s 1Short title
This Act may be cited as the Administration and Probate Act 1969.
This Act may be cited as the Administration and Probate Act 1969.
This Act shall come into operation on a date to be fixed by the
Administrator by notice in the Gazette.
In this Act, unless the contrary intention appears:
Aboriginal means a person who is a member of the aboriginal race of Australia.
administration includes all letters of administration of the real and personal estate of deceased persons whether with or without the will annexed and whether granted for general, special or limited purposes, exemplification of letters of administration and 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 sufficient.
administrator includes any person to whom administration is granted.
committee, in relation to a person, includes a guardian for that person's financial matters appointed under the Guardianship of Adults Act 2016.
deceased person means a person dying on or after the date on which this Act comes into operation.
distribute means to pay, deliver or divide the estate or property referred to, or to among the person or persons entitled thereto under any intestacy or under any will.
election means an election to administer the estate or a part of the estate of a deceased person.
next of kin, in relation to a deceased person, means those persons, other than a spouse or de facto partner of the deceased person, who would be entitled to take an interest in the estate of the deceased person if he or she had died intestate.
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.
professional personal representative means:
the Public Trustee;
(b) a trustee company within the meaning of the Companies (Trustees and Personal Representatives) Act 1981; or
a legal practitioner.
Public Trustee has the same meaning as in the Public Trustee Act 1979.
purposes of administration, in relation to the administration of the estate of a deceased person, includes the payment in due course of administration of the debts, funeral and testamentary expenses, duties and commission, and the costs, charges and expenses of the executor or administrator, and any costs which may be ordered to be paid out of the estate.
Registrar means the Registrar of the Supreme Court performing the functions of the Registrar of Probates.
relevant country means:
a State or another Territory of the Commonwealth of Australia;
a country that is prescribed; or
(c) where a part of a country is prescribed – that part of the country.
representation means the probate of a will and administration.
will includes a codicil.
(2) In this Act, unless the contrary intention appears, a reference to a Public Trustee, in relation to a country, shall be read as including a reference to an officer of that country who is entitled under a law of that country to apply, in a case where a deceased person has died intestate leaving no next of kin, to a court for an order that authorizes the officer to administer the estate of the deceased person.
(4) For the purposes of this Act, an Aboriginal who has entered into a relationship with another Aboriginal that is recognized as a traditional marriage by the community or group to which either Aboriginal belongs is married to the other Aboriginal, and all relationships shall be determined accordingly.
(5) Except where they are defined in this Act to have a different meaning or the contrary intention appears, words used in this Act have the same meaning as defined in the Supreme Court Act 1979 or in Chapter 3 of the Rules of the Supreme Court made under that Act.
Part III Grant of representation
Division 1 Jurisdiction of 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, within the Territory.
The Court shall have 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 Territory, 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 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 upon direct evidence of the death of the person or upon evidence supporting a presumption of the death of the person is valid notwithstanding that the person is, after the day on which the grant was made, found to have been alive on that day.
Where the Court makes a grant of probate of the will, or administration of the estate, of a person upon evidence supporting a presumption of the death of the person:
the grant shall be expressed to be made on presumption of the death of the person;
the estate of the person shall not be distributed without the leave of the Court;
the Court may, in the probate or administration or by an order made at any time, give leave to distribute the estate;
the Court may, in giving leave to distribute the estate of the person, direct that the distribution shall 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, restore the property received by him or her under the distribution to the person entitled to it, or pay to that person an amount equal to the value of that property; and
the Court may direct the executor or the administrator to give, before he or she distributes the estate, such notices (including a notice specifying a date before which a caveat against the distribution of the estate may be lodged with the Registrar) as the
Court thinks fit.
Where an executor or administrator of an estate has given the notices that the Court has, under subsection (1), directed him or her to give before distributing the estate, the executor or administrator:
may, subject to subsection (3), after the expiration of the period specified 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 respect of 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.
Where a caveat against the distribution of an estate has been lodged with the Registrar under subsection (1):
the executor or administrator shall not distribute the estate among the persons entitled to it except in pursuance of an order of the Court under subsection (4); and
the executor or administrator, the person who lodged the caveat or a person interested in the distribution of the estate may make application to the Court for an order under subsection (4).
The Court may, upon application under subsection (3)(b), make an order authorizing the executor or administrator of an estate to distribute the estate among the persons entitled to it notwithstanding the lodging of a caveat under subsection (1).
An order under subsection (4) may authorize the distribution of the estate subject to such conditions as the Court thinks fit.
Where, in relation to the enforcement of an undertaking or security given under subsection (1), a dispute arises as to the value of any property received under a probate or administration that is revoked, the Court may, upon application by any person affected by the undertaking or security, make such order in respect of the property as it thinks fit.
The Court may upon application by a person who has given an undertaking or security under subsection (1) or the executor or administrator of the estate of such a person, make such order for the termination or modification of the obligations under the undertaking or security as it thinks fit.
(1) Subject to the provisions of this section, probate or administration may, upon application to the Registrar, supported by affidavits upon which for the time being the Court would, in the opinion of the Registrar, grant the probate or administration, be issued by the Registrar as of course in the name and under the seal of the Court, and every such probate or administration shall be deemed to have been granted by the Court.
(2) The Registrar shall not, without an order of the Court, issue probate of the will, or administration of the estate, of a deceased person:
in any case where a caveat has been lodged;
(b) in any case where there is no direct evidence of the death of the person but only evidence supporting a presumption of the death of the person; or
(c) in any case in which it appears to the Registrar to be doubtful whether the probate or administration should be granted.
(3) Whenever the Court makes an order for the grant of probate or administration, the probate or administration shall be issued by the Registrar in the name and under the seal of the Court.
The seal of the Court shall not be affixed to any probate or letters of administration until all duties and fees payable under any law in force in the Territory have been paid or security has been given in accordance with any such law for payment of such duties and fees.
The Court may, if it thinks fit, grant probate to one 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.
Where a deceased person has named the Public Trustee of a State or
Territory of the Commonwealth as an executor of his or her will, the
Court may grant probate of the will to that Public Trustee.
Subject to this Act and the Rules, the practice and procedure with reference to the granting of administration of the personal estate of an intestate shall be applicable, so far as may be, to the granting of administration of the real estate, and administration of both real and personal estate may be granted in and by the same letters.
(1) Subject to this section, the Court may grant administration of the estate of an intestate person to:
the spouse or de facto partner of the deceased person;
one or more of the next of kin;
(c) the spouse or de facto partner conjointly with one or more of the next of kin; or
(d) such person, whether a creditor or not of the deceased person, as the Court thinks fit.
(2) The Court shall not grant administration to a person who is not the spouse or de facto partner or one of the next of kin of the deceased unless:
there is no such spouse or de facto partner or next of kin;
(b) there is no such spouse or de facto partner or next of kin within the jurisdiction who is, in the opinion of the Court, fit to be trusted; or
(c) there is no such spouse or de facto partner or next of kin who, when duly cited, appears and prays for administration.
(2A) References in subsections (1) and (2) to a spouse or de facto partner of a deceased person are references only to a spouse or de facto partner who is entitled to an interest in the deceased person's intestate estate.
The Court shall not grant administration to an infant.
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