Proposal 1
The definition of “personal representative” in section 5 of the Succession Act 1981 (Qld) should be included in the model legislation in its existing form, except that the words “the estate of” should be inserted before the words “a deceased person”.

Proposal 2
It is unnecessary to refer, in the definition of “personal representative”, to trustee corporations.

Proposal 3
The definition of “administration” in section 3 of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model legislation.

3. Jurisdiction of court

Proposal 4
A provision to the effect of section 6 of the Succession Act 1981 (Qld) should be included in the model legislation. If some additional express powers are to be conferred on the court in the model legislation, it is desirable that those powers should be expressed to be in addition to the broad general provision, and not in derogation from it.

Proposal 5
It is not necessary for the model legislation to include provisions to the effect of sections 70 and 71 of the Wills, Probate and Administration Act 1898 (NSW). However, a footnote in the model legislation should refer to the details which currently appear in sections 70 and 71 of the Wills, Probate and Administration Act 1898 (NSW) without referring to these provisions in particular.

4. Jurisdiction to grant probate or administration where death presumed

Proposal 6
Provisions based on sections 40A, 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation.

Proposal 7
Each jurisdiction should consider including in its rules of court provisions to the effect of sections 40B and 40C of the Wills, Probate and Administration Act 1898 (NSW).

Proposal 8
A more appropriate term than “presumption of death” should be used, so that it is clear such provisions (wherever located) would cover what the cases refer to as an “inferred death”, as well as to what can properly be described as a “presumed death”.

Proposal 9
It should be made clear that the provisions are referring to a death where the body is not found or recovered.

5. Appointment, removal and delay in appointment of personal representative

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.

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.

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.

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).

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.

6. Transmission of executorship and administration

Proposal 17
The doctrine of executorship by representation should continue.

Proposal 18
It should be possible for an executor of a deceased estate to renounce the executorship of an estate of which his or her testator was executor without thereby renouncing the executorship of the estate of the executor’s own testator.

Proposal 19
It should be possible for a beneficiary of the original estate to object to the executorship by representation.

7. Cessation of right to prove will and revocation of grant

Proposal 20
A provision to the effect of section 46 of the Succession Act 1981 (Qld) should be included in the model legislation.

Proposal 21
Subject to the consideration of submissions, the model legislation should include a provision to the effect of Order 71, rule 86 of the Rules of the Supreme Court 1900 (Qld) to enable the withdrawal of a renunciation of probate.

Proposal 22
If a provision to the effect of section 6 of the Succession Act 1981 (Qld) is included in the model legislation, it is not necessary to include in the model legislation a further provision dealing with the revocation of grants or the removal of executors or administrators.

8. Personal representatives

Proposal 23
The model legislation should include a provision to the effect of section 49(1) of the Succession Act 1981 (Qld).

Proposal 24
A provision to the effect of section 50 of the Succession Act 1981 (Qld) should be included in the model legislation.

Proposal 25
A provision to the effect of section 52(1)(e) of the Succession Act 1981 (Qld) should be included in the model legislation. However, the provision should refer to an interest rate set by the rules (as in section 55A of the Administration and Probate Act 1929 (ACT)), rather than stipulate the interest rate.

Proposal 26
The model legislation should include a provision imposing a duty on a personal representative or other person administering a deceased estate to maintain such documents as are necessary to render an inventory and/or account to the court.

Proposal 27
A provision generally to the effect of sections 65 and 67 of the Administration and Probate Act 1919 (SA) should be included in the model legislation. However, the provision should not impose a mandatory obligation, but should simply provide for one of a number of possibilities to protect persons who are not sui juris. The model provision should not refer to property belonging to persons who are not resident within the particular jurisdiction.

Proposal 28
The model legislation should not include provisions to the effect of section 47A of the Administration Act 1903 (WA) or section 92(3) of the Wills, Probate and Administration Act 1898 (NSW).

Proposal 29
A provision to the effect of section 52(1) of the Succession Act 1981 (Qld) (as modified by the National Committee’s recommendations in relation to particular duties) should be included in the model legislation so that the general duties of a personal representative are set out.

Proposal 30
A provision to the effect of section 52(1A) of the Succession Act 1981 (Qld) should be included in the model legislation.

Proposal 31
The model legislation should include a provision to the effect of section 52(2) of the Succession Act 1981 (Qld).

Proposal 32
A provision to the effect of section 52A of the Succession Act 1981 (Qld) should not be included in the model legislation.

Proposal 33
A provision to the effect of section 84 of the Wills, Probate and Administration Act 1898 (NSW), if considered necessary by an individual jurisdiction, should be included in that jurisdiction’s rules of court and not the model legislation.

Proposal 34
The model legislation should not include a provision to the effect of section 49(3) of the Succession Act 1981 (Qld).

Proposal 35
A provision to the effect of section 75A of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation.

Proposal 36
The model legislation should include a provision to the effect of section 49(4) of the Succession Act 1981 (Qld).

Proposal 37
The model legislation should include a provision to the effect of section 49(5) of the Succession Act 1981 (Qld).

Proposal 38
The model legislation should include a provision relating to the payment of commission. The provision should refer to commission for trustees. It should not be restricted to personal representatives.

Proposal 39
The model legislation should provide that a commission clause in a will must be approved by the court before it can be relied upon. The court should be able to make such orders as it considers appropriate in the circumstances.

Proposal 40
A provision to the effect of section 86(3) of the Wills, Probate and Administration Act 1898 (NSW) should be included in the model legislation.

Proposal 41
Any reference to specific rates of commission should be made in the rules of court, rather than in the model legislation.

Proposal 42
The model legislation should include a provision to the effect of section 70(2)(b) of the Administration and Probate Act 1919 (SA).

Proposal 43
The words “periodically or otherwise” should be included in the commission provision in the model legislation.

Proposal 44
The model legislation should not include a provision relating to assent.

Proposal 45
A provision to the effect of section 83 of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation.

Proposal 46
A provision to the effect of section 71 of the Administration and Probate Act 1929 (ACT) should not be included in the model legislation. If that provision is considered appropriate for any jurisdiction, it should be included in that jurisdiction’s rules of court.

Proposal 47
The model legislation should include a provision to the effect of section 49(6) of the Succession Act 1981 (Qld).

Proposal 48
A provision to the effect of section 59 of the Wills, Probate and Administration Act 1898 (NSW) or section 20 of the Administration Act 1903 (WA) should not be included in the model legislation. Rather, a provision to the effect of section 34 of the Administration and Probate Act 1958 (Vic) (which is to the same effect as Order 71, rule 84 of the Rules of the Supreme Court 1900 (Qld)) should be included in the model legislation.

Proposal 49
The model legislation should not include a provision dealing with the appropriation of assets by trustees to beneficiaries.

Proposal 50
A provision to the general effect of section 17A of the Administration Act 1903 (WA) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction.

Proposal 51
A provision to the general effect of section 63 of the Administration and Probate Act 1919 (SA) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction.

Proposal 52
A provision to the general effect of section 33(3) of the Administration and Probate Act 1935 (Tas) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction.

Proposal 53
A provision to the general effect of section 17 of the Administration Act 1903 (WA) should be included in the model legislation. However, rather than set out the trustee powers referred to in that section, the model legislation should cross-refer to the relevant powers in the trustee legislation of the particular jurisdiction.

Proposal 54
A provision to the effect of section 46D of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation.

Proposal 55
This matter should be considered in that part of the Uniform Succession Laws Project dealing with the recognition of interstate and foreign grants of probate and reseals.

Proposal 56
The model legislation should not include a provision requiring personal representatives to obtain court authority before relinquishing their trustee duties.

Proposal 57
A provision to the effect of section 48 of the Succession Act 1981 (Qld) should be included in the model legislation.

Proposal 58
The model legislation should include a provision to the effect that, where there is a minority interest, the court may make such order as to the protection of that interest as it considers appropriate. It should be possible for the court to require bonds, sureties, the passing of accounts, or the appointment of multiple personal representatives.

Proposal 59
In light of the National Committee’s earlier proposal that a provision to the effect of section 6 of the Succession Act 1981 (Qld) should be included in the model legislation, it is not necessary to include a provision to the effect of section 20 of the Administration and Probate Act (NT). The term “personal representative” should not be defined to include Public Trustees.

9. Administering an estate pursuant to a grant

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.

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.

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.

10. Administering an estate without a grant

Proposal 64
A provision to the effect of section 54(1) of the Succession Act 1981 (Qld) should be included in the model legislation.

Proposal 65
A provision to the general effect of section 54(2) of the Succession Act 1981 (Qld) should be included in the model legislation. However, the words “with the leave of the court” should be inserted in the model provision, so that the leave of the court is required before an executor who has acted in the administration of the estate without a grant may renounce his or her executorship.

Proposal 66
A provision to the effect of section 54(3) of the Succession Act 1981 (Qld) should be included in the model legislation.

Proposal 67
Provisions to the effect of section 32 of the Administration and Probate Act 1958 (Vic) and section 71(1) of the Administration and Probate Act 1919 (SA) should not be included in the model legislation. Jurisdictions that consider them desirable should include them in the substantive legislation to which they relate.

12. Vesting of property

Proposal 68
A provision to the effect of section 45(1)-(6) of the Succession Act 1981 (Qld) should be included in the model legislation.

13. Partition of property in the estate

Proposal 69
The model legislation should not include a provision to the effect of section 58 of the Wills, Probate and Administration Act 1898 (NSW). Any jurisdiction that wishes to enact such a provision should do so in its real property legislation.

Proposal 70
A provision to the effect of section 66(1) to (5) of the Succession Act 1981 (Qld) should be included in the model legislation, but in a more generic form. There should be no reference to the exceptions (for example, defamation, mentioned in section 66(1) of the Succession Act 1981 (Qld)). The exceptions, which are not uniform between the various jurisdictions reviewed by the National Committee, should be set out in separate legislation in each jurisdiction.

15. Administration of assets

Proposal 71
A provision to the effect of section 56(1) of the Succession Act 1981 (Qld) should be included in the model legislation.

Proposal 72
A provision to the effect of section 58(1) of the Succession Act 1981 (Qld) should be included in the model legislation. However, instead of referring simply by name to the doctrines of retainer and preference, the model legislation should state the effect of the principles that are being abolished.

Proposal 73
The term “residuary estate” should have the same meaning as is given to that term by section 55 of the Succession Act 1981 (Qld), so that it includes property not effectively disposed of by will.

Proposal 74
Assets should be applied towards the payment of debts in the following order:

Class 1 Assets forming part of the residuary estate (which includes assets specifically referred to in a will and which are the subject of a disposition that fails to have effect).

Class 2 Specific assets.

Proposal 75
A donatio mortis causa should not be called in to pay the debts of a solvent estate.

Proposal 76
The principle of rateability should apply to all property within a given class.

Proposal 77
The provisions in the model legislation that are based on proposals made in this Chapter should be subject to an admissible expression of a contrary intention by the testator (whether or not it is contained in the will).

Proposal 78
Subject to the expression of a contrary intention:

(1) pecuniary legacies should be paid out of the residuary estate after the payment of debts; and

(2) if the residuary estate is insufficient, after the payment of debts, to pay the pecuniary legacies in full, they should abate proportionately.

The National Committee also proposes that the expression of a contrary intention should not be confined to one found in the will.

Proposal 79
A provision to the effect of section 61 of the Succession Act 1981 (Qld) should be included in the model legislation.

Proposal 80
The model provision should be subject to the expression of a contrary intention, although it should not be necessary for the contrary intention to be found in the will.

16. Right to follow assets

Proposal 81
A provision to the effect of section 95 of the Wills, Probate and Administration Act 1898 (NSW) should not be included in the model legislation.

17. Establishing death and the order of deaths

Proposal 82
The model legislation should not include a provision altering the common law presumption of death.

Proposal 83
The model legislation should include a statutory enactment of the rule in Re Benjamin to enable the court to order an estate to be distributed as if a missing beneficiary had not survived the testator.

Proposal 84
There should be consultation with the insurance industry before making recommendations relating to the issues covered by section 120(c) of the Property Law Act 1969 (WA).

Proposal 85
The model legislation should include a provision relating to the devolution of property in situations where two or more persons who own property jointly between them have died in circumstances where it is uncertain who survived the other or others to the effect that the property held by them as joint tenants should devolve as if they had owned it as tenants in common in equal shares as in Western Australia under section 120(d) of the Property Law Act 1969 (WA).

Proposal 86
The model legislation should include a provision to the effect of section 120(e) of the Property Law Act 1969 (WA).

Proposal 87
The model legislation should include a provision to the effect of section 120(f) of the Property Law Act 1969 (WA).

Proposal 88
The model provision should not include a provision to the effect of section 120(h) of the Property Law Act 1969 (WA).

Proposal 89
The model legislation should include a provision, based on section 65 of the Succession Act 1981 (Qld) or section 120(i) of the Property Law Act 1969 (WA) encompassing the seniority rule, that is, that the younger is presumed to have survived the elder, to cover situations not covered by the operation of the provisions referred to above.

Proposal 90
The model legislation should include a provision to the effect that the above suggested provisions are to be subject to a contrary intention that appears, whether in the will or elsewhere.

18. Procedural matters

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.

Proposal 92
A provision to the effect of section 70 of the Succession Act 1981 (Qld) should not be included in the model legislation.

Proposal 93
A provision to the effect of section 72 of the Succession Act 1981 (Qld) should not be included 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.

Proposal 95
The model legislation should not include a provision to the effect of section 8C of the Administration and Probate Act 1929 (ACT).

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.

Proposal 97
The model legislation should not include a provision to the effect of section 140 of the Administration Act 1903 (WA).

19. Dealing with wills

Proposal 98
The model legislation should include a provision to enable the court to order the production of testamentary instruments.

Proposal 99
The model legislation should include provisions to the effect of sections 150(2) and 150(3) of the Wills, Probate and Administration Act 1898 (NSW).

Proposal 100
The model legislation should include a provision to the effect of section 127 of the Administration and Probate Act 1929 (ACT).

Proposal 101
The model legislation should not include a criminal offence relating to concealing, stealing or “editing” a will. This should be left to each jurisdiction’s criminal law.