Probate and Administration Act 1898 (NSW)

Probate and Administration Act 1898 No 13 An Act to consolidate enactments relating to Wills, Probate and Administration. Part 1AA Preliminary 1 Name of Act This Act may be cited as the Probate and Administration Act 1898. 2 Repeals and savings (1) The Acts mentioned in the First Schedule to this Act to the extent therein expressed are hereby repealed. (2) All persons appointed by virtue of the provisions of any Act hereby repealed and holding office at the passing of this Act shall be deemed to have been appointed hereunder. (3) All rules of Court made under the authority of any Act hereby repealed, and being in force at the passing of this Act, shall be deemed to have been made under the authority of this Act. 3 Definitions (1) In this Act, unless the context or subject matter otherwise indicates or requires— Administrator includes the NSW Trustee and any other person to whom administration as hereinafter defined is granted. Administration includes all letters of administration of the real and personal estate and effects of deceased persons whether with or without the will annexed, and whether granted for general, special, or limited purposes, also 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 is in the opinion of the Court deemed sufficient. The Court means the Supreme Court of New South Wales. Minor means a person under the age of eighteen years. NSW Trustee means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009. Probate includes "exemplification of probate" or any other formal document purporting to be under the seal of a court of competent jurisdiction which, in the opinion of the Court, is deemed sufficient. Rule Committee means— (a) the committee established under section 123 of the Supreme Court Act 1970, or (b) the Uniform Rules Committee established under section 8 of the Civil Procedure Act 2005. Will extends to a testament and to a codicil and to any appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child by virtue of the Imperial Act twelfth Charles the Second, chapter twenty-four, and to any other testamentary disposition. Real estate extends to messuages, lands, rents, and hereditaments, of freehold or any other tenure, and whether corporeal, incorporeal or personal, and to any undivided share thereof, and to any estate, right, or interest (other than a chattel interest) therein, and in part 2 includes lands held under building leases or any lease for twenty-one years and upwards. Personal estate, except in part 2 as hereinbefore mentioned, extends to leasehold estates and other chattels real, and also to moneys, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever, which, prior to the coming into operation of the Real Estates of Intestates Distribution Act of 1862, commonly known as "Dr. Lang's Act," by law devolved upon the executor or administrator, and to any share or interest therein. Registrar means a person who is— (a) appointed in accordance with section 120 of the Supreme Court Act 1970, and (b) nominated by the Principal Registrar of the Supreme Court for the purposes of this Act. Rules means rules made or in force by or under the Supreme Court Act 1970 or the Civil Procedure Act 2005. Seal of the Court means seal of the Court as provided for by the Rules. Trustee company means a licensed trustee company within the meaning of Chapter 5D of the Corporations Act 2001 of the Commonwealth authorised by an Act of New South Wales to act as trustee. (2) Notes in this Act do not form part of this Act. Part 1 Wills 4–29A (Repealed) 30 Place of original wills All original wills of which probate or administration with the will annexed is granted under this Act, and such other documents as the Court may direct or the rules may provide shall be preserved under the control of the Court, and may be inspected under the control of the Court and subject to the rules. 31 Official copy of whole or part of will may be obtained Without limiting section 52 (Delivery of wills by Registrar) of the Succession Act 2006, an official copy of the whole or any part of a will or such other document as the Court shall approve or an official certificate of the grant of any probate or letters of administration may be obtained from the Registrar or custodian on the payment of the fees fixed for the same. 32 (Repealed) Part 1A 32A–32F (Repealed) Part 2 Probate and administration Division 1A Preliminary 32G Interpretation (1) In this Part— de facto spouse, in relation to a person dying wholly or partly intestate, means someone who was a partner in a de facto relationship with the person. Note— "De facto relationship" is defined in section 21C of the Interpretation Act 1987. (2) Except where the contrary intention appears, a reference in this Part to the spouse of an intestate includes a reference to a person who, at the time of death of the intestate, was the de facto spouse of the intestate. Division 1 Jurisdiction of the Court 33 Jurisdiction The jurisdiction and authority, prior to the coming into operation of the Probate Act of 1890, vested in or exercised by the Court or by the Primary Judge in Equity in respect of the estates of deceased persons, shall be vested in and exercised by the Court. 34–39 (Repealed) 40 Probate or administration may be granted of real or personal estate The Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, in New South Wales. 40A Evidence or presumption of death (1) Where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant probate of the person's will or administration of the person's estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant. (2) The provisions of this Act, the Guardianship of Infants Act 1916, Part 15 of the Conveyancing Act 1919 and the Succession Act 2006 relative to a deceased person and of the Real Property Act 1900 relative to a deceased proprietor shall, unless the context or subject-matter otherwise indicates or requires, extend to any person with respect to whom the Court is satisfied in accordance with subsection (1) is deceased. (3) The provisions of this section shall extend to a case where the grant of probate or administration was made before, as well as to a case where the grant is made after the commencement of the Wills Probate and Administration (Amendment) Act 1932, provided that nothing in this section shall affect any action or proceeding decided before or pending at the commencement of that Act. 40B Presumption of death (1) If a grant of probate or administration is made on presumption of death only, the provisions of this section shall have effect. (2) The grant shall be expressed to be made on presumption of death only. (3) The estate shall not be distributed without the leave of the Court. The leave may be given in the grant of probate or administration or by other order, and either unconditionally or subject to such conditions as the Court deems reasonable, and in particular, if the Court thinks fit, subject to an undertaking being entered into or security being given by any person who takes under the distribution that the person will restore any money or property received by the person or the amount or value thereof in the event of the grant being revoked. (4) The Court may direct the executor or administrator before distributing the estate to give such notices as the Court deems proper in the circumstances, in order that the person whose death has been presumed, if the person is still living, or if the person has died since the date of the grant, then in order that any person interested in the estate may lodge with the Registrar within such time as may be specified a caveat against the distribution. If the Court directs any such notice to be given, the executor or administrator shall not have the benefit of section 92, unless the executor or administrator complies with the direction. If a caveat is duly lodged within such time as may be specified, the executor or administrator shall not distribute the estate until the caveat is withdrawn or removed. (5) An application for leave to distribute the estate and for directions may be made, and a caveat may be lodged withdrawn or removed, as prescribed by the rules, and the Court may make such order in respect of costs and otherwise as it deems proper. (6) The provisions of this section, with the exception of subsection (2), shall extend to a case where the grant of probate or administration was made before, as well as to a case where the grant is made after the commencement of the Wills Probate and Administration (Amendment) Act 1932, but shall not affect any distribution made before such commencement. 40C Person living at date of grant (1) Where the Court grants probate of the will or administration of the estate of any person, and it subsequently appears that the person was living at the date of the grant, the Court shall revoke the grant on such terms, if any, with respect to any proceedings at law or in equity commenced by or against the executor or administrator, and in respect of costs and otherwise, as the Court thinks proper. (2) Proceedings for the revocation may be taken either by the person, or if the person has died since the date of the grant, by any person entitled to apply for probate or administration or by any person interested in the estate. (3) The Court may at any time, whether before or after the revocation, make such orders, including an order for an injunction against the executor or administrator or any other person, and an order for the appointment of a receiver, as the Court may deem proper for protecting the estate. (4) The provisions of this section shall extend to a case where the grant of probate or administration was made before, as well as to a case where the grant is made after the commencement of the Wills Probate and Administration (Amendment) Act 1932. 40D Effect of revoking grant (1) If a grant of probate or administration is revoked, the provisions of this section shall have effect. (2) The executor or administrator under the revoked grant shall be bound duly to account and to pay and transfer all money and property received by or vested in the executor or administrator and then remaining in the executor's or administrator's hands as the Court may direct, but shall not be liable for any money or property paid or transferred by the executor or administrator in good faith under the probate or administration before the revocation. Nothing in this subsection shall affect any commission protection indemnity reimbursement or right to which the executor or administrator is entitled under any other provision of this Act. (3) The revocation shall not invalidate any payment or transfer lawfully made by or to the executor or administrator in the course of administration before the revocation, but nothing in this subsection shall prejudice the right of any person to follow assets into the hands of the persons or any of them among whom the same may have been distributed, or who may have received the same. (3A) No action shall lie against the Registrar-General for loss, damage or deprivation suffered in consequence of the registration of a transfer or other dealing with land under the provisions of the Real Property Act 1900 lawfully made by the executor or administrator before the revocation. (4) In any case where a grant of probate or administration is revoked under section 40C the person, or if the person has died since the date of the grant, the executor or administrator to whom a grant of probate or administration is made consequent on the revocation, shall be entitled to receive from the Consolidated Revenue Fund the amount of death duty paid thereto in respect of the revoked grant. (5) The Court may make such vesting order as it deems proper. (6) The provisions of this section, with the exception of subsection (4), shall extend to a case where the grant of probate or administration was made before, as well as to a case where the grant is made after the commencement of the Wills Probate and Administration (Amendment) Act 1932. 41 Probate to one or more executors, reserving leave to others to prove subsequently The Court may, if it thinks fit, grant probate to one or more of the executors named in any will, reserving leave to the other or others who have not renounced to come in and apply for probate at some future date. 41A (Repealed) 42 Application for probate or administration (1) All applications for probate or letters of administration may be made to the Court in such manner as may be prescribed by the rules. (2) Notice of an application is to be published in the manner prescribed by the rules— (a) in the case of an application made by way of a cross-claim—within the period prescribed by the rules in relation to such an application, or (b) in any other case—not less than 14 days before the making of the application. (3) Application for probate of a will not deposited as referred to in section 51 of the Succession Act 2006 provided or for letters of administration shall be supported by an affidavit that a search has been made in the proper office for a will of the deceased, and stating whether any such will remains deposited with the officer for the time being authorised to have the custody of deposited wills, or by a certificate from the Registrar to the like effect. (4) The Court may by order direct that any partial or total failure to comply with the requirements of subsections (2) and (3) shall not bar the granting of probate or letters of administration. (5) The Court may refuse to revoke a grant of probate or letters of administration notwithstanding that in respect of the application for the grant there was any partial or total failure to comply with the requirements of subsections (2) and (3). Note— On grant of administration in respect of a deceased person to permit an application to be made for a family provision order, see section 91 of the Succession Act 2006. 43 (Repealed) Division 2 Estates of deceased persons 44 Real and personal estate to vest in executor or administrator (1) Upon the grant of probate of the will or administration of the estate of any person dying after the passing of this Act, all real and personal estate which any such person dies seised or possessed of or entitled to in New South Wales, shall as from the death of such person pass to and become vested in the executor to whom probate has been granted or administrator for all the person's estate and interest therein in the manner following, that is to say— (a) On testacy in the executor or administrator with the will annexed. (b) On intestacy in the administrator. (c) On partial intestacy in the executor or administrator with the will annexed. (2) Upon the grant, to the NSW Trustee or a trustee company, of probate of the will or administration of the estate of a person dying after the commencement of the Wills, Probate and Administration (Trustee Companies) Amendment Act 1985, the NSW Trustee or the trustee company, as the case may be, shall be— (a) the executor, by representation, of any will of which the person had been granted probate, and (b) the administrator, by representation, of any estate of which the person had been granted administration. 44A Executor of executor represents original testator (1) An executor of a sole or last surviving executor of a testator is the executor by representation of that testator. (2) So long as the chain of executorial representation is unbroken, the last executor in the chain is the executor of every preceding testator. (3) The chain of executorial representation is broken by— (a) an intestacy, or (b) the failure of a testator to appoint an executor, or (c) the failure to obtain probate of a will. (4) The chain of executorial representation is not broken by a temporary grant of administration if probate is subsequently granted. (5) This section does not apply to an executor who does not prove the will of his or her testator. (6) In the case of an executor who, on his or her death, leaves surviving some other executor of his or her testator who afterwards proves the will of that testator, this section ceases to apply on that probate being granted. (7) Every person in the chain of representation to a testator— (a) has the same rights in respect of the estate of that testator as the original executor would have had if living, and (b) is, to the extent to which the estate of that testator has come into his or her hands, answerable as if he or she were an original executor. (8) The provisions of this Act that apply to executors are modified to the extent necessary to give effect to this section. 45 Real estate held by testator or intestate to vest in executor or administrator, subject to equities All real estate held by any person in trust or by way of mortgage, and vesting as aforesaid under this part, shall as from the death of such person vest in the person's executor or administrator, subject to the trusts and equities affecting the same. 46 Property of deceased to be assets which may be sold or mortgaged (1) The real as well as the personal estate of every person dying as aforesaid shall be assets in the hands of the person's executor to whom probate has been granted, or administrator, for the payment of all duties and fees, and for the payment of the person's debts in the ordinary course of administration. (2) Such executor or administrator for purposes of administration may sell such real estate, or mortgage the same with or without a power of sale, and convey the same to a purchaser or mortgagee in as full and effectual a manner in law as the deceased person could have done in the person's lifetime. 46A Real and personal estate of person dying after commencement of Conveyancing (Amendment) Act 1930 are assets for payment of debts (1) The real and personal estate of a person dying after the commencement of the Conveyancing (Amendment) Act 1930, to the extent of the person's beneficial interest therein, and the real and personal estate of which a person so dying disposes by the person's will (whenever made) in exercise of a general power, shall be assets for the discharge of the funeral, testamentary and administrative expenses, debts, and liabilities. (2) If any person to whom any such beneficial interest devolves or is given, or in whom any such interest vests, disposes thereof in good faith before any proceeding is taken or process is sued out against the person, the person shall be personally liable for the value of the interest so disposed of by the person, but that interest shall not be liable to be taken in execution in the proceeding or under the process. 46B Appointments under general power (1) Real and personal estate passing under a gift contained in the will of a testator dying after the commencement of the Conveyancing (Amendment) Act 1930 which operates as an appointment under a general power to appoint by will shall vest in the testator's personal representatives as if the testator had been entitled thereto at the testator's death, whether or not the testator was so entitled, and whether or not for an estate or interest not determining on the testator's death. (2) Real and personal estate the subject of a gift contained in the will of a testator dying after the passing of the Probate Act of 1890, which operated as an appointment under a general power, shall be deemed to have vested under the provisions of that Act, or of this Act, as the case may require, in the testator's executors or administrators as if that property had been vested in the testator at the time of the testator's death, whether or not the testator was entitled thereto for an estate or interest not determining on the testator's death. (3) Nothing in subsection (2) shall affect any right or title accrued before the commencement of this section under any disposition by an appointee which would have been valid if this section had not been passed or shall affect the interpretation of section 44. 46C Administration of assets (1) Where the estate of a deceased person is insolvent the deceased person's real and personal estate shall, subject to the provisions of the Bankruptcy Act 1966 of the Parliament of the Commonwealth, be administered in accordance with the rules set out in Part 1 of the Third Schedule. (2) Where the estate of a deceased person is solvent the deceased person's real and personal estate shall, subject to the provisions of any Act as to charges on property of the deceased and to the provisions, if any, contained in the deceased person's will, be applicable towards the discharge of the funeral, testamentary, and administrative expenses, debts, and liabilities, payable thereout in the order mentioned in Part 2 of the Third Schedule. (3) In this section— deceased person means a person dying after the commencement of the Conveyancing (Amendment) Act 1930. solvent means sufficient and insolvent means insufficient for the payment in full of the debts and liabilities of the deceased. 46D Application of income of settled residuary real or personal estate (1) Where, under the provisions of the will of a person dying after the commencement of the Conveyancing (Amendment) Act 1930 (in this section called the deceased), any real or personal estate included (either by specific or general description) in a residuary gift is settled by way of succession, no part of the income of that property shall be applicable in or towards the payment of the funeral, testamentary, and administrative expenses, debts, and liabilities, or of the interest (if any) thereon up to the date of the death of the deceased, or of any legacies bequeathed by such will. (2) The income of the settled property shall be applicable in priority to any other assets in payment of the interest (if any) accruing due on the funeral, testamentary, and administrative expenses, debts, liabilities and legacies, after the date of the death of the deceased and up to the payment thereof, and the balance of such income shall be payable to the person for the time being entitled to the income of the property. (3) Where, after the death of the deceased, income of assets which are ultimately applied in or towards payment of the funeral, testamentary, and administrative expenses, debts, liabilities and legacies arises pending such application, that income shall, for the purposes of this section, be deemed income of the residuary estate of the deceased. (4) This section shall only affect the rights of beneficiaries under the will as between themselves, and shall not affect the rights of creditors of the deceased. (5) This section shall have effect, subject to the provisions (if any) to the contrary contained in the will and to the provisions of any Act as to charges on property of the deceased. 46E Mode of divesting land from an executor or administrator (1) (a) Real estate vested in an executor or administrator shall not be divested from the executor or administrator and vested in another person who may be entitled thereto either beneficially or as a trustee, or an executor or administrator, otherwise than by a registered conveyance, or by an acknowledgment operating under section 83, or by registration under the provisions of the Real Property Act 1900. (b) This subsection extends to real estate vested in an executor or administrator at the commencement of the Conveyancing (Amendment) Act 1930 or thereafter becoming so vested. (2) (a) Real estate mentioned in section 83 shall not, as against a purchaser in good faith from an executor or administrator, be held to have been divested from the executor or administrator and vested in another person entitled thereto, except by a registered conveyance, or by an acknowledgment operating under that section. (b) This subsection applies to purchases made on or after the fifteenth day of December, one thousand eight hundred and ninety (being the day of the passing of the Probate Act of 1890). 47 Real estate to be held upon trusts of will Subject to the provisions of this part, the real estate of every such deceased person devising such estate by the person's will, shall be held by the person's executor to whom probate has been granted, or the administrator with the will annexed, according to the trusts and dispositions of such will. 48 Executor to have same rights etc as to real estate as personal estate The executor to whom probate has been granted shall have the same rights and be subject to the same duties with respect to the real estate of the executor's testator that executors heretofore have had or been subject to with reference to personal assets. 49–51 (Repealed) 52 No dower or courtesy No estate by courtesy or right of dower or any equivalent estate shall arise, after the coming into operation of this Act, out of the real estate as to which any person dies intestate. 53 Value to be accepted instead of partition A spouse of an intestate who is entitled to share in real estate (other than real estate comprising an interest in real estate the spouse has elected to acquire under section 115 (Spouse's right of election) of the Succession Act 2006) shall be bound to accept the value of that real estate instead of partition if all other persons entitled to that real estate with the spouse so desire. 54 Transferred provision—Court may authorise business of intestate to be carried on (1) Where any person has died intestate, as to any real or personal estate used by the deceased at the time of the deceased's death in any business, trade, or occupation, the Court may authorise the executor or administrator to postpone the realisation of the estate so used, or any part thereof, for such time as the Court thinks fit, and in the meantime to carry on the said business, trade, or occupation, and to use therein such estate or part thereof, subject to such conditions as the Court may think fit to impose. (2) Subsection (1) re-enacts (with minor modifications) section 5 of the Administration (Validating) Act 1900 and is a transferred provision to which section 30A of the Interpretation Act 1987 applies. 55, 56 (Repealed) 57 Court may make special order The Court may upon the application of the administrator, or in the case of partial intestacy the executor or administrator with the will annexed, as the case may be, or of any person beneficially interested, and after such previous notice to other parties and inquiry as may seem fit, order and direct the course of proceedings which shall be taken in regard to— (a) the time and mode of sale of any real estate, (b) the letting and management thereof until sale, (c) the application for maintenance or advancement or otherwise of shares or income of shares of infants, (d) the expediency and mode of effecting a partition if applied for, and generally in regard to the administration of such real estate for the greatest advantage of all persons interested. 58 Court may order partition in a summary way (1) In any case wherein upon such inquiry the Court is satisfied that a partition of such real estate or any part thereof will be advantageous to the parties interested therein, the Court may appoint one or more arbitrators to effect such partition. (2) The report and final award of the arbitrators setting forth particulars of the land allotted to each party interested shall, when signed by them and confirmed by the order of the Court, and when also registered in the office of the Registrar-General, be effectual without the necessity of any further conveyance to vest in each allottee the land so allotted to the allottee, and an office copy of such award so signed, confirmed, and registered as aforesaid, shall for all purposes be equivalent to an indenture of conveyance to each allottee of the lands allotted to the allottee as aforesaid. (3) In the case of land subject to the provisions of the Real Property Act 1900, the Registrar-General, on being served with an office copy of any such award so signed and confirmed, shall create a folio of the Register kept under that Act for the land so allotted to each allottee. (4) If such allotment be made subject to the charge of any money payable to any other party interested for equalising the partition, such charge shall take effect according to the terms and conditions in regard to time and mode of payment and otherwise which shall be expressed in such award without the necessity of any further instrument being made or executed. (5) In the case of land subject to the provisions of the Real Property Act 1900, the Registrar-General, when creating under subsection (3) a folio of the Register kept under that Act as a consequence of an allotment made under subsection (2), shall make in the folio such recording as the Registrar-General considers appropriate with respect to any charge referred to in subsection (4) that relates to the allotment and that is unsatisfied. 59 Personal representative not required to continue to act against the personal representative's own consent No personal representative shall be required against the personal representative's own consent to continue the duty of a trustee by managing the property during an enforced suspension of sale, but shall be entitled upon such suspension being ordered to relinquish the personal representative's trust to such person as the Court may appoint. 60 (Repealed) 61 Property of deceased to vest in NSW Trustee From and after the decease of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person's estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England. Division 2A 61A–61F (Repealed) Division 3 Probate and administration 62 Practice as to granting administration of real and personal estate of intestate (1) The practice and proceedings hitherto in force with reference to granting administration of the personal estate of an intestate shall, save as hereby altered and subject to the rules or Chapter 4 of the Succession Act 2006, be applicable to administration granted hereunder, and so far as may be to administration of real estate, and administration of both real and personal estate may be granted in and by the same letters. (2) Without limiting subsection (1), if a person dies wholly intestate the real and personal estate of the person is to be distributed or held in trust in accordance with Chapter 4 of the Succession Act 2006, and the real estate of that person is to be held as if it were devised to the persons for whom it is held in trust. 63 To whom administration may be granted The Court may grant administration of the estate of an intestate person to the following persons, not being minors, that is to say to— (a) the spouse of the deceased, or (b) one or more of the next of kin, or (c) the spouse conjointly with one or more of the next of