Re Stooks (dec'd)
[2024] QSC 278
•12 November 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Re Stooks (dec’d) [2024] QSC 278
PARTIES:
IN THE WILL OF DEREK HENRY STOOKS
(deceased)
ANDREW PETER JOHNSTONE
(applicant)
FILE NO:
5985 of 2024
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
12 November 2024
DELIVERED AT:
Brisbane
HEARING DATE:
Application on the papers
JUDGE:
Davis J
ORDER:
The court directs the registrar to reseal the letters of administration of the High Court of Justice England and Wales, Principal Registry of the Family Division dated 15 January 2024 in the estate of Derek Henry Stooks, deceased.
CATCHWORDS:
SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – where the deceased was a resident of the United Kingdom – where the deceased was possessed of property in Australia – where the High Court of Justice England and Wales made limited grant of letters of administration to the sole beneficiary’s lawful attorney – where the administrator is resident in the United Kingdom – where the attorney for the administrator applied to reseal the letters of administration in Queensland – where the Registrar lacks jurisdiction to reseal a limited foreign grant unless the Court otherwise orders
British Probates Act 1898 (Qld), s 3, s 4
Succession Act 1981 (Qld), s 6
Uniform Civil Procedure Rules 1999 (Qld), r 489, r 615, r 616, r 619
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22, cited
In the Estate of Rogowski (Deceased) [2007] SASC 161, considered
The Estate of Nattrass (Unreported, Supreme Court of New South Wales, No PD 114522 of 1992, Powell J, 29 October 1992), cited
Pedersen v Young (1964) 110 CLR 162; [1964] HCA 28, cited
R v A2 (2019) 269 CLR 507; [2019] HCA 35, followed
Re Estate of Tamburin (2014) 119 SASR 143; [2014] SASC 58, citedShrimpton v The Commonwealth (1945) 69 CLR 613; [1945] HCA 4, cited
SOLICITORS:
Ascendia Lawyers for the applicant
This is an application by Andrew Peter Johnstone, the attorney of Timothy David Stooks (Timothy Stooks), to reseal the grant of letters of administration given by the High Court of Justice England and Wales of the will of Derek Henry Stooks (Derek Stooks), deceased.
Background
Derek Stooks was a resident of Great Missenden in the United Kingdom.
On 9 July 1981, Derek Stooks made his last will.
By the will, Derek Stooks:
(a)appointed Lloyds Bank Limited the executor and trustee of his estate;
(b)gifted the whole of his estate to his wife Myra Stooks; and
(c)provided that in the event Myra Stooks did not survive him by 30 days, the estate was to be divided equally amongst his surviving children.
On 12 January 2023, Derek Stooks died. His wife Myra Stooks survived him by more than 30 days.
Lloyds Bank Limited renounced administration of Derek’s Stooks’s estate. Myra Stooks appointed Timothy Stooks to apply for letters of administration of the estate.
On 15 January 2024, the High Court of Justice England and Wales gave a limited grant of letters of administration to Timothy Stooks in these terms:
“The Administration of Derek Henry Stooks’s estate is granted by this court to the following administrator
Timothy David Stooks of 53 Cliffe Way Warwick CV34 5JG United Kingdom
The lawful attorney of Myra Stooks for their use and benefit limited until further representation be granted.” (emphasis added)[1]
[1]Such a grant to an attorney is a limited grant; In the Estate of Rogowski (Deceased) [2007] SASC 161 at [18].
At the time of his death, Derek Stooks held property in Queensland, namely company shares.
Timothy Stooks, as the lawful attorney of Myra Stooks, appointed the applicant as his attorney to make application for the resealing in Queensland of the grant of letters of administration made by the High Court of Justice England and Wales.
The applicant applied to the registrar of this court for the resealing of the letters of administration but was requisitioned on the basis that:
(a)the grant is a limited grant; and
(b)the registrar cannot reseal a limited grant.[2]
[2]Uniform Civil Procedure Rules 1999, r 619.
The applicant seeks to have the application dealt with on the papers without oral hearing.
Determination without oral hearing
Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides:
“489 Proposal for decision without oral hearing
(1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.
(2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—
(a) under rule 491, the court considers it inappropriate to do so; or
(b) under rule 494, the respondent requires an oral hearing; or
(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or
(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.”
The structure of r 489 is that:
(a)jurisdiction to proceed without an oral hearing is granted;
(b)the jurisdiction is enlivened by a proposal by an applicant; and
(c)the proposal must be accepted in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d).
None of the circumstances identified in rr 489(2)(c) and (d) arise. There is no respondent so r 489(2)(b) is of no relevance. The sole question is whether the court considers it inappropriate to determine the matter without oral hearing.
There are no parties interested in the application other than the applicant, and through him, Timothy Stooks and Myra Stooks. The facts are clear and the question for the exercise of discretion clearly identified. It is appropriate to proceed without oral hearing.
Should the limited grant be resealed?
The statutory structure
The British Probates Act 1898 has as its preamble:
“An Act to provide for the recognition of probates and letters of administration granted in other parts of Her Majesty’s dominions.”[3]
[3]At the time of enactment of the British Probates Act, Queen Victoria was on the throne, thus explaining the reference in the preamble to “Her Majesty’s dominions”.
Section 3 provides as follows:
“3 Application of Act by regulation
When the Governor in Council is satisfied that the legislature of any part of Her Majesty’s dominions has made adequate provision for the recognition in that part of probates and letters of administration granted by the Supreme Court, the Governor in Council may declare by regulation that this Act shall, subject to any stated changes, apply to that part of Her Majesty’s dominions.”
The Governor in Council, by the British Probates Regulation 2018, has declared that the British Probates Act applies to “the United Kingdom of Great Britain and Northern Ireland”.
Section 4 of the British Probates Act provides:
“4 Sealing in Queensland of British probates and letters of administration
(1) When a court of probate in a part of Her Majesty’s dominions to which this Act applies has granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, on being produced to, and a copy thereof deposited with, the Supreme Court, be sealed with the seal of that court, and thereupon shall be of the like force and effect and have the same operation in Queensland as if granted by that court.
(2) Provided that no probate or letters of administration shall be sealed under this section until there has been filed in the Supreme Court a certificate under the hand of the Commissioner of State Revenue appointed under the Taxation Administration Act 2001 to the effect that adequate security has been given for payment of all probate and succession duty in respect of so much (if any) of the estate as is liable to duty in Queensland.
(3) The Supreme Court may, if it thinks fit, upon the application of any creditor, require, before sealing, that adequate security be given for the payment of debts due from the estate to creditors residing in Queensland, and also, if it thinks fit, upon the application of any beneficiary or next of kin, require that adequate security be given for the protection of the interests of such beneficiary or next of kin.
(4) For the purposes of this section a duplicate of any probate or letters of administration sealed with the seal of the court granting the same, or a copy thereof certified as correct by or under the authority of the court granting the same, shall have the same effect as the original.” (emphasis added)
It can be seen that the structure of s 4 is:
(a)there is a discretion granted to this court (the foreign probate may be resealed);[4] but
(b)subject to the restrictions prescribed by ss 4(2) and 4(3).
[4]The Estate of Nattrass (Unreported, Supreme Court of New South Wales, No PD 114522 of 1992, Powell J, 29 October 1992).
There are no probate and succession duties payable in Queensland so s 4(2) can be ignored. There is no suggestion of the existence of any creditors, so s 4(3) has no relevance.
Part 5 of Chapter 15 of the UCPR concerns “Resealing grants under British Probates Act 1898”. Rules 615, 616 and 619 of the UCPR provide as follows:
“615 Application of part
This part applies to an application for the resealing of a grant of probate or letters of administration under the British Probates Act 1898 (foreign grant).
616 Who may apply for reseal of foreign grant
An application for the resealing of a foreign grant may be made by the executor or administrator, or a person lawfully authorised for the purpose by the executor or administrator.
…
619 Special, limited and temporary grants
The registrar must not reseal a special, limited or temporary foreign grant, unless the court otherwise orders.”
Rules 617, 618 and 620 are machinery provisions and bear no relevance to the current issues.
Rule 616 provides, relevantly, that the application for resealing may be made by the administrator “or a person lawfully authorised for the purpose by the … administrator”. That includes the applicant who is the attorney of the administrator, Timothy Stooks.
Rule 619 refers, relevantly here, to a “limited … foreign grant”. The grant to Timothy Stooks is “limited until further representation be granted”. Rule 619 removes any jurisdiction the registrar might otherwise have to reseal the letters of administration without direction. The registrar has jurisdiction to reseal a limited grant if the court so orders.
Consideration
No Queensland case could be identified which has considered r 619. That is largely beside the point. The grant of administration is clearly limited and so the registrar has no jurisdiction until the court directs the grant of letters of administration to be resealed. Therefore, it is the court by a judge who exercises the discretion bestowed by s 4 of the British Probate Act. The question is as to how the jurisdiction given by s 4 ought to be exercised in these circumstances.
There is nothing on the face of s 4 of the British Probates Act which prescribes the considerations relevant to the exercise of discretion. The discretion taken literally, is at large. However, in Australia, there is no unlimited judicial discretion.[5] The discretion is limited to advancement of the purposes of the legislation.
[5]Shrimpton v The Commonwealth (1945) 69 CLR 613 at 629-630; and Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [69]-[70] per Kirby and Callinan JJ in dissent on other points.
The identification of the relevant considerations to the exercise of discretion involves a question of construction of the British Probates Act.[6] That exercise is aimed to identify the statutory purpose of the grant of discretion from the actual words of the statute considered in relevant context.[7]
[6]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
[7]R v A2 (2019) 269 CLR 507 at [31]-[37].
Except where there are provisions which allow resealing of a foreign grant of probate, an executor or administrator who wishes to deal with property within a jurisdiction and obtain the protection which probate offers, must obtain a grant of probate within that jurisdiction.
That is the position even between States and Territories of the Commonwealth. Private international law considers each State as a separate country.[8]
[8]Pedersen v Young (1964) 110 CLR 162 at 170 (see explanation in In the Estate of Rogowski (Deceased) [2007] SASC 161 at [14]); but always subject to statutory modification.
In order to obtain a grant of probate, various steps must be undertaken such as advertising the application.[9] By s 4 of the British Probates Act, the probate granted by the foreign court is recognised in Queensland without the necessity for probate to be granted by this Court. Once the foreign probate is resealed, it “shall be of like force and effect and have the same operation in Queensland as if granted by that court”.[10]
[9]Uniform Civil Procedure Rules 1999, Chapter 15, Part 2.
[10]British Probates Act1898, s 4(1).
The British Probates Act therefore obviates compliance with the UCPR provisions concerning applications for probate or grant of letters of administration. Therefore, the discretion must be intended to be exercised against resealing where:
(a)it would be inappropriate to grant probate or letters of administration as the case may be for some reason; or
(b)it is not appropriate for there to be a grant of probate or letters of administration unless an application is made to the court and the rules complied with.
There are various examples, such as In the Estate of Rogowski (Deceased)[11]. There, Gray J, sitting in the Supreme Court of Australia, refused to reseal the probate given in New South Wales. The will was dated “this day of April One Thousand Nine Hundred and Eighty Six”. The day in April when the will was executed was not clear on the face of the will. That required both investigation and the amendment of the original grant. In those and other circumstances, it was held to be appropriate for the applicant to seek an original grant in South Australia. Gray J also decided Re Estate ofTamburin.[12] There the deceased used an alias and the Supreme Court of Victoria issued the probate “Giovanni Antonio Tamburin (in the Will called John Tamburin) also known as John Anthony Tamburin”. It was the practice of the South Australian Supreme Court not to grant probate in that form. Resealing was refused with the applicant then left to make application for probate in South Australia.
[11][2007] SASC 161.
[12](2014) 119 SASR 143.
The grant given in the United Kingdom is only limited because it was given to an attorney, being Timothy Stooks. The grant was limited until further representation of Myra Stooks is granted. Often letters of administration are granted to the attorney of a person named as executor. The grant of letters of administration to Timothy Stooks does not limit Timothy Stooks’ powers of administration, nor the property over which those powers may be exercised. The limitation is only as to the duration of the authority given to him by Myra Stooks.
Timothy Stooks has sworn an affidavit in support of the application for resealing. He swears that he acted pursuant to the power of attorney given to him by Myra Stooks and that he has not been given notice of revocation of the power of attorney. He is not aware of any fact or circumstance that would affect the validity of the power of attorney. In his affidavit, he gives an undertaking in these terms:
“8.If this court orders that the grant dated 15 January 2024 be resealed, I hereby undertake to this court to cause the reseal grant to be returned and surrendered … if:
(a) the original grant dated 15 January 2024 is revoked; or
(b) if my power to act as attorney for Myra Stooks is revoked or otherwise found by a court of competent jurisdiction to be ineffective”.
As the evidence shows that no alternative representation has been granted, the resealing of the letters of administration is appropriate and the registrar should be so directed.
Order
1. The court directs the registrar to reseal the letters of administration of the High Court of Justice England and Wales, Principal Registry of the Family Division dated 15 January 2024 in the estate of Derek Henry Stooks, deceased.
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