(a) Introduction

18.1 New South Wales provides for the procedure to be followed in applying for probate or administration in its administration and probate legislation as well as in its rules of court. Other jurisdictions have located procedural matters such as these either in their rules of court or their probate rules.

18.2 Section 42 of the Wills, Probate and Administration Act 1898 (NSW) reads:

Application for probate or administration

(1) All applications for probate or letters of administration may be made to the Court in such manner as may be prescribed by the rules.

(2) Notice of such intended application shall be published in such newspaper or newspapers as may be prescribed by the rules at least fourteen days before such application is made.

(3) Application for probate of a will not deposited as in section 32 provided or for letters of administration shall be supported by an affidavit that a search has been made in the proper office for a will of the deceased, and stating whether any such will remains deposited with the officer for the time being authorised to have the custody of deposited wills, or by a certificate from the Registrar to the like effect.

(4) The Court may by order direct that any partial or total failure to comply with the requirements of subsections (2) and (3) shall not bar the granting of probate or letters of administration.

(5) The Court may refuse to revoke a grant of probate or letters of administration notwithstanding that in respect of the application for the grant there was any partial or total failure to comply with the requirements of subsections (2) and (3).

18.3 The National Committee considered whether:

(1) a provision dealing with the manner in which applications for probate and letters of administration are to be made should be included in the model legislation;

(2) if yes to (1), it would be more appropriate for provisions to the general effect of section 42(2) to (5) of the Wills, Probate and Administration Act 1898 (NSW) to be located in rules of court, rather than in the model legislation.

(c) The National Committee’s preliminary view

18.4 The National Committee has adopted the policy that procedural matters should, as far as possible, be located in rules of court rather than in administration and probate legislation. The reasons for this policy are threefold:

• Rules are better able to be moulded to the unique requirements of, and facilities available in, individual jurisdictions.
• The alteration of procedures, particularly at short notice, may be more easily achieved by the amendment of rules rather than Acts of Parliament.
• If rules are promulgated by the courts, issues relating to the separation of powers would arise if it was perceived that the executive was imposing its will on the courts by legislating in this area.

Proposal 91

Individual jurisdictions should consider introducing a provision to the effect of section 42(2) to (5) of the Wills, Probate and Administration Act 1898 (NSW) in their relevant rules. However, a “signposting” provision based on section 42(1) of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model legislation to place personal representatives on notice as to the jurisdiction and powers of the court in relation to the administration of estates.

(a) Introduction

18.6 Section 70 of the Succession Act 1981 (Qld) reads:

Practice

The practice of the court shall, except where otherwise provided in or under this or any other Act or by rules of court for the time being in force, be regulated so far as the circumstances of the case will admit by the practice of the court before the passing of this Act.

18.7 The National Committee considered whether a provision to the effect of section 70 of the Succession Act 1981 (Qld) should be included in the model legislation, in order that the practice of the court retain continuity with the law before the passing of the model legislation.

(c) The National Committee’s preliminary view

18.8 The National Committee was of the view that transitional provisions such as section 70 of the Succession Act 1981 (Qld) should be left to each jurisdiction to consider in light of each jurisdiction’s particular circumstances.

Proposal 92

A provision to the effect of section 70 of the Succession Act 1981 (Qld) should not be included in the model legislation.

(a) Introduction

18.9 Section 72 of the Succession Act 1981 (Qld) reads:

Service

In any case where any person desires to effect within a prescribed time service of any proceedings against, or of any notice or other document required or permitted to be served in respect of the estate of a deceased person and that person is uncertain as to the person upon whom service should be effected the court may, if application for directions is made to it within the time prescribed for service, direct the mode of service in that case and, if it thinks fit, allow an extension of the time within which service may be effected.

18.10 The National Committee considered whether a provision to the effect of section 72 of the Succession Act 1981 (Qld) should be included in the model legislation.

(c) The National Committee’s preliminary view

18.11 The National Committee has adopted the policy that procedural matters should, as far as possible, be dealt with in each jurisdiction’s rules rather than in the model legislation. The National Committee was of the view that the provisions relating to service dealt with matters primarily related to practice and procedure and would be better placed in each jurisdiction’s rules.

Proposal 93

A provision to the effect of section 72 of the Succession Act 1981 (Qld) should not be included in the model legislation.

QLD		WA	53
ACT	69	NT	101
VIC		TAS
NSW	97	UK
SA		NZ

(a) Introduction

18.12 Section 97 of the Wills, Probate and Administration Act 1898 (NSW) reads:

Every executor etc. to be deemed resident in New South Wales

(1) Every executor or administrator:

(a) named in any probate or letters of administration granted by any court of competent jurisdiction in any portion of Her Majesty’s dominions and making application under the provisions of Division 5 for the sealing of such probate or administration; or

(b) appointed under this Part;

shall be deemed to be resident in New South Wales.

(2) Where not actually so resident, the executor or administrator shall, before the issue or sealing of any probate or administration, file with the Registrar an address, as prescribed by the rules, within New South Wales, at which notices and processes may be served upon the executor or administrator; and all services at such registered address shall be deemed personal service.

18.13 The National Committee considered whether the model legislation should include a provision to the effect of section 97 of the Wills, Probate and Administration Act 1898 (NSW) or whether such a provision would be more appropriately located in rules of court.

(c) The National Committee’s preliminary view

18.14 The National Committee has adopted the policy that procedural matters should, as far as possible, be dealt with in each jurisdiction’s rules rather than in the model legislation.

The National Committee was of the view that it is more appropriate to place a provision to the effect of section 97 of the Wills, Probate and Administration Act 1898 (NSW) in each jurisdiction’s rules than in the model legislation.

Proposal 94

A provision to the effect of section 97 of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation. If any jurisdiction considers it necessary, it should be placed in that jurisdiction’s rules.

(a) Introduction

18.15 Section 8C of the Administration and Probate Act 1929 (ACT) provides that the court is to make a finding with respect to the deceased’s domicile. Section 8C(1) reads:

The Court to make finding with respect to the domicile of deceased person

(1) On an application made under this Act –

(a) for the grant of probate of the will, or administration of the estate, of a deceased person;

(b) to have probate of the will, administration of the estate, or an order to collect and administer the estate, of a deceased person granted by a court of competent jurisdiction in a State or other Territory sealed with the seal of the Court; or

(c) by the Public Trustee for an order to collect and administer the estate of a deceased person,

the Court shall not grant the application or the Registrar shall not issue the grant of probate or administration, seal the probate, administration or order of the court, or grant an order to the Public Trustee, as the case requires, unless the Court or the Registrar has made a finding with respect to the domicile of the deceased person at the time of death, and, if the Court or Registrar has found that the deceased person was, at that time, domiciled in a State under the law of which death duty is payable out of the estates of deceased persons, the Court shall not grant the application or the Registrar shall not issue the grant of probate or administration, seal the probate, administration or order of the court or grant an order to the Public Trustee, as the case requires, unless –

(d) the Court or Registrar is satisfied that an assessment has been made, in accordance with the law of that State, of the amount of death duty that is, under that law, payable out of the estate of the deceased person; or

(e) the appropriate officer of that State has consented in writing to –


(i) the grant of probate or administration;

(ii) the sealing with the seal of the Court of the probate, administration or order; or

(iii) the grant of the order to the Public Trustee, as the case requires.

18.16 The National Committee considered whether it is necessary to include in the model legislation a provision to the effect of section 8C of the Administration and Probate Act 1929 (ACT), or whether the question be reconsidered only if death duties are reintroduced.

(c) The National Committee’s preliminary view

18.17 The purpose of the section 8C of the Administration and Probate Act 1929 (ACT) section is to close an avenue for avoidance of death duties. The National Committee is of the view that this is not a matter which is relevant to succession legislation.

Proposal 95

The model legislation should not include a provision to the effect of section 8C of the Administration and Probate Act 1929 (ACT).

(a) Introduction

18.18 Section 69 of the Succession Act 1981 (Qld) reads:

The registrar

Subject to this Act the registrar of the Supreme Court is invested with and shall and may exercise with reference to proceedings in the court under this Act all such powers and authorities as may be conferred on the registrar from time to time by the court and by the rules of court and otherwise all such powers and authorities as the registrar exercised before the passing of this Act.

18.19 The National Committee considered whether a provision to the effect of section 69 of the Succession Act 1981 (Qld) should be included in the model legislation.

(c) The National Committee’s preliminary view

18.20 A provision to the effect of section 69 of the Succession Act 1981 (Qld) would ensure that the powers of the Registrar retain continuity with the law before the passing of the model legislation. Further, the Registrar may not otherwise have the powers relating to the grants contemplated here. The power to award a grant vests in the Court and, as a Probate Registrar mentioned to the National Committee, it is uncertain whether a judge is able to delegate that power to a registrar without statutory authority.

18.21 Nevertheless, the National Committee was of the general view that the powers of the Registrar should generally be a matter for each jurisdiction to determine.

18.22 Initially, the National Committee formed a preliminary view that the model legislation not include a provision to the effect of section 69 of the Succession Act 1981 (Qld). However, in the light of the concern expressed as to the validity of delegation of court powers to a Registrar, it considered that further submissions may be of assistance in deciding this matter.

Question for discussion

18.1 The National Committee specifically seeks submissions on whether it is necessary to include a provision to the effect of section 69 of the Succession Act 1981 (Qld) in the model legislation in order to put beyond doubt the powers of the Registrar.

(a) Introduction

18.23 Sections 7, 7A and 7B of the Administration and Probate Act 1929 (ACT) provide for the creation of the office of Registrar of Probates, Deputy Registrars of Probates and Registrar’s seal and stamps.

(b) Issue considered by the National Committee

18.24 The National Committee considered whether it is necessary to include a provision to the effect of sections 7, 7A and 7B of the Administration and Probate Act 1929 (ACT) in the model legislation, given that each jurisdiction has made its own arrangements for these matters.

(c) The National Committee’s preliminary view

18.25 The National Committee is of the view that procedural matters, including the establishment of offices and infrastructure to support the legislation, should be a matter for individual jurisdictions to pursue given their own particular circumstances.

Proposal 96

Provisions to the effect of sections 7, 7A and 7B of the Administration and Probate Act 1929 (ACT) should not be included in the model legislation.

QLD		WA	140
ACT	125	NT	148
VIC		TAS
NSW	152	UK
SA		NZ

(a) Introduction

18.26 Section 140 of the Administration Act 1903 (WA) reads:

Records of grants, etc.

(1) The Principal Registrar shall cause entries to be made in a book to be kept for that purpose of –

(a) all grants of probate and administration, and all orders to collect;

(b) the filing, passing, and allowance of the accounts of all executors and administrators; and of

(c) any special order extending the time for passing such accounts.

(2) Such book shall set forth –
(a) the dates of such grants;

(b) the names of the testators or intestates;

(c) the place and time of death;

(d) the names and description of the executors or administrators;

(e) [deleted.]

(f) the dates of the filing, passing, allowance of, and special orders with reference to the said accounts.

(3) Where a grant of probate or administration is made or resealed by the Court, a copy of that grant may be obtained from the Court with or without the annexes thereto of a copy of the will (if any) to which it relates, and such copy may be issued under seal for all purposes as an office copy, and when so sealed and issued is sufficient evidence of that grant without further proof.

18.27 The National Committee considered whether it is necessary to include a provision dealing with the recording of grants in the model legislation, or whether it is a matter that can be left to individual jurisdictions to deal with in their rules of court.

(c) The National Committee’s preliminary view

18.28 The National Committee has adopted the policy that procedural matters, as far as possible, should be included in each jurisdiction’s rules of court rather than in the model legislation. The National Committee is of the view that a provision dealing with the recording of grants is procedural in nature and would be better placed in each jurisdiction’s rules.

Proposal 97

The model legislation should not include a provision to the effect of section 140 of the Administration Act 1903 (WA).