Date:

11/15/2004

New South Wales
Supreme Court Rules (Amendment No 400) 2004
under the
Supreme Court Act 1970

The Supreme Court Rule Committee made the following rules of court under the
Supreme Court Act 1970 on 15 November 2004.

Steven Jupp
Secretary of the Rule Committee

Explanatory note
The object of these Rules is to make amendments to Part 78 of, and Schedule F to, the
Supreme Court Rules 1970 with respect to applications by creditors for the administration of
estates and the withdrawal of caveats with respect to probate matters.

Supreme Court Rules (Amendment No 400) 2004
under the
Supreme Court Act 1970

1 Name of Rules
These Rules are the Supreme Court Rules (Amendment No 400) 2004.
2 Amendment of Supreme Court Rules 1970
The Supreme Court Rules 1970 are amended as set out in Schedule 1.

Schedule 1 Amendments
(Rule 2)
[1] Part 78, rule 32
Omit the rule.
[2] Part 78, rule 33
Omit rule 33 (1). Insert instead:
(1) A creditor who desires to commence proceedings for a grant of
administration in circumstances where the deceased has left a
will must:
(a) file an affidavit in proof of the debt to the creditor, and
(b) where an executor is appointed by the will and has not
renounced probate—serve a citation to take probate on the
executor, and
(c) where the executor fails to comply with the citation to take
probate—serve a citation to pray for administration:
(i) on every beneficiary under the will, and
(ii) in the case of a partial intestacy, on every person
entitled in administration of the estate on intestacy.
[3] Part 78, rule 33 (4)
Omit “upon the widow or widower of the deceased and”.
[4] Part 78, rule 33 (5)–(7)
Insert after rule 33 (4):
(5) In any proceedings commenced by a creditor for a grant of
administration, the creditor must file an affidavit of compliance
with this rule and that none of the persons cited has complied
with the citation.
(6) In any proceedings commenced by a creditor for a grant of
administration, the Court may require any one or more of the
following:
(a) that further evidence be furnished to the Court,
(b) that further citations be served,
(c) that further notices be given.
(7) The Court may, if it thinks fit, refuse or withhold a grant of
administration to a creditor even if the creditor has complied with
this rule.
[5] Part 78, rule 34
Omit the rule.
[6] Part 78, rule 64
Omit the rule. Insert instead:
64 Withdrawal of caveat—no proceedings for grant or resealing or
caveator sole applicant for grant or resealing
(1) This rule applies to a caveat if:
(a) there are no proceedings for a grant or resealing in the
estate, or
(b) the caveator is the sole applicant in proceedings for a grant
or resealing in the estate.
(2) A caveator may withdraw a caveat to which this rule applies by
filing a notice in Form 115.
(3) The withdrawal of a caveat under this rule has effect on the date
on which the notice referred to in subrule (2) is filed.
[7] Part 78, rule 65
Omit “This” from rule 65 (1). Insert instead “Subject to rule 64, this”.
[8] Part 78, rule 65 (4)–(6)
Insert after rule 65 (3):
(4) A draft minute of the order sought must be lodged with the
registrar before any order is made on the motion.
(5) The order must be entered.
(6) The order may be entered at any time after the minute of it is
signed.
[9] Part 78, rule 66
Omit the rule. Insert instead:
66 Withdrawal
If leave is granted to withdraw a caveat, the caveat is taken to be
withdrawn on the granting of that leave.
[10] Schedule F
Insert after Form 114:
Form 115
P 78, r 64.
NOTICE OF WITHDRAWAL OF CAVEAT
I (name) of (address) withdraw the caveat filed by me on (date) and numbered
(number of caveat).
Dated: (date)
(signature)
Caveator or Caveator’s solicitor
[11] Schedule F, Index of Forms
Insert after the matter relating to Form 114:
Form 115 Notice of withdrawal of caveat (P 78, r 64).