Drummond v Registrar of Probates (SA)

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of South Australia. The appellant, George Henry Drummond, sought to have an exemplification of the probate of the will of George Wyndham sealed with the seal of the Supreme Court of South Australia. Probate of Wyndham's will had originally been granted in England to his executor, Percy Lyulph Wyndham. Upon Percy Lyulph Wyndham's death, probate of his will was granted in England to Drummond, who was one of his executors. The dispute arose when the Registrar of Probates refused to seal the probate of Wyndham's will in South Australia, a decision upheld by the majority of the Supreme Court.

The central legal issue before the High Court was whether George Henry Drummond, as the executor of the deceased executor (Percy Lyulph Wyndham), was entitled as of right under section 26(1) of the Administration and Probate Act 1891 (S.A.) to have the probate of the original testator, George Wyndham, sealed with the seal of the Supreme Court of South Australia. This involved determining whether the chain of executorship was maintained and if the provisions of the Act and relevant rules permitted such an application by an executor of a deceased executor whose own probate had been sealed in South Australia.

The High Court, allowing the appeal, reasoned that the principle established in legal texts, such as Tristram & Coote's Probate Practice, dictates that an executor who has taken probate of their testator's will becomes, ipso facto, the executor of any testator of whom the first testator was the sole or surviving executor. The Court found no break in this chain of executorship in the present case, particularly as the probate of the deceased executor, Percy Lyulph Wyndham, had been sealed in South Australia. Furthermore, the Court held that the word "shall" in section 26(1) of the Act, when read in conjunction with section 34 of the Acts Interpretation Act 1915 (S.A.), imposed a mandatory obligation on the Registrar to seal the probate. The Court distinguished the present case from *In the Goods of Gaynor*, noting that here the applicant was seeking to complete an action that the original executor had failed to undertake.

Consequently, the High Court ordered that the appeal be allowed, the decision of the Supreme Court of South Australia be discharged, and the Registrar of Probates be directed to reseal the probate of George Wyndham's will.