Lewis v Balshaw [1935] HCA 80; (1935) 54 CLR 188 (18 December 1935)

HIGH COURT OF AUSTRALIA

Lewis Defendant, Appellant; and Balshaw Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

18 December 1935

Rich, Starke, Dixon, Evatt and McTiernan JJ.

Mason K.C. (with him Holmes), for the appellant.

Maughan K.C. (with him Stuckey), for the respondent.

Mason K.C., in reply.

The following written judgments were delivered:—

Dec. 18

Rich, Dixon, Evatt and McTiernan JJ.

Succession to movables upon death is governed by the law of the deceased's domicil. Succession to immovables upon death is governed by the law of the place where they are situated and is not affected by the law of the domicil. The formal and intrinsic validity of a will of land depends upon the lex loci rei sitœ. That of a will of movables depends, apart from Lord Kingsdown's Act, upon the lex domicilii of the testator. In granting probate or letters of administration when the property within the jurisdiction is movable, effect is given to the law of the domicil and the grant is made to the person entitled under that law. If the forum domicilii has already constituted an administrator of the movable assets, whether he be an executor, administrator, or bear some other name, a grant is made to him without further investigation of his title, unless he is disqualified under our law, or there is some other special reason against the recognition. But a title to administer immovables situated here must exist under our municipal law.

In New South Wales, upon the grant of probate of the will or of administration of the estate of any deceased person, all real and personal estate of or to which he died seised, possessed or entitled in the State as from his death passes to and becomes vested in the executor or administrator obtaining the grant. In the case of probate or administration with the will annexed he holds that estate according to the trusts and dispositions of the will (secs. 44 and 47 of the Wills, Probate and Administration Act 1898).

In the present case the testatrix, who was domiciled in England, died possessed of movable and immovable property in New South Wales. The executor named in the will obtained a grant of probate in common form in England, and now, as a person entitled to probate who is out of the jurisdiction, he has appointed to act for him a company within the jurisdiction, which seeks administration with the will annexed (see sec. 72 as amended by sec. 43 (c) of Act No. 44 of 1930). A caveat has been lodged and the validity of the will is contested.

If the will related only to movables, the fact that the forum of the domicil had granted probate which remained unrevoked would lead the Supreme Court of New South Wales to refuse to entertain the issue of the validity of the will or of the executor's title to a grant of probate thereof. But, if the will related only to immovables, the grant of probate in England would be treated as entirely irrelevant and the validity of the will and the executor's right to a grant would be determined upon the hearing of a contested suit. The question is: What is to be done when the will relates both to movables and immovables within the jurisdiction?

Nicholas J. has adopted the solution which gives predominance to the grant of the Court of domicil. In his opinion the grant made by that Court should be followed, notwithstanding the existence within New South Wales of immovables as well as movable property. His Honor considered that general considerations of convenience and international comity contribute to the practice under which ancillary grants follow the grant of the Court of the domicil in the case of movables, and that it does not altogether depend on the rule that the law of the domicil governs succession to movables. Realty did not pass to the executor or administrator at the time when the necessity was recognized of having a single administrator for movables except when the formalities prescribed by the lex situs had not been complied with, a case which might be met by a limited grant. His Honor thought that the advantages of having the same person to administer the one estate wherever the assets were found were no less important because some of those assets were immovable and descended according to the lex situs, a law by which the administrator would be bound and under which he must obtain authority to administer.

In our opinion the force of this reasoning, which we have done no more than summarize, is insufficient to overcome the objection that by admitting the will to probate the Court of New South Wales does much more than constitute an administrator of assets. It establishes the will as a dispositive instrument. Except for matters appearing on the face of the will, such as the illegality of its provisions, there are few, if any, grounds left open for questioning the efficacy of the will as a disposition of property.

A general grant of probate means that the immovables vest in the executor and must be administered according to the disposition of the will (cp. In re Howden and Hyslop's Contract[1]). Thus, to follow the grant of the Court of the domicil makes the title to immovables, both beneficial and legal, depend upon a determination of that Court founded on its own law. Yet no forum but the forum situs and no law but the lex situs can govern the title to land. Considerations of convenience and of comity could not, and have not, overcome this rule.

In our opinion the validity of the will as a disposition of immovables and as a title to administer them must be determined independently of the English grant. It follows that the caveator's objections to the grant of probate should be heard and determined upon the merits.

If, in the event, the Court pronounces against the validity of the will, a difficulty may arise, unless proceedings are taken in England to revoke probate. If all attempts fail to obtain consistent determinations upon the question, it may be that the New South Wales Court should grant administration with the will annexed, limited to movables, and by that means give effect to the dispositions governed by the law of the domicil as administered by the Court of the domicil. But that question has not yet arisen.

The appeal should be allowed, the order appealed from set aside and the cause should be remitted to the Supreme Court for hearing.

Starke J.

Sophia Morwitch died in 1933, domiciled in England. Probate of her will was granted by the High Court of Justice in England to Balshaw, the executor named therein. She owned at the time of her death considerable movable and immovable property in New South Wales. The Wills, Probate and Administration Act 1898-1932 of New South Wales enacts that upon the grant of probate of the will or administration of the estate of any person all real and personal estate which any such person dies seised or possessed of or entitled to in New South Wales shall, as from the death of such person, pass to and become vested in the executor to whom probate has been granted or administrator for all his estate and interest therein, and that the real as well as the personal estate of every such person shall be assets in the hands of his executor or administrator for the payment of all duties and fees and for the payment of his debts in the ordinary course of administration (secs. 44, 46). It is conceded that the law in New South Wales is the same as in England as regards the capacity of the testator to make, and the modes of execution of, a will of real estate. A suit has been brought in New South Wales praying the grant of administration, with an exemplified copy of the will of the deceased annexed, to the attorney of the executor for his use and benefit until he shall himself apply to become the representative of the deceased in New South Wales. It is a contested suit, in which the defendant sets up that the deceased, Sophia Morwitch, was not of capacity to make a will, that she did not know and approve of the contents of the will propounded, that it was not properly executed, and that its execution was procured by undue influence. The English grant was apparently in common form, for none of these matters was raised in England. It is not disputed that the English grant has no direct operation in New South Wales. But it is insisted that the Supreme Court of New South Wales should follow the English grant without investigating the issues raised by the defence because it was made by the competent Court of the domicil of the deceased.

Undoubtedly the rule or practice of English law, in the case of movable property, is that a Court of probate should follow the grant made by the competent Court of the domicil. The rule is a rule of convenience and expediency, and not an absolute right (Enohin v. Wylie[2]; Blackwood v. The Queen[3]; In the Goods of Earl[4]; In the Goods of Hill[5]; In the Goods of Cosnahan[6]; In the Goods of Meatyard[7]). The rule is based upon the doctrine of English law that the beneficial succession to a deceased person's movables is governed by the law of his domicil and that consequently the representative recognized by the Court of the domicil should be placed elsewhere in a position to represent the deceased. It is convenient and expedient that such a representative should deal with all the movable property of the deceased the beneficial succession to which is governed by the law of the domicil. Considerations of convenience and expediency which underlie the practice of following a grant made by the competent Court of the domicil have no application to immovable property: "every question with regard to the devolution of immovables in consequence of death is, subject to certain exceptions, governed by the lex situs." But the real property of a deceased person now passes in New South Wales, as in England, to his personal representatives for administration. Does this change in the law make it convenient or expedient for, or the duty of, the Courts of the country where immovables are situated to recognize the person whom the Court of the domicil of a deceased person authenticates as the personal representative of the deceased or appoints as such representative?

The grant of probate is conclusive evidence that the instrument proved is testamentary according to the law of the country where the grant was made. But it proves no more (Concha v. Concha[8]; Whicker v. Hume[9]). It is conclusive "that there was an executor who was entitled to have probate" in the country where the grant was made, and it may be prima facie evidence of the domicil of the deceased (Concha v. Concha[10]; Bradford v. Young[11]). But the rule that in the case of movable property a Court of probate should follow the grant made by the competent Court of the domicil requires that the Court of probate should be satisfied that the grant is by the Court of the domicil, which depends upon the evidence adduced before it. It may be thus established that the grant of probate is in fact the grant of the Court of the domicil, and that the executor to whom such grant was made is recognized by the law of the domicil as the legal personal representative of the deceased. But the validity of the will in relation to immovables is not thereby established, for in general the formalities required for the validity of a testamentary disposition of immovables are governed by the lex situs. It may be, as in the present case, that the law of the domicil and the law of the situs require the same formalities for a testamentary disposition of immovables, but that is by no means universally true. And following the grant of the Court of the domicil would result in every case in establishing the validity of the testamentary instrument, both as to movables and as to immovables, according to the law of the domicil, and not according to the law of the situs of the immovables. In my opinion, such a result is contrary to principle and to well settled practice. Dicey's Conflict of Laws, 5th ed. (1932), p. 515, in referring to the rule that where a person dies domiciled in a foreign country leaving movables in England the Court will in general make a grant to his personal representatives under the law of such foreign country, observes that there is a possibility that the Land Transfer Act 1897 (now Part I. of the Administration of Estates Act 1925), which for the first time vests the English real estate of a deceased person in his personal representative, may afford good ground for not making a grant to the representative of a deceased person who has died domiciled in a foreign country. A Court of probate, however, might follow the grant of the Court of the domicil but limit its own grant to movable property within its jurisdiction (see Williams on Executors and Administrators, 11th ed. (1921), pp. 171, 295; Mortimer on Probate Law and Practice, 1st ed. (1911), pp. 279, 280). It would remain for the executor to establish before the Court of probate the validity of the will as to immovables according to the law of the situs. Where the law of the domicil and the law of the situs require the same formalities for a testamentary disposition, it may be convenient to postpone any grant until the validity of the will is established both by the law of the domicil and the law of the situs; but this must depend upon the circumstances of the particular case and the exigency of administration.

The appeal should be allowed and the order of the Supreme Court dated 20th May 1935 set aside.

Appeal allowed. Order appealed from set aside and the cause remitted to the Supreme Court for hearing. Respondent to pay the costs of the appeal and of the hearing before Nicholas J.

Solicitors for the appellant, McFadden & McFadden.

Solicitors for the respondent, Rand & Drew.

[1] (1928) Ch. 479, at pp. 482, 483.

[2] [1862] EngR 567; (1862) 10 H.L.C. 1; 11 E.R. 924.

[3] (1882) 8 App. Cas., at pp. 92, 93.

[4] (1867) L.R. 1 P. & D. 450.

[5] (1870) L.R. 2 P. & D. 89.

[6] (1866) L.R. 1 P. & D. 183.

[7] (1903) P. 125.

[8] (1886) 11 App. Cas. 541.

[9] [1858] EngR 991; (1858) 7 H.L.C. 124; 11 E.R. 50.

[10] (1886) 11 App. Cas. 541.

[11] (1884) 26 Ch. D. 656; (1885) 29 Ch. D. 617.