Obtaining a Fresh Grant of Probate and Resealing a Foreign Grant of Probate
Consider this scenario: John’s domicile (permanent home) is outside Singapore and he resides in Country X. John has substantial assets in Country X and Singapore. John makes a will in Country X (“foreign will”) and soon after, he passes away in Country X. You have been appointed executor and trustee of his will and want to know what options you have to deal with John’s assets in Singapore.
Broadly speaking, this depends on whether Country X is a Commonwealth country or Hong Kong. If it is not, then you have to obtain a Grant of Probate from the Singapore court. If it is, and you have been granted probate by the court in Country X (“foreign grant”), you have 2 options:
- Obtain a fresh or new grant of probate from the Singapore court
- Reseal the foreign grant in the Singapore High Court (Family Division)
This article will provide some context to and broadly outline the procedures for both options.
Obtaining a Fresh Grant of Probate
The general rule is that John’s personal affairs must be determined by the laws of Country X and not Singapore. However, Singapore has “transformed” certain international laws into domestic laws. Therefore, the Singapore court is allowed to determine John’s personal affairs.
Article 1(2) of The Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions finds its form in section 5(2) of the Wills Act (WA). In essence, if John’s will was valid according to the laws of Country X, it will be treated as valid under Singapore law.
The key steps in obtaining a grant of probate are as follows:
- Make an application by way of ex parte originating summons (OS) via eLitigation;
- Attach the results of a litigation search for probate caveats and applications to the OS as a certificate in Form 52 in Appendix A to the Family Justice Courts Practice Directions (FJCPD);
- Fill in Form 51 in Appendix A FJCPD;
- File a certified true copy of the will and death certificate;
- An electronic filing checklist (EFC) will be generated;
- File the requisite supporting documents as stated in the EFC;
- Submit the original will (or a certified true copy bearing the seal of Country X’s court) to the Family Justice Court (FJC) Probate Counter by 4:30pm of the next working day after filing the OS in step (1);
- Probate number will be issued if all documents properly filed;
- File Form 225 in Appendix A FJCPD which is an affidavit verifying Form 51 within 14 days after filing the OS in step (1) and exhibit the requisite documents;
- Outcome of probate application will be sent via a letter;
- If successful, file a request to extract a grant of probate;
- The executor is to administer the estate in accordance with the terms and conditions of John’s will.
For a more detailed procedure regarding a probate application, you may read our article on applying for a Grant of Probate.
Resealing a Foreign Grant of Probate
Resealing a foreign grant of probate is the process of giving legal recognition to that original foreign grant of probate in the country it is being resealed in.
If a foreign grant of probate is resealed in Singapore for example, then the powers provided for in the original grant of probate can be carried out in Singapore, with no alteration to its terms, as if the grant of probate had originally been issued in Singapore.
This option is only available to a foreign grant of probate issued by a court in any part of the Commonwealth, or by a British court in a foreign country.
How to reseal a foreign grant of probate in Singapore
All applications to reseal a foreign grant in Singapore must be made to the High Court (Family Division).
The steps in applying for a resealing of a foreign grant are similar to that of applying for a fresh grant of probate. However, certain extra documents may be required. For example, the foreign grant or sealed certified true copy of the foreign grant (if any) is to be submitted to the FJC Probate Counter by 4:30pm the next working day after the filing of the OS mentioned in step (1) of the earlier section.
If it appears that John’s domicile was not Country X at the time of his death, the High Court shall not reseal the foreign grant. However, it may still do so if certain conditions are met, of which include the provision of evidence showing that Country X was in fact John’s domicile.
If the application is successful, the High Court will issue a memorandum of resealing. Afterwards, the foreign grant shall be of like force and effect as if granted by the High Court to the applicant.
The aforementioned two processes may be done by a lay person. However, it may be confusing and complicated. There may be added complications if the grant of probate is contentious, such as when parties dispute the validity of John’s will, or make claims to his estate.
It is even more complex if the country that John resides in is one that has forced heirship laws, which require John’s estate to be distributed in a certain manner. John’s religion, if he is a Muslim, may affect the process as well. It is thus encouraged that an experienced lawyer be appointed to deal with the matter.
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