Administration and Probate Act 1935 (Tas)

Administration and Probate Act 1935 An Act to consolidate and amend the law relating to the administration of the estates of deceased persons and the granting of representation in respect thereof [Royal Assent 18 October 1935] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title This Act may be cited as the Administration and Probate Act 1935 . 2. Repeal (1) The enactments set forth in Schedule I are hereby repealed to the extent indicated in that schedule. (2) No Imperial enactment other than the Australian Courts Act 1828 , so far as it relates to the administration of the estates of deceased persons, shall apply in respect of the estate of any person dying after the commencement of this Act. 3. Interpretation (1) In this Act, unless the contrary intention appears – administration means, with reference to the real and personal estate of a deceased person, letters of administration, whether general or limited, or with the will annexed or otherwise; and in Part VI includes exemplification of letters of administration or such other formal evidence of the letters of administration purporting to be under the seal of a court of competent jurisdiction as shall, in the opinion of a judge, be deemed sufficient; administrator means a person to whom administration is granted; conveyance includes a mortgage, lease, assent, vesting declaration, vesting instrument, disclaimer, release, and every other assurance of property or of an interest therein by any instrument, except a will; and disposition includes a "conveyance" and also a devise or bequest and an appointment of property contained in a will; Court means the Supreme Court; income includes rents and profits; intestate includes a person who leaves a will but dies intestate as to some beneficial interest in his real or personal estate; pecuniary legacy includes an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the designated property, and any other general direction by a testator for the payment of money, including all duties free from which any devise, bequest, or payment is made to take effect; personal chattels means carriages, horses, stable furniture and effects, motor-cars and accessories, garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors, and consumable stores, but does not include any chattels used at the death of the intestate for business purposes, nor money or securities for money; personal representative means the executor, original or by representation, or administrator for the time being of a deceased person; possession includes the receipt of rents and profits or the right to receive the same, if any; probate means the probate of a will, and in Part VI includes exemplification of probate, or such other formal document purporting to be under the seal of a court of competent jurisdiction as shall, in the opinion of a judge, be deemed sufficient; Probate Rules means rules and orders made by the judges, or a majority of them, for regulating the procedure and practice of the Court in regard to non-contentious or common form probate business; property includes a thing in action and any interest in real or personal property; purchaser means a lessee, mortgagee, or other person who in good faith acquires an interest in property for valuable consideration, also an intending purchaser, and valuable consideration includes marriage, but does not include a nominal consideration in money; real estate means any real estate, including chattels real, which by virtue of Part II devolves on the personal representative of a deceased person; Registrar means the Registrar of the Supreme Court; rent includes a rent service or a rent-charge, or other rent, toll, duty, or annual or periodical payment in money or money's worth, issuing out of or charged upon land, but does not include mortgage interest, and rent-charge includes a fee-farm rent; representation means the probate of a will and administration, and the expression "taking out representation" refers to the obtaining of the probate of a will or of the grant of administration; securities includes stocks, funds, or shares; the deceased means the testator or intestate to whom the context relates; tenant for life, land, settled land, settlement, and trustees of the settlement have the same meanings as in the Settled Land Act 1884 ; trust corporation means The Public Trustee or a corporation authorized by any Act, or appointed by the Court in any particular case, to be a trustee; trust for sale, in relation to land, means an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without a power at discretion to postpone the sale; and power to postpone a sale means power to postpone in the exercise of a discretion; will includes codicil. (2) References to a child or issue living at the death of any person include a child or issue en ventre sa mère at the death. (3) References to the estate of a deceased person include property over which the deceased exercises a general power of appointment by his will. (4) References to any statutes of distribution in an instrument inter vivos made, or in a will coming into operation after the commencement of this Act, shall be construed as references to Part V ; and references in such an instrument or will to statutory next-of-kin shall be construed, unless the contrary intention appears, as referring to the persons who would take beneficially on an intestacy under the provisions of Part V . (5) Any prescribed Probate Rules continue in force as if duly made under this Act as amended by the Justice and Related Legislation (Miscellaneous Amendments) Act 2008 . (6) For the purposes of subsection (5) – prescribed Probate Rules means Probate Rules and any amendment to the Probate Rules – (a) made under this Act as in force before the commencement of the Justice and Related Legislation (Miscellaneous Amendments) Act 2008 ; and (b) in force immediately before the commencement of that Act. PART II - Devolution of Estates 4. Devolution of real estate on personal representative (1) Real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this Act chattels real devolved on the personal representative from time to time of a deceased person. (2) The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers. (3) The personal representatives shall be the representative of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate. 5. Application to real estate of law affecting chattels real (1) Subject to the provisions of this Act, all enactments and rules of law, and all jurisdiction of any court with respect to the appointment of administrators or to probate or letters of administration or to dealings before probate in the case of chattels real, and with respect to costs and other matters in the administration of personal estate, in force before the commencement of this Act, and all powers, duties, rights, equities, obligations, and liabilities of a personal representative in force at the commencement of this Act with respect to chattels real, shall apply and attach to the personal representative and shall have effect with respect to real estate vested in him, and in particular all such powers of disposition and dealing as were before the commencement of this Act exercisable as respects chattels real by the survivor or survivors of two or more personal representatives, as well as by a single personal representative, or by all the personal representatives together, shall be exercisable by the personal representatives or representative of the deceased with respect to his real estate. (2) Where as respects real estate there are two or more personal representatives, a conveyance of real estate devolving under this Part shall not be made without the concurrence therein of all such representatives or an order of the Court, but where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, any conveyance of the real estate may be made by the proving executor or executors for the time being without an order of the Court, and shall be as effectual as if all the persons named as executors had concurred therein. (3) Without prejudice to the rights and powers of a personal representative, the appointment of a personal representative in regard to real estate shall not, save as hereinafter provided, affect – (a) any rule as to marshalling or as to administration of assets; (b) the beneficial interest in real estate under any testamentary disposition; (c) any mode of dealing with any beneficial interest in real estate, or the proceeds of sale thereof; or (d) the right of any person claiming to be interested in the real estate to take proceedings for the protection or recovery thereof against any person other than the personal representative. 6. Interpretation in this Part of "real estate" (1) In this Part real estate includes – (a) chattels real, and land in possession, remainder, or reversion, and every interest in or over land to which a deceased person was entitled at the time of his death; and (b) real estate held on trust or by way of mortgage of security, but not money to arise under a trust for sale of land, nor money secured or charged on land. (2) A testator shall be deemed to have been entitled at his death to any interest in real estate passing under any gift contained in his will which operates as an appointment under a general power to appoint by will. (3) An entailed interest of a deceased person shall be deemed an interest ceasing on his death, but any further or other interest of the deceased in the same property in remainder or reversion which is capable of being disposed of by his will shall not be deemed to be an interest so ceasing. (4) The interest of a deceased person under a joint tenancy where another tenant survives the deceased is an interest ceasing on his death. (5) On the death of a corporator sole his interest in the corporation's real and personal estate shall be deemed to be an interest ceasing on his death and shall devolve to his successor. PART III - Executors and Administrators Division I - General provisions 7. Summons to executor to prove or renounce, &c. The Court shall continue to have power to summon any person named as executor in any will to prove or renounce probate of the will, and to do such other things concerning the will as have heretofore been customary. 8. When right of executor to prove ceases Where a person appointed executor by a will – (a) survives the testator but dies without having taken out probate of the will; (b) is cited to take out probate of the will and does not appear to the citation; or (c) renounces probate of the will – his rights in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his real and personal estate shall devolve and be committed in like manner as if that person had not been appointed executor. 9. Withdrawal of renunciation Where an executor who has renounced probate has been permitted, whether before or after the commencement of this Act, to withdraw the renunciation and prove the will, the probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of, and notices to, any other personal representative who has previously proved the will or taken out letters of administration, and a memorandum of the subsequent probate shall be endorsed on the original probate or letters of administration. 10. Executor of sole or last surviving executor represents original testator (1) An executor of a sole or last surviving executor of a testator is the executor of that testator. This provision shall not apply to an executor who does not prove the will of his testator, and, in case of an executor who on his death leaves surviving him some other executor of his testator who afterwards proves the will of that testator, it shall cease to apply on such probate being granted. (2) So long as the chain of such representation is unbroken, the last executor in the chain is the executor of every preceding testator. (3) The chain of such representation is broken by – (a) an intestacy; (b) the failure of a testator to appoint an executor; or (c) the failure to obtain probate of a will – but is not broken by a temporary grant of administration if probate is subsequently granted. (3A) Where the chain of representation to a testator is broken any beneficiary, or person claiming through a deceased beneficiary, whether at law or in equity, under the will of the testator, may appoint a trust corporation to be executor of the testator, and the acceptance of the appointment constitutes the trust corporation executor of the testator as if the chain of representation had not been broken. (3B) A trust corporation is not under any obligation to accept an appointment under subsection (3A) . (4) Every person in the chain of representation to a testator – (a) has the same rights in respect of the real and personal estate of that testator as the original executor would have had if living; and (b) is, to the extent to which the estate, whether real or personal, of that testator has come to his hands, answerable as if he were an original executor. 11. Right of proving executors to exercise powers Where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, all the powers which are by law conferred on the personal representative may be exercised by the proving executor or executors for the time being and shall be as effectual as if all the persons named as executors had concurred therein. 12. How property to vest between death of person intestate and grant of representation Where a person dies intestate, his real and personal estate, until administration is granted in respect thereof, shall vest in the Chief Justice or in case there may not be a Chief Justice at any time, then in the senior puisne judge, in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary in England. 13. Discretion of Court as to persons to whom administration is to be granted and limitation of grant In granting letters of administration the Court shall have regard to the rights of all persons interested in the real and personal estate of the deceased person, or the proceeds of sale thereof and, in particular, administration with the will annexed may be granted to a devisee or legatee, and any such administration may be limited in any way the Court thinks fit. Provided that – (a) where the deceased died wholly intestate as to his real and personal estate, administration shall, if application is made for that purpose, be granted to some one or more of the persons interested in the residuary estate of the deceased; and (b) if, by reason of the insolvency of the estate of the deceased or of any other special circumstances, it appears to the Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this provision, would by law have been entitled to the grant of administration, the Court may, in its discretion, notwithstanding anything contained in section 14 , appoint as administrator such person as it thinks expedient, and any administration granted under this provision may be limited in any way the Court thinks fit. 13A. Grant of administration to adult The Court may grant letters of administration to a person aged 18 years or more, whether or not the person resides in Tasmania. 14. Provisions as to the number of personal representatives and where minority or life interest (1) Representation shall not be granted to more than 4 persons in respect of the same property; and administration shall, if any beneficiary is an infant, or a life interest arises under a will, be granted either to a trust corporation, with or without an individual, or to not less than two individuals. Provided that the Court in granting administration may act on such prima facie evidence, furnished by the applicant or any other person, as to whether or not there is a minority or life interest, as may be prescribed by the Probate Rules. (2) If there is only one personal representative, not being a trust corporation, then during the minority of the beneficiary or the subsistence of a life interest, and until the estate is fully administered, the Court may, on the application of any person interested or of the guardian, administrator, or receiver of any such person, appoint, in accordance with the Probate Rules, one or more personal representatives in addition to the original personal representative. (3) This section applies to grants of representation made after the commencement of this Act, whether the deceased died before or after such commencement. 15. Power to grant representation of real and personal estate separately or together Representation may be granted in respect of the real estate of a deceased person or any part thereof, and either separately or together with his personal estate, and may also be granted in respect of real estate only where there is no personal estate, or in respect of a trust estate only, and a grant of letters of administration to any real estate may be limited in any way the Court thinks proper. Provided that, where the estate of a deceased person is known to be insolvent, the grant of representation to the real and personal estate shall not be severed except as regards a trust estate. 16. Grant of representation to a trust corporation (1) Where a trust corporation is appointed an executor in a will, either alone or jointly with another person, the Court may grant probate to such corporation, either solely or jointly with another person, as the case may require, and the corporation may act as executor accordingly. (2) Administration may be granted to any trust corporation either solely or jointly with another person, and the corporation may act as administrator accordingly. (3) Representation shall not be granted to a syndic or nominee on behalf of any trust corporation. (4) Any officer authorized for the purpose by any such corporation or by the directors or governing body thereof may swear affidavits, give security, and do any other act or thing which the Court may require on behalf of the trust corporation with a view to the grant of representation to the corporation, and the acts of such officer shall be binding on the corporation, and he shall be entitled to be kept indemnified by the corporation in regard to matters so authorized as aforesaid. (5) Where at the commencement of this Act any interest in real or personal estate is vested in a syndic on behalf of any trust corporation acting as the personal representatives of a deceased person, the same shall, by virtue of this Act, vest in the corporation, and the syndic shall be kept indemnified by the corporation in regard to the interest so vested. This subsection does not apply to securities registered in the name of a syndic, or to land, or to a mortgage or charge of which the syndic is registered proprietor under the Land Titles Act 1980 , but any such securities, land, mortgage, or charge shall be transferred by the syndic to the corporation, or as the corporation may direct. (6) This section has effect whether the deceased died before or after the commencement of this Act; and no such vesting or transfer as aforesaid shall operate as a breach of a covenant or condition against alienation or give rise to a forfeiture. 17. Grant to agent of executor Where any person resident in Tasmania has been, or hereafter may be, appointed to act in the affairs of a testator by an executor not resident in Tasmania, administration of the real and personal estate and effects of such testator, with an exemplification or other authenticated copy of the will or probate annexed, shall be granted to the person so appointed, upon such person giving his own bond to administer without any sureties. 18. Executor not to act while administration is in force Where administration has been granted in respect of any real or personal estate of a deceased person, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked. 19. Grant of administration pendente lite (1) While any legal proceeding touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any representation, is pending, the Court may grant administration of the real and personal estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the real and personal estate, but shall be subject to the immediate control of the Court and shall act under its direction. (2) The Court may assign to any administrator appointed under this section reasonable remuneration out of the real and personal estate of the deceased or the income thereof. 20. Continuance of legal proceedings after revocation of temporary administration If, while any legal proceeding is pending in any court by or against an administrator to whom a temporary administration has been granted, that administration 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 him, but subject to such conditions and variations, if any, as that court directs. 21. Grant of special administration where personal representative is abroad (1) If, at the expiration of 12 months from the death of a person, any personal representative of the deceased to whom representation has been granted is residing out of the jurisdiction of the Court, the Court may, on the application of any creditor or person interested in the estate of the deceased, grant him special administration in the prescribed form of the real and personal estate of the deceased. (2) The Court may, for the purpose of any legal proceeding to which the administrator under the special administration is a party, order the transfer into Court of any money or securities belonging to the estate of the deceased person, and all persons shall obey any such order. (3) If the personal representative capable of acting as such returns to and resides within the jurisdiction of the Court while any legal proceeding to which a special administrator is a party is pending, such representative shall be made a party to the legal proceeding, and the costs of and incidental to the special administration and such legal proceeding shall be paid by such person and out of such fund as the Court in which the proceeding is pending directs. 22. Administration with will annexed Administration, with the will annexed, shall continue to be granted in every case where such grant has hitherto been customary, and in such case the will of the deceased shall be performed and observed in like manner as if probate thereof has been granted to an executor. 23. Administration during minority of executor (1) Where an infant is appointed or becomes sole executor of a will, administration, with the will annexed, shall be granted to his guardian, or to such other person as the Court thinks fit, until the infant attains the age of 18 years; at which time, and not before, probate of the will may be granted to him. (2) The appointment in a will by a testator of an infant to be an executor shall not operate to transfer any interest in the property of the deceased to the infant, or to constitute him a personal representative for any purpose, unless and until probate is granted to him after he has attained full age. 24. Rights and liabilities of administrator Every person to whom administration of the real and personal estate of a deceased person is granted shall, subject to the limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased. 25. . . . . . . . . Division II - Duties, rights and obligations 26. Duty of personal representative as to inventory The personal representative of a deceased person shall, when lawfully required so to do, exhibit on oath in the Court a true and perfect inventory and account of the real and personal estate of the deceased, and the Court shall have power as heretofore to require personal representatives to bring in inventories. 27. Rights of action by and against personal representatives (1) Subject to the provisions of this section on the death of any person after the commencement of this section all causes of action– (a) subsisting against him shall survive against his estate; and (b) vested in him shall survive for the benefit of his estate. (2) . . . . . . . . (3) Where a cause of action survives under this section for the benefit of the estate of a deceased person, the damages recoverable for the benefit of that estate – (a) shall not include exemplary damages; (b) in the case of a breach of promise to marry, shall be limited to such damage (if any) to that estate as flows from the breach of promise to marry; and (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action – (i) shall be calculated without reference to any loss or gain to that estate consequent on his death, except that a sum in respect of funeral expenses may be included; (ii) shall not include damages for pain or suffering, for any bodily or mental harm suffered by him or for the curtailment of his expectation of life; and (iii) shall be calculated without reference to the future probable earnings of the deceased if he had survived the consequences of the act or omission and without any allowance being made for the loss of his earning capacity that relates to a period after his death. (3A) Notwithstanding subsection (3)(c) , damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life, may be recovered if – (a) the cause of action related to a dust-related condition; and (b) the deceased person commenced a proceeding in relation to the cause of action before the deceased person died; and (c) the deceased person died as a result of the dust-related condition or the dust-related condition was a contributing factor to the deceased person's death. (3B) For the purposes of subsection (3A) – dust-related condition means – (a) any of the following diseases: (i) aluminosis; (ii) asbestosis; (iii) asbestos-induced carcinoma; (iv) asbestos-related pleural diseases; (v) bagassosis; (vi) berylliosis; (vii) byssinosis; (viii) coal dust pneumoconiosis; (ix) farmers' lung; (x) hard metal pneumoconiosis; (xi) mesothelioma; (xii) silicosis; (xiii) silico-tuberculosis; (xiv) talcosis; or (b) any other pathological condition of the lung, pleura or peritoneum that is attributable to dust. (3C) Subsection (3A) applies in relation to a proceeding, in respect of an action that survives for the benefit of the estate of a deceased person, whether the proceeding commenced before or after the commencement of that subsection unless – (a) judgment has been given in relation to the proceeding; or (b) the proceeding has been settled or withdrawn. (4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before, or at the same time as, the damage was suffered, the cause of action which would have subsisted against him if he had died after the damage was suffered, shall be deemed to have subsisted against him before he died. (5) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless – (a) proceedings against him in respect of that cause of action were pending at the date of his death; or (b) the cause of action arose not earlier than 12 months before the date of his death and proceedings are taken not later than 6 months, or such extended time as a judge may allow, after the date of the grant of probate of his will, or letters of administration, to his personal representative. (6) A judge, on application, may extend the period of 6 months prescribed by paragraph (b) of subsection (5) for such further period as the justice of the case may require, and such application may be made although the said period of 6 months has expired. (7) A personal representative may distrain for arrears of a rent-charge due or accruing to the deceased in his lifetime on the land affected or charged therewith, so long as the land remains in the possession of the person liable to pay the rent-charge or of the persons deriving title under him, and in like manner as the deceased might have done had he been living. (8) A personal representative may distrain upon land for arrears of rent due or accruing to the deceased in like manner as the deceased might have done had he been living, and such arrears may be distrained for after the termination of the lease or tenancy as if the term or interest had not determined, if the distress is made – (a) within 6 months after the termination of the lease or tenancy; and (b) during the continuance of the possession of the lessee or tenant from whom the arrears were due – and the statutory enactments relating to distress for rent shall apply to any distress made pursuant to this subsection. (9) The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Act 1934 , and so much of this Act as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as it applies in relation to other causes of a