The Secretary, Department of Defence:

The Acting Secretary, Department of Defence, has forwarded the following memorandum for advice:

I refer to your minute of 27 August last and the Crown Solicitor's opinion No. 485 in connection with the above.

The following is an extract from the opinion of the Crown Solicitor referred to:

I do not think that Act (Regimental Debts Act) directly affects the rights of succession to deceased soldiers' property.

If the Act does not affect such right, it follows that, where the right of succession is in a State, that right would still hold good and would enable a State to claim the balance, if it thought fit to do so.

The question has arisen as to whether the opinion expressed on 7.6.17⁽¹⁾ conflicted with an opinion of the Solicitor-General of 8.3.17⁽²⁾ in which the following opinion was expressed:

Any surplus remaining in his (the Curator of Intestate Estates) hands must be remitted by him to the person carrying out the duties of the Secretary of State, to be dealt with in accordance with the Act.

The opinion expressed on 7.6.17 is inaccurate in some respects. The right of a State to succession to a deceased soldier's effects would not depend upon domicile, but upon the situation of the effects.

I agree with the opinion expressed by the Solicitor-General as regards the duty of the Curator of Intestate Estates. The Curator when acting under the Act could not recognise any claim by a State to a balance of a deceased soldier's effects. But the Secretary of State after the balance has come into his hands could do so and 1 think would do so unless the law is amended.

This opinion leaves the Department in a somewhat indefinite position. Acting on the opinion expressed by the Solicitor-General on 8.3.17 instructions were issued that District Paymasters should call upon Curators or Public Trustees to return any moneys which they held and had not been able to distribute. In some instances the Public Trustees raised objections to this course and a reply was forwarded that the demand was made in accordance with advice received from the Commonwealth Solicitor-General, and the return of moneys undisposed of was to be insisted upon.

In view of the opinion now expressed by the Crown Solicitor, it would appear advisable to amend the law as it is considered unreasonable that unclaimed amounts should fall into the hands of State Governments. I might add that demands are still being made on Public Trustees for the return of these surplus moneys and that in the event of any subsequent demand being made on the Department by a State the same will not be recognised.

The question of distribution of estates of deceased soldiers generally is one that is causing this Department considerable anxiety, and representations have already been made to you and to the Crown Solicitor with the object of uniform law and uniform instructions for the guidance of District Paymasters being obtained. The heavy casualties which have recently occurred will result in a large number of estates coming forth for settlement within the next few weeks, and I would therefore again bring under your notice the necessity for urgent action in this important matter. I refer you to my memos of 29 September last, and 5 ult.

So far as regards the position of the Curators of Intestate Estates, there is no difference between my previous opinion and the opinion of the Crown Solicitor.

The Crown Solicitor expressly states that he agrees with my opinion as regards the duty of Curators of Intestate Estates. If these Curators act under the Regimental Debts Act they must carry out the provisions of that Act, and they can have no justification for acting in defiance of its provisions.

That Act provides that he must, if engaged in administering affairs under the Act, remit the surplus remaining in his hands, which he is unable to distribute, to the Minister for Defence as the delegate of the Secretary of State.

It is then the Minister's duty to retain that surplus if unable to find the next-of-kin entitled thereto for the period specified in the Act.

At the end of that period the Crown Solicitor thinks that the State may have rights over that surplus in view of the intestacy of the soldier, but I do not think that under the Act the State has any claim for the money, and any claim put forward by a State should, I think, be resisted.

[Vol. 15, p. 336]

(1)An earlier openion of the Crown solicitor.

(2)Openion No. 769.