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The Chain of Representation (Vic)


A circumstance that sometimes arises in deceased estate matters is that the executor passes away before completing the role of executor. When this occurs in Victoria, if the executor leaves a will appointing an executor for their own estate, then that person becomes the executor of the original estate as well as the second estate. This is a common law principle referred to as the chain of representation, which has been codified in some states, including Victoria and Queensland.

How does the chain of representation work?

When the executor of the original estate passes away, their executor does not need to obtain probate for both wills; they are only required to obtain probate of the deceased’s executor’s will. Once the new executor proves the deceased’s executor’s will, the chain of representation is enlivened, and the executor will automatically become the representative of and be entitled to administer the original estate.

Section 17(1) of the Administration and Probate Act 1958 states that ‘so long as the chain of representation is not broken, the last executor in the chain is the executor of every preceding testator.’

When does the chain of representation break?

Under the Act, the chain of representation is only broken in the following three scenarios:

  1. Where the executor dies intestate (without a will);
  2. Where the executor left a will but did not appoint an executor in the will; or
  3. Where the second executor does not obtain a grant of probate in respect of the deceased’s executor’s will.

Although this list seems exhaustive, recent case law has held that the list should not be viewed as exhaustive and that there are other situations in which the chain of representation may be broken. Another situation where the chain of representation  is broken is when an executor seeks to remove or discharge their role as executor of the deceased’s executor’s will, as occurred in the Victorian case of Re Boardman; Edgar v Boardman [2021] VSC 314.

Re Boardman

In the decision of Re Boardman, the deceased passed away in June 2018 leaving a will that appointed his brother as executor. Probate was granted to the brother in September 2018. The brother passed away in August 2019 before fully administering the deceased’s estate. Probate of the brother’s will was granted to the plaintiff in March 2020.

As the plaintiff obtained a grant of probate of the brother’s will, he also became the executor, via the chain of representation, of the deceased’s estate. This occurred by operation of section 17 of the Act.

The plaintiff made an application to the Supreme Court of Victoria seeking to discharge his duty as executor of both the brother’s and the deceased’s estates, under section 34(1) of the Act. He consented to the defendant, the son of the brother and the nephew of the deceased, being appointed as administrator of the brother’s estate and to the defendant subsequently applying for administration de bonis non (administration of an unadministered estate) to finalise the administration of the deceased’s estate.

Legal Issues in Re Boardman

There were two legal issues to be considered by the court in Re Boardman. These were:

  1. whether the court had jurisdiction to discharge the plaintiff as executor of the deceased’s estate; and
  2. whether an order made under section 34(1) of the Act, discharging the plaintiff as executor of the brother’s estate, would break the chain of representation.

Decision in Re Boardman

In Re Boardman, the court had to consider the legal construction and purpose of section 34(1) to determine whether it had jurisdiction to discharge the plaintiff as executor of the deceased’s estate. It was held that the court has jurisdiction under section 34(1) of the Act to remove or discharge an executor by representation. It was also held that an order made under section 34(1) to remove or discharge an executor would break the chain of representation under section 17 of the Act.

The court held that it was not necessary to make an order that the plaintiff be discharged as executor of the deceased’s estate. By making an order under section 34(1) to discharge the plaintiff as executor of the deceased’s executor’s estate, the chain of representation was broken and consequently the plaintiff ceased to be the executor of the deceased’s estate.

The decision in Re Boardman has a similar effect to the laws in Queensland in respect of when the chain of representation is broken. Under section 47 of the Succession Act 1981 (the Queensland equivalent of section 17 of the Act), the chain of representation is broken by the renunciation by the executor of the executorship by representation.

Summary

When an executor dies before administering a deceased estate and leaves a will appointing an executor of their own and that executor obtains a grant of probate of the deceased’s executor’s estate, they will automatically be entitled to and responsible for administering the deceased’s estate under the common law principle known as the chain of representation.

The chain of representation will continue if the second executor passes away, and each subsequent executor will become the executor of the preceding estates, so long as the chain of representation has not been broken.

Under Victorian law, the chain of representation is broken when the deceased dies without leaving a will or dies leaving a will that does not appoint an executor, or when a grant of probate is not obtained. However, following the decision in Re Boardman, the chain of representation may also be broken if an executor seeks to be removed or discharged as executor of the deceased’s executor’s will.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

This article was written by Jodie Hall - Associate - Melbourne

Jodie graduated from Monash University in 2016 with a Bachelor of Laws and graduated from RMIT University in 2010 with a Bachelor of Arts (Criminal Justice) degree. She completed her Graduate Diploma of Legal Practice at Leo Cussen Centre for Law in 2017. Jodie was admitted to practice in the Supreme Court of Victoria in September 2017 and worked as...

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