Administration and Probate Act 1935

Administration and Probate Act 1935

This Act may be cited as the Administration and Probate Act 1935.

The enactments set forth in Schedule I are hereby repealed to the extent indicated in that schedule.

No Imperial enactment other than the Australian Courts Act 1828, so far as it relates to the administration of the estates of deceased persons, shall apply in respect of the estate of any person dying after the commencement of this Act.

In this Act, unless the contrary intention appears – administration means, with reference to the real and personal estate of a deceased person, letters of administration, whether general or limited, or with the will annexed or otherwise; and in Part VI includes 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 shall, in the opinion of a judge, be deemed sufficient; administrator means a person to whom administration is granted; conveyance includes a mortgage, lease, assent, vesting declaration, vesting instrument, disclaimer, release, and every other assurance of property or of an interest therein by any instrument, except a will; and disposition includes a "conveyance" and also a devise or bequest and an appointment of property contained in a will;Court means the Supreme Court; income includes rents and profits; intestate includes a person who leaves a will but dies intestate as to some beneficial interest in his real or personal estate; pecuniary legacy includes an annuity, a general legacy, a demonstrative legacy so far as it is not discharged out of the designated property, and any other general direction by a testator for the payment of money, including all duties free from which any devise, bequest, or payment is made to take effect; personal chattels means carriages, horses, stable furniture and effects, motor-cars and accessories, garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors, and consumable stores, but does not include any chattels used at the death of the intestate for business purposes, nor money or securities for money; personal representative means the executor, original or by representation, or administrator for the time being of a deceased person; possession includes the receipt of rents and profits or the right to receive the same, if any; probate means the probate of a will, and in Part VI includes exemplification of probate, or such other formal document purporting to be under the seal of a court of competent jurisdiction as shall, in the opinion of a judge, be deemed sufficient;Probate Rules means rules and orders made by the judges, or a majority of them, for regulating the procedure and practice of the Court in regard to non-contentious or common form probate business; property includes a thing in action and any interest in real or personal property; purchaser means a lessee, mortgagee, or other person who in good faith acquires an interest in property for valuable consideration, also an intending purchaser, and valuable consideration includes marriage, but does not include a nominal consideration in money; real estate means any real estate, including chattels real, which by virtue of Part II devolves on the personal representative of a deceased person;Registrar means the Registrar of the Supreme Court; rent includes a rent service or a rent-charge, or other rent, toll, duty, or annual or periodical payment in money or money's worth, issuing out of or charged upon land, but does not include mortgage interest, and rent-charge includes a fee-farm rent; representation means the probate of a will and administration, and the expression "taking out representation" refers to the obtaining of the probate of a will or of the grant of administration; securities includes stocks, funds, or shares; the deceased means the testator or intestate to whom the context relates; tenant for life, land, settled land, settlement, and trustees of the settlement have the same meanings as in the Settled Land Act 1884; trust corporation means The Public Trustee or a corporation authorized by any Act, or appointed by the Court in any particular case, to be a trustee; trust for sale, in relation to land, means an immediate binding trust for sale, whether or not exercisable at the request or with the consent of any person, and with or without a power at discretion to postpone the sale; and power to postpone a sale means power to postpone in the exercise of a discretion; will includes codicil.

References to a child or issue living at the death of any person include a child or issue en ventre sa mère at the death.

References to the estate of a deceased person include property over which the deceased exercises a general power of appointment by his will.

References to any statutes of distribution in an instrument inter vivos made, or in a will coming into operation after the commencement of this Act, shall be construed as references to Part V; and references in such an instrument or will to statutory next-of-kin shall be construed, unless the contrary intention appears, as referring to the persons who would take beneficially on an intestacy under the provisions of Part V.

Any prescribed Probate Rules continue in force as if duly made under this Act as amended by the Justice and Related Legislation (Miscellaneous Amendments) Act 2008.

For the purposes of subsection (5) – prescribed Probate Rules means Probate Rules and any amendment to the Probate Rules – made under this Act as in force before the commencement of the Justice and Related Legislation (Miscellaneous Amendments) Act 2008; and in force immediately before the commencement of that Act.

Real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased, in like manner as before the commencement of this Act chattels real devolved on the personal representative from time to time of a deceased person.

The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns within the meaning of all trusts and powers.

The personal representatives shall be the representative of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate.

Subject to the provisions of this Act, all enactments and rules of law, and all jurisdiction of any court with respect to the appointment of administrators or to probate or letters of administration or to dealings before probate in the case of chattels real, and with respect to costs and other matters in the administration of personal estate, in force before the commencement of this Act, and all powers, duties, rights, equities, obligations, and liabilities of a personal representative in force at the commencement of this Act with respect to chattels real, shall apply and attach to the personal representative and shall have effect with respect to real estate vested in him, and in particular all such powers of disposition and dealing as were before the commencement of this Act exercisable as respects chattels real by the survivor or survivors of two or more personal representatives, as well as by a single personal representative, or by all the personal representatives together, shall be exercisable by the personal representatives or representative of the deceased with respect to his real estate.

Where as respects real estate there are two or more personal representatives, a conveyance of real estate devolving under this Part shall not be made without the concurrence therein of all such representatives or an order of the Court, but where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, any conveyance of the real estate may be made by the proving executor or executors for the time being without an order of the Court, and shall be as effectual as if all the persons named as executors had concurred therein.

Without prejudice to the rights and powers of a personal representative, the appointment of a personal representative in regard to real estate shall not, save as hereinafter provided, affect – any rule as to marshalling or as to administration of assets; the beneficial interest in real estate under any testamentary disposition; any mode of dealing with any beneficial interest in real estate, or the proceeds of sale thereof; or the right of any person claiming to be interested in the real estate to take proceedings for the protection or recovery thereof against any person other than the personal representative.

In this Part real estate includes – chattels real, and land in possession, remainder, or reversion, and every interest in or over land to which a deceased person was entitled at the time of his death; and real estate held on trust or by way of mortgage of security, but not money to arise under a trust for sale of land, nor money secured or charged on land.

A testator shall be deemed to have been entitled at his death to any interest in real estate passing under any gift contained in his will which operates as an appointment under a general power to appoint by will.

An entailed interest of a deceased person shall be deemed an interest ceasing on his death, but any further or other interest of the deceased in the same property in remainder or reversion which is capable of being disposed of by his will shall not be deemed to be an interest so ceasing.

The interest of a deceased person under a joint tenancy where another tenant survives the deceased is an interest ceasing on his death.

On the death of a corporator sole his interest in the corporation's real and personal estate shall be deemed to be an interest ceasing on his death and shall devolve to his successor.

The Court shall continue to have power to summon any person named as executor in any will to prove or renounce probate of the will, and to do such other things concerning the will as have heretofore been customary.

Where a person appointed executor by a will –

survives the testator but dies without having taken out probate of the will;

is cited to take out probate of the will and does not appear to the citation; or renounces probate of the will –

his rights in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his real and personal estate shall devolve and be committed in like manner as if that person had not been appointed executor.

Where an executor who has renounced probate has been permitted, whether before or after the commencement of this Act, to withdraw the renunciation and prove the will, the probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of, and notices to, any other personal representative who has previously proved the will or taken out letters of administration, and a memorandum of the subsequent probate shall be endorsed on the original probate or letters of administration.

An executor of a sole or last surviving executor of a testator is the executor of that testator. This provision shall not apply to an executor who does not prove the will of his testator, and, in case of an executor who on his death leaves surviving him some other executor of his testator who afterwards proves the will of that testator, it shall cease to apply on such probate being granted.

So long as the chain of such representation is unbroken, the last executor in the chain is the executor of every preceding testator.

The chain of such representation is broken by – an intestacy; the failure of a testator to appoint an executor; or the failure to obtain probate of a will – but is not broken by a temporary grant of administration if probate is subsequently granted.

Where the chain of representation to a testator is broken any beneficiary, or person claiming through a deceased beneficiary, whether at law or in equity, under the will of the testator, may appoint a trust corporation to be executor of the testator, and the acceptance of the appointment constitutes the trust corporation executor of the testator as if the chain of representation had not been broken.

A trust corporation is not under any obligation to accept an appointment under subsection (3A).

Every person in the chain of representation to a testator – has the same rights in respect of the real and personal estate of that testator as the original executor would have had if living; and is, to the extent to which the estate, whether real or personal, of that testator has come to his hands, answerable as if he were an original executor.

Where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, all the powers which are by law conferred on the personal representative may be exercised by the proving executor or executors for the time being and shall be as effectual as if all the persons named as executors had concurred therein.