9.1 This chapter considers the law that applies where an application is made for the resealing of an original grant that has not been made in the jurisdiction in which the deceased died domiciled.
MOVABLE PROPERTY
9.2 Where the estate in the resealing jurisdiction consists entirely of movables, the resealing court of an Australian jurisdiction, other than Tasmania, will still endeavour to follow the grant that would have been made in the domicile even though the grant was not made in the jurisdiction in which the deceased died domiciled.
IMMOVABLE PROPERTY
9.3 In a case where the estate in the resealing jurisdiction consists of or includes immovables, Australian courts do not follow the grant made in the deceased’s domicile, but decide for themselves whether or not to reseal the grant.1
RESTRICTIONS ON RESEALING
Tasmania
9.4 The probate rules in Tasmania provide for a special restriction on resealing if the deceased did not die domiciled within the jurisdiction of the court that issued the grant, namely:
the seal shall not be affixed unless the grant is such as would have been made by the Supreme Court of this State.2
Where the estate in the resealing jurisdiction consists entirely of movables, the adoption of such a rule by the other Australian jurisdictions would restrict the range of grants that could be resealed, compared with the present law.
South Australia
9.5 The probate rules in South Australia, unlike the Tasmanian rule, do not expressly restrict resealing to those cases where the grant is one that would have been made by the Supreme Court of South Australia:
If the deceased was not at the date of death domiciled within the jurisdiction of the Court from which the grant issued, the seal shall not be affixed except by order of the Registrar.3
Commonwealth Secretariat draft model bill
9.6 Clause 5(3) of the Commonwealth Secretariat draft model bill is expressed to apply in the same circumstances as the Tasmanian rule, namely, where an application is made for the resealing of a grant that has issued from the court of a jurisdiction in which the deceased did not die domiciled. However, whereas the Tasmanian rule permits the resealing of the grant only where it is one that “would have been made” by the Supreme Court of Tasmania, clause 5(3) of the Commonwealth Secretariat draft model bill provides that the grant can not be resealed unless the grant is one that the resealing court “would have had jurisdiction to make”.
9.7 Although clause 5(3) is not as restrictive in its operation as the Tasmanian rule, its adoption in other Australian jurisdictions still has the potential to limit the range of grants that can be resealed.
PRELIMINARY VIEW
9.8 The Tasmanian provision should not be adopted in the model legislation.4 The South Australian provision is preferred.5 It does not expressly preclude the recognition of particular foreign grants, but simply adds an extra mechanism for ensuring that proper consideration is given to the matter. However, it is debatable whether such a provision is necessary, since the court has an overriding discretion not to reseal a grant.
Footnotes
1. Lewis v Balshaw (1935) 54 CLR 188.
2. Probate Rules 1936 (Tas) r 50.
3. The Probate Rules 1998 (SA) r 50.06.
4. See also WALRC Report (1984) at para 9.51, 9.52 and recommendation 36.
5. See Report of the Conference of Probate Registrars (1990) at 23.
