Administration and Probate Act 1929

This Act is the Administration and Probate Act 1929.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act.

Note 2 A definition in the dictionary applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Part 3 Grant of representation

Division 3.1 Jurisdiction of the Supreme Court

On an application made under this Act—

for the grant of probate of the will, or administration of the estate, of a deceased person; or

to have probate of the will, administration of the estate, or an order to collect and administer the estate, of a deceased person granted by a court of competent jurisdiction in a State or other Territory sealed with the seal of the Supreme Court; or

by the public trustee and guardian for an order to collect and administer the estate of a deceased person;

the Supreme Court must not grant the relief sought unless it has made a finding about the domicile of the deceased person at the time of death.

The Supreme Court has jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, within the ACT.

The Supreme Court has jurisdiction to grant probate of the will, or administration of the estate, of a deceased person who did not leave property, whether real or personal, within the ACT, if the court is satisfied that the grant of probate or administration is necessary.

Probate of the will, or administration of the estate, of a person may be granted by the Supreme Court if it is satisfied, by direct evidence or by evidence supporting a presumption of death, that the person is, or may be presumed to be, dead.

A grant of probate of the will, or administration of the estate, of a person made on direct evidence of the death of the person or on evidence supporting a presumption of the death of the person is valid even if the person is, after the day the grant was made, found to have been alive on that day.

If the Supreme Court makes a grant of probate of the will, or administration of the estate, of a person on evidence supporting a presumption of the death of the person—

the grant must be expressed to be made on presumption of the death of the person; and

the estate of the person must not be distributed without the leave of the court; and

the court may, in the probate or administration or by an order made at any time, give leave to distribute the estate; and

the court may, in giving leave to distribute the estate of the person, direct that the distribution must not be made unless each person who is to take under the distribution gives an undertaking or security that he or she will, if the probate or administration is revoked—

if the person has received property other than money under the order—restore the property or, at his or her option, pay an amount equal to the value of the property at the time he or she received the property to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person; or

if the person has received money under the order—pay an amount equal to the amount of the money received under the order to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person; and

the court may direct the executor or the administrator to give, before the estate is distributed, the notices (including a notice stating a date before which a caveat against the distribution of the estate may be filed in the Supreme Court under the rules) that the court considers appropriate.

If an executor or administrator of an estate has given the notices directed by the Supreme Court under subsection (1) (e), the executor or administrator—

may, subject to subsection (3), after the end of the period stated in the notices, distribute the estate among the persons entitled to it, having regard only to the claims of which the executor or administrator has notice at the time of the distribution; and

is not liable, in relation to any part of the estate so distributed, to a person entitled to that part of whose claim he or she did not have notice at the time of the distribution.

If a caveat against the distribution of an estate has been filed in the Supreme Court in accordance with a notice under subsection (1) (e) and the caveat is in force under the rules—

the executor or administrator must not distribute the estate among the persons entitled to it except under an order of the Supreme Court under subsection (4); and

the executor or administrator, the person who filed the caveat or a person interested in the distribution of the estate may make application to the Supreme Court for an order under subsection (4).

Despite the filing of a caveat in the Supreme Court in accordance with subsection (1) (e), the court may, on application under subsection (3) (b), make an order authorising the executor or administrator of an estate to distribute the estate among the people entitled to it.

An order under subsection (4) may authorise the distribution of the estate subject to the conditions the Supreme Court considers appropriate.

The probate of a will or letters of administration with a will annexed are evidence of the execution of the will.

The copy of a will annexed to a probate or to letters of administration is evidence of the contents of the will.

The probate of a will is evidence of the death of the testator and, if the probate states the date of death of the testator, of the date of death.

Letters of administration of the estate of a deceased person are evidence of the death of the person and, if the letters of administration state the date of death of the person, of the date of death.

Note The Evidence Act 2011, s 92 (1) deals with the admission or use of the grant of probate or letters of administration to prove the death, or date of death, of a person or the execution of a testamentary document.

The Supreme Court may, if it considers appropriate, grant probate to 1 or more of the executors named in a will reserving leave to the executor who has not renounced, or the executors who have not renounced, to come in and apply for a grant of probate at a future time.

If a deceased person has named as an executor of the person’s will the public trustee and guardian, or the public trustee of a State, the Supreme Court may grant probate of the will to that public trustee.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

Subject to this Act and the rules, the practice and procedure in relation to the granting of administration of the personal estate of an intestate are applicable 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.

The Supreme Court may grant administration of an intestate estate to any of the following persons, subject to this section:

the partner of the intestate;

1 or more of the next of kin of the intestate;

if the intestate is survived by 2 partners—either partner, or both partners conjointly;

a partner or partners of the intestate conjointly with 1 or more of the next of kin of the intestate;

any other person (whether or not a creditor of the intestate) the court considers appropriate.

The Supreme Court must only grant administration of an intestate estate to a person who is at least 18 years old.

The Supreme Court must not grant administration of an intestate estate to a person mentioned in subsection (1) (e) if there is anyone else to whom administration may be granted under this section who—

in the court’s opinion, can be trusted with administration of the estate; and

applies to be granted administration of the estate.

In this section:

partner, in relation to an intestate—see section 44.