9.1 Different people have different interests in the administration of an estate. The main interests may be described as follows.

(a) Beneficiaries

9.2 Beneficiaries have an interest in knowing that all the assets have been disclosed. Residuary beneficiaries, in particular, have an interest in inexpensive procedures being adopted in the administration of the estate so that their shares of the estate are not unnecessarily diminished.

(b) Creditors

9.3 Creditors have an obvious interest in being paid what is owed to them from the deceased’s estate.

(c) Family provision claimants

9.4 Family provision claimants, both present and potential, have an interest in the recognition of their claims and in the preservation of the estate to provide for those claims.

(d) Personal representatives

9.5 A personal representative has an interest in the simplicity of the administration. A personal representative also has an interest in being protected from liability to other interested parties as a result of claims arising from administration of the estate.

2. BALANCING THE VARIOUS INTERESTS

9.6 In any system of administration there is a need to balance these sometimes competing interests. For example, family provision claimants must be given a reasonable time to make their claims, but not so long as to delay unduly the administration of an estate to the prejudice of beneficiaries. Personal representatives must also be able to distribute the estate at a certain point, without fear of personal liability for further claims that might be made on the estate by either creditors or family provision claimants.

9.7 A number of jurisdictions impose obligations on personal representatives acting pursuant to a grant to protect the interests of persons who may be affected by the administration of the estate. The main obligations currently imposed are the filing of inventories, the filing of accounts and, in relation to administrators, the provision of an administration bond and sureties.

9.8 In this Chapter, the National Committee examines these obligations, as well as the liability of personal representatives in respect of dispositions or payments made while acting under a grant.

3. INVENTORIES¹

QLD		WA
ACT		NT	O 88 r 27
VIC		TAS
NSW	81A, 81B	UK
SA	44, 121A	NZ

(a) Nature and function of an inventory

9.9 An inventory of the assets of an estate enables persons interested in its administration to see whether it is worth bringing a family provision application. It also discourages the hiding of assets and promotes honesty.² To be effective, an inventory should include foreign assets.³ An inventory can be quite informal. Precise valuations are not generally needed. Assets discovered after the inventory has been filed can be disclosed in supplementary inventories from time to time.

9.10 An inventory may assist in identifying assets, even many years after the death. One situation where this might be useful could occur if, as occasionally happens, a succession of deceased estates has not been properly administered, and records of assets have been misplaced or lost.⁴

9.11 Every person administering an estate is obliged to keep accounts.⁵ It is arguable that requiring an inventory helps to ensure that the person administering the estate complies with this obligation, because the inventory forms the basis of the accounts.

(b) Current statutory requirements for an inventory

9.12 There are special inventory and disclosure requirements in New South Wales and South Australia.

9.13 Section 81A of the Wills, Probate and Administration Act 1898 (NSW) requires an applicant for a grant of probate or administration to disclose to the court the assets and liabilities of the deceased. Section 81B deals with the consequences of non-disclosure. Section 81A reads:

Disclosure of assets and liabilities of deceased

(1) A person who applies for a grant of probate or administration in respect of the estate of a person who dies on or after 31st December 1981 shall, in accordance with the rules of Court, disclose to the Court the assets and liabilities of the deceased.

(2) An executor, administrator or trustee of the estate of a person who dies on or after 31st December 1981 shall, in accordance with the rules of Court, disclose to the Court any assets and liabilities of the deceased which have not previously been disclosed to the Court.

Power to deal with assets etc.

(1) Nothing in this Part enables an executor, administrator or trustee of the estate of a person who dies on or after 31st December 1981 to complete the disposition of, and such an executor, administrator or trustee shall not complete the disposition of, any property of the deceased vested in the deceased which has not been disclosed to the Court pursuant to section 81A(1) or (2).

(2) Nothing in subsection (1) prevents an executor or administrator from effecting an appointment pursuant to section 75A.

(3) Nothing in subsection (1) affects any interest in any property acquired from an executor, administrator or trustee referred to in that subsection by a person where the interest was acquired in good faith, for valuable consideration and without notice that the property had not been disclosed to the Court pursuant to section 81A (1) or (2).

9.15 Section 81B(1), read with section 81A(1), seems not only to make the inventory mandatory, but also to make it mandatory to take out a grant in every case. However, section 81B(3) protects a person who acquires the property in good faith, for valuable consideration and without knowledge of its non-disclosure in an inventory.

9.16 Legislation in South Australia also requires disclosure of the assets of an estate. Section 44 of the Administration and Probate Act 1919 (SA) reads:

Obligation of person dealing with asset to ensure that it has been properly disclosed

(1) A person who deals with an asset of the estate of a deceased person that is required to be disclosed under section 121A must satisfy himself by examination of the Registrar’s certificate, or on the basis of some other reliable evidence, that the asset has in fact been so disclosed.

(2) A person who fails to comply with subsection (1) shall be guilty of a summary offence and liable to a penalty not exceeding two thousand dollars.

(3) This section does not apply to an asset of the estate of a deceased person who died before the day on which section 121A came into operation.

Statement of assets and liabilities to be provided with application for probate or administration

(1) A person who applies –


(a) for probate or administration; or

(b) for the sealing of any probate or administration granted by a foreign court,

in respect of the estate of a deceased person shall, in accordance with the rules, disclose to the Court the assets and liabilities of the deceased person known to him at the time of making the application.


(2) An executor, administrator or trustee of the estate of a deceased person (being an estate in respect of which probate or administration has been granted or sealed by the Court) shall, in accordance with the rules, disclose to the Court any assets or liabilities of the deceased person (not being assets or liabilities previously disclosed under this section) which come to his knowledge while acting in that capacity.

(3) An executor, administrator or trustee of an estate shall not dispose of an asset of the estate in respect of which disclosure has not been made to the Court pursuant to this section.

(4) Nothing in subsection (3) affects the interests of a person who acquires an asset of an estate in good faith for valuable consideration and without knowing that the asset has not been disclosed to the Court pursuant to this section.

(5) An executor, administrator or trustee who contravenes or fails to comply with a provision of this section is guilty of a summary offence and liable to a penalty not exceeding two thousand dollars.

(6) This section does not apply in respect of an estate of a deceased person who died before the commencement of this section.

(7) A reference in this section to the assets and liabilities of a deceased person is a reference to –


(a) assets and liabilities of the deceased at the date of his death; and

(b) assets falling into the estate after the death of the deceased not being an accretion to the estate arising out of an asset existing at the date of his death,

but does not include a reference to any asset or liability prescribed by the rules.


(8) In this section –

“administration” includes an order under section 79 authorising the Public Trustee to administer the estate of a deceased person.

9.18 The National Committee considered whether the model legislation should include a provision requiring an applicant for a grant of probate or letters of administration to disclose to the court the assets and liabilities of the deceased.

(d) The National Committee’s preliminary view

9.19 The National Committee was of the view that the requirement to file an inventory was of assistance in ensuring that a personal representative keeps proper accounts. It was considered that, if an inventory were required, it should include assets within and outside the jurisdiction, and should also include liabilities.

9.20 However, the National Committee considered that provisions to the effect of sections 81A and 81B of the Wills, Probate and Administration Act 1898 (NSW), which prevent a personal representative disposing of an asset without a grant of probate or administration, would unduly hinder the efficient informal administration of small estates. The National Committee was therefore of the view that, if the provisions were to be included in the model legislation, the obligation to file an inventory should be limited to personal representatives who apply for a grant.

9.21 The National Committee was also of the view that sections 44(1) and 121A of the Administration and Probate Act 1919 (SA) were clearer than the New South Wales provisions. However, the National Committee did not decide whether the model legislation should impose a criminal sanction in the event that the personal representative deals with the assets of the estate without first disclosing them.

Proposal 60

Provisions to the general effect of sections 44(1) and 121A of the Administration and Probate Act 1919 (SA), requiring a personal representative who applies for a grant of probate or administration to file an inventory, should be included in the model legislation.

Questions for discussion

9.1 If a provision to the effect of section 52(1) of the Succession Act 1981 (Qld) (see Chapter 8 of this Discussion Paper) is adopted by the model legislation, would a provision to the general effect of sections 44(1) and 121A of the Administration and Probate Act 1919 (SA) still be necessary?

9.2 Should the model legislation impose a criminal sanction on a personal representative who deals with assets of an estate without first disclosing them?

(a) Introduction

9.22 In the context of the administration of estates, a bond is an undertaking on oath on the part of the administrator to perform the obligations of the administrator and to make good any default in the administration of the estate by the administrator. A surety is a person or corporation who undertakes to guarantee to satisfy the obligations undertaken by the administrator. The bond affords creditors or beneficiaries a remedy against the surety in the event of default by the administrator.

9.23 Legislation in most jurisdictions requires an administrator to whom letters of administration are granted to enter into an administration bond. An administration bond repeats the obligations of the administrator. It also contains an undertaking to the court by the administrator and the sureties, if any, to make good any default in the administration of the estate by the administrator.⁶

9.24 If an administrator defaults in the administration of an estate, an aggrieved person may, after applying to the court to have the bond assigned to him or her, sue on the bond as if it had originally been given to the aggrieved person.⁷ The English Law Commission, which has reviewed the requirement for bonds, was of the view that it was rare for an action to be taken on a bond, as it was not necessary to do so in order to sue the administrator. This step was usually taken only to provide a remedy against the surety.⁸ This would be especially useful if an administrator caused loss to an estate, and then disappeared or became bankrupt.⁹

(b) Present requirements for administration bonds and sureties

9.25 The requirements in relation to bonds and sureties are not uniform. For example, in the Australian Capital Territory, an administrator must enter into a bond with an insurance company as surety.¹⁰ In Tasmania, it is necessary to provide a surety only if the Registrar requires it, and there is no requirement that the surety must be an insurance company.¹¹ The surety may therefore be a private individual.

9.26 In Queensland, the requirement to furnish an administration bond or a surety in support of such a bond has been abolished.¹² Section 51 of the Succession Act 1981 (Qld) reads:

Abolition of administration bond and sureties

As from the commencement of this Act neither an administration bond nor sureties in support of an administration bond shall be required of any administrator.

9.27 There has been a legislative trend away from administration bonds in other jurisdictions.¹³ Three States have opted not to make the provision of a bond a requirement for obtaining a grant. Victoria,¹⁴ South Australia,¹⁵ and Western Australia¹⁶ give the court a discretion to require a bond as a condition of granting administration. New South Wales,¹⁷ by contrast, makes the provision of a bond a requirement for obtaining a grant (subject to exceptions relating to the Public Trustee and trustee companies).

9.28 An example of a discretionary provision encompassing bonds and sureties is section 57 of the Administration and Probate Act 1958 (Vic), which reads:

Administration guarantees

(1) As a condition of granting administration to any person the Court or the registrar may require one or more sureties to guarantee that they will make good, in an amount not exceeding the amount at which the property of the deceased is sworn, any loss which any person interested in the administration of the estate of a deceased may suffer in consequence of a breach by the administrator of his duties as such.

(2) A guarantee shall enure for the benefit of every person interested in the administration of the estate of the deceased as if contained in a contract under seal made by the surety or sureties with every such person and, where there are two or more sureties, as if they had bound themselves jointly or severally.

(3) No proceeding shall be brought on any such guarantee without the leave of the Court.

(4) This section does not apply where administration is granted to a person for the use or benefit of Her Majesty or to the State Trustees or to any person body corporate or holder of an office specially exempted by any Act.

(c) Arguments in favour of abolishing administration bonds and sureties

9.30 The following arguments may be advanced in favour of abolishing administration bonds and sureties.

(i) Only administrators affected

9.31 Only administrators are required to furnish a bond; there is no such requirement for executors. This situation is anomalous. There is no reason to believe that administrators are less trustworthy than executors or that the testator’s choice (the executor) is more reliable than the administrator appointed by the court.

9.32 The Queensland Law Reform Commission, in its 1978 Report suggested that, if administration bonds were not necessary for trustees or executors, they could hardly be necessary for administrators.²³

(ii) Expense

9.33 The Queensland Law Reform Commission, in its 1978 Report, suggested:²⁴

[T]he very considerable cost to the community, estate by estate, of the retention of this system simply does not justify the protection that it may extraordinarily provide for persons who have been defrauded.

9.35 However, at least in New South Wales, it is more common for administrators to file a bond supported by two sureties when called upon. The sureties are usually family members or friends of the deceased who file affidavits of justification deposing to their assets. This is done at no cost to the estate. It is also possible for the Court to dispense with one or more surety or reduce the amount of the bond. In most estates where the question of a bond is an issue, there is a significant reason for it, for example, a family dispute or the protection of the interests of minors. Where the bond is required in respect of unsecured debts, there are the options of either paying the debts or providing consents of the creditors.

9.36 The provision of a bond supported by a private surety, where that is permitted, does not involve the expense occasioned by a corporate surety. However, not all administrators have family or friends who are willing, or more importantly, have the financial resources, to be able to act as a surety.

(iii) Infrequency of recourse to the surety

9.37 It seems to be rare for the sureties to an administration bond to be required to pay out for the defalcation of an administrator. In its 1978 Report, the Queensland Law Reform Commission noted that the then Registrar of the Queensland Supreme Court could not remember a single instance of a bond having been assigned by the court (the first step taken where a bond is to be enforced).²⁶ The English Law Commission’s report on administration bonds²⁷ also quoted only one case that had been drawn to its attention where the surety was held liable – where an estate had been wrongly distributed to beneficiaries.²⁸ The Queensland Law Reform Commission made the further observation in relation to the extent to which sureties were called upon:²⁹

An enquiry of the State Government Insurance Office as to the number of occasions on which they had been required to pay out a surety bond elicited the response that that company had never, in fact, been obliged to meet any claim.

9.39 Geddes, Rowland and Studdert cite a number of 18th and 19th century cases dealing with breaches of bond conditions, assignment, extent of liability and defences.³¹ However, there are very few 20th century cases cited.³²

(iv) Imposition of liability on the innocent

9.40 The bond system was criticised in Re Egen (deceased),³³ where it was suggested there should be a better way of ensuring proper administration than “casting a liability on innocent and helpless sureties”.³⁴

(d) Issues considered by the National Committee

9.41 The National Committee considered whether:

(1) the requirement for administration bonds and sureties should be abolished; and

(2) if so, a provision to the effect of section 51 of the Succession Act 1981 (Qld) should be included in the model legislation.

(e) The National Committee’s preliminary view

9.42 Concerns were expressed at the limited number of insurers prepared to issue administration bonds, the lack of competition and the lack of a rational basis for setting premiums. However, it was noted that in some jurisdictions most sureties were provided privately – for example, by a family member for very little up front cost.

9.43 The National Committee did not consider that the disadvantages of bonds and sureties were such that they should be abolished in all cases. In particular, the National Committee noted that there was some opposition among the Registrars of Probate to the total abolition of administration bonds. The National Committee did, however, recognise that sufficient protection could be provided by giving the court a discretionary power to impose some kind of security, in an appropriate case, through means such as a bond, surety, joint administration or accounting procedures. This might be useful where, for example, the interests of a minor beneficiary were involved.

Proposal 61

The provision of bonds and sureties should not be mandatory, but should simply be among the options for security that may be ordered by the Court in an appropriate case.

Questions for discussion

9.3 How frequently are sureties required in those jurisdictions where a bond must be supported by a surety only if required by the Court or the Registrar?

9.4 How frequently are sureties sued pursuant to an administration bond?

9.5 Should the provision of bonds and sureties be restricted to where an estate is being administered by an administrator, or should the court also be able to order their provision where an estate is being administered by an executor?

9.6 Should there be provision for private sureties?

(a) Introduction

9.44 The National Committee has not considered whether the passing of accounts should be a condition which may be imposed on the making of a grant. Section 85 and, in particular, section 85(1AA)(e) of the Wills, Probate and Administration Act 1898 (NSW) could be a precedent for the possibility of the passing of accounts being a condition of the grant. Section 85 reads:

Executor, administrator or trustee to pass accounts

(1) In respect of the estate of a person who died before 31 December 1981 every person to whom probate or administration has been or is granted shall file an inventory of the estate of the deceased and file or file and pass the person’s accounts relating thereto within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

(1AA) In respect of the estate of a person who dies on or after 31 December 1981 every person to whom probate or administration has been or is granted and who is:


(a) a creditor of the estate of the deceased,

(b) the guardian of a minor who is a beneficiary of the estate of the deceased,

(c) the executor or administrator of the estate where the whole, or a part which, in the opinion of the Court, is a substantial part, of the estate passes to one or more charities or public benevolent institutions,

(d) a person, not being a beneficiary, or, in the opinion of the Court, a substantial beneficiary, of the estate, selected at random by the Court, or

(e) a person otherwise required to do so by the Court,

shall verify and file or verify, file and pass the person’s accounts relating to the estate within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.


(1A) Every trustee of the estate of a deceased person shall verify and file or verify, file and pass the trustee’s accounts relating thereto within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

Nothing in this subsection affects the operation of section 35A of the Public Trustee Act 1913.

(1B) In respect of the estate of a person who dies on or after 31 December 1981 every person to whom probate or administration has been or is granted and who is not a person to whom subsection (1AA) applies may verify and file or verify, file and pass the person’s accounts relating to the estate within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

(2) Every such person shall be subject to any order that the Court may on the application of any person interested make as to the production and verification of the accounts concerned.

(3) The order of the Court allowing any such account shall be prima facie evidence of the correctness of the same, and shall, after the expiration of three years from the date of such order, operate as a release to the person filing the same, excepting so far as it is shown by some person interested therein that an error or omission or fraudulent entry has been made in such account.

(4) Where the Court, in passing any such accounts, disallows in whole or in part the amount of any disbursement, the Court may order the executor, administrator or trustee to refund the amount disallowed to the estate of the deceased.


Nothing in this subsection alters or diminishes the right of any person to proceed in equity in the same way as if this subsection had not been enacted.

(5) Every executor, administrator or trustee of the estate of a deceased person shall verify and file an inventory of the estate of the deceased within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

Question for discussion

9.7 Should the passing of accounts be a condition which the Registrar or the Court may impose on the making of a grant?

9.45 A personal representative is obliged to distribute the estate in accordance with the law, and will generally be liable if he or she distributes the estate otherwise than in accordance with the law. For example, to the extent to which the creditors of an estate could be paid from the estate, a personal representative would be liable if he or she distributed the estate without first paying the estate’s creditors.

9.46 However, administering an estate pursuant to a grant may protect a personal representative from liability in respect of certain payments or distributions made out of the estate. There are two situations, in particular, where this is especially significant:

• if it is found that, after the estate has been distributed, the distribution was made according to a will that was not the last valid will of the deceased person and the grant of probate in respect of the first will is revoked; and
• if a personal representative is not aware of all the creditors of the estate and distributes the estate without first discharging all its debts.

QLD	53(1)	WA	47
ACT	63	NT	43, 95
VIC	9, 10, 31	TAS	28
NSW	40D, 91	UK	27
SA	43	NZ	45

QLD	53(2)	WA	46
ACT	62(2)	NT	94
VIC		TAS	28(2)
NSW	90	UK	27(2)
SA		NZ

QLD	53(3)	WA
ACT		NT
VIC	42	TAS	37
NSW		UK	37
SA		NZ

QLD	53(4)	WA
ACT		NT
VIC		TAS
NSW		UK
SA		NZ

QLD	53(5)	WA
ACT		NT
VIC		TAS	32(2)
NSW		UK
SA		NZ

QLD	53(6)	WA	41
ACT	31	NT	40
VIC	23	TAS	20
NSW	81	UK	17
SA	42	NZ

9.47 Section 53 of the Succession Act 1981 (Qld) protects a personal representative who has obtained a grant in the event that the grant is subsequently revoked. The section reads:

Effect of revocation of grant

(1) Every person making or permitting to be made any payment or disposition in good faith under a grant shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of the grant.

(2) All payments and dispositions made in good faith to the personal representative named in a grant before the making or the revocation thereof shall be a valid discharge to the person making the same; and a personal representative who has acted under a grant which is subsequently revoked may retain and reimburse himself or herself in respect of payments and dispositions made by him or her which the person to whom a grant is afterwards made might properly have made.

(3) Without prejudice to any order of the court made before the commencement of this Act all dispositions of any interest in property made to a purchaser in good faith by a person to whom a grant has been made are valid notwithstanding any subsequent revocation thereof.

(4) A personal representative who in good faith and without negligence has sought and obtained a grant is not liable for any legacy paid or asset distributed in good faith and without negligence in reliance on the grant notwithstanding any subsequent revocation thereof.

(5) The personal representative under any grant made subsequent to a grant which has been revoked may recover any legacy paid or asset distributed (or the value thereof) in reliance on the revoked grant from the person to whom the legacy or asset was paid or distributed, being a legacy or asset which is not payable or distributable to that person under the subsequent grant, but if that person has received the payment or distribution in good faith and has so altered that person’s position in reliance on the propriety of the payment or distribution that, in the opinion of the court, it would be inequitable to order the repayment of the legacy or the return of the asset or its value, the court may make such order as it considers to be just in all the circumstances.

(6) If, while any legal proceeding is pending in any court by or against a personal representative to whom a grant has been made, the grant is revoked, that court may order that the proceeding be continued by or against the new personal representative in like manner as if the same had been originally commenced by or against the personal representative, but subject to such conditions and variations (if any) as the court directs.

(7) For the purposes of this section revocation includes any partial revocation by way of a variation of the grant or otherwise.

Subsections (4) and (5) make a substantial change in favour of the personal representative whose grant has been revoked. Hitherto if a grant was revoked under which a personal representative had paid out legacies or made intestacy distributions he would be personally liable to those to whom the payments should have been made under a later grant and he could not recover anything from the person paid under the revoked grant. That rule is considered to be unjust and we recommend that if the personal representative has acted in good faith and without negligence he should not be liable for such payments. We further recommend that the personal representative under a subsequent grant may recover any legacy or distributive share paid under the revoked grant, if it is not payable under the subsequent grant. But we wish to extend to the distributee the defence of change of position already given, by s 109 of the Trusts Act 1973, in the case of mistaken payments made out of a trust fund, so as to give him some protection particularly if there is delay in the bringing of proceedings for recovery. [original emphasis]

QLD36	67	WA
ACT	64	NT	96
VIC		TAS
NSW	92	UK
SA		NZ

9.49 In some cases, it may be difficult for a personal representative to identify all the persons who might have claims on an estate. It would be undesirable for the administration of an estate to be unduly delayed while the personal representative made onerously extensive inquiries. It would also be undesirable, in terms of attracting people to fulfil the role of personal representative, if a personal representative were to be liable to a claimant of whose claim the personal representative could not reasonably have become aware.

9.50 A number of jurisdictions have enacted provisions to protect a personal representative from liability to various persons who may have a claim against the estate, provided that the personal representative complies with the procedures set out in the relevant provision. Although there are variations between jurisdictions, the main feature of these provisions is that they permit a personal representative to advertise an intention to distribute the estate and to distribute after a certain time with reference only to claims of which the personal representative is aware. For example, section 67 of the Trusts Act 1973 (Qld) reads:³⁷

Protection of trustees by means of advertisements

(1) With a view to the distribution of any trust property or estate a trustee or personal representative may give notice by advertisement in –


(a) the gazette; and

(b) a newspaper published in Brisbane, Rockhampton or Townsville; and

(c) a newspaper circulating in the district in which is situate any land to which the notices relates; and

(d) in the case of the administration of the estate of a deceased person – a newspaper circulating in the district where the deceased resided and, if the deceased carried on a business, in the district in which the deceased carried on that business;

and such other notices as would be directed by the court to be given in an action for administration, requiring any person having any claim, whether as creditor or beneficiary or otherwise, to send particulars of the person’s claim not later than the date fixed in the notice, being a date at least 6 weeks after the date of publication of the notice.


(2) Notice of advertisement is sufficient if given in the approved form.

(3) After the date fixed by the last of the notices to be published the trustee or personal representative may distribute the trust property or estate having regard only to the claims, whether formal or not, of which the trustee or personal representative has notice at the time of distribution; and the trustee or personal representative shall not, as respects any trust property or estate so distributed, be liable to any person of whose claim the trustee or personal representative had no notice at the time of distribution.

(4) Nothing in this section –


(a) prejudices the right of any person to enforce (subject to the provisions of section 109) any remedy in respect of the person’s claim against a person to whom a distribution of any trust property or estate has been made; or

(b) relieves the trustee or personal representative of any obligation to make searches or obtain certificates of search similar to those which an intending purchaser would be advised to make or obtain.

9.51 Where a personal representative has fulfilled the notice requirements, has waited for the time stated in the notices to pass, and then distributes the estate having regard only to the claims of which he or she has notice at the time of distribution, the personal representative is protected against claims by any person of whose claim the personal representative had no notice at the time of distribution.

9.52 A similar provision is found in section 92 of the Wills, Probate and Administration Act 1898 (NSW). Section 92 reads:

Distribution of assets after notice given by executor or administrator

(1) Where the executor or administrator of the estate of a testator or an intestate has published notices in or to the effect of the form prescribed by rules of the Court requiring the claims of beneficiaries (including children conceived but not yet born at the death of the testator or intestate), creditors and other persons in respect of the assets of the estate of the testator or intestate to be submitted to the executor or administrator by or on behalf of those beneficiaries, creditors or other persons, the executor or administrator may, at the expiration of the period for submitting those claims specified in the notices or, as the case may be, specified in the last of the notices, distribute the assets, or any part of the assets, of that estate, among the persons entitled, having regard to the claims of which the executor or administrator has notice at the time of the distribution.

(2) An executor or administrator who distributes the assets or any part of the assets of the estate of a testator or an intestate in accordance with subsection (1) is not liable in respect of those assets or that part of those assets to any person who has a claim in respect of those assets or that part unless the executor or administrator had notice of the claim at the time of the distribution.

(3) In relation to a distribution of the assets of a testator or intestate dying after the commencement of the Children (Equality of Status) Act 1976, an executor or administrator referred to in subsection (2) shall be deemed to have notice of the claim of any person whose entitlement to the assets or to any part of them would have become apparent if the executor or administrator had applied for and obtained a certificate under section 50 of the Births, Deaths and Marriages Registration Act 1995.

9.53 A number of jurisdictions have a provision, as a corollary to the provision about the giving of notices of intended distribution, whereby a personal representative who receives notice of a claim and wishes to reject it, may serve the claimant with notice calling upon the claimant to institute legal proceedings to enforce the claim within a specified period. A claimant who does not comply with such a notice may be barred from pursuing the claim. For example, section 68 of the Trusts Act 1973 (Qld) reads:

Barring of claims

(1) Where a trustee⁴⁰ wishes to reject a claim (not being a claim in respect of which any insurance is on foot, being insurance required by any Act) which has been made, or which the trustee has reason to believe may be made –


(a) to or against the estate or property which the trustee is administering; or

(b) against the trustee personally, by reason by the trustee being under any liability in respect of which the trustee is entitled to reimburse himself or herself out of the estate or property which the trustee is administering;

the trustee may serve upon the claimant or the person who may become a claimant a notice calling upon the claimant, within a period of 6 months from the date of service of the notice, to take legal proceedings to enforce the claim and also to prosecute the proceedings with all due diligence.


(2) At the expiration of the period stipulated in a notice served under subsection (1), the trustee may apply to the court for an order under subsection (3), and shall serve a copy of the application on the person concerned.

(3) Where, on the hearing of an application made under subsection (2), the person concerned does not satisfy the court that the person has commenced proceedings and is prosecuting them with all due diligence, the court may make an order –


(a) extending the period, or barring the claim, or enabling the trust property to be dealt with without regard to the claim; and

(b) imposing such conditions and giving such directions, including a direction as to the payment of the costs of or incidental to the application, as the court thinks fit.


(4) Where a trustee has served any notices under this section in respect of claims on 2 or more persons, and the period specified in each of those notices has expired, the trustee may, if the trustee thinks fit, apply for an order in respect of the claims of those persons by a single application, and the court may, on that application, make an order accordingly.

(5) This section applies to every claim therein mentioned, whether the claim is or may be made as creditor or next of kin or beneficiary under the trust or otherwise; but it does not apply to any claim under the Succession Act 1867, part 5 and no order made under this section shall affect any application for revocation of any grant of probate or of letters of administration, whether that application is made before or after the order.

(6) Where any person beneficially entitled to the estate or property is not made a party to an application by a trustee under this section an order made by the court on the application shall not affect the right of that person to contest the claim of the trustee to be entitled to indemnify himself or herself out of the estate or property.

(7) Any notice or application which is to be served in accordance with the provisions of this section may be served –


(a) by delivering it to the person for whom it is intended or by sending it by prepaid registered letter addressed to that person at the person’s usual or last known place of abode or business; or

(b) in such other manner as may be directed by an order of the court.


(8) Where a notice is sent by post as provided by this section, it shall be deemed to be served at the time at which the letter would have been delivered in the ordinary course of post. [note added]

9.54 The National Committee considered whether:

(1) the model legislation should include a provision to the effect of section 53 of the Succession Act 1981 (Qld);

(2) it should be mandatory for a personal representative who has obtained a grant to give various notices before distributing the estate, or whether the model legislation should simply provide for a personal representative to be protected from liability to certain claimants if the prescribed notices have been given.

(e) The National Committee’s preliminary view

9.55 The National Committee was of the view that a provision to the effect of section 53 of the Succession Act 1981 (Qld) should be included in the model legislation.

9.56 The Registrars of Probate agreed with this view.

9.57 The National Committee was also of the view that the model legislation should include a procedure to enable a personal representative to advertise his or her intention to distribute an estate and, if the procedure is complied with, to be protected from liability to a claimant of whose claim the personal representative was unaware.

9.58 The National Committee did not, however, decide whether it should be mandatory for a personal representative, before distributing an estate, to advertise his or her intention to do so, or whether the model legislation should simply protect a personal representative from liability to certain claimants if the personal representative had distributed the estate after complying with the prescribed procedure.

9.59 The National Committee did not consider whether a provision relating to the barring of claims such as section 68 of the Trusts Act 1973 (Qld) should be included in the model legislation.

Proposal 62

A provision to the effect of section 53 of the Succession Act 1981 (Qld) should be included in the model legislation so that a personal representative is protected from liability in respect of various acts done in reliance on a grant that is subsequently revoked.

Proposal 63

Subject to resolving the issue of whether or not the provision should be mandatory (see question 9.8 below) a provision to the effect of section 67 of the Trusts Act 1973 (Qld) and section 92 of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model legislation, so that a personal representative who distributes an estate after giving, in the prescribed form, notice that he or she intends to distribute the estate after a certain date, and who distributes after that date, is protected from liability to claimants of whose claims the personal representative did not have notice.

Questions for discussion

9.8 Should it be mandatory for a personal representative who has obtained a grant to give various notices before distributing the estate, or should the model legislation simply provide for a personal representative to be protected from liability to certain claimants only if the prescribed notices have been given?

9.9 What should be the requirements of the prescribed notices?

9.10 Should the model legislation include a provision to the effect of section 68 of the Trusts Act 1973 (Qld) relating to the barring of claims?

9.11 If yes to 9.10, where in the model legislation should such a provision be located?

1. See also the discussion of the personal representative’s duty to provide an inventory at para 8.24-8.26 of this Discussion Paper.

2. The inventory can also be a useful historical document for people tracing family histories, though this consideration cannot be given much weight as a reason for requiring a personal representative to file an inventory.

3. However, foreign assets should not be used to inflate the value of the estate for the purposes of calculating fees; the value of foreign assets should be excluded for the purpose of calculating fees.

4. The case of Cameron v Murdoch [1983] WAR 321 provides a graphic illustration of the difficulties that this can cause.

5. See para 8.24-8.26 of this Discussion Paper.

6. Law Commission (UK), Report, Administration Bonds, Personal Representatives’ Rights of Retainer and Preference and Related Matters (Law Com No 31, 1970) at 2.

7. Ibid.

8. Id at 2-3.

9. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 33-34.

10. Administration and Probate Act 1929 (ACT) s 14.

11. Probate Rules 1936 (Tas) r 35.

12. Succession Act 1981 (Qld) s 51. This section applies whether the death occurred before the commencement of that Act (1 January 1982) or after that day: Re Jensen [1982] Qd R 304.

13. See, further, Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 33-36 and New South Wales Law Reform Commission, Working Paper, Administration Bonds (WP 18, 1978).

14. Administration and Probate (Amendment) Act 1977 (Vic) s 4 enacted a new s 57 of the Administration and Probate Act 1958 (Vic).

15. Administration and Probate Act Amendment Act 1978 (SA) s 5 enacted a new s 31 of the Administration and Probate Act 1919 (SA).

16. Administration Act Amendment Act 1976 (WA) s 14 repealed and re-enacted s 62 of the Administration Act 1903 (WA).

17. Wills, Probate and Administration Act 1898 (NSW) s 64(1).

18. Administration bonds were abolished from 1981 by the Supreme Court Act 1981 (UK) which repealed s 8 of the Administration of Estates Act 1971 (UK).

19. See now Supreme Court Act 1981 (UK) s 120.

20. Law Reform Commission of Western Australia, Report, Administration Bonds and Sureties (Project 34, Part 2, 1976) at para 14.

21. Ibid.

22. New South Wales Law Reform Commission, Working Paper, Administration Bonds (WP 18, 1978) at paras 23 and 41.

23. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 36.

24. Ibid.

25. Id at 34.

26. Id at 35.

27. Law Commission (UK), Report, Administration Bonds, Personal Representatives’ Rights of Retainer and Preference and Related Matters (Law Com No 31, 1970).

28. Id at para 4.

29. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 35.

30. Information kindly provided by the New South Wales Registrar of Probate.

31. R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1996) at paras 67.04-67.08.

32. The cases cited are: Holden v Black (1904) 2 CLR 768; Estate of Douglas (1908) 8 SR (NSW) 146; Cope v Bennett [1911] 2 Ch 488; Re Doolette (1933) 36 WALR 1; Re Whitmore [1929] NZGLR 51, 137; Harvell v Foster [1954] 2 QB 367. The paucity of case law on the assignment of administration bonds appears to be because the procedure is so rare. What case law there is, tends to be unsatisfactory and confusing: Harvell v Foster [1954] 2 QB 367 was criticised by the Queensland Law Reform Commission in its Report, The Law Relating to Succession (R 22, 1978) at 35; Attorney-General v Eyles (1889) 6 WN (NSW) 87 is criticised in R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (1996) at para 67.04.

33. [1951] NZLR 323.

34. Id at 324.

35. Queensland Law Reform Commission, Report, The Law Relating to Succession (R 22, 1978) at 37.

36. Trusts Act 1973 (Qld).

37. See also the discussion of s 67 of the Trusts Act 1973 (Qld) in relation to persons acting without a grant at para 10.33-10.35 of this Discussion Paper.

38. [1948] Ch 465. In that case, personal representatives distributed the deceased estate to a number of charitable institutions in the belief that they were following the testator’s directions in his will to apply his residuary estate “for such charitable institutions or other charitable or benevolent object or objects in England” as they should in their absolute discretion decide. Following a challenge to the distribution by the next of kin of the deceased, the House of Lords held that the bequest was invalidated by the use of the disjunctive “or benevolent”. Subsequently, in determining a related matter, the Court of Appeal held that a claim by an unpaid beneficiary to property wrongly distributed to another is subject to the qualification that, since the wrong payment was due to the mistake of the personal representative, the beneficiary’s primary claim is against the personal representative, and the direct claim against those overpaid or wrongly paid must be limited to the amount irrecoverable for any reason from the party responsible.

39. Trusts Act 1973 (Qld).