5.1 Some jurisdictions have specific statutory provisions relating to the appointment of personal representatives.

5.2 The Australian Capital Territory,¹ Victorian,² Northern Territory³ and New Zealand⁴ administration and probate legislation gives the court in those jurisdictions the power to discharge or remove an executor or administrator.

5.3 All jurisdictions enable the application for, or the granting of, probate or letters of administration to be delayed by means of a caveat.

2. POWER TO APPOINT ADMINISTRATOR

QLD	6	WA	37
ACT	24, 25	NT	33, 34
VIC	15	TAS
NSW	74, 75	UK
SA		NZ	19

(a) Introduction

5.4 A number of jurisdictions contain provisions along the lines of sections 74 and 75 of the Wills, Probate and Administration Act 1898 (NSW), which give the court the specific power in certain circumstances to appoint an administrator. Section 74 provides:

Power as to appointment of administrator

The Court may, in any case where a person dies:

(a) intestate, or

(b) leaving a will, but without having appointed an executor thereof, or

(c) leaving a will and having appointed an executor thereof, where such executor:


(i) is not willing and competent to take probate, or

(ii) is resident out of New South Wales,


if it thinks it necessary or convenient, appoint some person to be the administrator of the estate of the deceased or of any part thereof, upon the appointed person giving such security (if any) as the Court directs, and every such administration may be limited as the Court thinks fit.

Proceeding where executor neglects to prove will

(1) In any case where the executor named in a will –


(a) neglects or refuses to prove the same or to renounce probate thereof within three months from the death of the testator or from the time of such executor attaining the age of eighteen years, or

(b) is unknown or cannot be found,


the Court may upon the application of:

(i) any person interested in the estate, or

(ii) the Public Trustee or a trustee company; or

(iii) any creditor of the testator,


order that probate of the said will be granted to such executor or order that administration with such will annexed be granted to the applicant or make such other order for the administration of the estate as appears just.

...

5.6 The National Committee considered whether, in light of the wording of section 6 of the Succession Act 1981 (Qld), it is necessary for the model legislation to include a specific provision to enable the court to appoint an administrator in circumstances such as those specified in sections 74 and 75 of the Wills, Probate and Administration Act 1898 (NSW).

(c) The National Committee’s preliminary view

5.7 The National Committee was of the view that the jurisdiction conferred on the court by section 6 of the Succession Act 1981 (Qld) gives the court very wide general powers in relation to the administration of estates and the granting of probate and administration and that sections 74 and 75 of the Wills, Probate and Administration Act 1898 (NSW) do not really add anything to those general powers.

5.8 Moreover, section 74 of the Wills, Probate and Administration Act 1898 (NSW) overlaps with other provisions in that Act, which may cause difficulties of interpretation. For example, there is an overlap between sections 74 and 63 of the New South Wales Act.⁵ Both of these sections give the court the power to make a general or limited grant. However, they differ in a number of respects, including the scope of their application and the extent of the discretion conferred on the court as to whom to appoint. Section 74 confers a wide discretion on the court. However, section 63 gives a more restricted discretion, where a person dies intestate, to appoint an administrator. It does not allow for the passing over of the surviving spouse and next of kin except in certain limited circumstances, yet the court retains its wide discretion under section 74 to appoint a person lower down the order of preference.⁶ In practice, however, courts have resolved the discrepancy by requiring that special circumstances exist before a person normally entitled to administration is passed over.⁷

5.9 The National Committee considered that sections 74 and 75 of the Wills, Probate and Administration Act 1898 (NSW) provide examples of the kinds of situations in which the power of the court to make grants and to limit them can be used and that, as long as it is made clear that the provisions in no way detract from or modify the powers given by the general jurisdiction provision in the model legislation based on section 6 of the Succession Act 1981 (Qld), it may be useful to have similar provisions in the model legislation.

(i) An express power to appoint an administrator

5.10 The National Committee was of the view that, although under section 6 of the Succession Act 1981 (Qld) the court would have the power to appoint an administrator, it may nevertheless be desirable to set out in the model legislation particular circumstances in which an administrator could be appointed. This may be of some assistance to lay people. The Probate Registrars agreed with this view.

5.11 The following draft provision, which is an amalgamation of sections 74 and 75 of the Wills, Probate and Administration Act 1898 (NSW), was considered by the National Committee:

(1) Without derogating from the generality of section 6(1) [Succession Act 1981 (Qld)], where the court finds that there is a reasonable likelihood that were probate to be granted to the executor named in the will the grant would subsequently have to be revoked, the court may –

(a) refuse temporarily or permanently to grant probate to the person named in the will; and

(b) grant probate to some other person named in the will as executor, or grant administration to some other person; and

(c) make such other orders as to the court seem fit.


(2) Without derogating from the generality of section 6(1), the court may, in any case where a person dies –

(a) intestate; or

(b) leaving a will, but without having appointed an executor thereof; or

(c) leaving a will and having appointed an executor thereof, where –


(i) such executor is not willing and competent to take probate; or

(ii) such executor is resident out of [the jurisdiction];

if it considers it necessary or convenient, appoint some person to be the administrator of the estate of the deceased or of any part thereof, upon the appointed person giving such security (if any) as the court directs, and any such administration may be limited as the court thinks fit.

(ii) Passing over a named executor

5.13 The National Committee was also generally of the view that it would be desirable to give the court a discretion, in certain circumstances, to pass over a named executor and appoint an administrator.⁸ Although it was acknowledged that the executor was chosen by the testator, it was also recognised that beneficiaries have a very real interest in the efficiency and cost effectiveness of the administration of estates.

5.14 In some cases, a particular executor may be chosen because the beneficiaries are minors at the time the will is made. However, by the time the testator dies, those beneficiaries may all be of full age and capacity, and the basis for the original choice of executor may no longer be justified. In those circumstances, it is difficult to see why the beneficiaries should not be able to seek the appointment of an administrator who is, to them, a more appropriate appointment than that made by the will.

5.15 The National Committee also recognised that, although it is possible to remove an executor who is not administering an estate properly, it may sometimes be difficult to do so if the conduct complained of falls just short of that which would usually be grounds for removal. It was seen that a provision that would facilitate the removal of an executor in those circumstances would be a desirable reform of the law. The Probate Registrars agreed with this view.

5.16 The following draft provision was considered:

(1) Without derogating from the generality of section 6(1) [Succession Act 1981 (Qld)], the court may, in any case where a person dies leaving a will and having appointed an executor thereof, where –

(a) there are grounds for believing that such executor has committed an offence relating to the testator’s death;

(b) there are grounds for believing that the grant of probate to such executor is likely to prejudice the due and proper administration of the estate or the interests of persons who are or may be interested in the estate or lead to unnecessary expense; or

(c) all beneficiaries being of full age and capacity agree that the grant be made to some other person;


if it thinks it necessary or convenient, pass over that named executor and grant probate to some other named executor, or appoint some other person to be the administrator of the estate of the deceased or of any part thereof, upon the appointed person giving such security (if any) as the court directs, and every such administration may be limited as the court thinks fit.

(2) The court shall take into account any statement signed by the testator giving reasons for nominating a particular executor.

5.18 The National Committee endorsed the effect of subsection (1)(c) in promoting recognition of cost effectiveness and, by enabling a change of service provision, giving effect to competition policy. The Probate Registrars generally agreed it should be possible to pass over a named executor but considered that the matter should not be open to the exercise of the court’s discretion where all the beneficiaries were of full age and capacity and agreed that the grant should be made to some other person.

Proposal 10

A provision to the general effect of the proposed redraft of sections 74 and 75 of the Wills, Probate and Administration Act 1898 (NSW), including a provision to facilitate the passing over of a named executor in particular circumstances, should be included in the model legislation.

5.19 Section 23 of the Public Trustee Act 1913 (NSW) provides that, where there is reasonable ground to suppose that a person has died, the court has power to appoint the Public Trustee to administer the estate of the deceased person without requiring strict proof of the death. The section reads:

When there is reasonable ground to believe that any person has died intestate leaving property in the jurisdiction, the Public Trustee may obtain order to administer without strict proof of death

(1) Whenever it is made to appear to the Court that there is reasonable ground to suppose that any person has died either in or out of the jurisdiction of the Court intestate, leaving property within such jurisdiction, the Court may order and empower the Public Trustee to administer the estate of such person both real and personal.

(2) Every such order shall be valid until revoked, and shall empower the Public Trustee to:


(a) collect, manage, and administer the personal estate of such supposed deceased person; and

(b) enter upon and receive the rents and profits and otherwise manage the real estate; and

(c) pay and discharge the debts and liabilities of such person,


in like manner as if such person were certainly dead and the Public Trustee had obtained a grant of probate or letters of administration under the provisions of section 18.

(3) The Public Trustee shall not proceed to any distribution of the assets without an order of the Court specially authorising the Public Trustee to make such distribution.

5.20 The National Committee considered whether the model legislation should give jurisdiction to the court to enable the Public Trustee to administer an estate without strict proof of death, or whether such a provision would be more appropriately located in Public Trustee legislation.

(b) The National Committee’s preliminary view

5.21 The National Committee considered that a provision to the effect of section 23 of the Public Trustee Act 1913 (NSW) should not be included in the model legislation. This would be consistent with the National Committee’s recommendation in Chapter 17 of this Discussion Paper that the model legislation include a statutory formulation of Re Benjamin orders. However, the National Committee did consider that if such a provision were to be retained it should be made clear that the court can impose such terms and conditions on the grant as it considers appropriate.

Proposal 11

A provision to the effect of section 23 of the Public Trustee Act 1913 (NSW) should not be included in the model legislation. However, if it is retained by individual jurisdictions, whether in probate and administration legislation or in Public Trustee legislation, the following words should be added, by way of clarification of the court’s powers: and the Court may impose such terms and conditions as the Court deems fit.

(a) Introduction

5.22 Tasmania and New Zealand have provisions that set out the matters to which the court must have regard in granting letters of administration. Section 13 of the Administration and Probate Act 1935 (Tas) provides:

Discretion of Court as to persons to whom administration is to be granted and limitation of grant

In granting letters of administration the Court shall have regard to the rights of all persons interested in the real and personal estate of the deceased person, or the proceeds of sale thereof and, in particular, administration with the will annexed may be granted to a devisee or legatee, and any such administration may be limited in any way the Court thinks fit.

Provided that –

(a) where the deceased died wholly intestate as to his real and personal estate, administration shall, if application is made for that purpose, be granted to some one or more of the persons interested in the residuary estate of the deceased; and

(b) if, by reason of the insolvency of the estate of the deceased or of any other special circumstances, it appears to the Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this provision, would by law have been entitled to the grant of administration, the Court may in its discretion, notwithstanding anything contained in section 14, appoint as administrator such person as it thinks expedient, and any administration granted under this provision may be limited in any way the Court thinks fit.

5.23 The National Committee considered whether the model legislation should include a provision to the effect of section 13 of the Administration and Probate Act 1935 (Tas).

(c) The National Committee’s preliminary view

5.24 It was generally agreed that it was desirable to include a broad statement of principle in the model legislation as to the matters to which the court must have regard when granting letters of administration. In this context, the following redraft of section 13 of the Administration and Probate Act 1935 (Tas) was suggested and considered:

In granting letters of administration the Court shall have regard to the rights of all persons interested in the estate of the deceased and in particular the rights of those who have the greatest interest in the due administration of the estate.

Proposal 12

The model legislation should include a provision to the effect of section 13 of the Administration and Probate Act 1935 (Tas), as redrafted above, signposting the issue of ranking of applicants for letters of administration.

Question for discussion

5.1 Is it necessary or desirable for the suggested provision to refer to the court having particular regard to “the rights of those who have the greatest interest ...”?

(a) Introduction

5.26 If a person dies intestate or dies leaving a will that does not appoint an executor or if, for some reason, a person named as executor is unwilling or unable to act, it may be necessary for an administrator to be appointed to administer the deceased estate.

5.27 There is a conventional ranking of applicants for letters of administration which is derived from the Non-Contentious Probate Rules 1954 (UK), which have been revoked and replaced by the Non-Contentious Probate Rules 1987 (UK). The ranking is not absolute; the court retains a discretion in the appointment of an administrator.¹³

5.28 The conventional order applies in Queensland.¹⁴ The conventional ranking which operates in Queensland has been described by Lee as follows:¹⁵

1. Trustees of the residuary estate come first. The reason for this is that the testator has reposed sufficient confidence in them to appoint them as trustees, and, if they are to protect the residuary estate, they must see to the efficient administration of the whole.¹⁶

2. The persons beneficially entitled to the residuary estate are next preferred, because it is in their interest to ensure that the entire estate is efficiently administered.¹⁷ Where the residuary estate is divided between a life tenant and a remainderman, the life tenant will be preferred.

3. If there is no residuary clause in the will, then the persons entitled to the residuary estate – that is those entitled on the intestacy of the testator – will be preferred.

4. Failing any of the above, a legatee may apply.

5. Failing any of the above, the court may grant letters of administration with the will annexed to a creditor,¹⁸ or to a person who has acquired the whole beneficial interest under the will.¹⁹

6. The Public Trustee may apply for and be granted an order to administer the estate.²⁰

7. Trustee companies are entitled to take out grants of letters of administration under the Trustee Companies Act 1968 in cases of testacy and intestacy.²¹

Within any class the person with the largest interest is preferred.²²

To whom administration may be granted

The Court may grant administration of the estate of an intestate person to the following persons, not being minors, that is to say to:

(a) the husband or wife of the deceased, or

(b) one or more of the next of kin, or

(c) the husband or wife conjointly with one or more of the next of kin,

or if there be no such person or no such person within the jurisdiction:


(i) who is, of the opinion of the Court, fit to be so trusted, or

(ii) who, upon being required in accordance with the rules, or as the Court may direct, to pay for administration, complies with the requirement or direction,


then to:

(d) any person, whether a creditor or not of the deceased, that the Court thinks fit.

5.30 The National Committee considered whether the model legislation should include a provision stipulating the ranking of applicants for letters of administration or whether the question of the ranking of applicants for letters of administration should be left to the general law, as it is in Queensland.

(c) The National Committee’s preliminary view

5.31 Although the National Committee recognised that the courts are aware of the conventional ranking, and that there may be no significant advantage in adopting provisions that stipulate the ranking of applicants in the model legislation, there was some support for the view that it would be useful for the legislation to set out the order in which people were entitled to apply for letters of administration, for the benefit of non-lawyers involved in the administration of a deceased estate. This issue again raised the policy question of the extent to which matters of detail should be included in the model legislation or left to the rules of court in each jurisdiction.

5.32 The National Committee considered that it may be difficult to achieve uniformity in relation to the ranking of applicants for letters of administration, given that the intestacy rules of the various jurisdictions are not presently uniform. Other differences in the substantive law of the various jurisdictions were also considered relevant, such as the various definitions of “de facto partners”.

5.33 While one of the Probate Registrars supported the inclusion of a list of ranking, the National Committee preferred the view that a list of ranking should not be included in the model legislation.

Proposal 13

The model legislation should not include a provision setting out the order in which people are entitled to apply for letters of administration. Jurisdictions that presently have such a list could move it to, or retain it in, their rules of court (depending on where it is presently located).

QLD	O 71 r 51-64	WA	63, 64, r 33
ACT	33-38, O 72 r 52-55	NT	44, r 88.62 - 88.71
VIC	58, 82, O 8	TAS	r 77-82
NSW	144-146, 148, Pt 78 r 61-70	UK24	r 44
SA	26, r 52	NZ	60, 61

(a) Introduction

5.34 A caveat, in the context of the administration of estates, is a procedure whereby a person is able to object to, and delay the appointment of, a particular administrator by the court or object to, and delay the sealing of, probate or letters of administration until such time as the court removes the caveat.

5.35 A number of jurisdictions have provisions in their legislation relating to caveats.²⁵ The detail included in those provisions varies widely from jurisdiction to jurisdiction. The main difference is in the incorporation of provisions which are procedural in nature. New South Wales, the Australian Capital Territory and Western Australia have included both substantive and procedural provisions in their legislation, whereas Victoria and South Australia have included substantive provisions only. Additionally, all Australian jurisdictions have provisions relating to caveats in their rules of court.²⁶

5.36 Sections 144 to 146 and 148 of the Wills, Probate and Administration Act 1898 (NSW) read:

144 Caveat may be lodged

(1) Any person may lodge in the registry of the Court a caveat against any application for probate or administration, or for the sealing of any probate or letters of administration under Division 5, at any time previous to such probate or administration being granted, or to the sealing of any such probate or letters of administration.

(2) Every such caveat shall set forth the name of the person lodging the same, and an address for service in accordance with the rules.

145 Application may proceed on notice

In every case where a caveat is lodged against an application the applicant may, subject to the giving of such notice to the caveator as the rules may require or the Court may direct, proceed, in accordance with the rules or as the Court may direct, with the application.

146 Court may order application to proceed

The Court, on the application of the caveator, may order that the application for grant or sealing, as the case may be, proceed and may give directions relating thereto.

148 Caveats may be withdrawn

A caveat may be withdrawn at any time with the leave of the Court, subject to such order as to costs or otherwise as it may direct.

5.37 The National Committee considered whether it is necessary or appropriate to include a provision relating to caveats in the model legislation, or whether such a provision would be better placed in rules of court.

(c) The National Committee’s preliminary view

5.38 The National Committee reviewed the subrules set out in rule 52 of The Probate Rules 1998 (SA) which are the most recently drafted rules relating to caveats. Subrule 52.01 reads:

Any person who wishes to ensure that no grant is sealed without notice to such person may enter a caveat in the Registry.

5.39 The National Committee noted that the question of caveats would have to be revisited at a later date in the context of inter-jurisdictional recognition of grants. At that point, a national register of caveats – or at least the possibility of linking all registries for search purposes – may need to be considered.

Proposal 14

A provision based on subrule 52.01 of The Probate Rules 1998 (SA) should be included in the model legislation.

Proposal 15

Detailed procedural matters – such as those set out in the balance of rule 52 of The Probate Rules 1998 (SA) – should be considered by each jurisdiction for possible inclusion in their rules.

Proposal 16

Sections 144 to 146 and 148 of the Wills, Probate and Administration Act 1898 (NSW) and the Victorian caveat rules should also be considered when each jurisdiction’s rules relating to caveats are reviewed.

1. Administration and Probate Act 1929 (ACT) s 32.

2. Administration and Probate Act 1958 (Vic) s 34.

3. Administration and Probate Act (NT) s 41.

4. Administration Act 1969 (NZ) s 21.

5. Section 63 of the Wills, Probate and Administration Act 1898 (NSW) is set out at para 5.29 of this Discussion Paper.

6. See para 5.26-5.33 of this Discussion Paper in relation to the conventional order of ranking of applicants for letters of administration.

7. See R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1996) at para 74.02; Re Chave (1930) 30 SR (NSW) 180; Re McCormack (1902) 2 SR (NSW) B & P 48. See also s 13(b) of the Administration and Probate Act 1935 (Tas) (“special circumstances”).

8. The Court will not lightly interfere with the testator’s choice of executor, particularly in cases where the beneficiaries are opposed to the appointment of an executor by the testator who, at the time the will is made, is aware of the circumstances and position of the executor: Re Jensen [1998] 2 Qd R 374 (hostility on the part of beneficiaries due to religious intolerance towards executor held not to be sufficient).

9. Public Trustee Act 1913 (NSW).

10. Public Trustee Act 1995 (SA).

11. Public Trustee Act (NT).

12. Non-Contentious Probate Rules 1987 (UK).

13. Bath v British and Malayan Trustees Ltd (1969) 90 WN (NSW) 44 per Helsham J at 49.

14. See discussion in W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 826-828. The basis for the operation of the conventional ranking in Queensland is somewhat circuitous. Section 70 of the Succession Act 1981 (Qld) provides that the practice of the court shall, except where otherwise provided for under that 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 the Succession Act 1981 (Qld). Prior to the passing of that Act the practice of the court was, so far as the circumstances of the case would admit, according to the practice of the Court of Probate in England: Probate Act 1867 (Qld). The Probate Act 1867 (Qld) was repealed by the Succession Act 1981 (Qld), but its effect in this respect is preserved by s 70 of the Succession Act 1981 (Qld). As a result, the ranking of applicants for letters of administration in Queensland is governed by the Non-Contentious Probate Rules of the Court of Probate in England, as they applied immediately prior to the enactment of the Succession Act 1981 (Qld).

15. W A Lee, Manual of Queensland Succession Law (4th ed 1995) at para 827.

16. Lee refers to Goods of Poyer (1856) Deane 184; 164 ER 543 and Estate of Mackenzie [1909] P 305.

17. Lee refers to Bigg v Keen (1752) 1 Lee 124; 161 ER 46.

18. Lee refers to Re Phillips [1906] QWN 18.

19. Lee refers to Will of Reilly (1907) 24 WN (NSW) 164.

20. Lee refers to Public Trustee Act 1978 (Qld) s 29.

21. Lee refers to Re McInnes [1939] QWN 35 and Re Milne [1952] QWN 9 as examples.

22. Lee refers to Budd v Silver (1813) 2 Phill 115; 161 ER 1094.

23. See Administration and Probate Act 1929 (ACT) s 12; Wills, Probate and Administration Act 1898 (NSW) s 63; Administration and Probate Act 1935 (Tas) s 13; Administration Act 1903 (WA) s 25; Administration and Probate Act (NT) s 22.

24. Non-Contentious Probate Rules 1987 (UK).

25. For example, s 63 and 64 of the Administration Act 1903 (WA) read:

63 Caveat

(1) Any person may lodge with the Principal Registrar a caveat against any application for probate or administration, or for the sealing of any probate or letters of administration under this Act, at any time previous to such probate or administration being granted or sealed.

(2) Every such caveat shall set forth the name of the person lodging the same, and an address in accordance with the rules at which notices may be served on him.

64 Court may remove caveat

(1) In every case in which a caveat is lodged the Court may, upon application by the person applying for probate or administration, or for the sealing of any probate or letters of administration, as the case may be remove the same.

(2) Every such application shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat.

(3) Such application may be heard and order made upon affidavit or oral evidence, or as the Court may direct.