Administration Act (WA) 1903 - Part I
The legislation provides the Court with discretionary powers for a non-resident executor to replaced (S.34), passed over or disregarded (S.36, S.37), or removed (S.38).
So why does it matter if you happen to reside overseas, or even interstate? If the person that has passed has named you in their will as the executor to their estate, surely as you've been appointed it doesn't matter where you live when they pass?
You'd think that would be the case and you would also think that it'll be fine, you can sort the estate's affairs from a far. You'll sure to be back in Perth for the funeral, so you can file for grant of probate whist you are there and if needed, you can probably call on a friend to arrange anything that needs to be tended to in person when you're back home.
Whilst all of these are logical thoughts and may hold true in practice, it's not what the legislation had in mind when it was enacted in 1903. The convivences of affordable and accessible air travel and the advancements in communications and technology that we have today weren't considered then and they haven't been properly considered in the legislation's most recent review and revisions.
So what does the law say?
There a several provisions within the antiquated act, some of which even predate the 1903 bill itself, having been carried over from much older statutes that had been assented into English Law by King Charles II.
Not the current King Charles, but the one named after his father, King Charles I who caused the first civil war in England. He was first crowned as King Charles II of Scotland in 1649 leading to the Anglo-Scottish war. Which happened included several famous battles up and down the English countryside and involved some very famous names from that period of history, before he fled to France (as one does). Only to return several years later to take up the thrown as King Charles II of England, Scotland and Ireland in 1660, known as the Restoration period. I mention this detail as it was a significant period of social reform and change in British history from which a number of acts were passed. Many of those have somehow managed to be preserved almost untouched within Western Australia's legislation. From land titles to administration bonds, the very basis of the laws in place today have their roots firmly sewen in the past.
In case of a war ...
34. Where person entitled to probate or administration is out of the jurisdiction
When an executor or any person entitled to probate or administration is out of the jurisdiction or is a member of the naval, military, or air forces of Her Majesty the Queen (including a member of any medical corps nursing service attached to any of the forces aforesaid) who is within the jurisdiction, but has some person within the jurisdiction appointed under power of attorney to act for him, administration may be granted to such attorney, but on behalf of the person entitled thereto, and on such terms and conditions as the Court thinks fit.
[Section 34 amended: No. 21 of 1942 s. 2.]
Section 34 of the Administration Act (1903) WA, ('the Act') which was last amended in 1942. You can clearly imagine what Parliament had on their minds at the time they sought to amend the law to make clear that anyone that found themselves overseas fighting in a World War of sorts, could appoint an agent at home to take on their responsibilities as an executor by granting them power of attorney before going off to battle and being in need of an executor themselves.
The provision is not limited to those who find themselves under Her/His/Their Majesty's orders (the law clearly also predates woke use if pronouns), but also applies to anyone who is named in a will or would otherwise be granted administration to manage a deceased's estate.
So that's great, no problems there. Just need to formalise the arrangement with that friend I had in mind, and they'll be fine to just pick up a couple of things for me. Whilst that may be the case, there are further implications worth considering. First of all, this provision grants the Court full discretionary powers over whether or not they recognise your appointed attorney and what they are permitted to do on your behalf. There are other provisions in the Act that give preference to your appointed attorney being a practicing lawyer rather than just your friend.
There are also further considerations that comes with the appointment of an attorney, the key consideration is that you are effectively handing over your role as executor to your friend and asking them to act your behalf for all matters related to the estate. The court will not grant you probate but rather grant your attorney probate.
From my perspective, it's not that I don't trust my friend, nor do I think that it would be asking too much of my friend to do everything for me, albeit reluctantly. It's the fact that if there is something that I can do or need to do myself, such as call up the bank or tell an agent to accept an offer. Legally, I will not be able to as my friend would have been granted probate, not I.
Evidence of the Act's evolution is clear when it revisits the provisions under Section 36 much later in the text, and tries to further clarify and elaborates in Section 141:
141. Court may appoint attorney for absent executor
[(1) deleted]
(2) Where any such executor or administrator is a member of Her Majesty’s naval, military, or air force (including a member of any medical corps nursing service attached to any of the forces aforesaid) and is a prisoner of war or posted as missing or otherwise is unable or able only with great difficulty to appoint an attorney, the Court may on the application of a co executor or a beneficiary or a creditor or any of the persons to whom the Table following section 14(1) would refer if there was an intestacy as to all or any of the property in the estate appoint such co executor or some other person resident in this State to have and exercise all or such of the powers, duties, and discretions of such first mentioned executor or administrator and for such period or periods as the Court shall deem proper.
[Section 141 amended: No. 21 of 1942 s. 4; No. 80 of 1962 s. 8; No. 57 of 1984 s. 6.]
I am unsure however which "such executor or administrator" is being referred, as subsection 1 has been deleted and no-one thought to amend subsection 2 as a result to make clear which such the provision is intended for. Presumably the absent one referred to in Section 36.
Unwilling, incompetent or otherwise non-existent...
OK, so we know that there is a backstop and that is to hire a local solicitor or a trusted but an unemployed friend with no family or other commitments of their own. Not a problem. The next provision is where the legislation reveals its true nature and intents.
36. Administration with will annexed
Where a person dies leaving a will but without having appointed an executor, or leaving a will and having appointed an executor who is not willing and competent to take probate or is resident out of Western Australia, the Court may appoint an administrator of the estate of the deceased, or of any part thereof, and such administration may be limited as the Court thinks fit.
[Section 36 amended: No. 138 of 1976 s. 10.]
This is a sweeping catch-all provision that grants the Court the power to appoint anyone with deceased's will with full control and legal authority to administer the estate. It doesn't specify how that person obtained the will, just that the Court can appoint letters of administration with the will attached. You could for example apply for probate as an appointed executor, dutifully attached the will as required by the probate application process. Only to find that the Court has determined that you live in Singapore and therefore are not a resident of WA so they instead hand it over to the Public Trustee to administer.
The discriminatory aspect to this provision is its wording, it categorises and therefore treats a person that does not live in the state, the same way in which would regard a person that is unwilling or incompetent. And goes further to consider you as if you had never been appointed in the will. This is the provision where I take most offence, not only am being classified in the same way as someone who doesn't want to accept the responsibility, or someone that is not competent - which in itself is subjective and therefore the Court generally needs a grounds such the person being a convicted criminal serving time before they consider someone to be incompetent. But the law is also prescribing that I'm as good as being non-existent or my mother never appointed me to be the estate's executor.
One provision that you can prevent being victim of ...
37. Probate or administration if executor etc. absent or neglects to obtain probate etc.
Where an executor neglects to obtain or to renounce probate within 2 months from the death of the testator or from the time of such executor attaining the age of 18 years, or where an executor is unknown or cannot be found, the Court may, upon the application of any person interested in the estate, or of any creditor of the testator, grant administration with the will annexed to the applicant, and such administration may be limited as the Court thinks fit.
[Section 37 amended: No. 46 of 1972 s. 6(2).]
There's a theme beginning to form and in Section 37 of the Act, you will be considered as being negligent of your duties if you don't file for probate within 2 months of the person's passing. In this scenario, the Court has the power to again grant letters of administration and therefore the legal authority to administer the estate to anyone with the attached to them.
I'm unsure if the person drafting this provision actually means that the person applying for administration has to have the will pinned to them as the applicant. Or if it is sufficient for the applicant to attach the will, otherwise referred to as an annexure, to their application and although they are not originally named as an executor, they will administer the estate according to the provisions of the will. Or did I read that incorrectly?
In my case, and given the prejudice throughout the legislation, I was determined to make sure that I did not fall foul of this provision. I would not have much of a case if my own inaction to file for grant of probate within two months were a factor in Court denying me probate and therefore the legal ability to fulfil my duties appointed under the will.
38. Special letters of administration if executor or administrator not within jurisdiction
(1) If, at the expiration of 6 months from the death of any person, the executor to whom probate has been granted, or the administrator, is residing, out of the jurisdiction, the Court may upon the application of any creditor or person interested in the estate, grant to the applicant special letters of administration of the estate of such deceased person, with limited or unlimited powers.
(2) The applicant shall satisfy the Court that the executor or administrator is resident out of the jurisdiction, and that the applicant is thereby delayed in recovering or obtaining payment of moneys, or the possession of goods and chattels, or real estate to which he is by law entitled, or that the estate is liable to loss or waste.
The legal drafting of this section and its subsections leaves much to be desired. To rephrase it in a more meaningful and digestible way: "If a person passes away, and six months have elapsed since their death, a situation may arise where the appointed executor or administrator is living outside the jurisdiction where the estate is being managed. In such cases, any creditor of the deceased, or any individual with a valid interest in the deceased's estate, can apply to the Court. Upon receiving this application, the Court has the authority to issue special letters of administration to the applicant. These special letters would grant the applicant the authority to manage the estate of the deceased, either with limited or full powers, depending on the Court's discretion."
So basically, the first part of the provision allows the Court to take away your authority to administer estate if someone finds out that you are not living in the state. If for example you had the time to wait 14 days before applying for probate, and you yourself were unemployed with other commitments and were also able to remain in Perth, waiting around and doing nothing for the 4-8 weeks takes for the Court to grant you probate, if you'd might want to think if it is actually safe for you to then return home to manage the estate remotely.
The second part of this provision whilst oddly prescript also doesn't do much for itself in terms of clarity: "The applicant must provide evidence to the Court confirming two things: First, that the executor or administrator of the estate currently lives outside the jurisdiction. Second, this absence is causing a delay for the applicant in either recovering or receiving payment of money, or in gaining possession of personal or real property that they are legally entitled to. Additionally, the applicant should demonstrate that due to this situation, the estate is at risk of either being lost or wasted."
Now, having rephrased it, I think I prefer the original version for its lack of clarity was somewhat less direct and therefore less relatable or relevant. I particularly like the original phrase of "loss or waste" as it for some unknown reason I imagine a vast farm with sheep and crops perishing in the harsh Western Australian climate.
39. On return of executor or administrator, special administration may be revoked
(1) On the return within the jurisdiction of the executor to whom probate has originally been granted, or the administrator, he may apply to the Court to rescind such special grant; and the Court may make such order upon such terms and conditions as to the Court may seem fit, and thereafter the original probate or administration shall be and remain as valid and effectual as if such special grant had never been made.
(2) Upon any order being made for the rescission of any special grant, the special administrator shall be bound to account to the original executor or administrator, and to pay over all moneys received by him and then remaining in his hands.
Section 39 and its provisions celebrate the return of the rightful executor, allowing them to once again make an application to the Court, this time applying for the Court to revoke and take away the authority that it gave to someone else whilst you were in Dubai, drinking bottomless cocktails at brunch at Al Qasr. It also required that your stand in must provide you with a full handover and account of everything that they've done and are obliged to provide you with all remaining assets back to you as the rightful administrator.
As you have returned and the state now firmly has its grip on you, the Court revoke the grant and authority it gave to someone else whilst you were away and pretend that it never happened.
40. Absent executor liable to account
Should an executor or administrator neglect to apply for an order for the rescission of any special grant as aforesaid, he shall, until such special grant is rescinded, be liable to make good all claims and demands against the estate of the deceased to the extent of the assets which have come to his hands, or which might have come to his hands but for his wilful neglect or default, including the neglect herein mentioned.
It clearly wasn't enough for the legislators to allow the out-of-town executor to be forgiven so quickly for leaving the state. This section refers to a situation where the original executor or administrator, upon returning or becoming able to resume their duties, neglects or fails to apply to the court for the rescission (cancellation) of the special grant that was given to a temporary administrator during their absence.
In such cases, the original executor or administrator is held liable for the following:
a) Making good on claims and demands, being responsible for satisfying all claims and demands, meaning they must fulfil any outstanding debts or obligations of the estate.
b) Their liability is limited to the extent of the assets that have come into their hands or that would have come into their hands if not for their wilful neglect or default. This includes not just actual assets received but also those that could have been received if they had acted appropriately.
c) Specifically, this liability includes their failure to apply for the rescission of the special grant. Their inaction in this regard is treated as a form of neglect, for which they are held accountable.
The provision essentially ensures that the original executor or administrator remains responsible for the estate, even if they fail to resume their duties promptly upon being able to do so. It aims to protect the interests of the estate and its beneficiaries by holding the original executor or administrator accountable for their actions, or lack thereof, in managing the estate's assets and obligations.
If we take these provisions as they are written and take onboard the advice of my former but brief solicitors, when considering the powers and authority granted to the Court for each:
Section 34. Where person entitled to probate or administration is out of the jurisdiction: While this section allows for an attorney to act on behalf of an absent executor or administrator, a court favouring residents might more readily grant administration to a local attorney, effectively sidelining the non-resident executor or administrator.
Section 36 (Administration with will annexed): In a context of bias against non-residents, this section could be applied in a way that more readily appoints a local administrator in cases where an executor resides outside the jurisdiction, even if the non-resident executor is willing and competent.
Section 37 (Probate or administration if executor etc. absent or neglects to obtain probate etc.): A court with a preference for residents might use this provision to quickly move towards granting administration to a resident applicant, especially if a non-resident executor is perceived as neglectful due to their absence or delayed response.
Section 38 (Special letters of administration if executor or administrator not within jurisdiction): In a scenario where the court is inclined to favour residents, this section could be used to more readily grant special letters of administration to a resident applicant after the six-month absence of a non-resident executor or administrator.
How has the legislation evolved?
Having read numerous versions and the provisions that have since been reformed, repealed or rephrased there have been some notable amendments and we can be thankful that the legislation no-longer prescribes that a non-resident should be treated just as they would consider "any person who has died".
Section 32 was updated just after World War II and was extended to specifically clarify that it also applies to military personnel and covers scenarios where an executor or administrator might be unable to fulfil their duties due to military service, even if they are technically within the jurisdiction.
Section 36, which was originally 34 in the 1903 version, has since been amended to remove the specific mention that the appointed administrator must give security "as aforesaid," implying that there are previously stated conditions regarding the security that must be provided.
The other provisions that I've covered here have had little amendments to them since their original inclusion.
It's up to the Court to decide ...
In essence, if you don't live in Western Australia the Court has the power to:
- Pretend that you don't exist or were never named or appointed as an executor.
- Consider you and treat you in the same way as someone who is unwilling, incompetent or negligent.
- Can take away any grant of probate or letters of administration and award them to someone else in the event of you later being discovered as residing out of state.
- Force you to take liability for anything that takes place whilst out of the state, and make sure that you resume your duties if you return.
I've had to take a defensive position when putting together my case and application to the Court for the removal of a caveat, as the Caveator's solicitors have made a point of highlighting my UK residence. The mere fact that they made a point of it, without feeling the need to provide an explanation as to why they keep drawing attention to the fact would lead me to believe that the anecdotes and cautionary advice that the Court generally favours a resident, appointed or otherwise over a non-resident.
We shall see the outcome hopefully sooner than later.
In a future post, I'll cover the other provisions contained in the Act specifically relevant to non-resident executors, whether appointed or otherwise. I will also cover the Non-contentious Probate Rules 1967.
Full disclaimer applies - I'm not a lawyer and nor do I have any prior experience in these matters. However, I offer an interpretation of the current laws based on my own review and anecdotal information and views that I have received from friends, former solicitors and other articles I have read. As always, I would recommend that you read the legislation for yourself before forming an opinion or taking any action, and if you feel it necessary, perhaps seek legal advice.
