Probate and Administration Act 1898

This Act may be cited as the Probate and Administration Act 1898.

The Acts mentioned in the First Schedule to this Act to the extent therein expressed are hereby repealed.

All persons appointed by virtue of the provisions of any Act hereby repealed and holding office at the passing of this Act shall be deemed to have been appointed hereunder.

All rules of Court made under the authority of any Act hereby repealed, and being in force at the passing of this Act, shall be deemed to have been made under the authority of this Act.

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—

the committee established under section 123 of the Supreme Court Act 1970, or

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—

appointed in accordance with section 120 of the Supreme Court Act 1970, and

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.

Notes in this Act do not form part of this Act.

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.

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.

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.

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.

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.

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.

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.

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.

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.

If a grant of probate or administration is made on presumption of death only, the provisions of this section shall have effect.

The grant shall be expressed to be made on presumption of death only.

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.

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.

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.

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.

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.

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.

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.

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.