Administration Act 1903 (WA)

Western Australia Administration Act 1903 Western Australia Administration Act 1903 Contents Part I — Preliminary 1. Short title and construction 2 3. Terms used 2 3A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Pt. 2 applies 3 Part II — Probate and administration 4. Jurisdiction of Court as heretofore 4 5. Duties of Principal Registrar 4 6. Power to grant probate and administration 4 7. Probate may be granted to one or more executors 4 8. Upon grant of probate or administration real and personal estate to vest in executor or administrator 4 9. Real estate to vest subject to trusts 5 10. Real and personal estate to be assets 5 10A. Insolvent estates 6 11. Subject as aforesaid real estate to vest according to will 6 12. Executor to have same rights and duties as to real estate as heretofore as to personal estate 6 12A. Entitlement to participation in distribution of intestate estates 7 12B. Relationships of whole and half blood 8 13. Real and personal estate in case of intestacy 8 14. Entitlements on intestacy 9 14A. Order declaring sum that is to apply for specified item 18 14B. Minister must review sums for specified items 19 15. De facto partners and distribution on intestacy 19 16. Courtesy and dower abolished 21 17. Court may deal with interest of infants in certain cases 21 17A. Power to appoint trustees of infant's property 22 19. Court may direct partition of real estate 23 20. Personal representative may relinquish trust 24 21. Executor or administrator to represent real estate 24 23. All creditors to stand in equal degree 24 24. Administration in case of intestacy 25 25. Persons entitled to administration 25 26. Power to require administrator to produce sureties 25 29. Court may revoke grant of administration 27 32. In case of renunciation or failure to take probate, right of executor gone 27 33. Where infant is executor etc. 28 34. Where person entitled to probate or administration is out of the jurisdiction 28 35. Court may appoint manager and receiver pending litigation 28 36. Administration with will annexed 29 37. Probate or administration if executor etc. absent or neglects to obtain probate etc. 29 38. Special letters of administration if executor or administrator not within jurisdiction 29 39. On return of executor or administrator, special administration may be revoked 30 40. Absent executor liable to account 30 41. Revocation pending litigation not to abate proceedings 30 42. Devisee or legatee may apply to Court in certain cases 31 43. Inventory and accounts 31 44. If accounts not filed Principal Registrar to give notice etc. 32 45. Court may settle all questions arising in administration 32 46. Payments made before revocation to be valid 32 47. Payments etc. to be valid notwithstanding defect 33 47A. Protection of executors, administrators and trustees 33 53. Executor deemed to be resident in State 34 54. Court may appoint district agents 34 55. Where estate does not exceed $10 000 the Principal Registrar or district agent may act 35 56. Information to be furnished by Principal Registrar or agent 35 57. Applications to be transmitted by agent to Principal Registrar 35 58. Principal Registrar to refer matter back to agent if not satisfied 36 60. Principal Registrar may refer to Court 36 60A. Application of Family Provision Act 1972 37 Part III — Foreign probates and administration 61. Foreign probates etc. may be sealed 38 62. Power to require sureties to be provided before foreign administration sealed 38 Part IV — Caveats 63. Caveat 40 64. Court may remove caveat 40 Part V — Duties on deceased persons' estates and succession duties 71. No will to be registered or admissible in evidence until proved 41 Part VI — Miscellaneous 139. Deposits not exceeding prescribed amount in any ADI may be paid to widow or next of kin without probate or administration 42 140. Records of grants etc. 43 141. Court may appoint attorney for absent executor 43 142. Payment of balance of estate to Curator or Public Trustee of State or Colony where deceased was domiciled. Public Trustee may receive any part of estate from outside the State 44 143A. Rate of interest payable on legacies 45 143B. Saving provision as to bonds 45 144. Rules of Court 45 Fourth Schedule — Rights in respect of dwelling houses 1. Rights of surviving spouse if dwelling house is residence 47 2. Court order required in certain cases 48 3. Time limit for exercising right under par. 1 48 4. Mode of exercising right under par. 1 49 5. Determination of value 49 6. Restriction on sale during election period 49 7. Surviving spouse as sole personal representative 50 8. Surviving spouse not of full mental capacity 51 9. Terms used 51 Fifth Schedule — Rules as to payment of debts and liabilities of insolvent estates 1. Expenses having priority 52 2. Demand for unliquidated damages 52 3. Rules of bankruptcy apply 52 Notes Compilation table 53 Other notes 58 Defined terms Western Australia Administration Act 1903 An Act to consolidate and amend the law relating to probate and administration and the duties on the estates of deceased persons and for other purposes. Part I — Preliminary 1. Short title and construction This Act may be cited as the Administration Act 1903 and shall be construed as one with the Supreme Court Act 1935. [Section 1 inserted: No. 57 of 1984 s. 2.] [2. Omitted under Reprints Act 1984 s. 7(4)(f).] 3. Terms used In this Act, unless the contrary appears — administration includes letters of administration of the estate and effects of deceased persons, whether with or without the will annexed, and whether granted for general, special, or limited purposes; and also exemplification of letters of administration with or without the will annexed and such other evidence of letters of administration purporting to be under the seal of a court of competent jurisdiction as in the opinion of the Court is sufficient; administrator includes the Public Trustee and any other person to whom administration, as hereinafter defined, is granted; Court means the Supreme Court or any judge thereof; insolvent, in relation to the estate of a deceased person, means insufficient for the payment in full of the debts and liabilities of the estate of the deceased person; personal estate extends to leasehold estates and other chattels real, and also to all other property whatsoever which, prior to the coming into operation of The Real Estates Administration Act 1, by law devolved upon the executor or administrator, and to any share or interest therein; prescribed means prescribed by this Act or the rules or regulations thereunder; Principal Registrar means the person for the time being holding or acting in the office designated under the Supreme Court Act 1935, "Principal Registrar of the Supreme Court"; probate includes exemplification of probate and such other formal evidence of probate purporting to be under the seal of a court of competent jurisdiction, as in the opinion of the Court is sufficient; Public Trustee means the Public Trustee under the Public Trustee Act 1941; real estate extends to messuages, lands, rents and hereditaments of freehold or any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein; registrar means a person for the time being holding or acting in an office designated under the Supreme Court Act 1935, "registrar of the Supreme Court", and a reference to a registrar may include a reference to the Principal Registrar or a deputy registrar; will extends to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power and also to a disposition by will and testament, or devise of the custody and tuition of any child by virtue of the Imperial Act Twelfth Charles the Second, Chapter 24, and to any other testamentary disposition. [Section 3 amended: No. 62 of 1955 s. 2; No. 67 of 1979 s. 42; No. 72 of 1984 s. 3.] 3A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Pt. 2 applies The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act. [Section 3A inserted: No. 34 of 2020 s. 53 Part II — Probate and administration 4. Jurisdiction of Court as heretofore The jurisdiction and authority heretofore vested in or exercised by the Court in respect of the estates of deceased persons shall continue to be so vested and exercised. 5. Duties of Principal Registrar (1) The Principal Registrar shall, subject to the rules, perform such duties as were immediately prior to the coming into operation of the Acts Amendment (Master, Supreme Court) Act 1979, performed by the Master of the Supreme Court in reference to proceedings in the ecclesiastical jurisdiction of the Court, and such other duties, as may be prescribed by the rules. (2) Subject to the rules the powers and authority conferred on the Principal Registrar by this Part may be exercised by a registrar. [Section 5 amended: No. 67 of 1979 s. 43.] 6. Power to grant probate and administration The Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in Western Australia. 7. Probate may be granted to one or more executors The Court may grant probate to one or more of the executors named in any will, reserving leave to the other, who has not renounced, to come in and apply. 8. Upon grant of probate or administration real and personal estate to vest in executor or administrator Upon the grant of probate or administration, all real and personal estate which a deceased person dies seised, possessed of, or entitled to in Western Australia shall, as from the death of such person, pass to and become vested in the executor to whom probate has been granted, or administrator for all the estate and interest of the deceased therein in the manner following, that is to say — (a) on testacy or on partial intestacy, in the executor or administrator with the will annexed; and (b) on intestacy, in the administrator. 9. Real estate to vest subject to trusts All real estate held by any person in trust shall vest as aforesaid, subject to the trusts and equities affecting the same. 10. Real and personal estate to be assets (1) The real as well as the personal estate of every deceased person shall be assets in the hands of the executor to whom probate has been granted or administrator, for the payment of all duties and fees and of the debts of the deceased in the ordinary course of administration. (2) No executor or administrator shall hereafter have or exercise any right of retainer. (3) An executor to whom probate has been granted or administrator may, for the purposes of administration, sell or lease such real estate, or mortgage the same, with or without a power of sale, and assure the same to a purchaser or mortgagee in as full and effectual a manner as the deceased could have done in his lifetime. (4) An executor or administrator of the estate of a person who dies on or after the day on which the Acts Amendment (Insolvent Estates) Act 1984 comes into operation shall not have or exercise any right to give preference as between creditors standing in equal degree. (5) Notwithstanding subsection (4), an executor or administrator who — (a) in good faith and at a time when he has no reason to believe that the estate of the deceased is insolvent, pays a debt, other than a debt payable to himself in his own right, of a person who is a creditor of the estate; or (b) not being an administrator to whom letters of administration have been granted solely by reason of his being a creditor, in good faith and at a time when he has no reason to believe that the estate of the deceased is insolvent, pays a debt payable to himself in his own right as a creditor of the estate, shall not, if it subsequently appears that the estate is insolvent, be liable to account to a creditor of the same degree as the paid creditor for the sum so paid. [Section 10 amended: No. 62 of 1955 s. 3; No. 72 of 1984 s. 4.] 10A. Insolvent estates (1) Where the estate of a person dying on or after the day on which the Acts Amendment (Insolvent Estates) Act 1984 comes into operation is insolvent, his real and personal estate shall be administered in accordance with the rules set out in the Fifth Schedule. (2) This section binds the Crown. [Section 10A inserted: No. 72 of 1984 s. 5.] 11. Subject as aforesaid real estate to vest according to will Subject as aforesaid, the real estate of every deceased person shall be held by the executor to whom probate has been granted or the administrator with the will annexed according to the trusts and dispositions of such will. 12. Executor to have same rights and duties as to real estate as heretofore as to personal estate The executor to whom probate has been granted, or administrator, shall have the same rights and be subject to the same duties with respect to the real estate of the deceased that executors or administrators respectively heretofore have had or been subject to with reference to personal assets. 12A. Entitlement to participation in distribution of intestate estates (1) Where, after the coming into operation of the Administration Act Amendment Act 1971, any person dies intestate as respects all or any of his property, for the purpose of determining who is entitled to participate in the distribution of that part of his estate to which the intestacy applies the relationship between a child and his parents shall be determined irrespective of whether the parents are or have been married to each other, and all other relationships, whether lineal or collateral, shall be determined accordingly. (2) In any proceedings where a person relies on a matter of fact made relevant by the provisions of subsection (1) — (a) that fact shall not be taken to be proved unless it is established to the reasonable satisfaction of the Court; and (b) where the parents are not, or have not been, married to each other, the relationship between a child and his parent, and all other lineal or collateral relationships, shall be recognized only — (i) if parentage is admitted by or established against the parent in his lifetime; and (ii) where the purpose for which the relationship is to be determined enures for the benefit of the parent, if parentage has been so admitted or established in the lifetime of the child. (2a) Subsection (2)(b) does not apply to or in respect of a relationship established by the Artificial Conception Act 1985. (3) The estates of all persons who have died intestate as to the whole or any part thereof before the coming into operation of the Administration Act Amendment Act 1971, shall be distributed in accordance with the enactments and rules of law which would have applied to them if that Act had not been passed. (4) The estates of all persons who have died intestate as to the whole or any part thereof before the coming into operation of Part 2 of the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 shall be distributed in accordance with the enactments and rules of law which would have applied to them if that Act had not been passed. [Section 12A inserted: No. 18 of 1971 s. 3; amended: No. 14 of 1985 s. 8; No. 3 of 2002 s. 4.] 12B. Relationships of whole and half blood Where a person dies intestate as respects all or any of his property, for the purpose of determining who is entitled to participate in the distribution of that part of his estate to which the intestacy applies it is immaterial whether a relationship is of the whole blood or of the half blood. [Section 12B inserted: No. 57 of 1984 s. 3.] 13. Real and personal estate in case of intestacy (1) Where, after the coming into operation of section 4 of the Administration Act Amendment Act 1976, any person dies intestate as to all or any of his property, the administrator, or in case of partial intestacy, the executor or administrator with the will annexed, shall, subject to sections 9, 10 and 10A, hold the real and personal estate to which the intestacy applies, and which vests in him under section 8, on trust for the persons who are entitled thereto under sections 14 and 15. (1a) When, pursuant to subsection (1), real estate is held on trust for 2 or more persons, it shall be held as if it had been devised to those persons as tenants in common. (1b) The estates of all persons who have died intestate as to all or any of their property before the coming into operation of section 4 of the Administration Act Amendment Act 1976 shall be held and distributed in accordance with the enactments and rules of law which would have applied to those estates if that Act had not been passed. (2) No executor, as such, shall be entitled to take beneficially any residue not expressly disposed of by the will of the testator, unless it appear by such will that he is intended so to take. (3) Nothing herein contained shall affect or prejudice any right to which an executor would have been entitled if this Act had not been passed, in cases where there is not any person who would be entitled to the testator's estate in respect of any residue not expressly disposed of. [Section 13 amended: No. 28 of 1934 s. 77(3)(b) and (4); No. 138 of 1976 s. 3; No. 72 of 1984 s. 6; No. 25 of 2002 s. 52.] 14. Entitlements on intestacy (1A) In this section — declared sum, for a specified item, means the sum that applies for that item under an order; order means an order made by the Minister under section 14A(2); specified item means any of the following items in the Table — (a) item 2; (b) item 3(a) and (b); (c) item 3(b)(i); (d) item 6; Table means the Table to subsection (1). (1) Subject to this section and section 15, where any person (in this section called the intestate) dies intestate as to all or any of their property, the property as to which they die intestate (in this section called the intestate property) shall be distributed according to the entitlements set out in the Table — Table If the intestate — 1. dies leaving a husband or wife (whether or not other persons mentioned in item 2 or 3 also survive) the surviving husband or wife shall be entitled, absolutely, to all household chattels included in the intestate property; 2. dies leaving a husband or wife and issue (a) where the net value of the intestate property (other than the household chattels) does not exceed the sum of $472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum) — the surviving husband or wife shall be entitled to the whole of the intestate property; (Note provisions of subsection (3)) (b) where the net value of the intestate property (other than the household chattels) exceeds the sum of $472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum) — the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum), absolutely, together with interest on that sum in accordance with subsection (4) and, of the residue, the surviving husband or wife shall be entitled to one third and the issue shall be entitled in accordance with subsection (2b) to the other two‑thirds; 3. dies leaving a husband or wife and one or more of the following, namely, a parent, a brother or sister, or child of a brother or sister, but leaving no issue (a) where the net value of the intestate property (other than the household chattels) does not exceed the sum of $705 000 (or, if there is a declared sum for item 3(a) and (b) applicable to the intestate, that sum) — the surviving husband or wife shall be entitled to the whole of the intestate property; (b) where the net value of the intestate property (other than the household chattels) exceeds the sum of $705 000 (or, if there is a declared sum for item 3(a) and (b) applicable to the intestate, that sum) — the surviving husband or wife shall (in addition to the household chattels) be entitled to the sum of $705 000 (or, if there is a declared sum for item 3(a) and (b) applicable to the intestate, that sum), absolutely, together with interest on that sum in accordance with subsection (4), and, of the residue, the surviving husband or wife shall be entitled to one‑half and, as to the other half — (i) where the intestate is survived by one parent or both parents — (A) if the value of that other half does not exceed the sum of $56 500 (or, if there is a declared sum for item 3(b)(i) applicable to the intestate, that sum) or if no brother, sister, or child of a brother or sister survives the intestate — the parent or parents shall be entitled (in equal shares where both survive the intestate) to that other half; (B) in any other case — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the sum of $56 500 (or, if there is a declared sum for item 3(b)(i) applicable to the intestate, that sum), absolutely, and of the remainder, the parent or parents shall be entitled (in equal shares where both survive the intestate) to one‑half and the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half; (ii) where neither parent survives the intestate — the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half; 4. dies leaving a husband or wife but no issue, parent, brother, sister or child of a brother or sister the surviving husband or wife shall be entitled to the whole of the intestate property; 5. dies leaving issue but no husband or wife the issue shall be entitled in accordance with subsection (2b) to the whole of the intestate property; 6. dies leaving a parent or parents and one or more of the following, namely, a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue (a) where the net value of the intestate property does not exceed the sum of $56 500 (or, if there is a declared sum for item 6 applicable to the intestate, that sum) — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the whole of the intestate property; (b) where the net value of the intestate property exceeds the sum of $56 500 (or, if there is a declared sum for item 6 applicable to the intestate, that sum) — the parent or parents shall be entitled (in equal shares where both survive the intestate) to the sum of $56 500 (or, if there is a declared sum for item 6 applicable to the intestate, that sum), absolutely, and of the residue, the parent or parents shall be entitled (in equal shares where both survive the intestate) to one half and the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the other half; 7. dies leaving a parent or parents but leaving no husband or wife and no issue, brother, sister or child of a brother or sister the parent or parents shall be entitled (in equal shares where both survive the intestate) to the whole of the intestate property; 8. dies leaving one or more of the following, namely a brother or sister, or a child of a brother or sister, but leaving no husband or wife and no issue or parent the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property; 9. dies leaving no husband or wife and no issue, parent, brother, sister or child of a brother or sister but leaving a grandparent or grandparents the grandparent or grandparents shall be entitled (in equal shares where more than one survive the intestate) to the whole of the intestate property; 10. dies leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, or grandparent but leaving an uncle or aunt or a child of an uncle or aunt the uncles and aunts of the intestate and the children of deceased uncles and aunts of the intestate shall be entitled in accordance with subsection (3a) to the whole of the intestate property but in applying that subsection for the purposes of this item a reference in that subsection to a brother or sister, or a child of a brother or sister, of the intestate shall be construed as a reference to an uncle or aunt, or a child of an uncle or aunt, of the intestate, as the case may be; 11. dies leaving no husband or wife and no issue, parent, brother, sister, child of a brother or sister, grandparent, uncle, aunt or child of an uncle or aunt the whole of the intestate property passes to the Crown by way of escheat. (1B) In this section, the declared sum for a specified item applicable to an intestate is the declared sum for that specified item under the order that has effect at the time the intestate dies (even if that order later ceases to have effect, including if the order ceases to have effect under the Interpretation Act 1984 section 42(2) as applied by section 14A(5)). (2) For the purposes of the Table — (a) household chattels means articles of personal or household use or adornment; (b) the net value of the intestate property is the net value of that property at the date of the death of the intestate. (2a) In subsection (2b), a reference to the entitled issue of an intestate means issue of the intestate surviving the intestate and not also being issue of another person who survived, and was issue of, the intestate. (2b) Where, under the Table, the issue of an intestate is or are entitled to a portion or the whole of the intestate property (which portion or whole, as the case may be, is referred to in this subsection as the relevant property) — (a) where a person is the only entitled issue of the intestate, then that person is entitled to all of the relevant property; (b) where there are 2 or more entitled issue of the intestate and any of them is a child of the intestate, then the relevant property shall be divided into as many equal parts as there are children of the intestate who — (i) survived the intestate; or (ii) left issue who survived the intestate, and a child of the intestate who so survived shall be entitled to one of those parts; (c) where a person did not survive the intestate but left issue who so survived and that person would, if he had survived the intestate, have been entitled — (i) under paragraph (a), to all of the relevant property, then the entitled issue of the intestate being also issue of that person shall be entitled to all of the relevant property; (ii) under paragraph (b), to a part of the relevant property, then the entitled issue of the intestate being also issue of that person shall be entitled to that part of the relevant property, and where there are 2 or more entitled issue of the intestate being also issue of that person their entitlement under subparagraph (i) or (ii) shall be divided between them under the provisions of this Act (including this paragraph) as if that person had died intestate at the time that the intestate in fact died, the entitlement to be divided were the intestate property of that person, and no person other than those issue were entitled to participate in the distribution thereof. (3) In applying the provisions of item 2 of the Table to a case where the intestate dies leaving — (a) a husband or wife and one child; or (b) a husband or wife and the issue of one child, the words "one‑third" and "two‑thirds" in paragraph (b) of that item shall be read as if they were the words "one‑half" and "half" respectively. (3a) Where, under the Table, the brothers and sisters of the intestate and the children of deceased brothers and sisters of the intestate are entitled to a portion or the whole of the intestate property (which portion or whole, as the case may be, is referred to in this subsection as the relevant property) — (a) where only one such person survives the intestate, then that person is entitled to all of the relevant property; (b) where 2 or more such persons survive the intestate and any of them is a brother or sister of the intestate, then the relevant property shall be divided into as many equal parts as there are brothers and sisters of the intestate who — (i) survived the intestate; or (ii) left children who survived the intestate, and a brother or sister of the intestate who so survived shall be entitled to one of those parts; (c) where any brother or sister did not survive the intestate but left a child or children who so survived, that child shall be entitled or, where there are children, those children, shall be entitled in equal shares — (i) where that brother or sister would have been entitled under paragraph (a) to all of the relevant property had he or she survived the intestate, to all of the relevant property; (ii) where that brother or sister would have been entitled under paragraph (b) to a part of the relevant property had he or she survived the intestate, to that part of the relevant property. (4) Where the intestate dies leaving a husband or wife who is entitled to — (a) the sum of $$472 000 (or, if there is a declared sum for item 2 applicable to the intestate, that sum) mentioned in item 2(b) of the Table; or (b) the sum of $705 000 (or, if there is a declared sum for item 3(a) and (b) applicable to the intestate, that sum) mentioned in item 3(b) of the Table, the surviving husband or wife shall be entitled to an amount equal to 5% per annum on the sum to which he or she is so entitled, or on that part of such sum as remains unpaid or unsatisfied, calculated from the date of death of the intestate to the date of the payment of that sum, or the date of the effectual appropriation of that sum in accordance with the provisions of the Trustees Act 1962, whichever is the earlier of those dates, and the amount to which he or she is entitled under this subsection — (c) shall be in addition to any other sum, property or share in property, to which he or she is entitled under the Table; and (d) shall be payable out of the income of the estate of the intestate, or if there is no income or the income is insufficient for that purpose, out of the capital of the residue of the estate. (5) Subject to subsection (4), the income derived from the intestate property shall be distributed among the persons who are, under the Table, entitled in distribution to that property in the same respective proportions to which they are, under the Table, entitled to share in the distribution of that property. (6) If — (a) a surviving husband or wife of the intestate is not entitled to the whole of the intestate property