Resealing foreign grants

Posted by Laura Harper on
Unlike many legal terms, “resealing” means precisely that (ie the affixation of a seal to something that has already been sealed). Most probate practitioners will be well aware that, on a more technical level, the word refers to the process by which foreign grants of representation are sealed by the probate registry, thus enabling such grants to be used for the collection of English and Welsh estate. Like the name, the process is actually fairly straightforward (certainly more so than the alternative of applying for a separate English and Welsh grant). However, as with most processes, there are a few pitfalls, and even more misconceptions. In this article, I have sought to address these, and to give what I hope is a helpful overview of the process.

Scope

The most common misconception is that resealing is available for all foreign grants. In reality, its scope is far more limited. There is a clue in the names of the governing statutes (the “Colonial” Probates Acts of 1892 and 1927), but it is a misleading clue. Whilst the Acts do authorise the resealing of grants issued in territories currently under British jurisdiction (hence “Colonies”, although I believe the modern term is “British Overseas Territories”), they also extend to many former colonies, protectorates and others. Rather than reciting here the name of every relevant territory, I will simply say that it is always worth consulting the latest edition of Tristram & Coote’s Probate Practice, which contains the exhaustive (and ever changing) list.

Another misconception is that grants issued elsewhere in the United Kingdom can be resealed. They cannot, and, in truth, there is usually no need. The Administration of Estates Act 1971 allows for the recognition in England and Wales of Scottish confirmations and Northern Irish grants (but only where the deceased died domiciled in the issuing jurisdiction, as will of course almost always be the case). In short, the Scottish confirmation, or Northern Irish grant, is simply treated as if it were an English and Welsh grant, with no need to approach the court or probate registry. In practice, banks and other asset holders sometimes take some convincing of this, but consultation with their legal departments should always achieve the desired result.
Grants issued in the Isle of Man and the Channel Islands (technically, “Crown Dependencies” and not part of the United Kingdom) are neither recognised in England and Wales, nor are they eligible for resealing. In these cases, a separate grant is always needed for the English and Welsh estate.

Entitlement

Resealing is governed by rule 39 of the Non Contentious Probate Rules 1987.
As to the class of grantee who can apply, the relevant provision is rule 39(3). I have not included the full wording here, but, suffice to say, it is less than straightforward. The good news is that, in practice, the provision only warrants detailed analysis in those very rare cases where one is applying to reseal a grant issued by a court other than that of the deceased’s domicile (such cases being outside the scope of this article). In the vast majority of cases, where the grant was issued by the court of domicile, the person(s) named in the grant (up to a maximum of four) can apply for it to be resealed. Where grantees have died since the grant, the probate registry will require proof of death.

Application

In practice, the main problem faced by practitioners when dealing with resealing is getting one’s hands on admissible copies of the foreign grant and will. The probate registry is strict and more than ready to reject copies that it considers insufficient. It is important to know precisely what is needed from the foreign court (either direct or through an agent lawyer), for, even when one asks for the right thing, it is fairly common to end up with something entirely different!

Section 2 of the Colonial Probates Act 1892 authorises the resealing of (i) the original grant, (ii) a duplicate thereof sealed with the seal of the issuing court, or (iii) a copy certified as correct by or under the authority of the issuing court. The original grant is often hard to come by in practice, so I would recommend asking for either (ii) or (iii). In my experience, what eventually comes back is often a combination of the two. The main point to note is that the copy of the grant should bear the original seals and/or certification of the court that issued it. The same applies to the copy of the will, which, ideally, should also be physically annexed to the copy of the grant. If it is not, the probate registry may require some extra evidence to confirm that the grant and will refer to the same deceased, and to each other.

Although it is rarely an issue in practice, it is worth bearing in mind that only grants written in the English language are eligible for resealing. Translations into English are only admissible if actually produced and sealed/certified by the issuing court (a fairly tough negotiation in practice). Conversely, in so far as wills are concerned, notarial or professional translations are in fact sufficient. It is also worth noting rule 39(4), which stipulates that no grant which contains a limitation, and no temporary grant, may be resealed, except by leave of a district judge or registrar. There are in fact many cases in which such leave will always be forthcoming, but these are outside the scope of this article.

It is not necessary to file a sworn oath with an application for resealing, and the usual restrictions on who can make applications do not apply. It is perfectly acceptable for the grantee(s) to apply by post from abroad; however, in practice, it is almost always the case that a practitioner based in England and Wales is instructed. The practitioner simply files with the probate registry the grant and will (as described above) together with a plain copy of the same, the appropriate court fee and written authority from the original grantee(s). Contrary to popular belief, the “written authority” does not need to be any kind of formal power of attorney. A brief letter signed by all grantee(s) authorising the named practitioner to apply for resealing is perfectly sufficient.
I have not sought to cover inheritance tax in this article. However, it would be remiss of me not to point out that, as with any application, it is necessary to file with the probate registry the appropriate inheritance tax form, be it the stamped IHT421 or the IHT207 (for excepted foreign domicile estates). In short, and as a closing note, the usual inheritance tax considerations apply!

The article originally appeared in ePrivateClient.

About the Author

Laura advises on a range of private client issues specialising in tax and succession planning for individuals and families based in the UK and with foreign assets.

Laura Harper
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