(ii) if the will describes the duties of a named person in terms that are sufficient to constitute the named person executor according to the tenor of the will—the named person; or


(b) if the whole, or substantially the whole, estate consists of immovable property, make a grant of representation of the whole estate to the person or persons who would have been entitled to the grant if the deceased had died domiciled in this jurisdiction.

Notes—‘

1 For paragraph (a), a will is admissible to proof in this jurisdiction if it is taken to be properly executed under [insert local equivalent of the Succession Act 1981 (Qld), part 2, division 6 (Wills with a foreign connection)].

2 See sections 321 and 322 for the priority of persons to letters of administration if a person dies domiciled in this jurisdiction.


(7) This section does not limit section 303.

3.204 First, where the deceased person has not nominated any executors in this jurisdiction. In general, under cl 352(4), the Court may grant representation to either:

• the person to whom the domiciliary court has entrusted the administration of the estate in that jurisdiction;
• the person entitled to administer the estate according to the law of the jurisdiction where the deceased died domiciled;
• a person to whom the domiciliary court could entrust the administration of the estate; or
• another person the Court considers appropriate in the circumstances of the case, including if there is no person who meets the other criteria listed above.

3.206 Thirdly, where the whole, or substantially the whole of the estate consists of immovable property. In this circumstance, the Court may grant representation to the person who would have been entitled if the deceased had died domiciled in this jurisdiction.

3.207 The National Committee has noted that the rules in this provision may be displaced in contentious proceedings and the Court may then grant representation to such a person as “necessity or convenience” requires.²⁶⁹

3.208 The provisions are based generally on r 40.01 of the Probate Rules 2004 (SA) and r 30 of the Non-Contentious Probate Rules 1987 (Eng). They represent a departure from the current operation of the law in NSW.

3.209 Currently, in NSW, the Court’s appointment of a personal representative for an estate where the deceased has died domiciled outside of NSW depends upon whether the estate in NSW consists of movable or immovable property. Generally, where an estate consists of movable property, the Court will give effect to the law of the place where the deceased died domiciled and will grant representation to the person entitled under that law.²⁷⁰ However, where an estate consists of, or includes immovable property, the Court will not simply follow the grant made in the domiciliary jurisdiction but must rather decide on the validity of any will and any questions concerning the entitlement of a person to be appointed as an executor or administrator.²⁷¹ This leaves open the possibility that the Court could make a grant to one person limited to the movable property in an estate and make a grant to another person limited to the immovable property.²⁷²

3.210 The National Committee considered it undesirable that, in some non-contentious matters, it may not be possible for the Court to make one grant in relation to all of the property within its jurisdiction. The Committee, therefore, recommended provisions based generally on the South Australian Rules to govern the Court’s appointment of personal representatives in these circumstances.²⁷³

Application to other Australian jurisdictions and jurisdictions outside Australia

3.211 Sub-clause 352(1) departs from the South Australian Rules by applying this provision where the deceased dies domiciled in another Australian jurisdiction as well as a jurisdiction outside Australia. The National Committee considered it undesirable to apply different principles depending on whether the deceased died domiciled in another Australia jurisdiction or overseas.²⁷⁴

People to whom the Court may grant representation

3.212 Sub-clause 352(4) is drafted so as to enable the Court to grant representation of the whole estate to any representatives that are or could be recognised under the law of the jurisdiction where the deceased died domiciled even though the estate in the Court’s jurisdiction includes immovable property. The National Committee considered it appropriate that such grants should be made, at least in circumstances where there is no opposition to the making of the grant.²⁷⁵

3.213 A provision to the effect of cl 352(4)(c) does not appear in the South Australian Rules. It has been included in the model bill to deal with a situation that cl 352(4)(b) has not covered, namely, where the domiciliary court must make a grant of representation before a person can be entitled to administer the estate.²⁷⁶ The National Committee considered it desirable to avoid any uncertainty about the scope of cl 352(4)(b).²⁷⁷

Where an executor has been appointed to administer the estate in the jurisdiction

3.214 Sub-clause 352(5) limits the operation of cl 352(4) to situations where the deceased has not appointed any executors to administer the estate in this jurisdiction. The National Committee considered this provision important to ensure that the Court can give effect to the testator’s intentions.²⁷⁸ The provisions of cl 352(4) will continue to have effect, however, if the testator’s choice of executor does not have legal capacity or is unwilling to act.

Where the Court may grant representation as if the deceased had died domiciled in the jurisdiction

3.215 The provision in cl 352(6)(b) departs from the equivalent provision in the South Australian Rules²⁷⁹ in that it applies not only when the “whole” estate consists of immovable property within the jurisdiction, but also applies when “substantially the whole” estate consists of immovable property within the jurisdiction. This is consistent with the equivalent English provision.²⁸⁰ The National Committee considered that the presence of some movable property in the jurisdiction should not prevent the Court from making a grant with respect to the whole estate in accordance with the law that would have applied if the deceased had died domiciled in the Court’s jurisdiction.²⁸¹

Other powers of the Supreme Court preserved

3.216 Clause 352(7) has been added to make it clear that this provision does not limit the Supreme Court’s power to grant representation to any person the Court considers appropriate.²⁸²

PART 11 RESEALING FOREIGN GRANTS OF REPRESENTATION

3.217 A grant of representation is generally only effective in the jurisdiction of the court that makes it. Therefore, a personal representative who has a grant made in one jurisdiction cannot administer the deceased’s estate in another jurisdiction. This Part sets out a procedure whereby a personal representative who has a grant made in another jurisdiction can apply to the Court to reseal that grant in this jurisdiction without the need for him or her to apply for an original grant of representation. Once the grant is resealed, the personal representative will be able to administer the estate in this jurisdiction as though the Court had made an original grant of representation in this jurisdiction.

3.218 Automatic recognition of grants made in other Australian jurisdictions²⁸³ will largely do away with the need for resealing with respect to grants of representation made in Australia. However, under this model bill, the Court will still need to reseal grants made by jurisdictions outside of Australia.

Division 1 Supreme Court may reseal foreign grants of representation

353 Resealing foreign grants of representation

(1) The Supreme Court may reseal a foreign grant of representation of a deceased person’s estate.

(2) However, the Supreme Court may reseal an interstate grant of representation of a deceased person’s estate only if the court is satisfied that the deceased person was not domiciled in Australia when the person died.

Note—


See part 7 for provisions dealing with the automatic recognition of interstate grants of representation.

(3) The Supreme Court may reseal a foreign grant of representation even though—

(a) the deceased left no estate in this jurisdiction or elsewhere; or

(b) the person applying to reseal the foreign grant is not resident or domiciled in this jurisdiction.


(4) If the person applying to reseal a foreign grant of representation (the applicant) is not resident in this jurisdiction, the applicant must file with the application a notice giving an address for service in this jurisdiction.

(5) Service of a document relating to the administration of the estate, or a proceeding relating to the administration of the estate, at the address for service given under subsection (4) is taken to be personal service of the document on the applicant.

Example of a document for a proceeding relating to the administration of the estate—


an originating process

The general power to reseal

3.220 The Court’s power to reseal in cl 353(1) extends to a variety of grants of representation and instruments similar to grants of representation, by virtue of the definition of “foreign grant of representation” in the dictionary in schedule 3.²⁸⁴ This includes instruments that have the effect of an order to administer²⁸⁵ and an election to administer.²⁸⁶

3.221 The use of “may” in cl 353(1) is intended to emphasise the discretionary nature of the Court’s power to reseal a foreign grant of representation.²⁸⁷

3.222 The general power conferred by cl 353(1) applies to overseas grants as well as grants made by courts in other Australian jurisdictions. It achieves this by means of the definitions in the dictionary in schedule 3 of “foreign grant of representation”,²⁸⁸ “interstate jurisdiction”²⁸⁹ and “overseas jurisdiction”.²⁹⁰

Resealing where the deceased died domiciled in another Australian jurisdiction

3.223 However, the aspect of the power that applies to grants made in other Australian jurisdictions is subject to cl 353(2), which prevents the Court from resealing a grant made in another Australian jurisdiction when the deceased died domiciled in Australia. This provision is necessary because the first stage of the scheme of automatic recognition²⁹¹ allows a court in an Australian jurisdiction where the deceased did not die domiciled to make a limited grant which ceases when the court in the domiciliary jurisdiction makes a grant. The National Committee, first, considered that the domiciliary court should not be capable of resealing a limited grant because of the inconsistency involved in the domiciliary court resealing a limited grant which would then be subject to the limitations in the original grant²⁹² including that it would cease to have effect upon the domiciliary court granting representation of the estate.²⁹³ The National Committee, then, concluded that, for the sake of consistency, it should also not be possible for a court in any other Australian jurisdiction to reseal a grant that is subject to these limitations.²⁹⁴

3.224 The National Committee acknowledged that the effect of cl 353(2) is that the personal representative who has a grant made by a non-domiciliary court may, upon the discovery of property in another Australian jurisdiction where the deceased did not die domiciled, be compelled to take out another limited grant in that jurisdiction because resealing is no longer available. However, the National Committee considered that the current practice, in some cases, of seeking a grant in a non-domiciliary jurisdiction and then applying for a reseal of that grant in the domiciliary jurisdiction was undesirable and, in light of the automatic recognition proposals, could not be justified in terms of expense and court time.²⁹⁵ The National Committee also considered that preventing non-domiciliary courts from resealing grants will “operate as an incentive” for a personal representative to seek a grant in the domiciliary jurisdiction, “unless it is quite clear that there will be no property to be administered in any other Australian jurisdiction”.²⁹⁶ These considerations will not be relevant when the second stage of the automatic recognition scheme is implemented so that any grant of representation made by an Australian jurisdiction will be recognised across Australia regardless of domicile.²⁹⁷

Resealing where the deceased died domiciled outside Australia

3.225 The considerations that apply where the deceased died domiciled in Australia do not apply where the deceased died domiciled overseas. Pending the implementation of stage 2, the National Committee has decided that the model legislation should allow a court in any Australian jurisdiction to reseal a grant made by the court in any other Australian jurisdiction where the deceased died domiciled outside of Australia. This is because, under stage 1, automatic recognition is not possible without the link of the deceased’s domicile in an Australian jurisdiction. Further, the absence of a domiciliary jurisdiction within Australia means that there is no question of conflicting grants being made, since every Australian grant will only be effective within its own jurisdiction.²⁹⁸

Jurisdiction

3.226 On the question of the presence of property of the deceased in the jurisdiction, the National Committee concluded that the jurisdictional requirements for the resealing of a grant should be the same as the requirements for the making of an original grant.²⁹⁹ Sub-clause 353(3), therefore, follows cl 302(1) which makes the same provision with respect to original grants.³⁰⁰ Currently, in NSW, there is no express jurisdictional requirement for the resealing of a grant.³⁰¹ It is arguable whether the jurisdictional requirements for the making of an original grant can be said to apply to the resealing of a grant or not.³⁰²

3.227 The National Committee also decided that, for consistency with cl 302(1)(b), the Court should be able to reseal a grant even though the applicant is not resident or domiciled in the jurisdiction.³⁰³ This provision is consistent with the recommendations of the Law Reform Commission of Western Australia.³⁰⁴ Currently, in NSW, there is no express provision relating to the residence or domicile of an applicant for resealing. However, s 97(1) of the Probate and Administration Act 1898 (NSW), in deeming an applicant for resealing to be resident in NSW, clearly contemplates that an applicant can be resident outside of NSW.³⁰⁵

Address for service when person resides out of the jurisdiction

3.228 The provisions in cl 353(4) and (5) that relate to applicants for resealing who are not resident in the jurisdiction are necessary because of the range of possibilities that cl 353(3)(b) presents for the location of an estate’s personal representative.³⁰⁶ They are based on part of a NSW provision which deems every executor or administrator applying for resealing of a grant of representation to be resident in NSW and makes provision for service when he or she is not actually resident.³⁰⁷ However, unlike the NSW provision, the service here is of documents and proceedings that relate only to the administration of the estate in question. The NSW provision has been said to ensure that personal representatives are amenable to court process without the need for those seeking to effect service having to rely on rules of court and Commonwealth legislation dealing with interstate service of process.³⁰⁸

Division 2 Limitations on resealing

354 Foreign grant of representation must be held by particular persons

Unless the Supreme Court otherwise orders, a foreign grant of representation of a deceased person’s estate may be resealed only if the foreign grant—

(a) was made to the person entrusted with the administration of the estate by the court (the domiciliary court) having jurisdiction at the place where the deceased died domiciled; or

(b) was made to the person entitled to administer the estate by the law of the place where the deceased died domiciled; or

(c) was made to a person to whom the domiciliary court could entrust the administration of the estate; or

(d) was made to, for a grant of probate of a will admissible to proof in this jurisdiction—


(i) an executor named in the will; or

(ii) if the will describes the duties of a named person in terms that are sufficient to constitute the person executor according to the tenor of the will—the named person.


Note—

For paragraph (d), a will is admissible to proof in this jurisdiction if it is taken to be properly executed under [insert local equivalent of the Succession Act 1981 (Qld), part 2, division 6 (Wills with a foreign connection)].

• the person to whom the domiciliary court has entrusted the administration of the estate in that jurisdiction;
• the person entitled to administer the estate according to the law of the jurisdiction where the deceased died domiciled;
• a person to whom the domiciliary court could entrust the administration of the estate; or
• a person named in the will where that will is admissible to proof (that is, is formally valid³⁰⁹ ) in this jurisdiction and nominates that person as an executor or an office-holder in terms sufficient to constitute that person as an executor.

3.231 It should be noted that, under all provisions but cl 354(a), the foreign grant that has been presented for resealing may not have been made by the domiciliary court but may have been made in a jurisdiction other than the one in which the deceased died domiciled.³¹⁵ For example, cl 354(c) could only operate if the foreign grant was made in a jurisdiction other than the one in which the deceased died domiciled.

355 Interstate and overseas elections to administer

(1) The Supreme Court may reseal a certified interstate election to administer or a certified overseas election to administer a deceased person’s estate only if the person applying to reseal it—

(a) estimates that the net value of the estate in this jurisdiction at the time of the making of the application is not more than the prescribed amount; and

(b) gives an undertaking to the Supreme Court as required by subsection (2).


(2) The person must undertake that, if relevant assets are discovered, no further step in the administration of the estate in this jurisdiction will take place until lawful authority is obtained in the foreign jurisdiction to administer the estate in that jurisdiction.

(3) In this section—


certified interstate election to administer means an interstate election to administer certified under the seal of, or under the authority of, the court in which it is filed as a correct copy of the instrument filed in that court.

certified overseas election to administer means an overseas election to administer certified under the seal of, or under the authority of, the court in which it is filed as a correct copy of the instrument filed in that court.

prescribed amount has the same meaning it has in section 325.

relevant assets means assets in the jurisdiction in which the interstate election to administer or the overseas election to administer was filed that prevent the estate in that jurisdiction being administered under the authority of the existing interstate election to administer or overseas election to administer.

3.233 This provision sets out the requirements that an applicant (the professional personal representative who has filed a foreign election to administer) must meet before the Court can reseal a certified foreign election to administer. These requirements are that the applicant for resealing must:

• estimate the value of the property in this jurisdiction is not more than the prescribed amount; and
• undertake, if further assets are discovered in the jurisdiction in which the overseas or interstate election has been filed that prevent the administration of the estate in that jurisdiction, to take no further steps in administering the estate in this jurisdiction until lawful authority has been obtained to administer the estate in the foreign jurisdiction.

3.235 The limitation imposed in relation to the value of the estate within the resealing jurisdiction is consistent with the rationale of minimising the costs involved in administering a small estate.³¹⁸ If the property in this jurisdiction is worth more than the prescribed amount, then a person should seek a grant of representation, if that is required to administer the estate.

3.236 The provisions have been drafted generally for consistency with the model provisions relating to the filing of elections to administer in this jurisdiction. The prescribed amount under cl 325 is $100,000 adjusted annually to reflect changes in the CPI. Clause 356 deals with the circumstance where the value of the property in this jurisdiction exceeds the prescribed amount.

3.237 The undertaking in cl 355(2) is necessary because the authority of the holder of the resealed election to administer in this jurisdiction is dependent up the continued authority of the holder of the election to administer in the foreign jurisdiction and may, therefore, cease to apply if property is discovered in the foreign jurisdiction that requires the estate to be administered under different provisions.³¹⁹ This part of the model provision is consistent with recommendations of the Law Reform Commission of Western Australia.³²⁰

3.238 Certified copies of the foreign elections to administer are required because elections to administer only take effect by being filed in court and do not take effect by being issued under seal, as is the case with grants of probate and administration.³²¹

356 Value of estate must not exceed prescribed amount

(1) If, after the resealing of the certified interstate election to administer or certified overseas election to administer, the person who applied to reseal it discovers that the net value of the estate in this jurisdiction is more than 150% of the prescribed amount, the person must—

(a) file in the Supreme Court a memorandum stating the value of the estate in this jurisdiction; and

(b) apply for a grant of probate or letters of administration [or an order to administer].


(2) In this section—

prescribed amount has the same meaning it has in section 325.

3.240 It has been drafted for consistency with the model provisions that deal with the situation where, when the estate is being administered under an election to administer, the value of the estate is subsequently discovered to exceed the prescribed amount by 150%.³²²

3.241 The prescribed amount under cl 325 is $100,000 adjusted annually to reflect changes in the CPI.

Division 3 Applications for resealing

3.242 This division deals with the procedural requirements for applications for resealing as well as identifying the classes of people who may apply for resealing.

357 Requirements

(1) An application to the Supreme Court to reseal a foreign grant of representation must be made in the way prescribed under the rules of court.

(2) If the applicant for the resealing is an individual, the applicant must be an adult.

(3) The applicant must depose, by affidavit, that the foreign grant has not been revoked or changed in the foreign jurisdiction in which it was made.

(4) Subsections (2) and (3) do not limit the requirements for resealing a foreign grant of representation that may be provided for under the rules of court.

(5) In this section—


applicant, for the resealing of the foreign grant of representation, includes—

(a) a trustee company; and

(b) a person who is acting as an attorney for the holder of the foreign grant.

3.244 The requirement in cl 357(1) to follow the relevant rules of court has been drafted to mirror cl 306 which requires applicants for a grant of representation to apply in accordance with the rules of court.³²³ The National Committee has recommended the enactment of a number of rules of court in relation to applications for resealing, including provisions setting out the documentation required in an application for resealing.³²⁴ The rules of court may also make provision for such advertising requirements as may be considered necessary.³²⁵

3.245 The age requirement in cl 357(2) has been included for consistency with the approach adopted with respect to original grants of representation in cl 312(1).³²⁶

3.246 The requirement in cl 357(3) that the applicant for resealing depose that the foreign grant has not been revoked or changed is part of the notification requirements related to resealing.³²⁷ The National Committee has emphasised the importance in any resealing scheme of guarding against the possibility that the Court may inadvertently reseal a grant that the original court has already revoked or altered.³²⁸ It considered it was appropriate for the Court to rely on material filed in support of a resealing application in order to determine whether the original grant had been revoked or altered. ³²⁹

3.247 The definition of “applicant” in cl 357(5) is necessary because of cl 359(1) which allows the holder of a foreign grant of representation to apply to reseal the foreign grant, and the provisions of cl 360 which allow the Supreme Court to reseal a foreign grant of representation held by a trustee company even though the Court could not make an original grant representation to the trustee company under the laws of this jurisdiction.

358 Holders of a foreign grant of representation

(1) The holder of a foreign grant of representation may apply to reseal the foreign grant.

(2) If there is 1 or more holders of the foreign grant, any 1 or more, or all, of the holders may apply to reseal the foreign grant.

(3) However, if fewer than all the holders apply to reseal the foreign grant, the consent to the application, by affidavit, of each of the holders who did not apply must be produced in support of the application.

(4) If any holder is unable to consent because of death or lack of legal capacity, the person applying to reseal the foreign grant must establish the death or lack of legal capacity of that holder.

(5) If the last surviving, or sole, holder of a foreign grant of representation has died (the deceased holder), a person who is either of the following is taken to be the holder of the foreign grant—


(a) a person to whom the Supreme Court has made a grant of probate or letters of administration of the deceased holder’s will or estate;

(b) a person recognised in this jurisdiction as the executor or administrator by representation of the will or estate of the deceased holder.


(6) Subsection (5) applies only if the foreign grant is a grant of probate or letters of administration.

3.249 The “holder of a foreign grant of representation” in cl 358(1), by virtue of the definitions of “holder” and “foreign grant of representation”,³³⁰ includes a public trustee in whose favour an order to administer has been made³³¹ and a person who has filed an election to administer.³³² This is necessary because the model legislation will enable the Court to reseal an order to administer and an election to administer in certain circumstances.³³³

3.250 Sub-clauses 358(2)-(4) make provision for applications for resealing to be made by, and with the consent of, multiple personal representatives. The provisions have been drafted in such a way as to accommodate executors under a grant of probate as well as under a grant of double probate.³³⁴ A grant of double probate arises where some of the executors nominated by a will reserve leave to apply for probate at a future date and, subsequently, do so. The subsequent grant then runs concurrently with the first grant.

3.251 Sub-clause 358(3) states the current position at law³³⁵ that, if two or more people hold a foreign grant of representation, they must all apply for resealing³³⁶ unless the applicants for the resealing have applied with the consent of those who are not applying.³³⁷

3.252 The provisions have also been drafted in such as way as to accommodate any substituted personal representatives who the Court may have appointed following the removal of a personal representative.³³⁸ This approach is consistent with what appears to be the position at law.³³⁹

3.253 The National Committee recommended the inclusion of cl 358(4) in order to deal expressly with the situation where one or more of the holders of the foreign grant have died or lost capacity.³⁴⁰ The position at law in such cases is currently not clear.³⁴¹

3.254 Clause 358(5) is intended to deal with the situation where the holder of the foreign grant of representation dies before the grant has been resealed. For the purposes of the resealing application, this provision deems someone to be the new “holder” of the foreign grant if the resealing jurisdiction recognises him or her as the executor or administrator by representation of the estate of the deceased personal representative, or if the Court of the resealing jurisdiction has made a grant of representation of the estate of the deceased personal representative to him or her.

3.255 In proposing this provision, the National Committee departed from its original proposal that the jurisdiction in which the grant was made should recognise the person as the executor or administrator by representation of the estate of the deceased personal representative.³⁴² The National Committee’s view was that its original proposal did not deal adequately with situations where the foreign jurisdiction did not recognise the broad range of executorships or administratorships by representation now proposed in the model legislation.³⁴³ It also noted that, even if the foreign jurisdiction did recognise, for example, administratorship by representation, the deceased personal representative’s personal representative would still have needed to apply to the Court of the foreign jurisdiction for an original grant or for the resealing of a grant made in this jurisdiction.³⁴⁴ It should be emphasised that the resealing of a grant in these circumstances in NSW will not give the applicant for resealing any authority to administer the original deceased person’s estate in the foreign jurisdiction and it will be irrelevant whether the foreign jurisdiction would recognise the applicant for resealing as the original deceased’s executor or administrator by representation.³⁴⁵

3.256 Sub-clause 358(5), like cl 358(2)-(4), has been drafted in such as way as to accommodate executors under a grant of probate as well as under a grant of double probate.³⁴⁶

359 Persons authorised under a power of attorney

(1) The holder of a foreign grant of representation may, by power of attorney, authorise a person (the attorney) to apply to reseal the foreign grant.

(2) However, if there is more than 1 holder of the foreign grant, each holder must authorise the attorney to apply to reseal the foreign grant.

(3) If any holder is unable to give the authorisation because of death or lack of legal capacity, the attorney must establish the death or lack of legal capacity of that holder.

3.258 The provisions have been drafted in such a way as to accommodate executors under a grant of probate as well as under a grant of double probate.³⁴⁸

3.259 The National Committee favoured the authorisation to act being by power of attorney rather than simply in writing because this approach is already the general practice in most Australian jurisdictions, including NSW³⁴⁹ and because the formalities involved in executing a power of attorney are desirable since it makes the person, in effect, the personal representative of the estate within the resealing jurisdiction.³⁵⁰

3.260 The National Committee, in proposing this provision, also confirmed its preliminary view that the legal representative of the holder of a foreign grant of representation should not be able to apply for resealing unless he or she was authorised under a power of attorney to do so.³⁵¹

360 Trustee companies

(1) This section applies if a trustee company—

(a) is the holder of a foreign grant of representation; or

(b) is authorised by the holder of a foreign grant of representation, by power of attorney, to apply to reseal the foreign grant.


(2) The Supreme Court may reseal the foreign grant of representation even though a grant of representation of the estate could not be made to the trustee company under the laws of this jurisdiction.

(3) This section does not limit section 358 or 359.

3.262 Sub-clause 360(2) confirms the current position in NSW that the Court can reseal a grant made in favour of a foreign trustee company even though the company was not one to which the Court could have made an original grant.³⁵²

3.263 The National Committee has left each jurisdiction to deal with the question of the procedure by which a trustee company may apply for the resealing of a grant of probate in its rules of court.³⁵³

361 Special circumstances

(1) A person who is not otherwise permitted under this division to apply to reseal a foreign grant of representation may apply to the Supreme Court for an order to reseal the foreign grant.

(2) The Supreme Court may make an order under subsection (1) if it is satisfied that there are special circumstances warranting the making of the order.

3.265 The purpose of this provision is to avoid the need for a person to make an application for an original grant of representation in this jurisdiction because nobody is entitled to apply for the resealing of the foreign grant of representation. Such a circumstance might arise where the personal representative has died and nobody else is entitled to apply for resealing.³⁵⁴

3.266 The National Committee considered that such a provision would be used infrequently and only when the costs of making an application for an original grant of representation are in excess of the costs of applying to have a foreign grant resealed. This might occur, for example, where the foreign grant was made on the presumption of death and it would be necessary to prove afresh the matters previously brought before the foreign Court that originally granted representation.³⁵⁵

Division 4 Supreme Court may impose conditions etc.

362 Imposing conditions on, or revoking, the resealing of a foreign grant of representation

(1) The Supreme Court may reseal a foreign grant of representation subject to any conditions the court considers appropriate.

(2) Without limiting section 364(2)(b), the Supreme Court may revoke the resealing of a foreign grant of representation or change or add to the conditions to which the resealing is subject.

3.268 This is a necessary provision following the National Committee’s recommendation that the Court be given an express discretion whether or not to reseal a foreign grant of representation.³⁵⁶

Division 5 Notice

363 Notification

(1) If the Supreme Court reseals a foreign grant of representation, it must notify the relevant court of the jurisdiction in which the foreign grant was made that the foreign grant has been resealed in this jurisdiction.

(2) If the Supreme Court is notified by a court of a foreign jurisdiction that a grant of representation made by the Supreme Court has been resealed in the other jurisdiction, the Supreme Court must notify the court of the other jurisdiction if—


(a) it has revoked the grant or changed or added to any conditions to which the grant is subject; or

(b) after receiving the notice, it revokes the grant or changes or adds to any conditions to which the grant is subject.

3.270 Sub-clause 363(1) provides a means by which the resealing Court can discover whether the foreign court’s original grant has been altered or revoked. The National Committee, in recommending this provision, was conscious that the co-operation of the relevant foreign court would be required if it was to achieve its aim and also that any reporting from the foreign court might be subject to delays.³⁵⁸ The National Committee intends that the primary means by which the Court can inform itself as to the status of the foreign grant is the applicant’s affidavit under cl 357(3).³⁵⁹

3.271 The effective operation of the system of notification rests on the court that receives notice of a resealing reporting back about any changes to the original grant. Sub-clause 363(2), therefore, places an obligation on the Court, upon receipt of a resealing notification, to report back to the resealing court about any changes to the original grant.³⁶⁰

Division 6 Effect of resealing a foreign grant of representation

364 Resealed foreign grant of representation operates as a grant of representation

(1) A foreign grant of representation of a deceased person’s estate, when resealed in this jurisdiction, has the same force, effect and operation in this jurisdiction as a grant of representation made in this jurisdiction.

(2) On the resealing of a foreign grant of representation of a deceased person’s estate—


(a) the person who applied to reseal the foreign grant—

(i) has the same rights and powers, and is subject to the same duties and liabilities, that the person would have or be subject to if the resealed foreign grant of representation were a grant of representation made in this jurisdiction; and

(ii) is to be taken, for all purposes, to be the personal representative of the deceased person in relation to the deceased’s estate in this jurisdiction; and


(b) the force, effect and operation of the foreign grant in this jurisdiction is subject to the Supreme Court’s jurisdiction.

(3) Subsections (1) and (2)(a) are subject to sections 355(2) and 356.

(4) Nothing in this section requires the Supreme Court to endorse the resealed foreign grant of representation under section 304 or 305.

• the foreign grant has the same force, effect and operation as it would if it had been granted originally in this jurisdiction, including becoming subject to the Court’s jurisdiction; and
• the applicant for resealing becomes, in effect, the personal representative of the estate in this jurisdiction.

3.274 In NSW, s 107(2) of the Probate and Administration Act 1898 (NSW) currently makes similar provision to cl 364(1) by stating that resealed grants have the same force, effect and operation as if they had been originally granted by the Court. The NSW provision also makes the executors and administrators under resealed grants subject to the same duties and liabilities as they would be if the Court had originally made the grants, however, unlike the model provision, it does not include a person that the executor or administrator has authorised to apply for the resealing.³⁶³

3.275 The provision in cl 364(2)(a)(ii) is based on s 85 of the Administration and Probate Act 1958 (Vic) which provides that the holder of the resealed grant “shall be and be deemed to be for every purpose the executor or administrator of the estate of such deceased person within the jurisdiction of the Supreme Court of Victoria”.³⁶⁴ The National Committee recommended a provision based on the Victorian Act to ensure that the applicant for resealing will, in all respects, be placed in the same position as if he or she had been appointed personal representative under an original grant.³⁶⁵

3.276 The provisions to the effect of cl 364(2)(a) do not appear in the provisions dealing with automatic recognition in cl 335 which only has a provision to the effect of cl 364(1) and (2)(b). This is because the automatic recognition provisions do not need to contemplate the existence of a person authorised under a power of attorney to apply for resealing.³⁶⁶

3.277 The effect of applying cl 364(a)(i) and (ii) to the person who applies for the reseal (rather than to the executor or administrator under the foreign grant, as in NSW) is to place a person authorised by power of attorney in the same position as a personal representative of the estate rather than merely the agent of a foreign executor or administrator.³⁶⁷

365 Particular provision for attorneys

(1) This section applies if—

(a) a person’s authority to apply to reseal a foreign grant of representation of a deceased person’s estate was a power of attorney; and

Note—

See section 359 (Persons authorised under a power of attorney).

(b) the Supreme Court resealed the foreign grant of representation; and

(c) the person has satisfied or provided for the claims against the estate of all persons resident in this jurisdiction of which the person has notice.


(2) For subsection (1)(c), it does not matter whether the person had notice of the claims before or after advertising for creditors.

(3) The person may dispose of the balance of the estate in this jurisdiction to, or as directed by, the donor of the power of attorney.

(4) The person—


(a) is not required to see to the application of the balance of the estate disposed of under subsection (3); and

(b) is not liable for the disposition of the balance of the estate as provided for under subsection (3).


(5) However, the person must account to the donor for the person’s administration of the estate.

(6) In this section—


claims includes debts.

3.279 In the normal course of events, under cl 364(2), a person holding a resealed grant of representation will be required to see to the distribution of the estate in the resealing jurisdiction.³⁶⁸ This would, without special provision, preclude a person who is also acting under a power of attorney from paying the balance of the estate to the person who granted the power of attorney (in this case, the holder of the foreign grant).³⁶⁹

3.280 However, the National Committee considered there may be circumstances where it is more convenient for the holder of the foreign grant to distribute some parts of the estate rather than the person acting under the power of attorney. The National Committee, therefore, recommended this clause, which is generally based on s 86 of the Administration and Probate Act 1958 (Vic), be included to allow the holder of the resealed grant to pay the balance of the estate as described above. However, the National Committee considered that the model provision should differ from s 86 and not allow a person acting under a power of attorney who has not been appointed by the holder of the foreign grant to make use of the provision. This is to ensure that the “relevant protection is given only if the principal-attorney relationship exists and the principal has been appointed under a grant that is capable of being resealed”.³⁷⁰

PART 12 DISPOSITION UNDER A GRANT OF REPRESENTATION AFFECTED BY A DEFECT

366 Disposition of property in reliance on a grant of representation

(1) This section applies to a person who, in good faith, disposes of a deceased person’s property under a grant of representation.

(2) The person is not liable for the disposition despite any defect or circumstance affecting the validity of the grant.

(3) In this section—


dispose, of property, includes pay an amount.

3.282 The National Committee has suggested that this provision will protect a registrar of titles who registers a transfer in reliance upon a grant that is subsequently revoked.³⁷² This would, incidentally, eliminate the need for a provision to the effect of s 40D(3A) of the Probate and Administration Act 1898 (NSW).

3.283 In most cases, the grant will need to be revoked and a new grant issued. Clause 369 deals with dispositions or distributions of property that a personal representative makes in reliance on a grant that is subsequently revoked.

PART 13 REVOCATION, ENDING OR CEASING OF EFFECT OF A GRANT OF REPRESENTATION

3.284 This Part ensures that, in certain circumstances, people who deal with property of a deceased estate are protected against further claims and that their dealings are effective notwithstanding the fact that one of them (either the person who gives or who receives the property) is a personal representative appointed under a grant that is subsequently revoked, ended or ceases to have effect.

3.285 The provisions in this Part are based largely on the various provisions in s 53 of the Succession Act 1981 (Qld). The National Committee chose to use s 53 as the model for these provisions because it considered that it deals “comprehensively” with the effect of the revocation of a grant.³⁷³

3.286 The Court’s power to revoke a grant of representation is contained in cl 301(1)(a).³⁷⁴

367 Definition for part

In this part—

dispose, of property, includes pay an amount.

(1) This section applies if a person, in good faith, disposes of a deceased person’s property to the personal representative named in a grant of representation before the revocation, ending or ceasing of effect of the grant.

(2) The disposition is a valid discharge to the person making it.

(3) For subsection (2), it does not matter whether the disposition was made before the grant of representation was made.

3.288 It is based on the first half of s 53(2) of the Succession Act 1981 (Qld) and follows the long-established common law position.³⁷⁵ The nearest equivalent provision in NSW is the first half of s 40D(3) of the Probate and Administration Act 1898 (NSW) which provides that a revocation “shall not invalidate any payment or transfer lawfully made” to the personal representative during the course of administration before the revocation.

369 Distribution or disposition by personal representative

(1) This section applies to a personal representative who has acted under a grant of representation of a deceased person’s estate that is subsequently revoked or ends.

(2) The personal representative may retain from the estate, and reimburse himself or herself, an amount equivalent to the amount of prescribed payments he or she made.

(3) The personal representative is not liable for any distribution of the estate made in good faith and without negligence in reliance on the grant.

(4) However, the personal representative must have sought the grant of representation in good faith and without negligence.

(5) A disposition of an interest in property by the personal representative to a purchaser in good faith is valid.

(6) In this section—


prescribed payments, made by a personal representative, means payments made by the personal representative that a person to whom a grant of representation of the estate is afterwards made might properly have made.

• it allows the personal representative to retain from the estate an amount equivalent to any payments that the personal representative has made that the subsequently appointed personal representative might properly have made (cl 369(2) and (6));
• it provides that the personal representative is not liable for any distribution he or she makes in good faith without negligence in reliance on the grant, so long as he or she sought the grant in good faith and without negligence (cl 369(3) and (4)); and
• it ensures the validity of any disposition of an interest in property that the personal representative makes to a purchaser in good faith (cl 369(5)).

3.291 Sub-clauses 369(3) and (4) are derived from s 53(4) of the Succession Act 1981 (Qld). The National Committee considered that they provide the “clearest protection” for a personal representative in the circumstances described.³⁷⁶ The equivalent provision in NSW is s 40D(2) of the Probate and Administration Act 1898 (NSW).

3.292 Sub-clause 369(5) is derived from s 53(3) of the Succession Act 1981 (Qld). It follows an English decision which held that a purchaser for value without notice obtained a good title to property notwithstanding the fact that the grant was subsequently revoked when it was found that the deceased had left a will.³⁷⁷ However, the National Committee emphasised that the model provision should not validate a purchase made by a person who, for example, purchased a property when he or she had reason to believe the grant would be revoked.³⁷⁸

3.293 Clause 373 makes separate provision for personal representatives who have operated under limited grants that have ended because the court in the Australian jurisdiction where the deceased died domiciled has made a grant that is entitled to automatic recognition under Chapter 3 part 7 of the model legislation.

370 Personal representative may recover particular distributions

(1) This section applies if—

(a) a distribution of a deceased person’s estate is made under a grant of representation (the first grant); and

(b) the first grant is subsequently revoked and a new grant of representation (the subsequent grant) is made; and

(c) the person to whom the distribution was made under the first grant is not entitled to it under the subsequent grant.


(2) The holder of the subsequent grant may recover the distribution, or its value, from the person to whom the distribution was made.

(3) However, if the person—


(a) has received the distribution in good faith; and

(b) has so altered the person’s position in reliance on the correctness of the distribution that, in the Supreme Court’s opinion, it would be inequitable to order the recovery of the distribution, or its value;

the court may make any order it considers to be just in all the circumstances.


(4) Subsection (3) does not limit any other defence available, under an Act or at law or in equity, to the person to whom the distribution has been made.

3.295 It derives from s 53(5) of the Succession Act 1981 (Qld). The National Committee observed that the Queensland provision was the only express provision giving a subsequent personal representative the ability to recover already-distributed property from a person who was not entitled to it under the subsequent grant.³⁷⁹ The Queensland Law Reform Commission originally recommended s 53(5) to overcome the unjustness of the old rule that made personal representatives personally liable to the beneficiaries under the new grant and also prevented them from recovering anything from the beneficiaries under the revoked grant.³⁸⁰ The Queensland Law Reform Commission also considered that there should be some protection for beneficiaries, particularly if there is a delay in the new personal representative commencing recovery proceedings, and so recommended the inclusion of a defence of change of position based on s 109 of the Trusts Act 1973 (Qld).

3.296 In NSW, the provision that preserves the validity of any distribution made before the revocation also states that it shall not prejudice the right of any person to follow assets into the hands of any person who may have received the property.³⁸¹ This, however, stops short of the express provision now made in the model legislation.

371 Proceedings may be continued by or against new personal representative

(1) This section applies if—

(a) a proceeding by or against a personal representative to whom a grant of representation has been made is pending in a court of this jurisdiction; and

(b) the grant is revoked, ends or ceases to have effect and a grant of representation is made to someone else (the new personal representative).


(2) The court in which the proceeding is pending may order that the proceeding be continued by or against the new personal representative as if it had been originally commenced by or against the new personal representative.

(3) The order may be made subject to any conditions or variations the court considers appropriate.

3.298 It derives from s 53(6) of the Succession Act 1981 (Qld). NSW currently has a similar provision that allows for the continuation of proceedings in such circumstances in the name of the new personal representative.³⁸² Such provisions are said to ensure that the revocation of a grant does not prejudice pending actions.³⁸³

372 Person living when grant of representation is made

(1) If—

(a) a grant of representation of a person’s estate has been made by the Supreme Court, whether before or after the commencement of this section; and

(b) it is established that the person was living when the grant was made;

the Supreme Court must revoke the grant of representation.


(2) The Supreme Court may impose any conditions in relation to a proceeding commenced by or against the personal representative, or in relation to costs or other matters, that the court considers appropriate.

(3) A proceeding for the revocation may be started by the person, or, if the person has since died, by any person entitled to apply for a grant of representation of the person’s estate or by any person interested in the estate.

(4) The Supreme Court may make any order, including an order for an injunction against the personal representative or any other person and an order for the appointment of a receiver, that the court considers appropriate for protecting the estate.

(5) An order mentioned in subsection (4) may be made at any time, whether before or after the revocation.

3.300 The provisions in this section, therefore, make provision for the revocation of the grant and its consequences by:

• allowing the person or, if the person has since died, any person entitled to apply for a grant, to apply to the Court to revoke the grant (cl 372(3));
• requiring the Court, once the essential facts have been established, to revoke the grant (cl 372(1));
• allowing the Court, at any time either before or after the revocation, to make any order that the Court considers appropriate to protect the estate (cl 372(4) and (5)); and
• allowing the Court to impose such conditions as it considers appropriate in relation to any proceedings involving the personal representative under the revoked grant (cl 372(2)).

3.302 Sub-clause 372(1) is based on the first half of s 40C(1) of the Probate and Administration Act 1898 (NSW). Sub-clause 372(2) is based on the second half of s 40C(1) of the Probate and Administration Act 1898 (NSW).³⁸⁶ Sub-clause 372(3) is based on s 40C(2) of the Probate and Administration Act 1898 (NSW). Sub-clauses 372(4) and (5) are based on s 40C(3) of the Probate and Administration Act 1898 (NSW).

373 Former personal representative—reimbursement and liability

(1) This section applies if—

(a) a grant of representation ceases to have effect under section 335(2)(c)(i); or

(b) an election to administer ceases to have effect under section 335(2)(c)(ii); or

(c) a resealed foreign grant of representation ceases to have effect under section 335(2)(c)(iii).


(2) The former personal representative may retain from the estate, and reimburse himself or herself, an amount equivalent to the amount of payments made by the former personal representative that the person to whom the interstate grant of representation has been made might properly have made.

(3) Also, the former personal representative is not liable for any distribution of the estate made in good faith and without negligence in reliance on the grant of representation, election to administer or resealed foreign grant of representation.

(4) In this section—


former personal representative means—

(a) the person who was the holder of the grant of representation mentioned in subsection (1)(a); or

(b) the professional administrator who filed the election to administer mentioned in subsection (1)(b); or

(c) the person who applied to reseal the foreign grant of representation mentioned in subsection (1)(c).

• a grant of representation made by the Court that records that the deceased died domiciled in another jurisdiction or that makes no record of the deceased’s domicile;³⁸⁷
• an election to administer (that is, professional administrators who have filed the election to administer);³⁸⁸ and
• a foreign grant of representation that the Court has previously resealed.³⁸⁹

• may retain an amount from the estate to reimburse themselves for payments that might properly have been made by the holder of the automatically recognised interstate grant of representation (cl 373(2)); and
• are not liable for any distribution of the estate that they made in good faith and without negligence in reliance on their authorising documents (cl 373(3)).

3.306 The protections are not limited, as the ones in cl 369 are, to acts undertaken before the authority to act ceases. The National Committee was concerned to ensure that former personal representatives should be protected in circumstances where they act without knowledge that the limited grant has ceased to have effect under the automatic recognition provisions.³⁹⁰

3.307 The National Committee noted that in most cases the person who obtains the grant of representation in the domiciliary jurisdiction will be the same person who held the limited grant in this jurisdiction.³⁹¹ However, it did envisage the possibility that a different person could obtain the grant in the domiciliary jurisdiction³⁹² and considered that the person under the limited grant deserved some form of protection.³⁹³

3.308 While the National Committee decided to extend most of the protections contained in cl 369 to personal representatives under the limited grants, it decided not to protect the validity of a distribution to a purchaser in good faith. The National Committee did not consider it appropriate to protect a personal representative under a limited grant at the expense of either the personal representative under an automatically recognised grant from another Australian jurisdiction or a purchaser to whom the property had been sold under the limited grant.³⁹⁴ In particular, it considered that the former personal representative was in a better position than the purchaser to ensure that no further grant had been made and that the former personal representative could avoid the risk altogether by seeking a grant in the Australian jurisdiction in which the deceased died domiciled.³⁹⁵

1. New South Wales Law Reform Commission, Uniform Succession Laws: Administration of Estates of Deceased Persons, Discussion Paper 42 (1999) (“NSWLRC, DP 42”) [3.6].

2. NSWLRC, DP 42 [3.7]. See also para 3.15.

3. Queensland Law Reform Commission, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General, Report 65 (2009) (“QLRC, Report 65”) [3.26].

4. Baldwin v Greenland [2007] 1 QdR 117 [43].

5. QLRC, Report 65 [3.26].

6. Queensland Law Reform Commission, The Law Relating to Succession, Report 22 (1978) (“QLRC, Report 22”) 4.

7. QLRC, Report 65 [3.26].

8. QLRC, Report 22, 5.

9. Probate and Administration Act 1898 (NSW) s 33.

10. Bates v Messner (1967) 67 SR (NSW) 187, 191 (Asprey JA).

11. QLRC, Report 65 [25.38].

12. See para 3.284-3.308.

13. Probate and Administration Act 1898 (NSW) s 40.

14. QLRC, Report 65 [3.33]. See also QLRC, Report 22, 5; Law Reform Commission of Western Australia, Recognition of Interstate and Foreign Grants of Probate and Administration, Report, Project No 34 pt 4 (1984) [9.27].

15. QLRC, Report 65 [3.34]. See Re Dempsey (unreported, Supreme Court of Queensland, Ambrose J, 7 August 1987) 9-10.

16. See Law Reform Commission of Western Australia, Recognition of Interstate and Foreign Grants of Probate and Administration, Report, Project No 34 pt 4 (1984) [9.27].

17. See Law Reform Commission of Western Australia, Recognition of Interstate and Foreign Grants of Probate and Administration, Report, Project No 34 pt 4 (1984) [9.27].

18. See Law Reform Commission of Western Australia, Recognition of Interstate and Foreign Grants of Probate and Administration, Report, Project No 34 pt 4 (1984) [9.27].

19. Para 3.134.

20. QLRC, Report 65 [3.44].

21. See QLRC, Report 65 [40.58].

22. Probate and Administration Act 1898 (NSW) s 97(2). See QLRC, Report 65 [40.43]-[40.47].

23. L Handler and R Neal, Succession Law and Practice NSW (LexisNexis, online) [1489.1] (at 8 October 2009).

24. QLRC, Report 65 [3.26].

25. QLRC, Report 22, 6.

26. Probate and Administration Act 1898 (NSW) s 70 and s 71. See NSWLRC, DP 42 [3.22]-[3.25]; QLRC, Report 65 [4.214]-[4.235].

27. Probate and Administration Act 1898 (NSW) s 72. See QLRC, Report 65 [4.240]-[4.244].

28. Probate and Administration Act 1898 (NSW) s 73. See QLRC, Report 65 [4.249]-[4.251].

29. Probate and Administration Act 1898 (NSW) s 76-80. See QLRC, Report 65 [4.245]-[4.248].

30. QLRC, Report 22, 5.

31. QLRC, Report 65 [4.271].

32. See Chapter 3 part 7.

33. See para 3.134.

34. QLRC, Report 65 [38.72]-[38.73].

35. See Chapter 3 part 6.

36. In NSW, the Supreme Court’s granting of an order to administer in favour of the NSW Trustee is governed by NSW Trustee and Guardian Act 2009 (NSW) s 25.

37. QLRC, Report 65 [38.61]-[38.64].

38. See Chapter 3 part 7.

39. QLRC, Report 65 [38.114]-[38.116].

40. See para 3.134.

41. See para 3.19.

42. QLRC, Report 65 [40.15].

43. QLRC, Report 65 [8.18]-[8.19], [8.26].

44. QLRC, Report 65 [8.25]-[8.26]. The advertising provisions in NSW are contained in Supreme Court Rules 1970 (NSW) pt 78 r 10.

45. See para 6.26.

46. QLRC, Report 65 [3.26].

47. QLRC, Report 22, 6.

48. Trustee Act 1925 (NSW) s 70-s 94.

49. Williams v Williams [2004] QSC 269 [13].

50. See the definition of “deceased person” in sch 3; and para S3.5-S3.7.

51. Axon v Axon (1937) 59 CLR 395, 405 (Dixon J).

52. Axon v Axon (1937) 59 CLR 395, 412 (Evatt J).

53. Axon v Axon (1937) 59 CLR 395, 405 (Dixon J).

54. Mackay v Mackay (1901) 18 WN (NSW) 266, 268-269.

55. Re Parker (1995) 2 Qd R 617.

56. Re Bennett [2006] QSC 250.

57. See the definition of “deceased person” in sch 3; and para S3.5-S3.7.

58. To be renamed the Guardianship of Infants Act 1916 (NSW) upon the commencement of Succession Amendment (Intestacy) Act 2009 (NSW).

59. QLRC, Report 65 [24.59].

60. Halbert v Mynar [1981] 2 NSWLR 659.

61. QLRC, Report 65 [24.63].

62. See para 8.11 and para 8.14.

63. QLRC, Report 65 [24.65].

64. Probate and Administration Act 1898 (NSW) s 40B(3).

65. QLRC, Report 65 [24.73].

66. Probate and Administration Act 1898 (NSW) s 40B(4) and (5).

67. See cl 306, para 3.23 and cl 313, para 3.47-3.50.

68. QLRC, Report 65 [24.68].

69. Probate and Administration Act 1898 (NSW) s 70 and s 71. See para 3.15.

70. QLRC, Report 65 [4.234]-[4.235].

71. QLRC, Report 65 [4.275].

72. QLRC, Report 22, 31.

73. See cl 406(3) and para 4.32-4.34. See also NSWLRC, DP 42 [8.85]-[8.86].

74. Trustee Act 1925 (NSW) s 6(5)(b), (c) and s 7(5).

75. Administration and Probate Act 1935 (Tas) s 14.

76. QLRC, Report 65 [4.303]-[4.307].

77. See D M Haines, Succession Law in South Australia (2003) [20.2].

78. Probate and Administration Act 1898 (NSW) s 144(1), s 145, s 146, s 148.

79. Probate and Administration Act 1898 (NSW) s 144(2), s 145, s 146, s 148.

80. Supreme Court Rules 1970 (NSW) pt 78 r 61-70.

81. QLRC, Report 65 [8.67].

82. QLRC, Report 65 [8.68].

83. QLRC, Report 65 [8.82].

84. The priority for grants of letters of administration is set out in cl 321 and cl 322. Renunciation of letters of administration is contemplated in cl 321(4) and cl 322(4)

85. For example, cl 300, cl 320(2), cl 324, cl 345(1), and cl 352(2).

86. See para 3.54.

87. J R Martyn and N Caddick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (19th edition, Sweet and Maxwell, 2008) [30-01].

88. Howling v Kristofferson (Unreported, NSW Supreme Court, Cohen J, 14 October 1992) 11.

89. In the Will of Lyndon [1960] VR 112, 113-114.

90. QLRC, Report 65 [4.30]-[4.38]. In NSW, Needham J has suggested that “the trend of more modern cases is to take a more lenient view of acts of nominated executors”: Mulray v Ogilvie (1987) 9 NSWLR 1, 6.

91. QLRC, Report 65 [4.50].

92. QLRC, Report 65 [4.51]. See also the view of the Queensland Law Reform Commission that preventing renunciation may “in some cases, be rather harsh, particularly where a person who happens to be nominated executor performs acts of administration in the emergency following a death without any intention of taking up his executorship”: QLRC, Report 22, 37.

93. QLRC, Report 65 [4.53].

94. QLRC, Report 65 [4.54].

95. QLRC, Report 65 [4.41], [4.55].

96. QLRC, Report 65 [4.57].

97. Jackson v White (1821) 3 Phill Ecc 577; 161 ER 1420; M’Donnell v Prendergast (1830) 3 Hag Ecc 212; 162 ER 1134.

98. In the Will of Colless (1941) 41 SR (NSW) 133, 134.

99. See sch 1 and sch 2.

100. QLRC, Report 65 [4.70].

101. Supreme Court Rules 1970 (NSW) pt 78 r 14(1).

102. QLRC, Report 65 [4.68].

103. QLRC, Report 65 [4.112].

104. QLRC, Report 65 [4.110].

105. Probate Rules 2004 (SA) r 48.06; Probate Rules 1936 (Tas) r 67(4).

106. See QLRC, Report 65 [4.71]-[4.81]; Re Thurston; Thurston v Fuz [2001] NSWSC 144 [13].

107. QLRC, Report 65 [4.8].

108. Probate and Administration Act 1898 (NSW) s 69.

109. QLRC, Report 65 [4.20].

110. QLRC, Report 65 [4.22].

111. QLRC, Report 65 [5.1]. For the common law position, see Re Slattery (1909) 9 SR (NSW) 577.

112. NSWLRC, DP 42 [5.12]; QLRC, Report 65 [4.181].

113. QLRC, Report 65 [4.184].

114. QLRC, Report 65 [5.45].

115. QLRC, Report 65 [5.47], [5.48].

116. QLRC, Report 65 [5.70].

117. QLRC, Report 65 [5.71].

118. QLRC, Report 65 [5.72].

119. QLRC, Report 65 [5.77].

120. See para 3.51-3.64.

121. See R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (LBC Information Services, 1996) 502-505.

122. QLRC, Report 65 [5.45].

123. QLRC, Report 65 [5.47], [5.48].

124. See New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy, Report 116 (2007).

125. Succession Amendment (Intestacy) Act 2009 (NSW).

126. See para S2.2.

127. Probate and Administration Act 1898 (NSW) s 63.

128. QLRC, Report 65 [5.48].

129. QLRC, Report 65 [5.61].

130. QLRC, Report 65 [5.62].

131. QLRC, Report 65 [5.63].

132. QLRC, Report 65 [5.77].

133. See para 3.51-3.64.

134. In accordance with either cl 321 and sch 1 item 4; or cl 322 and sch 2 item 11.

135. See Chapter 3 Part 8; para 3.158.

136. QLRC, Report 65 [7.51]-[7.52].

137. QLRC, Report 65 [29.25], [29.114].

138. NSW Trustee and Guardian Act 2009 (NSW) s 26; Trustee Companies Act 1964 (NSW) s 15A.

139. QLRC, Report 65 [29.47]. See Schedule 3, definition of “professional administrator”; para S3.31.

140. QLRC, Report 65 [29.47], [29.115].

141. NSW Trustee and Guardian Act 2009 (NSW) s 30; Trustee Companies Act 1964 (NSW) s 15A.

142. QLRC, Report 65 [29.99]-[29.100], [29.119].

143. QLRC, Report 65 [29.120]-[29.180].

144. NSW Trustee and Guardian Act 2009 (NSW) s 31; NSW Trustee and Guardian Regulation 2008 (NSW) cl 35(3).

145. Administration and Probate Act (NT) s 110A.

146. QLRC, Report 65 [29.179].

147. QLRC, Report 65 [29.180].

148. See para 7.3.

149. Public Trustee Act 1978 (Qld) s 30.

150. NSW Trustee and Guardian Regulation 2008 (NSW) cl 35(1).

151. Public Trustee Regulation 2001 (NSW) cl 34(1).

152. Public Trustee Regulation 2008 (NSW) cl 35(1).

153. QLRC, Report 65 [29.63].

154. See sch 3; para S3.17.

155. “Prescribed amount” is defined in cl 325.

156. QLRC, Report 65 [29.47].

157. The Supreme Court can issue an order to administer in favour of the NSW Trustee where there are reasonable grounds to suppose that a person has died intestate: NSW Trustee and Guardian Act 2009 (NSW) s 25.

158. QLRC, Report 65 [29.80].

159. NSW Trustee and Guardian Act 2009 (NSW) s 26(1), (2).

160. Trustee Companies Act 1964 (NSW) s 15A.

161. The Supreme Court can issue an order to administer in favour of the NSW Trustee where there are reasonable grounds to suppose that a person has died intestate: NSW Trustee and Guardian Act 2009 (NSW) s 25.

162. Under Trustee Companies Act 1964 (NSW) s 5, s 6(1)(b).

163. As currently authorised under Probate and Administration Act 1898 (NSW) s 72(1), but now covered by cl 303. See para 3.15.

164. NSW Trustee and Guardian Act 2009 (NSW) s 26(1), (2), s 27(1), (2); NSW Trustee and Guardian Regulation 2008 (NSW) cl 35(1); Trustee Companies Act 1964 (NSW) s 15A.

165. QLRC, Report 65 [29.64].

166. NSW Trustee and Guardian Act 2009 (NSW) s 26(1)(b); Trustee Companies Act 1964 (NSW) s 15A.

167. QLRC, Report 65 [29.82]. See cl 335.

168. QLRC, Report 65 [29.47].

169. Applied to trustee companies by Trustee Companies Act 1964 (NSW) s 15A.

170. QLRC, Report 65 [29.47].

171. NSW Trustee and Guardian Act 2009 (NSW) s 26(3); Trustee Companies Act 1964 (NSW) s 15A.

172. QLRC, Report 65 [29.47].

173. NSW Trustee and Guardian Act 2009 (NSW) s 28(1), (2).

174. NSW Trustee and Guardian Regulation 2008 (NSW) cl 35(2).

175. QLRC, Report 65 [29.114].

176. See cl 325; para 3.96-3.98.

177. QLRC, Report 65 [29.115].

178. NSW Trustee and Guardian Act 2009 (NSW) s 27(1), (2), Trustee Companies Act 1964 (NSW) s 15A.

179. See para 3.100-3.107.

180. QLRC, Report 65 [29.115].

181. Applied to trustee companies by Trustee Companies Act 1964 (NSW) s 15A.

182. QLRC, Report 65 [29.117].

183. NSW Trustee and Guardian Act 2009 (NSW) s 27(3); Trustee Companies Act 1964 (NSW) s 15A.

184. QLRC, Report 65 [29.118].

185. See para 3.114-3.115.

186. Administration and Probate Regulations (NT) reg 2C.

187. But see NSW Trustee and Guardian Act 2009 (NSW) s 31(2).

188. QLRC, Report 65 [29.192].

189. Scales of commission are prescribed by NSW Trustee and Guardian Regulation 2008 (NSW) cl 16-21.

190. Probate and Administration Act 1898 (NSW) s 107.

191. QLRC, Report 65 [38.3].

192. QLRC, Report 65 [37.47].

193. QLRC, Report 65 [37.47].

194. QLRC, Report 65 [38.6].

195. QLRC, Report 65 [38.7].

196. See cl 302.

197. QLRC, Report 65 [38.36]-[38.37].

198. QLRC, Report 65 [38.38]-[38.42].

199. QLRC, Report 65 [38.43].

200. QLRC, Report 65 [38.60].

201. See Chapter 3 part 6.

202. QLRC, Report 65 [38.61]-[38.64]. See also cl 355 and para 3.233.

203. QLRC, Report 65 [38.9].

204. QLRC, Report 65 [38.48]-[38.51].

205. QLRC, Report 65 [38.47].

206. QLRC, Report 65 [38.118].

207. See para 3.134.

208. QLRC, Report 65 [38.238]-[38.241].

209. See, eg, Succession Act 2006 (NSW) s 106.

210. QLRC, Report 65 [38.48].

211. That is, cl 304, cl 305 and the relevant parts of cl 335. See QLRC, Report 65 [38.49].

212. QLRC, Report 65 [38.50]-[38.51].

213. QLRC, Report 65 [7.28]. See cl 330-333; para 3.116-3.128.

214. QLRC, Report 65 [7.40].

215. QLRC, Report 65 [7.40].

216. See para 0.8.

217. QLRC, Report 65 [7.49].

218. See cl 350 and cl 351; and para 3.199.

219. QLRC, Report 65 [7.50].

220. QLRC, Report 65 [7.43].

221. QLRC, Report 65 [7.51]-[7.52].

222. Under cl 318.

223. QLRC, Report 65 [7.117]-[7.118].

224. QLRC, Report 65 [7.56].

225. The NSW provision derives originally from the imperial provisions 30 Charles II c 7 (1678) and 4 William and Mary c 24 (1692) s 12.

226. QLRC, Report 22, 31.

227. Law Reform Commission of Western Australia, The Administration Act 1903, Report, Project No 88 (1990) [4.12]; Ontario Law Reform Commission, Administration of Estates of Deceased Persons, Report (1991) 30.

228. QLRC, Report 65 [7.63]-[7.64].

229. QLRC, Report 65 [7.66].

230. A retiring executor would need the Court to revoke the grant under cl 301(1)(a). The National Committee decided that the model legislation should not prescribe the grounds on which the Court can revoke a grant: QLRC, Report 65 [25.53]-[25.59]. See also para 3.8.

231. QLRC, Report 65 [7.69], [7.72]-[7.73].

232. QLRC, Report 65 [7.74].

233. QLRC, Report 65 [7.77].

234. QLRC, Report 65 [7.75].

235. Adopting the form of Administration of Estates Act 1925 (Eng) s 7(1) which superseded 25 Edward III stat 5 c 5 (1351-1352).

236. QLRC, Report 65 [7.83].

237. See Chapter 3 Part 13.

238. QLRC, Report 65 [7.108].

239. QLRC, Report 65 [7.67].

240. See cl 321 and cl 322.

241. NSWLRC, DP 42 [5.13].

242. NSWLRC, DP 42 [5.13].

243. QLRC, Report 65 [4.208].

244. See, eg, Re McCormack (1902) 2 SR (NSW) B&P 48; and Re Chave (1930) 30 SR (NSW) 180.

245. QLRC, Report 65 [4.206].

246. QLRC, Report 65 [4.196]-[4.197].

247. Which allows the Court to make a grant to “such person... as the court may think fit”.

248. Succession Act 1981 (Qld) s 6(3).

249. E Car and Son Pty Ltd v Hood [2003] QSC 453.

250. In the Goods of Loveday [1900] P 154, 156.

251. QLRC, Report 65 [4.188].

252. Supreme Court Act 1981 (Eng) s 116(1).

253. QLRC, Report 65 [4.186].

254. Probate and Administration Act 1898 (NSW) s 75. See QLRC, Report 65 [4.136].

255. Re Pedersen (Unreported, NSW Supreme Court, Holland J, 17 June 1977).

256. QLRC, Report 65 [4.198].

257. QLRC, Report 65 [4.199]-[4.200].

258. NSWLRC, DP 42 [5.14].

259. See para 3.182.

260. QLRC, Report 65 [4.201].

261. See para 3.184.

262. QLRC, Report 65 [7.97].

263. See para 3.192-3.197.

264. QLRC, Report 65 [7.99].

265. QLRC, Report 65 [7.99]-[7.100].

266. See para 3.173.

267. QLRC, Report 65 [7.104]. The ordinary order of entitlement for a grant is set out in cl 321 and cl 322.

268. The requirements for formal validity of wills in NSW may be found generally in Succession Act 2006 (NSW) s 6, s 7 and, in relation to a will executed in a foreign place, in Succession Act 2006 (NSW) Part 2.4.

269. QLRC, Report 65 [36.63]. See Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114, 120.

270. Lewis v Balshaw (1935) 54 CLR 188, 197. However, this general rule may be displaced “if the necessity or convenience of administration of the estate requires it”: Bath v British and Malayan Trustees Ltd [1969] 2 NSWR 114, 120; see also Lewis v Balshaw (1935) 54 CLR 188, 193.

271. Lewis v Balshaw (1935) 54 CLR 188, 195.

272. Lewis v Balshaw (1935) 54 CLR 188, 192, 195, 198. See also QLRC, Report 65 [36.22].

273. QLRC, Report 65 [36.50]-[36.51].

274. QLRC, Report 65 [36.53].

275. QLRC, Report 65 [36.54].

276. See J I Winegarten, R D’Costa and T Synak (ed), Tristram and Coote’s Probate Practice (30th ed, 2006) 540.

277. QLRC, Report 65 [36.57].

278. QLRC, Report 65 [36.60].

279. Probate Rules 2004 (SA) r 40.01(2).

280. Non-Contentious Probate Rules 1987 (Eng) r 30(3)(b).

281. QLRC, Report 65 [36.62].

282. QLRC, Report 65 [36.52].

283. See Chapter 3 part 7; para 3.132-3.134.

284. See para S3.10-S3.16.

285. QLRC, Report 65 [31.60].

286. QLRC, Report 65 [31.86]-[31.87].

287. QLRC, Report 65 [35.101].

288. See para S3.10-S3.16.

289. See para S3.21.

290. See para S3.26.

291. See para 3.134.

292. See Re Bedford [1902] QWN 63.

293. QLRC, Report 65 [38.121].

294. QLRC, Report 65 [38.121].

295. QLRC, Report 65 [38.122].

296. QLRC, Report 65 [38.123].

297. See para 3.134.

298. QLRC, Report 65 [38.124]-[38.127].

299. QLRC, Report 65 [3.67].

300. See para 3.9.

301. See Probate and Administration Act 1898 (NSW) s 107.

302. See In the Estate of Rogowski [2007] SASC 161; Re Carlton [1924] VLR 237. Commentators in NSW have, however, argued that Probate and Administration Act 1898 (NSW) s 107 should not be constrained by s 40: R Hastings and G Weir, Probate Law and Practice (2nd ed, 1948) 310; R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (LBC Information Services, 1996) 625.

303. QLRC, Report 65 [40.37].

304. Law Reform Commission of Western Australia, Recognition of Interstate and Foreign Grants of Probate and Administration, Report, Project No 34 pt 4 (1984) [3.24], [11.1], Recommendation 5.

305. QLRC, Report 65 [40.27].

306. QLRC, Report 65 [40.58].

307. Probate and Administration Act 1898 (NSW) s 97(2). See QLRC, Report 65 [40.43]-[40.47].

308. L Handler and R Neal, Succession Law and Practice NSW (LexisNexis, online) [1489.1] (at 8 October 2009). See Uniform Civil Procedure Rules 2005 (NSW) r 10.3 and Service and Execution of Process Act 1901 (Cth).

309. The requirements for formal validity of wills in NSW may be found generally in Succession Act 2006 (NSW) s 6, s 7 and, in relation to a will executed in a foreign place, in Succession Act 2006 (NSW) Part 2.4.

310. See cl 352(4)(a), (b), (c), and (6)(a).

311. QLRC, Report 65 [36.101].

312. Non-Contentious Probate Rules 1987 (Eng) r 39(3).

313. Non-Contentious Probate Rules 1987 (Eng) r 30.

314. QLRC, Report 65 [36.102].

315. See QLRC, Report 65 [36.104].

316. Probate and Administration Act 1898 (NSW) s 3, definition of “administration” and “probate”.

317. QLRC, Report 65 [31.76].

318. QLRC, Report 65 [31.88].

319. QLRC, Report 65 [31.92]-[31.94].

320. Law Reform Commission of Western Australia, Recognition of Interstate and Foreign Grants of Probate and Administration, Report, Project No 34 pt 4 (1984) [3.29].

321. QLRC, Report 65 [31.87].

322. Clause 333. QLRC, Report 65 [31.90].

323. QLRC, Report 65 [40.14].

324. QLRC, Report 65 [35.18]-[35.29]. See also para 6.25.

325. QLRC, Report 65 [8.41]-[8.42]. See also para 6.26. The advertising provisions in NSW are contained in Probate and Administration Act 1898 (NSW) s 109; and Supreme Court Rules 1970 (NSW) pt 78 r 10. Note the doubts about the effectiveness of advertising a notice of intention raised in QLRC, Report 65 [8.18]-[8.19], [8.26].

326. See para 3.43.

327. See cl 363; para 3.269-3.271.

328. QLRC, Report 65 [35.120].

329. QLRC, Report 65 [35.122].

330. See the definitions of “holder” and “foreign grant of administration” in the dictionary in sch 3.

331. QLRC, Report 65 [31.60]. The Supreme Court can issue an order to administer in favour of the NSW Trustee where there are reasonable grounds to suppose that a person has died intestate: NSW Trustee and Guardian Act 2009 (NSW) s 25.

332. QLRC, Report 65 [31.86]-[31.87].

333. QLRC, Report 65 [33.58] and [33.59]. See para 3.220.

334. QLRC, Report 65 [35.58]-[35.61].

335. QLRC, Report 65 [35.41].

336. In the Will of Rofe (1904) 29 VLR 681.

337. Re Benn [1905] QWN 30. See also J I Winegarter, R D’Costa and T Synak, Tristram and Coote’s Probate Practice (30th ed, 2006) [18.95].

338. QLRC, Report 65 [35.81]-[35.82].

339. See Re Bell [1929] VLR 53.

340. QLRC, Report 65 [35.42].

341. See, eg, In the Will of Rofe (1904) 29 VLR 681, 682 (A’Beckett J). See also QLRC, Report 65 [35.32].

342. QLRC, Report 65 [33.43].

343. QLRC, Report 65 [33.43]-[33.45].

344. QLRC, Report 65 [33.46].

345. QLRC, Report 65 [33.49].

346. QLRC, Report 65 [35.62].

347. See QLRC, Report 65 [35.44]-[35.45].

348. QLRC, Report 65 [35.63]-[35.64].

349. Probate and Administration Act 1898 (NSW) s 107(1).

350. QLRC, Report 65 [33.41].

351. QLRC, Report 65 [33.50]. See New South Wales Law Reform Commission, Uniform Succession Laws: Recognition of Interstate and Foreign Grants of Probate and Letters of Administration, Issues Paper 21 (2002) [5.11].

352. In the Will of Thornley (1903) 4 SR (NSW) 246; Re Galletly (1900) 10 QLJ 74. In the Will of Finn (1908) 8 SR (NSW) 32 stands for the proposition that a trustee company incorporated under the statute of another jurisdiction can have no standing to apply for a grant of representation in NSW (at 33). See QLRC, Report 65 [35.83]-[35.85].

353. QLRC, Report 65 [35.93].

354. QLRC, Report 65 [33.54].

355. QLRC, Report 65 [33.56].

356. QLRC, Report 65 [35.101]-[35.102].

357. Law Reform Commission of Western Australia, Recognition of Interstate and Foreign Grants of Probate and Administration, Report, Project No 34 pt 4 (1984) [11.1], Recommendation 19.

358. QLRC, Report 65 [35.121].

359. QLRC, Report 65 [35.123].

360. QLRC, Report 65 [35.124].

361. QLRC, Report 65 [34.9].

362. QLRC, Report 65 [34.10].

363. See QLRC, Report 65 [34.14].

364. See also Administration and Probate Act 1958 (Vic) s 81(3) which makes similar provision for grants of representation from the United Kingdom.

365. QLRC, Report 65 [34.30].

366. QLRC, Report 65 [38.10]-[38.11].

367. See QLRC, Report 65 [34.20].

368. See cl 364(2).

369. See QLRC, Report 65 [34.32].

370. QLRC, Report 65 [34.47]; see also [14.71]. The National Committee concluded, however, that there should not be a model provision “prescribing the circumstances in which an attorney-administrator may pay or transfer the balance of the estate to his or her foreign principal and be discharged from further liability”: QLRC, Report 65 [14.83].

371. But subject to Probate and Administration Act 1898 (NSW) s 91(2) so that the indemnity only applies in relation to property that is listed in a document issued by the Court.

372. QLRC, Report 65 [25.98].

373. QLRC, Report 65 [25.93].

374. See para 3.8.

375. Allen v Dundas (1789) 3 Tr 125; 100 ER 490.

376. QLRC, Report 65 [25.93].

377. Hewson v Shelley [1914] 2 Ch 13, 29 (Cozens-Hardy MR), 36 (Buckley LJ), 46 (Phillimore LJ).

378. QLRC, Report 65 [25.97].

379. QLRC, Report 65 [25.93].

380. QLRC, Report 22, 37.

381. Probate and Administration Act 1898 (NSW) s 40D(3).

382. Probate and Administration Act 1898 (NSW) s 81(1) and (2).

383. See L Handler and R Neal, Succession Law and Practice NSW (LexisNexis online) [1409.1] (at 8 October 2009).

384. See chapter 3, part 1, div 2, above.

385. QLRC, Report 65 [25.109].

386. It would appear that a provision to the effect of Probate and Administration Act 1898 (NSW) s 81(3) about the continuation of proceedings in these circumstances is unnecessary.

387. See cl 335(2)(c)(i).

388. See cl 335(2)(c)(ii).

389. See cl 335(2)(c)(iii).

390. QLRC, Report 65 [38.139], [38.142].

391. QLRC, Report 65 [38.138].

392. QLRC, Report 65 [38.139].

393. QLRC, Report 65 [38.140]-[38.142].

394. QLRC, Report 65 [38.144].

395. QLRC, Report 65 [38.145].