IN THE ESTATE OF LIU (DECEASED)

Case •

[2023] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction)

IN THE ESTATE OF LIU (DECEASED)

[2023] SASC 32

Judgment of the Honourable Justice Stanley  

10 March 2023

SUCCESSION - ADMINISTRATION OF ESTATE - ASSETS - OTHER CASES

SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES

This is an application by the administrator of the deceased’s estate seeking advice and direction pursuant to s 69 of the Administration and Probate Act 1919 (SA). The applicant is the administrator of her late husband’s intestate estate. The third and fourth respondents are the children of the applicant and the deceased.

The applicant seeks advice as to whether, on the proper construction of s 65 of the Act, and subject to any order made under s 67 of the Act, she must deliver, transfer or convey to the Public Trustee any property of the deceased belonging to the third and fourth respondents that she is or may become possessed of or entitled to in her capacity as administrator of the deceased’s estate pursuant to the grant of this court; her capacity as administrator pursuant to a foreign grant; or any other capacity. At the date of the deceased’s death, he had immovable and movable assets within Australia, the People’s Republic of China, and Hong Kong.

The issue for determination is the proper construction of the phrase ‘possessed of or entitled to any property within this State, whether personal or real belonging to any person’ in s 65 of the Act. The primary focus of the dispute between the parties is the timing and circumstances when the obligation to deliver, convey or transfer property to the Public Trustee arises and the nature and extent of the obligation, if any, of an administrator to collect assets of a deceased estate which are outside the jurisdiction and to bring those assets within the jurisdiction.

Held:

1.      The applicant in her capacity as administrator of the deceased’s estate is advised and directed that, subject to any order made under s 67, she must deliver, transfer or convey to the Public Trustee any property of the deceased belonging to the third and fourth respondents that is or comes within South Australia, and that she is or may become possessed of or entitled to pursuant to the grant of letters of administration of this Court.

Administration and Probate Act 1891 (SA) s 82; Administration and Probate Act 1919 (SA) ss 65, 67, 69, 72C(1), 72F, 72G, 72H(1); Administration and Probate Act 1935 (Tas) s 36; Administration and Probate Act 1958 (Vic) s 41; Administration and Probate (Amendment) Act 1960 (SA) s 9; Administration of Estates Act 1925 (UK) s 36; Succession Act 1981 (Qld) s 49(1), referred to.
Blackwood v The Queen (1882) 8 App Cas 82; Bryen v Reus (1960) 61 SR (NSW) 396; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; In the Estate of Lang [2022] SASC 112; In the Estate of Hongtao Liu [2020] SASC 143; In the Estate of Karl Alois Richter (Deceased) [2011] SASC 124; In the Estate of Raymond Charles Estall (Deceased) [2011] SASC 188; In the Estate of William Just (Deceased) (No. 2) (1974) 7 SASR 515; Kemp v Commissioners of Inland Revenue [1905] 1 KB 581; Kong v Yan [2021] SASC 82; Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; Re Farrell [1930] VLR 101, considered.

IN THE ESTATE OF LIU (DECEASED)
[2023] SASC 32

Testamentary causes jurisdiction

STANLEY J:

Introduction

  1. The applicant, Xiangting Kong (the applicant), in her capacity as the administrator of the estate of Hongtao Liu (the deceased), pursuant to the grant made by this Court on 8 February 2019, seeks judicial advice pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the Act) as to whether, on the proper construction of s 65 of the Act, and subject to any order made under s 67 of the Act, she must deliver, transfer or convey to the Public Trustee any property of the deceased belonging to Jinghan Liu and Ziyi Liu (the third and fourth respondents) that she is or may become possessed of or entitled to in:

    (a)her capacity as administrator of the deceased’s estate pursuant to the grant of this Court;

    (b)her capacity as administrator pursuant to a foreign grant; or

    (c)any other capacity. 

    that is:

    (a)within the State;

    (b)outside the State; or

    (c)outside the State but which, in the capacity stated above, she subsequently brings within the State. 

  2. The advice sought arises from a question of statutory construction of s 65 of the Act.  The proper construction of that provision depends on the text, context and purpose of the provision.[1] 

    [1]     Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, 388-390; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 [39].

  3. Section 65 of the Act provides:

    65—Administrator to pay over money and deliver property to Public Trustee

    (1)Every administrator who is possessed of or entitled to any property within this State, whether personal or real, belonging to any person who—

    (a)     is not sui juris, or

    (b)     is not resident in this State, and has no duly authorised agent or attorney therein:

    shall deliver, convey, or transfer such property to the Public Trustee immediately after the expiration of one year from the date of the death of the intestate or testator, or within six months after such sooner time as the same or such portion thereof as is available for that purpose, has been sold, realised, collected, or got in.

    (2)The Public Trustee shall then administer such property according to law, and in accordance with any will affecting such property.

    (2a)The Public Trustee may, in his discretion, (but subject to the provisions of any will or instrument of trust) realise, or postpone the realisation of, any real or personal property delivered, conveyed or transferred to him under subsection (1) of this section.

    (3)This section shall not apply in any case where the administrator is a limited company incorporated or taken to be incorporated under the Corporations Act 2001 of the Commonwealth, and is acting as administrator in pursuance of any powers granted to it by any Act.

    (4)This section shall not apply to an administrator acting under any probate or administration not granted by the Supreme Court but sealed with the seal of the Supreme Court in pursuance of the provisions of section 17 of this Act.

    (5)Subject to the provisions of any will or instrument of trust, the Public Trustee may, if he is satisfied that it will be advantageous to the beneficiaries, authorise the sale of any trust property, not exceeding four thousand dollars in value, to the administrator, or to the administrator conjointly with any other person, notwithstanding that the property has not been offered for sale by public auction or otherwise.

  4. There is a dispensing power conferred by s 67 of the Act.  Section 67 provides:

    67—Judge may dispense wholly or partially with compliance with section 65

    (1)A Judge may, on being satisfied by affidavit that it is beneficial or expedient so to do, order—

    (a)     that any administrator, or proposed administrator, shall not be bound by section 65; or

    (b)     that any administrator, or proposed administrator, shall not be bound by the said section 65 until after a certain time to be mentioned in the order.

    (2)The time mentioned in any order made under subdivision (b) of subsection (1) may be extended by a subsequent order.

    (3)Any order under subsection (1) or (2) may be obtained without notice to any interested party on the application of the administrator or proposed administrator.

    (4)An order under subdivision (a) of subsection (1) may be granted notwithstanding that an order has already been made under subdivision (b) of subsection (1).

    (5)If the Court so directs, an order under this section has the effect of discharging the administrator from further responsibility in respect of the property to which the order relates.

    (6)The Public Trustee, or any person interested, may issue a summons requiring the administrator, or proposed administrator, to appear before a Judge to show cause why any order made under this section should not be set aside, and the Judge may set aside such order, or vary the same, or make such other order as seems to him best.

  5. Sections 65 and 67 of the Act are protective provisions in relation to the interests of vulnerable beneficiaries of administered estates who are not sui juris or are not resident in South Australia and have no duly authorised agent or attorney in this State.  Section 65 applies to any property within this State, whether personal or real, belonging to any person who is not sui juris or resident in the State and has no duly authorised agent or attorney in South Australia.  An administrator who is “possessed of or entitled to” any such property is required to transfer it to the Public Trustee within a specified time frame, being no longer than twelve months from the death of the deceased person, or within six months after such sooner time as the property or a portion of it is available for that purpose and has been sold, realised, collected, or got in.  The Public Trustee is then required to administer such property according to law.  

  6. Section 65 provides that the Public Trustee is the default statutory trustee of legacies due to persons who are not sui juris.  Section 67 empowers the Court to make an order dispensing with the obligation imposed by s 65 where it is beneficial and expedient to do so.[2] 

    [2]     In the Estate of Lang [2022] SASC 112 at [12].

  7. Section 65 and the dispensing power in s 67 are sui generis to South Australia. There has been limited judicial consideration of the wider application of the provisions. A near identical section was contained in the predecessor to the Act, namely, s 82 of the Administration and Probate Act 1891 (SA).[3]

    [3]     No. 537 of 54 & 55 Vic.

  8. The primary application in these proceedings is for an order pursuant to s 67 of the Act that the applicant not be bound by s 65.  It is a necessary consideration in deciding whether to make such an order to determine the value and nature of the estate of the deceased that otherwise would be transferred to the Public Trustee.

  9. In this case, there is an extensive worldwide estate valued in excess of $50 million.  There is also, for the reasons set out below, no authority or even practice as to the application of s 65 to the worldwide estate.  Prima facie, the applicant is bound by s 65 of the Act.  However, a question arises as to the extent that s 65 does apply.  The applicant submits that there will be considerable legal costs incurred by the estate in leading evidence in respect of the value, extent and nature of the worldwide estate; costs that may be wasted if, in the circumstances, s 65 has a narrower application than contended for by the third and fourth respondents.  

  10. For these reasons the applicant seeks separate judicial advice and direction as to the operation of s 65 of the Act in relation to the estate.[4] The Court ordered that this be determined as a separate preliminary point.

    [4]     By paragraph 1A of the Third Originating Application.

    Background facts

  11. The Court has previously decided various issues arising in respect of the deceased estate.[5]  In the circumstances I am satisfied:

    (a)the deceased died intestate on 9 November 2018;

    (b)as at the date of his death, the deceased had immovable assets in South Australia, movable assets located in South Australia and the other states of Australia, immovable and movable assets in the People’s Republic of China, and immovable and movable assets in Hong Kong;

    (c)the deceased was survived by the applicant, his wife, and their two minor children, the third and fourth respondents;

    (d)on 8 February 2019 this Court granted letters of administration to the applicant; and

    (e)on 23 August 2019 this Court appointed Mark Jordan as the litigation guardian for the third and fourth respondents. 

    [5]     In the Estate of Hongtao Liu [2020] SASC 143; Kong v Yan [2021] SASC 82.

    Issue for determination

  12. At issue in the circumstances of this matter, is the proper construction of the phrase “possessed of or entitled to any property within this State, whether personal or real belonging to any person” in s 65 of the Act.

  13. As at the date of the deceased’s death, the deceased’s domicile was South Australia.[6] Accordingly, as a matter of succession of the deceased’s estate, the third and fourth respondents as minor children have an entitlement to part of the intestate estate that is to be distributed in accordance with Part 3A of the Act. The property that the administrator is “possessed of or entitled to” within the State which she is required to distribute to the infant beneficiaries is the property that “belongs” to them within the meaning of the section.

    [6]     Kong v Yan [2021] SASC 82 [79], [148].

  14. The requirement that the property be “within this State” is relatively straightforward; i.e. the property must be situated within South Australia. This necessarily excludes immovables outside the jurisdiction.

  15. However, movables may be brought “within this State”, i.e. into the jurisdiction.  Furthermore, movables and immovables may be sold and converted to money, which may be brought into the jurisdiction.  It is clear from the latter part of s 65(1) that the conversion or sale of such property is not intended to be a bar to the application of the section.

  16. It is also apparent from that subsection that there is no temporal limitation.  An administrator is obligated to deliver, convey or transfer the relevant property no later than twelve months after the death of the deceased person.  It is implicit that this obligation continues after that time; if an administrator becomes entitled to or possessed of property within the State after that time, he or she is immediately obligated to take action with respect to the Public Trustee.

  17. As the argument unfolded at the hearing of the application it became clear that there was substantial agreement between the parties as to the proper construction of s 65.  The dispute focussed on the timing and circumstances when the obligation to deliver, convey or transfer property to the Public Trustee arises and the nature and extent of the obligation, if any, of an administrator to collect assets of a deceased estate which are outside the jurisdiction and to bring those assets within the jurisdiction. 

  18. The applicant submits that as a matter of construction the property to which s 65 applies has three characteristics.  First, it must be property that the administrator is in possession of or to which he or she is entitled.  Second, that property must belong to one of the categories of persons in s 65(1)(a) or (b).  Third, the property must be within the State of South Australia. 

  19. The applicant further contends that the concept of “belonging to any person” in s 65(1) has a limited meaning.  It cannot mean belonging to the prescribed categories in ss 65(1)(a) or (b) in any manner or capacity.  It must mean belonging to persons in those categories by virtue of the administration of the deceased estate i.e. property that is vested in those persons on that basis.  The applicant contends that as a result the requirement for the application of s 65 that the property belongs to such persons, does not mean any more than that the administrator is possessed of or entitled to that property.  The applicant contends that the concept of the administrator being in possession of the property has a limited meaning.  It means possessed by reason of the administrator’s legal entitlement in her capacity as administrator.  Accordingly, the question is what property is the administrator possessed of or entitled to within the State.  The applicant submits that the property is that which is in the hands of the administrator in South Australia, in her capacity as administrator, that is to be distributed in the course of the administration of the estate on the basis that it belongs to persons within the categories specified in s 65(1).  In other words, s 65 only applies to property obtained by the applicant in her capacity as administrator of the South Australian estate. 

  20. I do not accept this submission. 

    When is there property “belonging to any person” who falls within the categories specified in s 65(1)(a) or (b)?

  21. The text and the legislative history of s 65 discloses a clear legislative intention that the “property” referred to in that provision, which an administrator “is possessed of” or “entitled to”, must be within South Australia before the obligation under s 65(1) arises. 

  22. So much is apparent from the amendment to s 65 enacted by s 9 of the Administration and Probate (Amendment) Act 1960 (SA)[7] which inserted after the word “property” first occurring in s 65(1) the words “within this State”.  Section 65 in its application is limited to property that is within South Australia in the relevant sense.  That is common ground between the parties. 

    [7]     No. 24 of 1960.

  23. The obligation under s 65(1) on an administrator only arises, temporally, when the administrator is possessed of or entitled to any property within the State that belongs to any person who is not sui juris or is not resident in the State and has no duly authorised agent or attorney in South Australia.

  24. The condition that the property belongs to a person described in s 65(1)(a) or (b) is important in the operation of s 65 because it is necessary for the administrator to know when the obligation under the section arises and applies to him or her.

  25. In In the Estate of Karl Alois Richter (Deceased),[8] and subsequently in In the Estate of Raymond Charles Estall (Deceased),[9] Gray J held that s 65 contemplates the conveying of property when it belongs to a person, which must be after completion of the administration of the estate.

    [8] [2011] SASC 124 [17].

    [9] [2011] SASC 188 [10].

  26. Gray J’s analysis follows from the approach of the High Court in Official Receiver in Bankruptcy v Schultz,[10] which in turn followed the decision of the Privy Council in Commissioner of Stamp Duties (Qld) v Livingston[11] dismissing an appeal from the High Court in Livingston v Commissioner of Stamp Duties (Qld)[12] where it was held that prior to administration of a deceased estate there is no specific property capable of constituting the subject property of any trust in favour of a beneficiary.  Accordingly, at that stage it could not be said what part or parts of a testator’s estate would need to be realized for the purposes of administration.  On that basis the Court held that a beneficiary does not have a proprietary interest in each of the assets which are the subject of the devise or bequest such that he or she can say “this is mine” or “this belongs to me”.[13] 

    [10] (1990) 170 CLR 306, 312.

    [11] [1965] AC 694.

    [12] (1960) 107 CLR 411.

    [13]   Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306, 312.

  27. In Commissioner of Stamp Duties (Qld) v Livingston the Privy Council observed that it may not be possible to say exhaustively what are the trusts which equity considers arise from the executor’s office.  Equity does not recognise or create for residuary legatees a beneficial interest in the assets in the executor’s hands during the course of administration.[14]  To do so would be in plain conflict with the basic conception of equity that to impose the fetters of a trust upon property, with the resulting creation of equitable interest in the property, there has to be specific subjects identifiable as the trust fund.  An unadministered estate is incapable of satisfying this requirement.  The assets as a whole are in the hands of the executor as his or her property, and until administration is complete, no one is in a position to say what items of property will need to be realised for the purposes of that administration or what the residue, when ascertained, will consist of or what its value will be.[15]  Until an estate is fully administered, the only entitlement of the residuary legatee is a chose in action, with a right to have the estate properly administered, capable of being invoked for any purpose connected with the proper administration of the estate.[16]

    [14]   Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694, 707.

    [15] Ibid 708.

    [16] Ibid 717.

  1. In my view, the principles identified in Livingston and Schultz, while developed in the context of deceased estates being administered in accordance with a will, are equally applicable to the administration of an intestate estate under Part 3A of the Act.  This has long been held to be the case.[17]

    [17]   Re Farrell [1930] VLR 101.

  2. The administrator of an intestate estate holds the estate on trust for the persons entitled to share in the estate in accordance with Part 3A.[18]  Before the process required by Part 3A has been completed, it cannot be said that a particular asset forming part of the intestate estate “belongs” to a particular person who is entitled to share in the distribution of the intestate estate.  Where, as is the case in this matter, the intestate died leaving a spouse and issue, the spouse and issue have interests in the estate which depend on the calculation of the value of the intestate estate.[19]  The only specific interest that the spouse has is the entitlement to the proper administration of the estate and to any personal chattels of the intestate.[20]   It follows that in these circumstances the administrator holds the personal chattels on trust for the spouse.  In respect of the remainder of the intestate estate, what the spouse and the children receive will depend on the ascertainment of the value of the intestate estate.

    [18]   Administration and Probate Act 1919 (SA) s 72C(1).

    [19] Ibid s 72G(1)(b).

    [20] Ibid s 72H(1).

  3. Section 72F of the Act directs how this is to be ascertained.  Section 72F provides:

    72F—Value of intestate estate

    For the purposes of this Part, the value of an intestate estate shall be ascertained by deducting from the gross value of the estate an amount equal to—

    (a)the—

    (i)    debts and liabilities of the intestate; and

    (ii)     funeral expenses; and

    (iii)    testamentary expenses; and

    (iv)    costs of administering the estate,

    payable out of the intestate estate; and

    (b)where the intestate is survived by a spouse or domestic partner, the value of the personal chattels of the intestate.

  4. It can be seen therefore that the value of the intestate estate cannot be fully determined until administration of the estate is complete. 

  5. The third and fourth respondents contend that the administrator is impliedly empowered to assent to holding identified property of the intestate estate on trust for a person entitled pursuant to Part 3A of the Act. 

  6. An assent is an acknowledgment by a personal representative that an asset is no longer required for the payment of the debts, funeral expenses or general pecuniary legacies.[21] 

    [21]   Kemp v Commissioners of Inland Revenue [1905] 1 KB 581.

  7. Part 3A of the Act does not contain any provisions relating to the administrator assenting to the vesting in a beneficiary of assets comprising an intestate estate.  That is to be contrasted with the position in some other jurisdictions in Australia[22] and in the UK where there are legislative provisions dealing with the mode and effect of assents at least in respect of real property.[23]  Most of the authorities in relation to assents are decisions concerning executors.[24] 

    [22]   Succession Act 1981 (Qld) s 49(1); Administration and Probate Act 1935 (Tas) s 36; Administration and Probate Act 1958 (Vic) s 41. See also G E Dal Pont, Law of Executors and Administrators (LexisNexis, 2022) 75-76 [3.18]-[3.20].

    [23]   Administration of Estates Act 1925 (UK) s 36.

    [24]   See review of the authorities by Jacobs J in In the Estate of William Just (Deceased) (No. 2) (1974) 7 SASR 515, 523-525.

  8. The third and fourth respondents submit that there is room for the operation of an assent by the administrator of an intestate estate given that as Part 3A of the Act does not specifically address the question as to how the administrator is to make the distribution required by s 72G, the scheme of Part 3A would seem to allow the administrator to assent to holding particular assets on trust for persons entitled to be distributed a certain value of the intestate estate in the course of the administration where that is sufficiently clear. 

  9. However, in my view, this submission is contrary to authority.

  10. In Bryen v Reus[25] the Full Court of the Supreme Court of New South Wales held that in the case of intestacy where letters of administration are granted, there can be no assent in the true sense.[26]  The Full Court held that this was because New South Wales lacked an equivalent to s 36 of the Administration of Estates Act 1925 (UK) which incorporated the law relating to assents as applying both to executors and administrators.  The Full Court held that as the result of this lacuna an administrator in New South Wales had no power to assent. 

    [25] (1960) 61 SR (NSW) 396.

    [26] Ibid 399.

  11. Halsbury’s Laws of Australia provides that in the absence of statutory provision to the contrary, the process called assent applies only to personalty and chattels real, and only to an executor.[27] 

    [27]   LexisNexis, Halsbury’s Laws of Australia, vol 24 (at 27 November 2014) 395 Succession, ‘4 Administration of Estates’ [395-4900].

  12. In the circumstances I cannot accept the submission of the third and fourth respondents that a power to assent is conferred on an administrator by implication. 

  13. Accordingly, for the purposes of the application of s 65, an administrator is not possessed of or entitled to any property within South Australia “belonging to any person” specified in s 65(1)(a) or (b) unless and until the administrator has conveyed that property to such person in the course of the administration of the intestate estate.  This is because in accordance with the principles referred to above it cannot be said that there is property “belonging to any person” specified within s 65(1) unless and until the particular property is held upon trust for the person by the administrator at the completion of administration.  This is consistent with the terms of s 72F and the reasons of Gray J in Richter and Estall because the value of the intestate estate cannot be ascertained until the administration of the intestate estate is complete. 

  14. In this case, that may have consequences for the administration where there are assets of the intestate estate outside the jurisdiction. 

  15. This may require the attention of the Parliament.

  16. Until the administration is complete, particular assets which are held by the administrator for a person who falls within the terms of s 65(1)(a), cannot be identified. 

  17. For the purposes of s 65 the “property” to which it applies is property which the administrator possesses or is entitled to that belongs to any person who falls within placita (a) or (b) of s 65(1).  But s 65 in its operation is confined to property which the administrator possesses or is entitled to in his capacity as administrator.  The terms of s 65 are limited to property that is the subject of the administration whether it be pursuant to the administration of a will or the administration of an intestate estate pursuant to Part 3A.  Accordingly, the obligation imposed by s 65 only applies to property that belongs to persons who fall into either category prescribed by s 65(1).  That is the property which is available to the administrator to deliver, convey or transfer to the Public Trustee within the timeframes prescribed by s 65(1). 

    Duty of administrator to collect assets out of the jurisdiction and to bring the assets within the jurisdiction

  18. The applicant contends that s 65 only applies to property obtained by the applicant in her capacity as local administrator.  For the purposes of s 65, she submits that an administrator must be “possessed of or entitled to” the property within the State in their capacity as administrator pursuant to letters of administration of this Court.

  19. She submits that if the person appointed as South Australian administrator comes into possession of the property in a different capacity and brings it within the State, s 65 does not apply.  In this regard, the question of capacity is a matter of the lex situs i.e. whether, as a matter of the lex situs, he or she obtained good title in their capacity as South Australian administrator.

  20. Further, the applicant submits that if a third party obtains title to property of the deceased situated outside the State and brings it within the State, the South Australian administrator has no “entitlement” to it within the meaning of s 65.  Accordingly, the provision has no application. 

  21. The third and fourth respondents contend however that the duty of the administrator to seek to recover assets does not apply only in respect of assets within the jurisdiction. 

  22. It is common ground between the parties that the effect of the grant of letters of administration by this Court is limited in its application to assets within South Australia.  The territorial limitation and effect of a grant of probate or letters of administration made by the Court is well established.  A grant, of its own force, does not apply otherwise than within the jurisdiction of the Court which granted it.[28]  The fact that a grant has been made by this Court may assist in having the grant resealed in other jurisdictions which may facilitate the collection of property of the deceased located outside of South Australia.

    [28]   Blackwood v The Queen (1882) 8 App Cas 82, 92.

  23. Section 65 cannot apply unless the relevant asset is in the possession of the administrator or the administrator is entitled to the asset in South Australia.  At issue in this matter is the assets of the intestate deceased which are situated outside of South Australia and, in particular, in China and Hong Kong.  While there are relevant assets in other states of Australia the real issue is moveable assets outside Australia. 

  24. In Kong v Yan,[29] I discussed the position in relation to “movables” situated outside South Australia as follows:[30]  

    As a matter of the administration of the estate, the title to the moveable assets outside South Australia do not automatically vest in the applicant by virtue of her appointment as administrator. This is a matter determined by the lex situs of the moveables. However, the applicant as administrator may take steps to obtain possession of the moveables in a foreign jurisdiction.

    [Citations omitted].

    [29] [2021] SASC 82.

    [30] Ibid [123].

  25. In relation to this last possibility, in Dicey, Morris and Collins The Conflict of Laws the authors state, that if an administrator does take such steps and obtains good title to such movables, they thereafter vest “automatically” in the personal representative.  They describe the rule as any movables of the deceased which after his [or her] death are brought into [the jurisdiction] before any person has, in a foreign country in which they are situate, obtained good title thereto under the law of the foreign country (lex situs) and (semble) reduced them into possession vests automatically in the person or representative of the deceased person by virtue of an English grant.[31]

    [31]   (Thomson Reuters, 16th ed, 2022) [27R-021]. See also Edward I Sykes and Michael C Pryles, Australian Private International Law (Law Book Company, 3rd ed, 1991) 738.

  26. The semble arises from the fact that there is no direct authority regarding the further need for reduction into possession, but it appears to be the consensus of textbook writers.[32]

    [32]   Ibid.

  27. They also state that there seems little doubt that if movables of the deceased are brought to England before anyone has acquired a title to them under their lex situs, they will vest in the English personal representative.[33]

    [33]   Dicey, Morris and Collins, The Conflict of Laws (Thomson Reuters, 16th ed, 2022) [27-023].

  28. To this end, the learned authors note that a local personal representative who actually obtains possession of foreign assets is accountable for them as if they had formed part of the local estate.[34]  In my view these statements of principle, while applicable to English law, reflect the law of South Australia as well. 

    [34]   Ibid [27-022], citing Dowdale’s Case (1605) 6 Co Rep 46b and Re Scott [1916] 2 Ch 268.

  29. I note however that they also say that:[35]

    A personal representative will be liable to account for assets under an English grant only if he or she received them in his or her character as English personal representative. If he or she also has a grant from a foreign court he or she is not accountable in England qua personal representative for assets received in this capacity. Thus, if the deceased died domiciled in England and his or her English administrator obtains a grant in Victoria and there recovers debts due to the deceased, the amount recovered comes into his or her hands as a Victorian administrator; he or she must administer it according to the laws of Victoria and the only portion, if any which after his or her Victorian administration is complete remains or comes into his or her hands in his or her capacity as English administrator.

    [35] Ibid [27-027].

  30. However, no authority is cited for this proposition, it is inconsistent with other relevant aspects of the authors’ analysis of the law in this area and it is inapplicable to this case as the applicant has not obtained a grant from a foreign court. 

  31. At common law, when a person has received a grant of probate or letters of administration he or she is entitled, if not obliged, to take legitimate steps to recover any property of the deceased wherever situate.[36] 

    [36]   Williams, Mortimer and Sunnocks, Executors, Administrators and Probate (Thomson Reuters, 21st ed, 2018) 747 [43-30].

  32. Whether the administrator can successfully recover foreign assets will depend on the law of the place in which the foreign assets are situate and whether that foreign law will recognise the grant of this jurisdiction or otherwise permit the legal personal representative of the deceased to collect the foreign assets.  This gives rise to the question of whether the administrator is merely empowered to recover moveable property being an asset of the intestate estate located outside the State of South Australia or whether, in addition, he or she is under an obligation to do so.  The authors of Executors, Administrators and Probate appear to suggest that the administrator is not only empowered to do so but obliged to do so, although their view is not unequivocal. 

  33. The authors make clear that in accordance with English law, where an executor or administrator recovers any property of the deceased situated outside the jurisdiction or, but for his or her default, would have recovered such property held outside the jurisdiction, he or she will be held liable for that property. [37]  

    [37]   Ibid, citing Dicey, Morris and Collins Conflict of Laws (Thomson Reuters, 15th ed, 2012) [ 26-026].

  34. In England all property of the deceased, whether it consists of moveables or immoveables (apart from the special case of settled land), which at the time of the death of the deceased is locally situated in England, vests in the English personal representative.  It is not necessary that he or she should have reduced the property into possession.  On the other hand, assets outside England do not vest in an English personal representative by virtue of his or her grant.  Whether or not he or she is entitled to recover them is a matter for the law of the country in which they are situate.  There are certain dicta to the effect that an English grant, at any rate when the deceased is domiciled in England, extends to all his or her moveables wherever situate.  This depends upon the proposition that an English personal representative who actually obtains possession of foreign assets is accountable for them in England as if they had formed a part of the estate, and that if the deceased died domiciled in England, the English personal representative has in most countries a “generally recognised claim” to a local grant.[38]  The situation is the same in South Australia. 

    [38]   Dicey, Morris and Collins, Conflict of Laws (Thomson Reuters, 16th ed, 2022) [27-022].

  35. The primary purpose of a grant is to enable the executor or administrator to administer property in the jurisdiction in which the grant is obtained or the letters of administration issued.  The property to be administered will in the ordinary course be property belonging to the deceased which was in South Australia at the time of his or her death, but it will also include any of his or her property which afterwards comes to South Australia, at any rate before a third party has acquired good title by the law of the place where the property was situate.[39]

    [39]   Ibid [27-004], citing Attorney-General v Pratt (1874) LR 9 Ex 140 and Wyckoff’s case (1862) 3 SW & TR 20.

  36. These propositions are consistent with the general principle that the distribution of moveables is regulated by the law of the domicile of the intestate on death.  Therefore if a person dies intestate domiciled in South Australia, his moveables, no matter where they are situated, should be distributed according to the law of South Australia. 

  37. It is for these reasons that the proposition that s 65 only applies to property obtained by the applicant in her capacity as the South Australian administrator cannot be accepted.  If the applicant comes into possession, or is in possession, of foreign assets of the deceased in South Australia she must administer those assets as part of the intestate estate in accordance with South Australian law.

  38. That proposition is also inconsistent with the text of s 65(1).  The application of s 65(1) to property turns on whether the administrator is in possession of the property, or entitled to the property, that belongs to a person in category (a) or (b) of the sub-section.  The test is disjunctive.  It is sufficient if either limb is satisfied.  If the property is in the possession of the administrator in this State and the property belongs to a relevant person i.e. that person has a legal or beneficial entitlement to the property, s 65 applies. 

  39. It follows that the applicant, having been appointed the administrator of a South Australian grant of letters of administration, cannot contend that if she obtains moveable foreign assets of the deceased, she is not obliged to bring them within the jurisdiction and distribute those assets according to the dictates of the law of this State; in this case of an intestate estate, in accordance with the requirements of Part 3A and in accordance with the procedural requirements of s 65. 

  40. The administrator, by virtue of the South Australian grant of letters of administration in intestacy, holds whatever foreign assets she can in fact collect for the persons entitled under Part 3A of the Act.  It follows that if the administrator in fact recovers foreign assets then she will be obliged to bring those assets within South Australia so that they will be available to the beneficiaries and distributed to them.  It would be a breach of her duties as administrator under the South Australian grant if, having obtained possession or control of foreign assets, she failed to bring the assets within South Australia for distribution to those persons entitled under Part 3A. 

  41. None of this detracts from the proposition that whether an administrator is successful in the collection of foreign assets will depend on the law of the place in which the foreign assets are situate and whether that foreign law will recognise the grant of this jurisdiction or otherwise permit the legal personal representative of the deceased to collect the foreign assets. 

    Advice and direction

  42. Pursuant to s 69 of the Act, in accordance with these reasons, the applicant in her capacity as administrator of the deceased’s estate is advised and directed that, subject to any order made under s 67, she must, in accordance with these reasons, deliver, transfer or convey to the Public Trustee any property of the deceased belonging to Jinghan Liu and Ziyi Liu that is or comes within South Australia, and that she is or may become possessed of or entitled to pursuant to the grant of letters of administration of this Court.


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