South Australia: Succession Act 2023 (SA)

South Australia Succession Act 2023 An Act to consolidate and amend the law relating to wills, probate and administration, the administration of deceased estates, intestacy and family provision, to repeal the Administration and Probate Act 1919, the Inheritance (Family Provision) Act 1972 and the Wills Act 1936, to make related amendments to various other Acts, and for other purposes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Interpretation Part 2—Wills Division 1—Making, alteration, revocation and revival of wills Subdivision 1—Property that may be disposed of by will 4 All property may be disposed of by will Subdivision 2—Testamentary capacity 5 Will of minor 6 Will of minor authorised by Court 7 Will of person lacking testamentary capacity authorised by Court Subdivision 3—Execution and attestation of wills 8 Requirements as to writing and execution of will 9 Exercise of power of appointment by will 10 Will of ADF member on active service 11 Validity of will 12 Will not void by incompetency of witness 13 Gifts to attesting witness 14 Creditor attesting to be admitted as witness 15 Executor to be admitted as witness Subdivision 4—Alteration, revocation and revival of wills 16 Alteration of will 17 Revocation of will 18 Effect of marriage or registered relationship on will 19 Effect of end of marriage or registered relationship on will 20 Effect of change in testator's domicile 21 Revival of revoked will Division 2—Rectification of wills 22 Rectification of will by order of Court Division 3—Construction of wills 23 When will takes effect 24 Interests in property will disposes of 25 When a disposition is not to be rendered inoperative 26 General disposition of land includes leaseholds 27 What general disposition of property subject to power of appointment includes 28 Effect of disposition of real property without words of limitation 29 What a residuary disposition includes 30 How requirements to survive with issue are to be construed 31 Disposition to children or other issue who leave issue living at testator's death does not lapse 32 Construction of dispositions of real property to trustee or executor 33 Disposition of estates tail do not lapse 34 Effect of referring to valuation in will Division 4—Wills made outside the State 35 Interpretation 36 Application of system of law 37 General rule as to formal validity 38 Additional rules as to validity 39 Validity of statutory wills made outside State 40 Operation of international wills provisions not limited by this Division Division 5—International wills 41 Application of Convention 42 Persons authorised to act in connection with international wills 43 Witnesses to international wills 44 Application of Act to international wills Division 6—Deposit of and access to wills 45 Will may be deposited with Registrar 46 Delivery of wills by Registrar 47 Failure to retain does not affect validity of will 48 Persons entitled to inspect will of deceased person Part 3—Probate and administration Division 1—Interpretation 49 Interpretation Division 2—Granting and revoking of probate and administration Subdivision 1—Court's practice in testamentary jurisdiction 50 Practice of Court Subdivision 2—Registrar of Probates 51 Registrar of Probates 52 Registrar's powers and authorities 53 Exercise by Registrar of jurisdiction, powers or authorities of Court 54 Probate of will deposited with Registrar 55 Registrar to obtain direction of Judge in doubtful case Subdivision 3—General provisions relating to granting and revoking of probate and administration 56 Grant of probate or administration to adults only 57 Effect of probate and administration granted interstate or overseas 58 Provisions for evidence in case of foreign will 59 Appointment of joint administrators 60 Examination of witnesses 61 Order to produce document purporting to be testamentary 62 Caveats 63 When persons interested in real property affected by a will are to be served with proceedings 64 Grant of administration to duly authorised attorney 65 After grant of administration no person to have power to sue as executor 66 Rights of executor renouncing, not acting, or not appearing when cited, to cease as if not named in will 67 Grant of probate or administration to person other than the person otherwise entitled 68 Special administration 69 Revocation of grant of probate or administration not to prejudice legal action 70 Protection to persons acting in reliance on probate or administration 71 Statement of assets and liabilities to be provided with application for probate or administration 72 Obligation of person dealing with asset to ensure that it has been properly disclosed Subdivision 4—Small estates 73 Deemed grant of probate or administration to Public Trustee for small estate Part 4—Administration of deceased estates 74 Interpretation 75 Vesting of intestate estate on person's death 76 Vesting of land on person's death 77 Vesting of intestate estate on grant of administration 78 Administrator to hold intestate property on trust 79 Court's powers in relation to management of undevised land 80 Court may order partition of undevised land 81 General duties of executors and administrators 82 Power of executor or administrator to sell real property for payment of debts 83 Payment of debts and liabilities in the case of solvent estates 84 Mortgages and charges on land not be paid out of deceased's residuary or personal estate 85 Specialty and simple contract debts of deceased persons to stand in equal degree 86 Filing of declaration that estate is insufficient to pay debts and liabilities 87 Rules in insolvency administration to prevail in certain cases 88 How estate is to be administered 89 Court may order sale of property belonging to minor 90 Court may give permission to postpone realisation or carry on business 91 Administrator to pay over money and deliver property to Public Trustee 92 Statement and account to be provided to Public Trustee 93 Court may order provision of statement and account 94 Proceedings to compel provision of statements and account 95 Public Trustee, executors, administrators and trustees may obtain judicial advice or direction 96 Commission may be allowed to executors, administrators and trustees 97 Court may require undertakings from executor or administrator 98 Remedy if executor or administrator fails to perform duties etc 99 Payment of interest on legacies 100 Payment of money and personal property without grant of probate or administration Part 5—Intestacy Division 1—Interpretation 101 Interpretation Division 2—Election by spouse or domestic partner to acquire interest in dwelling 102 Election by spouse or domestic partner to acquire interest in dwelling 103 Restriction on right of spouse or domestic partner to acquire interest in dwelling 104 Restriction on right of administrator to sell interest in dwelling Division 3—Rules governing distribution of intestate estates 105 General rules as to distribution of intestate estate 106 Division of estate if intestate is survived by spouse or domestic partner, or both 107 Spouse or domestic partner not entitled to intestate estate in certain cases 108 Distribution among children and grandchildren of intestate 109 Distribution among relatives of intestate 110 Intestate estate passes to Crown if no surviving beneficiaries Division 4—Distribution of intestate estates according to Court approved agreements 111 Court may approve distribution of intestate estate in accordance with agreement Division 5—Miscellaneous 112 Value of intestate estate 113 This Part not to affect operation of Part 6 Part 6—Family provision 114 Interpretation 115 Persons entitled to claim under this Part 116 Persons entitled may obtain order for maintenance etc out of estate of deceased person 117 Power to require security for costs 118 Time within which application must be made 119 Provisions relating to family provision orders 120 Order to operate as will or codicil 121 Court may fix periodic payment or lump sum 122 Court may vary or discharge order 123 Mortgage or assignment of provision invalid 124 Liability of administrator after distribution of estate Part 7—Miscellaneous 125 Person disqualified from taking interest or share in deceased estate to be treated as having predeceased testator or intestate 126 Presumption of survivorship 127 Devolution of jointly‑owned property where order of death uncertain 128 Safe custody of wills and other documents 129 Office copies of wills or probate or administration may be obtained 130 Probate to be evidence of wills concerning real property 131 Will not to be registered or admissible as evidence until proved 132 Inspection of documents in Land Titles Registration Office or General Registry Office 133 Power of Public Trustee to move for attachment of administrator 134 Restrictions on exercise of rights of retainer and preference 135 Delegation 136 Person making false oath commits perjury 137 Applications to Court 138 Rules of court 139 Regulations and fee notices 140 Review of Act Schedule 1—Annex to Convention providing a Uniform Law on the Form of an International Will 1973 Schedule 2—Related amendments Part 1—Amendment of Aged and Infirm Persons' Property Act 1940 1 Amendment of section 11—Variation or rescission of protection order 2 Amendment of section 31—Expenses and remuneration of manager Part 2—Amendment of Guardianship and Administration Act 1993 3 Substitution of heading to Part 4 Division 3 Division 3—Administration orders (general) 4 Insertion of Part 4 Division 3A Division 3A—Administration orders (missing persons) 48A Administration orders (missing persons) Part 3—Amendment of Law of Property Act 1936 5 Amendment of section 114—Power of Court to sell interest of Crown in real estate 6 Repeal of section 115 Part 4—Amendment of Public Trustee Act 1995 7 Substitution of section 52 52 Deposit of certain wills and other documents with Public Trustee 8 Substitution of section 55 55 Regulations and fee notices Part 5—Amendment of Stamp Duties Act 1923 9 Amendment of section 71CB—Exemption from duty in respect of certain transfers between spouses etc or former spouses etc 10 Amendment of Schedule 2—Stamp duties and exemptions Part 6—Amendment of Supreme Court Act 1935 11 Substitution of section 18 18 Testamentary jurisdiction Part 7—Amendment of Trustee Act 1936 12 Amendment of section 91—Advice and directions of court and commission Schedule 3—Repeals and revocations 1 Repeal of Administration and Probate Act 1919 2 Repeal of Inheritance (Family Provision) Act 1972 3 Repeal of Wills Act 1936 4 Revocation of Administration and Probate Regulations 2009 Schedule 4—Savings and transitional provisions 1 Interpretation 2 Continuation of proceedings under repealed Acts Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Succession Act 2023. 2—Commencement (1) This Act comes into operation on a day to be fixed by proclamation. (2) Section 27(6) of the Legislation Interpretation Act 2021 does not apply to this Act. 3—Interpretation (1) In this Act— administration means letters of administration of the estate of deceased persons, whether with or without the will annexed, and whether granted for general, special or limited purposes; adult means a person of or above the age of 18 years; annulment of a person's marriage means— (a) the annulment of the marriage by the Family Court of Australia; or (b) the annulment of the marriage under a law of a place outside Australia, if the annulment is recognised in Australia under the Family Law Act; Australian jurisdiction means a State or Territory of the Commonwealth; Australian legal practitioner means a local legal practitioner or an interstate legal practitioner; child, in relation to a deceased person, includes a person who is recognised as a child of the deceased person by virtue of the Family Relationships Act 1975; Convention means the Convention providing a Uniform Law on the Form of an International Will 1973 signed in Washington D.C. on 26 October 1973; Court means the Supreme Court of South Australia; deemed grant of probate or administration means a grant of probate or administration taken to have been granted by virtue of the operation of section 73(4); disposition includes— (a) a devise, bequest, legacy or other gift of property under a will; and (b) the creation by will of a power of appointment affecting property; and (c) the exercise by will of a power of appointment affecting property; divorce of a person means the termination of the person's marriage by— (a) a divorce order in relation to the marriage taking effect under the Family Law Act; or (b) the dissolution of the marriage in accordance with the law of a place outside Australia, if the dissolution is recognised in Australia under the Family Law Act; domestic partner— (a) in relation to a living person means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; (b) in relation to a deceased person means— (i) a person declared under the Family Relationships Act 1975 to have been the domestic partner of the deceased person as at the date of the deceased person's death; or (ii) a person who was in a registered relationship with the deceased person as at the date of the deceased person's death; estate comprises real and personal property and includes any money or other property subject to a trust and received by the Public Trustee under order of the Court; Family Law Act means the Family Law Act 1975 of the Commonwealth; foreign grant, of probate or administration, means a grant of probate or administration issued by a court of competent jurisdiction outside Australia; foreign will means a will made outside Australia; international will means a will made in accordance with the requirements of the Annex to the Convention set out in Schedule 1; interstate grant, of probate or administration, means a grant of probate or administration issued by a court of competent jurisdiction in another State or a Territory of the Commonwealth; interstate legal practitioner has the same meaning as in the Legal Practitioners Act 1981; intestate means a person who— (a) dies without leaving a will; or (b) dies leaving a will that does not effectively dispose of either the whole or part of the person's estate; intestate estate in relation to an intestate means— (a) in the case of an intestate who leaves a will—that part of the person's estate that is not effectively disposed of by the will; or (b) in any other case—the whole of the person's estate; Judge means a Judge of the Supreme Court of South Australia; local legal practitioner has the same meaning as in the Legal Practitioners Act 1981; minor means a person under the age of 18 years; oath includes an affirmation; parent, in relation to a deceased person, includes a person who is recognised as a parent of the deceased person by virtue of the Family Relationships Act 1975; probate means probate of the will of a deceased person; property means real property or personal property; Public Trustee has the same meaning as in the Public Trustee Act 1995; real property means an estate or interest in land; registered relationship means a relationship that is registered under the Relationships Register Act 2016, and includes a corresponding law registered relationship under that Act; Registrar means the Registrar of Probates or an acting or deputy Registrar of Probates; rules of court or rules means the rules of court made under this Act; spouse— (a) a person is the spouse of a living person if the persons are legally married to each other; (b) a person is the spouse of a deceased person if the person was legally married to the deceased person as at the date of the deceased person's death; testamentary jurisdiction of the Court means the jurisdiction of the Court set out in section 18 of the Supreme Court Act 1935; trustee company has the same meaning as in the Trustee Companies Act 1988; undevised land means land forming part of a deceased estate that has not been disposed of by will (whether the deceased died wholly or partially intestate); will includes a codicil and any other testamentary disposition. (2) For the purposes of this Act— (a) a person's marriage is ended when— (i) the annulment of the person's marriage takes effect; or (ii) the person's divorce takes effect; (b) a person's registered relationship is ended when it is taken to end under the Relationships Register Act 2016. (3) For the purposes of this Act— (a) a person is a former domestic partner of a deceased person if the person was the domestic partner of the deceased person at some time other than immediately before the deceased person's death; (b) a person is a former spouse of a deceased person if the person's marriage with the deceased person had ended at some time other than immediately before the deceased person's death. Part 2—Wills Division 1—Making, alteration, revocation and revival of wills Subdivision 1—Property that may be disposed of by will 4—All property may be disposed of by will A person may dispose by will of any property that the person is seized of, or is entitled to, at law or in equity at the time of the person's death (whether or not the entitlement existed at the date of the making of the will). Subdivision 2—Testamentary capacity 5—Will of minor (1) Subject to this Act, a minor cannot make, alter or revoke a will. (2) A minor who is or has been married may make, alter or revoke a will as if the minor were an adult. (3) A minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect unless the contemplated marriage is solemnised. 6—Will of minor authorised by Court (1) The Court may make an order authorising a minor— (a) to make a will in specific terms approved by the Court; or (b) to alter a will in specific terms approved by the Court; or (c) to revoke a will. (2) An order under this section may be made on application by a minor or by a person acting on behalf of a minor. (3) The Court may impose such conditions on an authorisation under this section as the Court thinks fit. (4) Before making an order under this section, the Court must be satisfied that— (a) the minor understands the nature and effect of the proposed will or alteration or revocation of the will; and (b) the proposed will or alteration or revocation of the will accurately reflects the intentions of the minor; and (c) it is reasonable in all the circumstances that the order should be made. (5) A will, or instrument altering or revoking a will, made pursuant to an order under this section— (a) must be executed as required by law and 1 of the attesting witnesses must be the Registrar or the Public Trustee; and (b) must be deposited for safe custody with the Registrar under Division 6. (6) A will made pursuant to an order under this section may not be withdrawn from deposit with the Registrar by the minor unless— (a) the Court has made an order authorising the minor to revoke the will; or (b) the minor has reached the age of 18 years or is married. 7—Will of person lacking testamentary capacity authorised by Court (1) The Court may make an order authorising— (a) the making or alteration of a will, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity; or (b) the revocation of a will on behalf of a person who lacks testamentary capacity. (2) An order under this section may be made on the application of any person with the permission of the court. (3) An authorisation under this section may be granted on such conditions as the Court thinks fit. (4) Before making an order under this section, the Court must be satisfied that— (a) the person lacks testamentary capacity; and (b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if the person had testamentary capacity; and (c) it is reasonable in all the circumstances that the order should be made. (5) In considering an application for an order under this section, the Court must take into account the following matters: (a) any evidence relating to the wishes of the person; (b) the likelihood of the person acquiring or regaining testamentary capacity; (c) the terms of any will previously made by the person; (d) the interests of— (i) the beneficiaries under any will previously made by the person; and (ii) any person who would be entitled to receive any part of the estate of the person if the person were to die intestate; and (iii) any person who would be entitled to claim the benefit of Part 6 in relation to the estate of the person if the person were to die; and (iv) any other person who has cared for or provided emotional support to the person; (e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will; (f) the likely size of the estate; (g) any other matter that the Court considers to be relevant. (6) An order may be made under this section in relation to a minor. (7) The Court is not bound by rules of evidence in proceedings under this section. (8) The following persons are entitled to appear and be heard at proceedings under this section: (a) the person in relation to whom the order is proposed to be made; (b) a legal practitioner representing the person or, with the permission of the Court, some other person representing the person; (c) the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993; (d) the person's administrator (if any) appointed under the Guardianship and Administration Act 1993; (e) the person's guardian (if any) appointed under the Guardianship and Administration Act 1993; (f) the person's manager (if any) appointed under the Aged and Infirm Persons' Property Act 1940; (g) the person's attorney (if any) appointed under an enduring power of attorney; (h) any other person who has, in the Court's opinion, a proper interest in the matter. (9) In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit. (10) A will or instrument altering or revoking a will made pursuant to an order under this section must be executed— (a) by the will or instrument being signed by the Registrar; and (b) by the will or instrument being sealed with the seal of the Court. (11) The will or instrument altering or revoking a will must be retained by the Registrar and will be taken to have been deposited with the Registrar under Division 6. (12) The will may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless— (a) the Court has made an order under this section authorising the revocation of the will (in which case the Registrar must withdraw it on presentation of a copy of the order); or (b) the person has acquired or regained testamentary capacity. (13) In this section— testamentary capacity means the capacity to make a will. Note— The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions. Subdivision 3—Execution and attestation of wills 8—Requirements as to writing and execution of will Subject to this Act, a will is valid only if— (a) the will is made in writing; and (b) the will is executed in the following manner: (i) the will is signed by the testator or by some other person in the testator's presence and by the testator's direction; (ii) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; (iii) the witnesses attest and sign the will (but no form of attestation is necessary); (iv) the signatures of the witnesses are made or acknowledged in the presence of the testator (but not necessarily in the presence of each other); and (c) it appears, on the face of the will or otherwise, that the testator intended by their signature to give effect to the will. 9—Exercise of power of appointment by will If a person holds a power of appointment that is exercisable by will— (a) the provisions of this Act relating to the formalities with which the will must be executed apply in relation to the will even though the power has been conferred on condition that a will made in exercise of the power should be executed with some other or lesser formality; and (b) the power may be exercised by a will executed in accordance with this Act even though the power has been conferred on condition that a will made in exercise of the power should be executed with some other or additional formality. 10—Will of ADF member on active service A person on active service as a member of the Australian Defence Force may dispose of the person's property by nuncupative will. 11—Validity of will (1) A will is valid if executed in accordance with this Act, even if the will is not otherwise published. (2) Subject to this Act, if the Court is satisfied that— (a) a document expresses testamentary intentions of a deceased person; and (b) the deceased person intended the document to constitute their will, the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act. (3) If the Court is satisfied that a document that has not been executed with the formalities required by this Act expresses an intention by a deceased person to revoke a document that might otherwise have been admitted to probate as a will of the deceased person, that document is not to be admitted to probate as a will of the deceased person. (4) This section applies to a document whether it came into existence inside or outside the State. (5) Rules of court may authorise the Registrar to exercise the powers of the Court under this section. 12—Will not void by incompetency of witness If a person who attests the execution of a will is at the time of the execution of the will or at any time afterwards incompetent to be admitted a witness to prove the execution of the will, the will is not on that account invalid. 13—Gifts to attesting witness No will or testamentary provision in a will is void by reason only of the fact that the execution of the will is attested by a person, or the spouse or domestic partner of a person, who has or may acquire, in terms of the will or provision, an interest in property subject to the will or provision. 14—Creditor attesting to be admitted as witness If by a will any real or personal property is charged with a debt and a creditor whose debt is so charged, or the spouse or domestic partner of any such creditor, attests the execution of that will, that creditor will, despite the charge, be admitted a witness to prove the execution of that will or its validity or invalidity. 15—Executor to be admitted as witness No person is on account of being an executor of a will incompetent to be admitted a witness to prove the execution of that will or its validity or invalidity. Subdivision 4—Alteration, revocation and revival of wills 16—Alteration of will (1) No obliteration, interlineation or other alteration made in a will after its execution is valid or has any effect except so far as the words or effect of the will before such alteration are not apparent (unless the alteration is executed in the manner in which a will is required by this Act to be executed). (2) However, the will with the alteration as part of the will is to be taken to be duly executed if the signature of the testator and the subscription of the witnesses are made in the margin or on some other part of the will opposite or near to the alteration or at the foot or end of or opposite to a memorandum referring to the alteration and written at the end or some other part of the will. 17—Revocation of will (1) A will or part of a will may be revoked but only— (a) if the revocation (whether by a will or other means) is authorised by an order under section 6 or 7; or (b) by the operation of section 18 or 19; or (c) by a later will; or (d) by some writing that declares an intention to revoke the will and is executed in the manner in which this Act requires a will to be executed; or (e) by the testator, or by some person in the testator's presence and at the testator's direction— (i) burning, tearing or otherwise destroying the will or the part of the will with the intention of revoking it; or (ii) writing on the will or the part of the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it. (2) No will or part of a will may be revoked by a presumption of an intention on the ground of an alteration in circumstances. 18—Effect of marriage or registered relationship on will (1) Subject to this section, a will is revoked by— (a) the marriage of the testator; or (b) the testator commencing a registered relationship. (2) A will is not revoked by marriage if the will was made in the exercise of a power of appointment when the real or personal property thereby appointed would not in default of such appointment pass to the person's heir executor or administrator, or the person entitled as the person's next of kin under Part 5. (3) A will made on or after 27 February 1969 that is expressed to be made in contemplation of marriage is not revoked by the solemnisation of the marriage contemplated. (4) A will made on or after 1 August 2017 that is expressed to be made in contemplation of the registration of a relationship under the Relationships Register Act 2016 is not revoked by the commencement of the registered relationship contemplated. 19—Effect of end of marriage or registered relationship on will (1) If, after a will is made, the testator's marriage or registered relationship is ended— (a) any disposition of a beneficial interest in property by the will in favour of the testator's former spouse or partner is revoked; and (b) any appointment by the will of the testator's former spouse or partner as an executor, trustee or guardian is revoked; and (c) any grant by the will of a power of appointment exercisable by, or in favour of, the testator's former spouse or partner is revoked, and the will is to have effect with respect to the revocation of such a disposition, appointment or grant of a power as if the former spouse or partner had died on the date that the marriage or registered relationship ended. (2) However, the ending of the testator's marriage or registered relationship does not affect the following: (a) a disposition or grant of a power in accordance with a contract between the testator and the former spouse or partner under which the testator is or was bound to dispose of property by will in a particular way; (b) a disposition, appointment or grant of a power where it appears from the terms of the will that the testator intended that the disposition, appointment or grant would have effect despite the ending of the marriage or registered relationship; (c) a disposition, appointment or grant of a power where if the will is re‑executed, or a codicil is made to the will, after the ending of the marriage or registered relationship and the will or codicil shows no intention of the testator to revoke the disposition, appointment or grant. (3) Nothing in this section affects a right of the former spouse of a testator to make an application under Part 6. (4) In this section— partner, in relation to a registered relationship, means either of the parties to the relationship; spouse includes a party to a purported marriage. 20—Effect of change in testator's domicile A change of domicile of a testator after the execution of the testator's will does not revoke or invalidate the will or change its construction. 21—Revival of revoked will (1) A will or part of a will that has been revoked is revived only by— (a) re‑execution of the will; or (b) execution of a will showing an intention to revive the will or part. (2) A revival of a will that was partly revoked and later revoked as to the balance only revives that part of the will most recently revoked. (3) Subsection (2) does not apply if a contrary intention appears in the reviving will. (4) A will that has been revoked and is later wholly or partly revived is taken to have been executed on the day on which the will is revived. Division 2—Rectification of wills 22—Rectification of will by order of Court (1) If the Court is satisfied that a will does not accurately reflect the testamentary intentions of a deceased person, the Court may order that the will be rectified so as to give proper expression to those intentions. (2) Subject to this section, an application for an order under subsection (1) (a rectification order) must be made within 6 months after the grant of probate or administration. (3) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for a rectification order. (4) An extension of time to make an application may be granted— (a) on such conditions as the Court thinks fit; and (b) whether or not the time for making an application for a rectification order has expired. (5) An application for extension of time under this section must be made before the final distribution of the estate. (6) Any distribution of any part of the estate made before the application for extension of time must not be disturbed by reason of that application or any order made on the application. (7) An application for a rectification order is to be taken to be made on the day on which the originating process by which it is commenced is filed in the Court. (8) A copy of an application for a rectification order must be served on all parties to the proceedings— (a) within 1 month after the proceedings are commenced; or (b) within such longer period as the Court may allow. (9) If the Court makes a rectification order, the Court must direct that a certified copy of the order be made on the probate of the will, or letters of administration of the estate, of the deceased person (and for that purpose the Court may require the production of the grant of probate or administration). (10) Nothing in this section affects the operation of section 29 of the Trustee Act 1936. Division 3—Construction of wills 23—When will takes effect (1) A will takes effect with respect to the property disposed of by the will as if it had been executed immediately before the testator's death. (2) Subsection (1) does not apply if a contrary intention appears in the will. 24—Interests in property will disposes of If a testator has made a will disposing of property but, after the making of the will and before the testator's death, the testator disposes of an interest in that property, the will operates to dispose of any remaining interest of the testator in that property. 25—When a disposition is not to be rendered inoperative No conveyance or other act made or done after the execution of a will of or relating to any real or personal property comprised in the will (except an act by which the will is revoked) prevents the operation of the will with respect to such property or interest in that property as the testator had power to dispose of by will at the time of their death. 26—General disposition of land includes leaseholds (1) A disposition of land of the testator or of land of the testator in any place or in the occupation of any person mentioned in the testator's will or otherwise described in a general manner, and any other general disposition which would describe a leasehold estate if the testator had no freehold estate which could be described by it, is to be construed to include the leasehold estates of the testator or any of the testator's leasehold estates to which such description extends (as the case may be), as well as freehold estates. (2) Subsection (1) does not apply if a contrary intention appears in the will. 27—What general disposition of property subject to power of appointment includes (1) A general disposition of real property of the testator in any place or in the occupation of any person mentioned in the testator's will or otherwise described in a general manner in the will— (a) is to be construed to include any real property or any real property to which the description extends (as the case may be) which the testator has power to appoint in any manner the testator may think proper; and (b) operates as an execution of that power, unless a contrary intention appears in the will. (2) A disposition of personal property of the testator or any disposition of personal property described in a general manner in the will— (a) is to be construed to include any personal property or any personal property to which the description extends (as the case may be) which the testator has power to appoint in any manner the testator may think proper; and (b) operates as an execution of that power, unless a contrary intention appears in the will. 28—Effect of disposition of real property without words of limitation (1) A disposition of real property by will to a person without words of limitation is to be construed as passing the whole estate or interest of the testator in that property to that person. (2) Subsection (1) does not apply if a contrary intention appears in the will. 29—What a residuary disposition includes (1) If— (a) any real property or interest in real property is included or intended to be included in a disposition in a will; and (b) the disposition fails or is void because— (i) the person to whom the disposition is made or intended to be made dies during the lifetime of the testator; or (ii) disposition is contrary to law or otherwise incapable of taking effect, that property or interest in the property will be included in the residuary disposition (if any) contained in the will. (2) Subsection (1) does not apply if a contrary intention appears in the will. 30—How requirements to survive with issue are to be construed (1) If a disposition of property to a person under a will uses the words "die without issue", "die without leaving any issue", "have no issue" or any other words that may import— (a) a want or failure of issue of that person either in the person's lifetime or at their death; or (b) an indefinite failure of issue of that person, the words used are to be construed to mean a want or failure of issue in the person's lifetime or at the person's death and not an indefinite failure of their issue (unless a contrary intention appears in the will by reason of that person having a prior estate tail or of a preceding gift being without any implication arising from such words of limitation of an estate tail to that person or issue or otherwise). (2) This section does not extend to cases where the words mentioned in subsection (1) import if no issue described in a preceding gift is born or if there is no issue who lives to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. 31—Disposition to children or other issue who leave issue living at testator's death does not lapse (1) If a person who is a child or other issue of the testator to whom any property disposed of by will is not determinable at or before the death of that person— (a) dies during the lifetime of the testator leaving issue; and (b) any such issue of that person is living at the time of the testator's death, that disposition has effect as if the testator had died intestate leaving only issue of that person surviving. (2) Subsection (1) does not apply if a contrary intention appears in the will. (3) A general requirement or condition that issue survive the testator or reach a specified age does not show a contrary intention for the purposes of subsection (2). 32—Construction of dispositions of real property to trustee or executor (1) If any real property is disposed of by will to a trustee or executor, that disposition is to be construed to pass the whole estate or interest (whether the fee simple or any other estate or interest) which the testator had power to dispose of by will in that property unless a definite term of years absolute or determinable or an estate of freehold is thereby given to the trustee or executor expressly or by implication. (2) If any real property is disposed of by will to a trustee without any express limitation of the estate to be taken by the trustee and— (a) the beneficial interest in the property, or in the surplus rents and profits of the property, is not given to any person for life; or (b) the beneficial interest in the property, or in the surplus rents and profits of the property, is given to any person for life but the purposes of the trust may continue beyond the life of that person, that disposition is to be construed to vest in the trustee the whole legal estate (whether the fee simple or any other estate) which the testator had power to dispose of by will in that real property and not an estate determinable when the purposes of the trust are satisfied. 33—Disposition of estates tail do not lapse (1) If— (a) a person to whom any real property disposed of by will for an estate tail or an estate in quasi entail dies during the lifetime of the testator leaving issue who would be heritable under the entail; and (b) any such issue are living at the time of the testator's death, the disposition does not lapse but takes effect as if the death of that person had happened immediately after the death of the testator. (2) Subsection (1) does not apply if a contrary intention appears in the will. 34—Effect of referring to valuation in will If a will refers expressly or by implication to a valuation to be made for the purposes of the will, that reference is to be construed as if it were a reference to a valuation made by a competent valuer. Division 4—Wills made outside the State 35—Interpretation In this Division— country means any place or group of places having its own law of nationality (including Australia and its territories); internal law in relation to any country or place means the law which would apply in a case where no question of the law in force in any other country or place arose; place means any territory (including a State or Territory of Australia); statutory will means a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity. 36—Application of system of law (1) If under this Act the internal law in force in any country or place is to be applied in the case of a will, but there are in force in that country or place 2 or more systems of internal law relating to the formal validity of wills, the system to be applied must be ascertained as follows: (a) if there is in force throughout the country or place a rule indicating which of those systems can properly be applied in the case in question—that rule must be followed; (b) if there is no such rule—the system will be that with which the testator was most closely connected at the relevant time (and for this purpose the relevant time is the time of the testator's death where the matter is to be determined by reference to circumstances prevailing at the testator's death and the time of execution of the will in any other case). (2) In determining for the purposes of this Act whether or not the execution of a will conformed to a particular law, regard must be had to the formal requirements of that law at the time of execution, but this does not prevent account being taken of an alteration of law affecting wills executed at that time if the alteration enables the will to be treated as properly executed. (3) If (whether in pursuance of this Act or not) a law in force outside this State falls to be applied in relation to a will, any requirement of that law by which special formalities are to be observed by testators answering a particular description, or witnesses to the execution of a will are to possess certain qualifications, will be treated, despite any rule of that law to the contrary, as a formal requirement only. 37—General rule as to formal validity Despite any other provision of this Act, a will executed outside this State is to be treated as properly executed for all purposes if its execution conformed to the internal law in force in the place where it was executed, or in the place where, at the time of its execution or of the testator's death, the testator was domiciled or had their habitual residence, or in a country of which, at either of those times, the testator was a national. 38—Additional rules as to validity Without limiting the generality of section 37, the following wills executed outside this State are to be treated as properly executed for the purpose of being admitted to probate in this State: (a) a will executed on board a vessel or aircraft of any description, if the execution of the will conformed to the internal law in force in the place with which, having regard to its registration (if any) and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected; (b) a will so far as it disposes of immovable property if its execution conformed to the internal law in force in the country or place where the property was situated; (c) a will so far as it revokes a will which under this Act would be treated as properly executed or revokes a provision which under this Act would be treated as comprised in a properly executed will if the execution of the later will conformed to any law by reference to which the revoked will or provision would be so treated; (d) a will so far as it exercises a power or appointment if the execution of the will conformed to the law governing the essential validity of the power. 39—Validity of statutory wills made outside State A statutory will made according to the law of the place where the deceased was resident or domiciled at the time of execution will be regarded as a valid will of the deceased. 40—Operation of international wills provisions not limited by this Division This Division does not limit the operation of Division 5. Division 5—International wills 41—Application of Convention The Annex to the Convention set out in Schedule 1 has the force of law in this jurisdiction. 42—Persons authorised to act in connection with international wills (1) For the purposes of this Division, the following persons are authorised to act in connection with an international will: (a) an Australian legal practitioner; (b) a public notary of any Australian jurisdiction. (2) For the purposes of this Division, a reference in the Annex to the Convention to a person authorised to act in connection with international wills is a reference to— (a) a person referred to in subsection (1) who is acting in Australia; or (b) any other person who is acting as an authorised person under the law of a country (other than Australia) that is a party to the Convention. Note— This section gives effect to Articles II and III of the Convention. 43—Witnesses to international wills The conditions requisite to acting as a witness to an international will are governed by the law of this jurisdiction. 44—Application of Act to international wills To avoid doubt, the provisions of this Act that apply to wills extend to international wills. Division 6—Deposit of and access to wills 45—Will may be deposited with Registrar (1) A person may deposit a will with the Registrar. (2) The deposit of a will under this section must be done in accordance with the rules. 46—Delivery of wills by Registrar (1) If a will has been deposited with the Registrar under this Act, the testator may at any time apply in writing to the Registrar to be given the will or to have the will given to another person authorised by the testator in writing to receive it. (2) On receiving the application, the Registrar must give the will to the testator or the person authorised by the testator unless the testator is a minor or a person who lacks testamentary capacity. (3) If a will has been deposited with the Registrar under this Act and the testator has died, any executor named in the will or any person entitled to apply for letters of administration with the will annexed may apply to the Registrar to be given the will. (4) On receiving the application referred to in subsection (3), the Registrar must give the will to the executor or other person or to an Australian legal practitioner or trustee company nominated by the executor or person. (5) The Registrar may examine any will to enable the Registrar to comply with this Part. (6) The Registrar must ensure that an accurate copy of every will given to a person under this section is made and retained by the Registrar. (7) If there is any doubt as to whom a will should be given, the Registrar, or any other person, may apply to the Court for directions as to whom the Registrar should give the will. 47—Failure to retain does not affect validity of will Any failure of the Registrar to retain a will as required by this Act does not affect the validity of the will. 48—Persons entitled to inspect will of deceased person (1) A person who has possession or control of a will of a deceased person must allow any 1 or more of the following persons to inspect or be given copies of the will (or both) (at their own expense): (a) a person named or referred to in the will (whether as a beneficiary or not); (b) a person named or referred to in an earlier will as a beneficiary of the deceased person; (c) the surviving spouse, domestic partner or child or stepchild of the deceased person; (d) a former spouse or domestic partner of the deceased; (e) a parent or guardian of the deceased person; (f) a person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate; (g) a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate; (h) a person committed with the management of the deceased person's estate under the Guardianship and Administration Act 1993 immediately before the death of the deceased person. (2) A person who has possession or control of a will of a deceased person must produce it in a court if the court requires the person to do so. (3) The Court may, on application by a person (including a creditor) who has or may have a claim at law or in equity against the estate of a deceased person, make an order requiring a person who has possession or control of a will of the deceased person to allow the applicant to inspect the will. (4) The Court must, before making an order under subsection (3), be satisfied that— (a) the applicant has a proper interest in the matter; and (b) inspection of the will by the applicant is appropriate in the circumstances. (5) In this section— will includes a revoked will, a document purporting to be a will, a part of a will and a copy of a will. Part 3—Probate and administration Division 1—Interpretation 49—Interpretation In this Part— administrator means a person to whom administration has been granted; deliver includes pay; testamentary jurisdiction—see section 3. Division 2—Granting and revoking of probate and administration Subdivision 1—Court's practice in testamentary jurisdiction 50—Practice of Court Except as otherwise provided by the rules, the practice of the Court in its testamentary jurisdiction will be according to the practice of the Court in its jurisdiction under section 5 of the Administration and Probate Act 1919 and section 18 of the Supreme Court Act 1935 immediately before the commencement of this Act. Subdivision 2—Registrar of Probates 51—Registrar of Probates (1) The office of Registrar of Probates continues in existence. (2) There will be such deputy or acting Registrars of Probate and other officers as may be necessary for the proper administration of this Act. (3) A person is only eligible— (a) for appointment as the Registrar or acting Registrar if the person is a legal practitioner of at least 5 years standing; or (b) for appointment as a deputy if the person is a legal practitioner. (4) A person may not be appointed as the Registrar or as a deputy or acting Registrar except on the recommendation of the Chief Justice. (5) The Registrar or a deputy Registrar must not be dismissed or reduced in status except on the recommendation or with the concurrence of the Chief Justice. 52—Registrar's powers and authorities The Registrar has the same powers and authorities with respect to proceedings in the Court as immediately before the commencement of this Act. 53—Exercise by Registrar of jurisdiction, powers or authorities of Court (1) The Registrar may, to the extent authorised by the rules, exercise the jurisdiction, powers and authorities of the Court whether arising under this Act or otherwise. (2) Subject to the rules, an appeal lies to a Judge against a judgment, determination, order, direction or decision given or made by the Registrar in the exercise of a jurisdiction, power or authority of the Court. 54—Probate of will deposited with Registrar (1) If a testator whose will is deposited with the Registrar dies, any executor of the will may apply for probate of the will. (2) An application for a grant of probate under this section must be made in accordance with the rules. (3) On application made in accordance with the rules, the Registrar may grant probate of the will to the executor. 55—Registrar to obtain direction of Judge in doubtful case (1) If the Registrar has doubt— (a) as to whether probate or administration should be granted in a particular case; or (b) whether the Registrar should exercise a power or discretion relating to the Registrar's office in any particular case, the Registrar may obtain the direction of a Judge. (2) If the Registrar obtains the direction of a Judge, the Registrar must act in accordance with the direction (and the Registrar is subject in all cases to the control and orders of the Court). Subdivision 3—General provisions relating to granting and revoking of probate and administration 56—Grant of probate or administration to adults only A grant of probate or administration may not be made to a person under the age of 18 years. 57—Effect of probate and administration granted interstate or overseas (1) If an interstate grant of probate or administration is produced to the Registrar and a copy of it is deposited with the Registrar, the Registrar may register that grant and once so registered— (a) that grant of probate or administration has the same force, effect and operation as if it had been originally granted by the Court; and (b) subject to this Act, every executor or administrator under that grant of probate or administration has, the same rights and powers, and must perform the same duties and be subject to the same liabilities, as if the probate or administration had been originally granted by the Court. (2) If a foreign grant of probate or administration is produced to the Registrar and a copy of it is deposited with the Registrar, that grant of probate or administration may be sealed with the seal of the Court and once so sealed— (a) that grant of probate or administration has the same force, effect and operation as if it had been originally granted by the Court; and (b) subject to this Act, every executor or administrator under that grant of probate or administration has, the same rights and powers, and must perform the same duties and be subject to the same liabilities, as if the probate or administration had been originally granted by the Court. (3) For the purposes of this section, a foreign grant of probate or administration includes any document that the Registrar is satisfied— (a) was issued by a court of competent jurisdiction of the relevant country; and (b) corresponds, according to the law of that country, to probate of a will or to an administration in this State. (4) For the purposes of subsection (3), the Registrar may accept— (a) a certificate from a consul or consular agent in this State of the relevant country; or (b) such other evidence as the Registrar considers sufficient. (5) For the avoidance of doubt, it is not necessary for an interstate grant of probate or administration to be sealed by the Court. (6) In this section— administration includes exemplification of letters of administration and such other formal evidence of letters of administration purporting to be under the seal of a court of competent jurisdiction that the Registrar considers sufficient; probate includes exemplification of probate and any other formal document purporting to be under the seal of a court of competent jurisdiction that the Registrar considers sufficient. 58—Provisions for evidence in case of foreign will (1) If an application for probate or administration with the will annexed is made in relation to a foreign will and the application is not contentious, the Court may— (a) grant probate or administration on the consul or consular agent in this State for the relevant country, or any other person acquainted with the law of the relevant country, testifying, to the satisfaction of the Court, that the will is valid according to such law; or (b) issue a commission to take evidence in the relevant country in support of the will and in proof of the law affecting the validity of the will. (2) The provisions of the law for the time being in force with regard to commissions issued from the Court in actions depending on commissions will, so far as applicable, apply to commissions issued under this section. 59—Appointment of joint administrators The Court may grant administration to more than 1 person. 60—Examination of witnesses (1) The Court may— (a) require the attendance of a person the Court thinks fit to examine, or cause to be examined, in any proceedings in respect of testamentary matters; and (b) examine orally, or cause to be examined orally, parties and witnesses under oath; and (c) either before or after, or with or without such examination, cause any party or witness to be examined on interrogatories, or receive their affidavits or solemn affirmations (as the case may be). (2) The Court may issue a subpoena to compel a person to attend the Court for examination under subsection (1). 61—Order to produce document purporting to be testamentary (1) The Court may, whether or not any proceedings are pending in the Court with respect to probate or administration, issue a subpoena ordering a person to produce a document being or purporting to be testamentary which is shown to be in the possession of or under the control of that person. (2) A subpoena issued under subsection (1) may, instead of providing for production of a document before the Court, provide for the production of the document to an officer of the Court nominated in the subpoena. (3) If it is not shown that a document being or purporting to be testamentary is in the possession of or under the control of the person, but it appears that there are reasonable grounds for believing that the person has knowledge of such a document, the Court may, by subpoena, order the person to attend the Court for the purpose of being examined on oath in open court, or before a Judge in chambers, or on interrogatories, about the document. (4) The costs of any proceedings under this section are in the discretion of the Court. 62—Caveats (1) A caveat against the grant of probate or administration may be lodged in the Probate Registry of the Court. (2) Except as otherwise provided by this Act or the rules, the practice and procedure with respect to caveats against the grant of probate or administration will correspond with the practice and procedure with respect to caveats in use in the Court immediately before the commencement of this Act. 63—When persons interested in real property affected by a will are to be served with proceedings (1) If, in the case of a will that affects real property— (a) proceedings are taken under this Act— (i) for proving the will in solemn form; or (ii) for revoking the grant of probate of the will on the ground of the invalidity of the will; or (b) the validity of the will is disputed in a contentious cause or matter under this Act, the devisees and other persons having or pretending interest in the real property affected by the will must, unless the Court otherwise directs, be served with the proceedings and, subject to the rules under this Act or under the Supreme Court Act 1935, may be permitted to become parties or intervene for their respective interests in that real property in the same manner as the next of kin or others having or pretending interest in personal property affected by a will are served. (2) However— (a) in a case in which the Court is not satisfied that the deceased was at the time of death seized of, or entitled to, or had power to appoint by will some real property beneficially; or (b) in a case in which the will propounded, or of which the validity is in question, would not in the opinion of the Court, though established as to personal property, affect real property, it is not necessary that any person having or pretending interest in the real property of the deceased be served with the proceedings. (3) In— (a) a case referred to in subsection (2); or (b) a case in which the Court, with reference to the circumstances of the property of the deceased or otherwise, thinks fit, the Court may proceed without serving with the proceedings the persons interested in real property provided that the probate, decree or order of the Court does not in any case affect any person in respect of their interest in real property, unless that person has been served with, or been made a party to, the proceedings, or derives title under or through a person who has been served with, or been made a party to, the proceedings. 64—Grant of administration to duly authorised attorney If a person who is entitled to be granted probate or administration is outside the State, the person may, by power of attorney, appoint the Public Trustee or a person within the State to act for them, and administration may be granted to the Public Trustee or the other person on behalf of the person who appointed them on such terms and conditions as the Court thinks fit. 65—After grant of administration no person to have power to sue as executor Subject to this Act, after a grant of administration no person has power to sue or prosecute any action, or otherwise act as executor of the deceased, as to the estate comprised in or affected by the grant, until that administration has been revoked. 66—Rights of executor renouncing, not acting, or not appearing when cited, to cease as if not named in will If— (a) a person renounces probate of the will of which the person is appointed executor or 1 of the executors; or (b) an executor appointed in a will survives the testator but dies without having taken probate; or (c) an executor named in a will is cited to take probate but does not appear to the citation, the right of that person or executor in respect of the executorship wholly ceases, and the representation of the testator and the administration of the testator's estate will and may, without any further renunciation, go, devolve and be committed in the same manner as if the person had not been appointed executor. 67—Grant of probate or administration to person other than the person otherwise entitled (1) If the Court considers it appropriate— (a) for the proper administration of the estate of a deceased person; and (b) in the interests of the persons who are, or may be, interested in the estate of the deceased person, to grant probate of the deceased person's will or administration of the deceased person's estate to a person other than the person, or all of the persons, otherwise entitled to the grant of probate or administration, the Court may instead, on application, grant probate or administration to— (c) without limiting paragraph (b), if there is more than 1 person entitled to the grant—any or all of the other persons entitled; or (d) any person the Court considers appropriate. (2) If the Court considers that there are reasonable grounds for believing that a person otherwise entitled to a grant of probate of the will of a deceased person or administration of the estate of a deceased person has committed an offence relating to the deceased person's death, the Court may instead of granting probate or administration to that person, gra