Preface
Updates and background for this project (Digest)
0.1 This Report provides a commentary on the model administration of estates legislation proposed in the report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General on the administration of estates of deceased persons.1 It represents the conclusion of the fourth and final stage of the work of the National Committee which has encompassed the law of wills, family provision, intestacy, and the administration of estates.2
0.2 The administration of estates is concerned with the management and distribution of a person’s property after he or she has died. The model legislation, therefore, deals with the transmission of the property after death, the payment of debts and other liabilities, the distribution to beneficiaries entitled under a will or according to the statutory regime on intestacy, the appointment of people to manage the process (usually either executors or administrators) and mechanisms for holding them to account.
PREVIOUS REVIEWS
0.3 The National Committee’s review is the first major review of the administration of estates provisions in any Australian jurisdiction since 1990.
0.4 The most recent substantial review to be implemented arose from the Queensland Law Reform Commission’s 1978 Report,3 which resulted in the Succession Act 1981 (Qld). The Queensland Act, which provides the most recently enacted set of Australian provisions on the administration of estates, therefore, provided a starting point for the National Committee’s deliberations.
0.5 The other major review was that of the Law Reform Commission of Western Australia. The Law Reform Commission produced a series of reports of relevance to the administration of estates as part of Project 34 in the period 1976-1988.4 The earlier reports, on administration bonds and sureties and the administration of deceased insolvent estates, were implemented in 1976 and 1984.5 No action, however, has been taken with respect to the reports on interstate and foreign grants of probate and administration and the administration of assets of solvent estates, or with respect to a 1990 report on the Administration Act 1903 (WA).6 The Western Australian reports have provided background material for the National Committee’s deliberations.
0.6 There have also been minor reviews in South Australia, in 1985, on survivorship where the order of deaths is uncertain,7 and in NSW, in the 1970s, on administration bonds.8
APPROACH OF THE NATIONAL COMMITTEE
Simplification of the law and procedures
0.7 In framing modern legislation to govern the administration of deceased estates the National Committee has aimed, wherever possible, to simplify the law and procedures. Examples of simplification include:
- the simplification and clarification of the classes of assets that are applied to the payment of debts in the administration of solvent estates;9
- the introduction of a scheme for the automatic recognition of a grant of representation made in another Australian jurisdiction;10
- the removal of advertising requirements in some circumstances;11 and
- limiting the filing of statements of assets and liabilities of an estate and accounts of an administration to cases where the Court considers it necessary.12
0.8 The National Committee has also continued the long-standing trend in most jurisdictions of assimilating, wherever possible, the offices of executor and administrator. The most notable examples of this continuing trend in the model legislation are:
- the extension of the chain of representation to administrators as well as executors;13 and
- the abolition of administration bonds and sureties which have only ever been required with respect to administrators.14
Recognising people with an interest in the administration of an estate
0.9 The need to provide greater recognition of the information and other needs of people who have an interest in an estate (including beneficiaries, potential claimants for family provision, and creditors) has led the National Committee to recommend provisions that:
- clarify a personal representative’s duty to maintain documents relevant to the administration of the estate;15
- provide a mechanism for interested parties to access those documents;16
- give the Court power to review the amount of remuneration that a personal representative can claim from an estate;17 and
- allow beneficiaries, where all agree, to nominate a personal representative to replace an existing personal representative.18
Recognising informal administration
0.10 The National Committee has also recognised the extent to which many estates can be administered informally, that is, without the need to obtain a grant of representation. It has, therefore, recommended provisions that can facilitate this course, where appropriate. These provisions include ones that:
- allow legal practitioners, as well as trustee companies and the NSW Trustee, to file elections to administer;19
- clarify the liability of a person who administers an estate without a grant;20 and
- protect a person who holds money or property of the deceased up to a certain value when he or she hands over that money or property to a person without requiring him or her to produce a grant.21
Matters not suitable for the model legislation
Matters of procedure
0.11 The National Committee has generally followed a policy of recommending the inclusion of procedural matters, as far as possible, in rules of court rather than in the model legislation.22 This means that, in some cases, the National Committee has recommended that provisions currently in the Probate and Administration Act 1898 (NSW) should be relocated to the rules of court. In some cases, however, matters of procedure have been included in the model legislation where they have a substantive effect or have been considered important to the achievement of uniformity among the Australian jurisdictions.
Matters more relevant to other statutes
0.12 The National Committee has also generally followed a policy that “provisions should be located in the legislation that is most relevant to the focus of those provisions”.23 This means that the National Committee has recommended that some provisions currently in the Probate and Administration Act 1898 (NSW), if retained at all in some cases, should be relocated to more relevant statutes, for example, those relating to property law or trusts. Appendix A of this Report deals with many of these provisions.
National Committee’s other recommendations
0.13 The model legislation reproduced in this Report assumes the implementation of the National Committee’s other model legislation on wills, family provision and intestacy. In NSW, the Succession Act 2006 (NSW) substantially implemented the model wills legislation. The Succession Act 2006 (NSW) has since been amended to implement, with minor changes, the model family provision legislation24 and the model intestacy legislation.25
DRAFTING OF THE MODEL LEGISLATION AS A QUEENSLAND BILL
2009
A Bill for
An Act relating to the administration of estates of deceased persons, and to amend the [Property Law Act 1974] for related purposes
The Parliament of Queensland enacts—
0.14 The Queensland Parliamentary Counsel has drafted the model legislation for the National Committee as a bill of the Queensland Parliament. Amendments will need to made, where appropriate, for it to be implemented in NSW. The need for such amendments is noted, where relevant, throughout this Report.
FOOTNOTES
1. 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”).
2. Previous publications relating to the National Committee’s work are listed at page xiv.
3. Queensland Law Reform Commission, The Law Relating to Succession, Report 22 (1978).
4. Law Reform Commission of Western Australia, Administration Bonds and Sureties, Report, Project No 34, pt 2 (1976); Administration of Deceased Insolvent Estates, Report, Project No 34, pt 3 (1978); Recognition of Interstate and Foreign Grants of Probate and Administration, Report, Project No 34 pt 4 (1984); The Administration of Assets of the Solvent Estates of Deceased Persons in the Payment of Debts and Legacies, Report, Project No 34 pt 7 (1988).
5. Administration Act Amendment Act 1976 (WA) and Acts Amendment (Insolvent Estates) Act 1984 (WA).
6. Law Reform Commission of Western Australia, The Administration Act 1903, Report, Project No 88 (1990). On implementation, see Law Reform Commission of Western Australia, Annual Report 2008-2009, 61, 67.
7. Law Reform Committee of South Australia, Problems of Proof of Survivorship as Between Two or More Persons Dying at About the Same Time in One Accident, Report 88 (1985).
8. New South Wales Law Reform Commission, Administration Bonds, Working Paper 18 (1978).
9. See cl 502; para 5.11-5.17.
10. See Chapter 3 part 7; para 3.132-3.140.
11. See, eg, para 3.23, para 3.91.
12. See cl 402; para 4.8-4.14.
13. See Chapter 3 part 8; para 3.148-3.155.
14. See cl 617; para 6.49-6.58.
15. See cl 403; para 4.15-4.18.
16. See cl 615 and cl 616; para 6.39-6.48.
17. See Chapter 4 part 10; para 4.123-4.130.
18. See cl 349; para 3.192-3.197.
19. See Chapter 3 part 6; para 3.90 and para S3.31.
20. See cl 435; para 4.145-4.147.
21. See cl 434; para 4.136-4.144.
22. See, eg, New South Wales Law Reform Commission, Uniform Succession Laws: Administration of Estates of Deceased Persons, Discussion Paper 42 (1999) (“NSWLRC, DP 42”) [8.141], [18.14], [18.28].
23. NSWLRC, DP 42 [8.141].
24. Succession Amendment (Family Provision) Act 2008 (NSW).
25. Succession Amendment (Intestacy) Act 2009 (NSW). These amendments will commence in 2010.
