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Uniform Succession Laws: Recognition of Interstate and Foreign Grants of Probate and Letters of Administration

NCJ Number
Date Published
December 2001
232 pages
This discussion paper addresses the recognition by one Australian jurisdiction of grants of probate and letters of administration issued in other Australian jurisdictions or overseas.
To overcome the need for an executor or administrator to obtain a fresh grant of probate or letters of administration in every jurisdiction in which the deceased left assets, each Australian State and Territory has introduced provisions under which a grant made elsewhere can be "resealed" in the jurisdiction in question. Resealing, i.e., certification by a competent probate authority, is simpler than obtaining an original grant, because it does not involve the investigation of the title of the grantee. Chapter 2 of this paper outlines the current Australian system of resealing. This is followed by a chapter that examines some possible alternatives to resealing, and Chapter 4 proposes for discussion a scheme of automatic recognition based largely on the recommendations of the Western Australia Law Reform Commission (WALRC), under which a grant made by the Australian jurisdiction in which the deceased died domiciled would be automatically recognized throughout Australia. Even if the scheme outlined in Chapter 4 were ultimately implemented, however, some Australian grants, and all grants from overseas, would still require resealing. Chapter 5 presents provisional proposals for a uniform resealing procedure. Chapter 6 outlines proposals for a uniform approach to the issue of the countries whose grants should be able to be resealed. Chapter 7 discusses proposals for uniform rules on jurisdiction, endorsing proposals made in the paper on the administration of estates. It also discusses the effect on these rules of a scheme of automatic recognition. Chapter 8 examines proposals for the reform of the choice of law rules dealing with the appointment of personal representatives, and it also considers the effect on these rules of a scheme of automatic recognition. Chapter 9 addresses the existing statutory restrictions that apply in some Australian jurisdictions if the grant that is sought to be resealed has issued from a jurisdiction in which the deceased was not domiciled immediately prior to his/her death. The final chapter discusses the effect of a scheme of automatic recognition on the other areas of succession law that have been examined or are being examined by the National Committee, i.e., wills, family provision, the administration of estates, and intestacy. Appended supplementary information, glossary, and Commonwealth Secretariat Draft Model Bill


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