Schedule 3. Dictionary
Updates and background for this project (Digest)
S3.1 Some of the definitions in this Schedule define concepts that are key to the operation of important parts of the model legislation. Other definitions, however, provide no more than a cross reference to the relevant provisions in the model legislation. Generally, commentary is provided for the former, but not the latter. Headings have been included in this schedule only in relation to definitions where commentary is supplied.
section 102
administrator, of a deceased person’s estate, means the person to whom a grant of letters of administration of the deceased’s estate has been made by the Supreme Court.
administrator by representation means a person who is an administrator by representation as provided under section 338(1).
approved form means a form approved for use under this Act under section 619.
brother see section 103.
Ceases to have effect
ceases to have effect means ceases to have effect under section 335(2)(c).
S3.2 This definition is necessary to cl 202(2).
claim, for chapter 4, part 7, see section 417.
claimant—
(a) for chapter 4, part 7—see section 417.
(b) for chapter 6, part 1, division 2—see section 605.
class 1 property see section 502(1)(a).3
3 Section 502 (Payment of debts)
class 2 property see section 502(1)(b).
class 3 property see section 502(1)(c).
court, for chapter 6, part 1, division 2, see section 605.
CPI, for chapter 3, part 6, see section 325.
CPI indexed, for chapter 3, part 6, see section 325.
Death
S3.3 This definition accords with the definition of “deceased person” below.1
Debts
debts include funeral, testamentary and administration expenses, and other liabilities payable out of the estate of a deceased person.
S3.4 Debts have been defined to include funeral, testamentary and administration expenses and other liabilities payable out of the estate for the purposes of cl 501 and cl 511, so as to make it clear that:
· an estate must be administered as a solvent estate if it is able to pay its expenses, debts, and liabilities; and
· an estate must be administered as an insolvent estate if it is unable to pay its expenses, debts and liabilities in full.2
Deceased person
S3.5 This expanded definition of “deceased person” is necessary because the Court’s jurisdiction, which is established by cl 301(1), is in relation to the estate of “any deceased person”. Without this expanded definition, a grant in relation to a person whose death was inferred or presumed and was subsequently found to be alive at the time of the grant would be a nullity.3
S3.6 The provisions relating to the Court inferring or presuming that a person has died are contained in Chapter 3 part 1 division 2.4
S3.7 This expanded definition renders unnecessary provisions such as those in s 40A(1) of the Probate and Administration Act 1898 (NSW) which empowers the Court to make a grant where it is satisfied that a person is dead either “by direct evidence or on presumption of death”. The National Committee was of the view that an advantage of the expanded definition is that, in relation to an inference or presumption of death, “it is clear that... the court’s jurisdiction is as extensive as it is in relation to any other deceased person”.5
deceased personal representative, for chapter 3, part 8, see section 337.
dispose, of property, for chapter 3, part 13, see section 367.
disposition, in relation to a will, includes—
(a) any gift of property under the will; and
(b) the creation by the will of a power of appointment affecting property; and
(c) the exercise by the will of a power of appointment affecting property.
Domestic partnership
domestic partnership means a relationship (other than marriage) between the deceased person and another person—
(a) that is a [de facto relationship/domestic partnership/civil union] within the meaning of the [insert the name of the local legislation dealing with the recognition of de facto relationships]; and
(b) that—
(i) has been in existence for a continuous period of at least 2 years; or
(ii) has resulted in the birth of a child; or
(iii) is registered under the [insert the name of the local legislation dealing with registration of de facto relationships; or if there is no such legislation, omit this subparagraph].
S3.8 This operates together with the definition of “spouse”.6 Both definitions are necessary as the term “spouse” is used in the order of priority for applications for letters of administration on intestacy in schedule 2.
S3.9 The two definitions are consistent with the National Committee’s recommendations in the Report on intestacy.7 However, this definition has been altered in the NSW provision giving effect to the National Committee’s recommendation.8
election to administer means an election to administer filed in the Supreme Court under section 327 or 331.
Drafter’s note: Consequential amendments may be needed to other legislation that presently provides for an election to administer. See, in Qld, the Public Trustee Act 1978 and the Trustee Companies Act 1968.
encumbered property, for chapter 5, part 2, division 4, see section 505.
estate, of a deceased person—
(a) includes, generally, a part of the deceased person’s estate; and
(b) for chapter 4, part 6—see section 413; and
(c) for chapter 4, part 7—see section 417; and
(d) for chapter 4, part 8—see section 423; and
(e) for chapter 4, part 9—see section 427; and
(f) for chapter 4, part 10—see section 430.
executor by representation includes a person who is an executor by representation as provided under section 338(1).
executor or administrator by representation means an executor by representation or an administrator by representation.
Foreign grant of representation
foreign grant of representation means—
(a) if a single grant of probate or letters of administration has effect in an interstate jurisdiction, or in an overseas jurisdiction prescribed under a regulation—the grant of probate or letters of administration; or
(b) if more than 1 grant of probate has been made in the same interstate jurisdiction, or in the same overseas jurisdiction prescribed under a regulation, and the grants have concurrent effect in that jurisdiction—all of the grants; or
Example for paragraph (b)—
a grant of probate and a grant of double probate
(c) without limiting paragraph (a), an instrument (other than an instrument mentioned in paragraph (d)) made in a foreign jurisdiction and having, within that jurisdiction—
(i) the effect of appointing or authorising a person to collect and administer any part of the estate of a deceased person; and
(ii) an effect equivalent to that given, under a law of this jurisdiction, to a grant of probate or letters of administration in this jurisdiction; or
(d) an interstate election to administer, or an overseas election to administer, certified under the seal of the court in which it is filed by, or under the authority of, the court as a correct copy of the election to administer filed in the court; or
(e) an exemplification of an instrument mentioned in paragraph (a) or (c); or
(f) an exemplification, as required under the rules of court, of an instrument mentioned in paragraph (b); or
(g) other formal evidence, as required under the rules of court, of an instrument mentioned in paragraph (a), (b) or (c).
S3.10 This definition is necessary for the operation of cl 353 and the other provisions in Chapter 3 part 11 relating to the resealing of foreign grants of administration. It encompasses both grants made by overseas jurisdictions and grants made by other Australian jurisdictions (referred to as “interstate jurisdictions”).
S3.11 In accordance with the recommendations of the National Committee, it contains reference to grants of probate and letters of administration,9 grants of double probate (where an original grant and a subsequent grant run concurrently),10 instruments that have a similar effect to a grant of probate or administration made in the resealing jurisdiction,11 an order to administer made in favour of a public trustee or similar officer,12 an exemplification or other formal evidence of any of the previously mentioned instruments,13 and an election to administer.14 The definition of “letters of administration”, below, extends this definition to include grants of letters of administration for special, limited, or temporary purposes.15
S3.12 Paragraphs (a) and (b) include references to grants of probate or letters of administration in an overseas jurisdiction prescribed under a regulation. Paragraph (c), on the other hand, extends the potential range of foreign jurisdictions whose grants the Court may reseal beyond those prescribed under the regulation to those jurisdictions whose grants have a similar effect to a grant of probate or letters of administration made by the Court in this jurisdiction. It allows, for example, the “holder of a foreign grant of representation” in cl 358(1) to include the public trustee in whose favour an order to administer has been made,16 or a person who has filed an election to administer.17 The National Committee was of the view that the description in paragraph (c) was sufficiently broad to allow, for example, an order to administer to be resealed and that such a broad description was required because an express provision referring to an “order to administer” was undesirable in light of the different terminology used within Australia to describe such orders.18
S3.13 Paragraph (d), in conjunction with cl 353(1), gives the Court power to reseal a foreign election to administer that has been filed in a foreign court.19
S3.14 The National Committee has recommended this dual scheme, first, of recognising the grants of a court in a prescribed country in order to achieve the degree of certainty that a prescribed list can provide and, secondly, of recognising the grants of other countries that have a similar effect to a grant of representation here in order to achieve necessary flexibility, especially when prescribed lists become out of date.20
S3.15 Currently, in NSW, the courts of “competent jurisdiction” whose grants may be resealed are identified as those in “any portion of Her Majesty’s dominions”.21 The National Committee has noted that this would include those “independent members of the Commonwealth of Nations that still recognise the Queen as Head of State” but would not include any member of the Commonwealth that either has its own sovereign or has become a republic.22 The National Committee considered that this arrangement was not satisfactory because a country’s change in status from a monarchy to a republic, where there has been no change to the legal system relating to the administration of deceased estates, may not involve “any change to its legal system that would affect the desirability or otherwise of resealing grants made in that country”.23
S3.16 Paragraphs (e), (f) and (g) render unnecessary any reference to exemplification in the definition of “letters of administration”.24
Grant of representation
S3.17 This definition is based on the definition of “grant” in s 5 of the Succession Act 1981 (Qld).25 Sub-paragraphs (iii) and (iv) of paragraph (a) are intended to make it clear that orders to administer26 and elections to administer, unless otherwise stated, have the “same effect” and are “subject to the same provisions” as a grant of probate or letters of administration.27
S3.18 The specific exceptions to the general definition in paragraph (a) are noted in paragraph (b)28 and paragraph (c).29
Holder
holder, of a grant of representation or a foreign grant of representation of a deceased person’s estate, means—
(a) for a grant of representation—the person to whom the grant of representation is made; or
(b) for a foreign grant of representation—the person appointed or authorised to collect and administer, under a law of a foreign jurisdiction, any part of the deceased’s estate in the foreign jurisdiction in which the foreign grant of representation was made.
S3.19 The definition of “holder” extends, in relation to a foreign grant of administration, to a person appointed or authorised to collect and administer any part of the deceased’s estate in the foreign jurisdiction. This allows, for example, the “holder of a foreign grant of representation” in cl 358(1) to include the public trustee in whose favour an order to administer has been made30 and a person who has filed an election to administer in relation to the estate.31
interstate election to administer, a deceased person’s estate, means an instrument filed in a court of an interstate jurisdiction that, on being filed, is of the same general effect in the interstate jurisdiction as an election to administer filed in this jurisdiction.
Interstate grant of representation
interstate grant of representation means—
(a) a grant of probate made by a court in an interstate jurisdiction; or
(b) a grant of letters of administration made by a court in an interstate jurisdiction; or
(c) another instrument, other than an interstate election to administer, made by a court in an interstate jurisdiction that is of the same general effect in that jurisdiction as [an order to administer] in this jurisdiction.
S3.20 This definition is necessary to modify the definition of “grant of representation” for the purposes of the automatic recognition scheme under cl 335.32
Interstate jurisdiction
interstate jurisdiction means a State [or Territory], other than this jurisdiction.
S3.21 This definition is necessary to the definitions of “foreign grant of representation” and “interstate grant of representation”.
Intestate
intestate, in relation to a deceased person, means without leaving a will, or leaving a will that does not effectively dispose of the whole or part of the deceased’s estate.
S3.22 This definition is based on the definition of “intestate” in s 5 of the Succession Act 1981 (Qld) and is consistent with cl 5 of the National Committee’s model Intestacy Bill.33 It may not be necessary in light of s 102 of the Succession Act 2006 (NSW).
Issue
S3.23 This definition may be unnecessary in light of s 3(2) of the Succession Act 2006 (NSW)34 which makes the same provision as this definition with respect to references to children and issue.
Letters of administration
letters of administration means letters of administration with or without the will annexed, and whether made for general, special or limited purposes.
S3.24 This definition of “letters of administration” is based on the definition of “administration” in s 3 of the Probate and Administration Act 1898 (NSW) but without the reference to “exemplification of letters of administration or such other formal evidence of the letter of administration purporting to be under the seal of a Court of competent jurisdiction as is in the opinion of the Court deemed sufficient”. The latter part of the NSW definition has been omitted because it is only relevant to the resealing of foreign grants of representation, the definition of which includes adequate reference to exemplifications and other formal evidence.35
S3.25 The reference to letters of administration “whether made for general, special or limited purposes” follows the National Committee’s recommendation that it should be possible to reseal letters of administration granted for special, limited or temporary purposes.36
made, in relation to a grant of representation or a foreign grant of representation, means made, granted or issued by, or filed in, a court.
overseas election to administer, a deceased person’s estate, means an instrument filed in a court of an overseas jurisdiction that, on being filed, is of the same general effect in the overseas jurisdiction as an election to administer filed in this jurisdiction.
Overseas jurisdiction
overseas jurisdiction means a jurisdiction outside Australia, or a part of the jurisdiction.
S3.26 This definition is necessary to the definition of “foreign grant of representation”.
Pecuniary legacy
pecuniary legacy includes—
(a) an annuity; and
(b) a general legacy; and
(c) a demonstrative legacy, to the extent it is not discharged out of the specific property on which it is charged; and
(d) any other general direction by a testator for the payment of an amount, including, for example, if a legacy is directed to be paid free of all duties, the payment of any duties to which the legacy is subject.
S3.27 This definition of pecuniary legacy is required for cl 504. Like the relevant Victorian and Tasmanian provisions, it includes general legacies and demonstrative legacies.37 However, this definition follows the relevant Queensland provision in that it also includes annuities and “any other general direction by the testator for the payment of money”.38
S3.28 The National Committee noted that this definition makes it clear that “pecuniary legacy” includes a “general legacy that is not pecuniary in nature, as well as a demonstrative legacy to the extent to which it cannot be discharged out of the property on which it is charged”.39
Personal representative
personal representative—
(a) means, generally, the executor, original or by representation, of a deceased person’s will or the administrator, original or by representation, of a deceased person’s estate; and
(b) for chapter 4, part 6—see section 413; and
(c) for chapter 4, part 7—see section 417; and
(d) for chapter 4, part 8—see section 423; and
(e) for chapter 4, part 9—see section 427; and
(f) for chapter 4, part 10—see section 430.
S3.29 Paragraph (a) of this definition is derived from the definition of “personal representative” in s 5 of the Succession Act 1981 (Qld).40 It has been expanded, however, to refer to administrators by representation since these are now possible under cl 338.41
preceding calendar year, for chapter 3, part 6, see section 325.
prescribed amount, for chapter 3, part 6, see section 325.
prescribed person, for chapter 4, part 8, see section 423.
prescribed provision, for chapter 3, part 9, see section 346.
Professional administrator
professional administrator means—
(a) the [public trustee]; or
(b) a trustee company within the meaning of the [insert local equivalent of the Trustee Companies Act 1968 (Qld)]; or
(c) an Australian legal practitioner within the meaning of the [insert local equivalent of the Legal Profession Act 2007 (Qld)].
S3.30 This provision defines “professional administrator” for the purposes of the simplified procedure for small estates (elections to administer) outlined in Chapter 3 part 6.
S3.31 The National Committee has followed the lead taken by the Northern Territory in adding legal practitioners to the list of people who can act as professional administrators42 on the basis that legal practitioners have the “necessary expertise” to carry out the tasks.43
Property
property includes real and personal property and any estate or interest in the property and any thing in action and any other right.
Drafter’s note: This definition may be unnecessary in some jurisdictions. See, for example, the definition property in the Acts Interpretation Act 1954 (Qld), s 36.
S3.32 This definition ensures, amongst other things, that “encumbered property” and “property debt” in cl 505 cover both real property and personal property for the purposes of the provisions relating to payment of debts of encumbered properties.44 It may be unnecessary in NSW in light of the definition, in s 21(1) of the Interpretation Act 1987 (NSW), of property as meaning “any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description, including money, and includes things in action”.
property debt, for chapter 5, part 2, division 4, see section 505.
Public trustee
S3.33 In NSW, the Public Trustee is now known as the NSW Trustee.45
Residuary estate
residuary estate, of a deceased person, means—
S3.34 This definition is necessary for the provisions that deal with the order for the payment of debts under cl 502.46 It is based on s 55 of the Succession Act 1981 (Qld) with the addition of paragraph (b) to clarify that property that is not effectively disposed of by the deceased’s will includes, in the case of total intestacy, the whole of the estate.47
Revoke
revoke, a grant of representation of a deceased person’s estate, includes recall the grant of representation.
S3.35 This definition is necessary for cl 202(2).
Rules of court
rules of court means the [insert local equivalent of the Uniform Civil Procedure Rules 1999 (Qld)].
S3.36 In NSW, the relevant instruments are the Supreme Court Rules 1970 (NSW) and Uniform Civil Procedure Rules 2005 (NSW).
Spouse
S3.37 This definition operates together with the definition of “domestic partnership”.48 Both definitions are necessary as the term “spouse” is used in the order of priority for applications for letters of administration on intestacy in Schedule 2.
S3.38 The two definitions are consistent with the National Committee’s recommendations in the Report on intestacy.49 However, this definition has been altered in the NSW provision giving effect to the National Committee’s recommendation.50
substitute decision-maker, for chapter 3, part 9, see section 346.
this jurisdiction means [Queensland].
vests, in a person, means devolves to and vests in the person.
will includes a codicil and any other testamentary disposition.
FOOTNOTES
1. See para S3.5-S3.7.
2. 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”) [16.69].
3. QLRC, Report 65 [24.4], [24.52].
4. Clauses 308-311.
5. QLRC, Report 65 [24.56].
6. See para 3.37-3.38.
7. New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy, Report 116 (2007) (“NSWLRC, Report 116”) [2.2]-[2.18], draft Intestacy Bill 2006 cl 7. See QLRC, Report 65 [5.59].
8. Succession Act 2006 (NSW) proposed s 104 and s 105 as inserted by Succession Amendment (Intestacy) Act 2009 (NSW) sch 1[4].
9. QLRC, Report 65 [31.3].
10. QLRC, Report 65 [31.4].
11. QLRC, Report 65 [31.38]. This is consistent with the approach adopted by the Commonwealth Secretariat Draft Model Bill cl 2(1). This category, as currently formulated, eliminates the need to make express reference to a Scottish confirmation: QLRC, Report 65 [31.39].
12. QLRC, Report 65 [31.59]-[31.61]. In NSW, orders to administer in favour of the NSW Trustee are governed by NSW Trustee and Guardian Act 2009 (NSW) s 25.
13. QLRC, Report 65 [31.65]-[31.67].
14. QLRC, Report 65 [31.85]-[31.87].
15. See para S3.24.
16. QLRC, Report 65 [33.57].
17. QLRC, Report 65 [33.58].
18. QLRC, Report 65 [31.59]-[31.61].
19. See para 3.232-2.234.
20. QLRC, Report 65 [32.45]-[32.48].
21. Probate and Administration Act 1898 (NSW) s 107(1).
22. QLRC, Report 65 [32.10]. See also QLRC, Uniform Succession Laws: Recognition of Interstate and Foreign Grants of Probate and Letters of Administration, Discussion Paper, WP 55 (2001) 150.
23. QLRC, Report 65 [32.11].
24. See para S3.24.
25. QLRC, Report 65 [4.336].
26. 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.
27. QLRC, Report 65 [4.337].
28. Excluding elections to administer: see para 3.30.
29. Excluding orders to administer, elections to administer and grants to an administrator solely because he or she is a creditor of the deceased’s estate: see para 3.158-3.159.
30. QLRC, Report 65 [33.57]. 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.
31. QLRC, Report 65 [33.58].
32. See para 3.136.
33. See NSWLRC, Report 116 [15.6], 260.
34. As amended by Succession Amendment (Intestacy) Act 2009 (NSW) sch 1[3].
35. QLRC, Report 65 [4.312]-[4.315].
36. QLRC, Report 65 [31.14].
37. Administration and Probate Act 1935 (Tas) s 3(1); Administration and Probate Act 1958 (Vic) s 5(1), both of which were based on Administration of Estates Act 1925 (Eng) s 55(1)(ix).
38. Succession Act 1981 (Qld) s 5.
39. QLRC, Report 65 [18.71].
40. QLRC, Report 65 [4.326].
41. QLRC, Report 65 [4.327].
42. See Administration and Probate Act (NT) s 6(1).
43. QLRC, Report 65 [29.38]-[29.39].
44. QLRC, Report 65 [17.184].
45. NSW Trustee and Guardian Act 2009 (NSW).
46. See para 5.14-5.16.
47. QLRC, Report 65 [17.52]-[17.56].
48. See para S3.8-S3.9.
49. NSWLRC, Report 116 [2.2]-[2.18], draft Intestacy Bill 2006 cl 7. See QLRC, Report 65 [5.59].
50. Succession Act 2006 (NSW) proposed s 104 and s 105 as inserted by Succession Amendment (Intestacy) Act 2009 (NSW) sch 1[4].
