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Colonial Probates Act 1892

LAWS OF THE UNITED KINGDOM

THE COLONIAL PROBATES ACT, 1892.
(55 & 56 Vict. c. 6.)

An Act to provide for the Recognition in the United Kingdom of Probates and Letters of Administration granted in British Possessions. [762]

[20th May, 1892.]

By the Foreign Jurisdiction Act, 1913 (c.16), Vol. 5, title DOMINIONS, DEPENDENCIES AND COLONIES, it is provided that the Foreign Jurisdiction Act, 1890 (c. 37), ibid., is to have effect as if this Act were mentioned therein as an enactment, which may be applied by Order in Council to foreign countries in which for the time being His Majesty has jurisdiction. The scope of the Act has been extended by the Colonial Probates (Protected States and Mandated Territories) Act, 1927 (c. 43), p. 382, post.

1. Application of Act by Order in Council. - Her Majesty the Queen may, on being satisfied that the legislature of any British possession has made adequate provision for the recognition in that possession of probates and letters of administration granted by the courts of the United Kingdom, direct by Order in Council that this Act shall, subject to any exceptions and modifications specified in the Order, apply to that possession, and thereupon, while the Order is in force, this Act shall apply accordingly. [763]

The following is a list of the places to which the Act has been applied with a reference in each case to the relevant Order in Council.-

Alberta (S.R. & O. 1913, No. 214); Ashanti (1920, No 1663); Bahamas (S.R. & O. Rev. 1904, Vol. 1, Administration, p. 3); Barbados (ibid. p. 4); Bechuanaland Protectorate (1916, No. 818); Bermudas (1919, No. 670), British Columbia (1904, Vol. 1, p. 8); British Guiana (ibid. p. 2); British Honduras (ibid. p. 1); Ceylon (1921, No. 2003); East Africa Protectorate (now Kenya) (1916, No. 818); Falkland Islands (1904, Vol. 1, p. 7); Federated Malay States (1928, No. 496); Fiji (1904, Vol. 1, p. 4); Gambia Colony (1921, No. 263); Gibraltar (1904, Vol. 1, p. 1); Gold Coast (ibid. p. 2); Grenada (ibid. p. 10); Hong Kong (ibid. p. 2); Jamaica (ibid. p. 5); Leeward Islands (p. 7); Manitoba (ibid. p. 9); New South Wales, New Zealand (ibid. p. 1); Newfoundland (ibid. p. 13); Nigeria Colony (formerly Lagos) (1920, No. 887); North West Territories (1904, Vol. 1, p.10); Northern Rhodesia Protectorate (1916, No. 818); Nova Scotia (1904, Vol. 1, p. 8); Nyasaland Protectorate (1916, No. 622); Ontario (1904, Vol. 1, p. 2); Palestine (1929, No. 392); Papua (1914, No. 1.473); Queensland (1904, Vol. 1, p. 11); St. Helena (ibid. p. 12); St. Lucia (1917, No. 745); St. Vincent (1904, Vol. 1, p. 11); Saskatchewan (1913, No. 214); Sierra Leone Colony (1916, No. 273); Sierra Leone Protectorate (1916, No. 274); Union of South Africa (1914, No. 144); South Australia (1904, Vol. 1, p. 2); Southern Rhodesia (1916, No. 818); Strait Settlements (1904, Vol. 1, p. 4); Swaziland Protectorate (1916, No. 818); Tanganyika Territory (1929, No. 393); Tasmania (1904, Vol. 1, p. 2); Trinidad and Tobago (ibid. p. 5); Uganda Protectorate (1916, No. 274); Victoria (1904, Vol. 1, p. 1); Weihaiwei Protectorate (1916, No. 818); Western Australia (1904, Vol. 1 p. 2); Zanzibar Protectorate (1916, No. 275).

No order has been made in respect of the Irish Free State, an grants issued by that State on or since April 1, 1923 are not to be resealed in England notwithstanding that the death may have occurred before that date; President's direction, March 17, 1925.

2. Sealing in United Kingdom of colonial probates and letters of administration. - (1) Where a court of probate in a British possession to which this Act applies has granted probate or letter 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, a court of probate in the United Kingdom, be sealed with the seal of that court, and, thereupon, shall be of the like force and effect, and have the same operation in the United Kingdom, as if granted by that court.

(2) Provided that the court shall, before sealing a probate or letters of administration under this section, be satisfied-

(a) that probate duty has been paid in respect of so much (if any) of the estate as is liable to probate duty in the United Kingdom; and

(b) in the case of letters of administration, that security has been given in a sum sufficient in amount to cover the property (if any) in the United Kingdom to which letters of administration relate;

and may require such evidence, if any, as it thinks fit as to the domicile of the deceased person.

(3) The court may also, if it thinks fit, on 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 the United Kingdom.

(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.

(5) Rules of court may be made for regulating the procedure and practice, including fees and costs, in courts of the United Kingdom on and incidental to an application for sealing a probate or letters of administration granted in a British possession to which this Act applies. Such rules shall, so far as they relate to probate duty, be made with the consent of the Treasury, and subject to any exceptions and modifications made by such rules, the enactments for the time being in relation to probate duty (including the penal provisions thereof) shall apply as if the person who applies for sealing under this section were a person applying for probate or letters of administration. [764]

For the practice as to resealing colonial grants, see Non-Contentious Probate Rules, rr. 92-105.

Unless it is shown that the deceased died domiciled in the colony concerned, the provisions of the Supreme Court of Judicature (Consolidation) Act 1925 (c. 49), s. 160, p. 371, post must be observed where there is a minority or life interest; President's direction 1925.

When the deceased died domiciled in the colony concerned, the grant may be resealed even though not such as would be made in England (Re McLaughlin, [1922] P. 235).

A limited colonial grant may be resealed (In the Goods of Smith [1904] P. 114).

A colonial grant has been resealed in England although the deceased left no property in this country (In the Goods of Sanders, [1900] P. 292).

3. Application of Act to British courts in foreign countries. - This Act shall extend to authorise the sealing in the Unite Kingdom of any probate or letters of administration granted by a British court in a foreign country, in like manner as it authorises the sealing of a probate or letters of administration granted in a British possession to which this Act applies, and the provisions of this Act shall apply accordingly with the necessary modifications. [765]

4. Orders in Council. - (1) Every Order in Council made under this Act shall be laid before both Houses of Parliament as soon as may be after it is made, and shall be published under the authority of Her Majesty's Stationery Office.

(2) Her Majesty the Queen in Council may revoke or alter any Order in Council previously made under this Act.

(3) Where it appears to Her Majesty in Council that the legislature of part of a British possession has power to make the provision requisite for bringing this Act into operation in that part, it shall be lawful for Her Majesty to direct by Order in Council that this Act shall apply to that part as if it were a separate British possession and thereupon, while the Order is in force, this Act shall apply accordingly. [766]

5. Application of Acts to probates, etc. already granted. - This Act when applied by an Order in Council to a British possession shall, subject to the provisions of the Order, apply to probates and letters of administration granted in that possession either before or after the passing of this Act. [767]

6. Definitions. - In this Act-

The expression "court of probate" means any court or authority, by whatever name designated, having jurisdiction in matters of probate, and in Scotland means the sheriff court of the county of Edinburgh;

The expression "probate" and "letters of administration" include confirmation in Scotland, and any instrument having in a British possession the same effect which under English law is given to probate and letters of administration respectively;

The expression "probate duty" includes any duty payable on the value of the estate and effects for which probate or letters of administration is or are granted;

The expression "British court in a foreign country" means any British court having jurisdiction out of the Queen's dominions in pursuance of an Order in Council, whether made under any Act or otherwise. [768]

7. Short title. - This Act may be cited as the Colonial Probates Act, 1892. [769]

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