Wills, Probate and Administration Act 1898 No 13

An Act to consolidate enactments relating to Wills, Probate and Administration.

Part 1AA Preliminary

pt 1AA, hdg: Ins 1999 No 31, Sch 5.114.

1 Name of Act

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

s 1: Am 1932 No 49, sec 8 (1) (a); 1954 No 40, sec 2 (1) (b); 1970 No 52, Second Sch; 1977 No 122, Schs 1 (1), 2 (1); 1981 No 106, Sch 1 (1). Subst 1984 No 159, Sch 1 (1).

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(1)  The Acts mentioned in the First Schedule to this Act to the extent therein expressed are hereby repealed.

(2)  All persons appointed by virtue of the provisions of any Act hereby repealed and holding office at the passing of this Act shall be deemed to have been appointed hereunder.

(3)  All rules of Court made under the authority of any Act hereby repealed, and being in force at the passing of this Act, shall be deemed to have been made under the authority of this Act.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

In this Act, unless the context or subject matter otherwise indicates or requires:

Administrator includes the Public 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.

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.

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.

Seal of the Court means seal of the Court as provided for by the Rules.

Trustee company means an incorporated company authorised by Act of Parliament of this State to act as trustee in New South Wales.

s 3: Am 1913 No 19, sec 60 (a); 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1970 No 60, First Sch; 1977 No 122, Sch 3; 1979 No 187, Sch 1 (1); 1989 No 17, Sch 1 (1); 1999 No 39, Sch 8.

Part 1 Wills

4 To what wills and estates this part shall not extend

This part shall not extend to any will made before the passing of this Act, and every will re-executed or re-published or revived by any codicil shall, for the purposes of this part, be deemed to have been made at the time at which the same is so re-executed, re-published, or revived, and this part shall not extend to any estate pur autre vie of any person dying before the passing of this Act.

5 All property may be disposed of by will

(1)  Every person may devise, bequeath, or dispose of by the person’s will, executed in manner hereinafter required, all real and personal estate which the person is entitled to either at law or in equity at the time of the person’s death, and which, if not so devised, bequeathed, or disposed of would devolve upon the person’s executor or administrator, and the power hereby given shall extend to estates pur autre vie, whether there is or not any special occupant thereof, and whether the same is freehold or of any other tenure, and whether the same is a corporeal or incorporeal hereditament, and also to all contingent executory or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether the testator may be entitled thereto under the instrument by which the same respectively were created, or under any disposition thereof by deed or will, and also to all rights of entry, for conditions broken and other rights of entry, and also to such of the same estates, interests, and rights respectively, and other real and personal estate as the testator may be entitled to at the time of the testator’s death, notwithstanding that the testator may become entitled to the same subsequently to the execution of the testator’s will.

(2)    (Repealed)

s 5: Am 1937 No 35, Second Sch; 1994 No 32, Sch 3; 1996 No 96, Sch 1.3.

6 Will of minor

A will made by a minor is not valid, unless the minor is or has been married or section 6A or 6B applies.

s 6: Subst 1970 No 60, First Sch; 1989 No 17, Sch 1 (2).

6A Will of minor pursuant to leave of the Court

(1)  The Court may grant a minor leave to make a will the terms of which have been disclosed to the Court.

(2)  Leave may be granted subject to such conditions (if any) as the Court thinks fit.

(3)  A will made by a minor pursuant to leave granted under this section is valid.

s 6A: Ins 1987 No 17, Sch 1 (2).

6B Will of minor in contemplation of a marriage

A will made by a minor who may marry and which is made in contemplation of a marriage is, on the solemnisation of the marriage contemplated, valid.

s 6B: Ins 1987 No 17, Sch 1 (2).

7 Form and manner of execution of wills

(1)  A will is not valid unless:

(a)  it is in writing, and

(b)  it is signed by the testator, and

(c)  it appears, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will, and

(d)  the signature is made by the testator in the presence of 2 or more witnesses present at the same time or the signature is acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

(e)  at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other or of any other witness).

(2)  Without limiting paragraphs (d) and (e) of subsection (1), those paragraphs shall be taken to have been complied with if the following things happen in the following order:

(a)  the signature of the testator is made or acknowledged by the testator in the presence of a witness (in this subsection called the first witness), and

(b)  the first witness attests and signs the will in the presence of the testator, and

(c)  the signature of the testator is acknowledged by the testator in the presence of one or more other witnesses and also of the first witness present at the same time, and

(d)  the other witness, or at least one of the other witnesses, attests and signs the will in the presence of the testator (but not necessarily in the presence of the first witness or of any other witness).

(3)  No form of attestation by a witness is necessary.

(4)  In this section, a reference to the signing of a will by a testator includes a reference to the signing of the will by some other person who signs the will in the presence and by the direction of the testator.

s 7: Subst 1989 No 17, Sch 1 (3).

8 (Repealed)

s 8: Rep 1989 No 17, Sch 1 (3).

9 Appointments by will to be executed like other wills etc

No appointment made by will in exercise of any power shall be valid unless the same is executed in manner hereinbefore required, and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it has been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity.

10 (Repealed)

s 10: Am 1940 No 32, sec 13 (a). Subst 1970 No 60, First Sch. Rep 1989 No 17, Sch 1 (4).

11 Publication not to be requisite

A will made in accordance with this Act shall be valid without any other publication.

s 11: Subst 1970 No 60, First Sch.

12 Competency of witness

Any person competent to be a witness in civil proceedings in a court, other than a blind person, may be a witness to the execution of a will.

s 12: Subst 1989 No 17, Sch 1 (5).

13 Gifts to interested witnesses

(1)  If any beneficial gift is given or made by will to a person (in this section called the interested witness) who attests the execution of the will or to the interested witness’s spouse, the gift is void so far only as it concerns the interested witness or the interested witness’s spouse or any person claiming under either of them, unless subsection (2) applies.

(2)  A beneficial gift given or made by will is not made void by this section if:

(a)  at least 2 persons who attest the execution of the will are not persons to whom any such gift is so given or made or the spouses of any such persons, or

(b)  all the persons who would benefit directly from the avoidance of the gift consent in writing to the distribution of the gift according to the will (all those persons having capacity at law to do so), or

(c)  the Court is satisfied:

(i)  that the testator knew and approved of the gift, and

(ii)  that the gift was given or made freely and voluntarily by the testator.

(3)  Except in the case of a will to which subsection (2) (a) applies, the executor of an estate in relation to which a beneficial gift to an interested witness or an interested witness’s spouse is made shall not distribute that part of the estate the subject of the gift before the expiration of one month after the date on which the executor notifies the interested witness or the interested witness’s spouse (as the case requires) of the executor’s intention to make the distribution, unless:

(a)  all the persons to whom subsection (2) (b) applies have given the requisite consent, or

(b)  the Court is satisfied as to the matters referred to in subsection (2) (c).

(4)  A consent referred to in subsection (2) (b) is not liable to duty under the Stamp Duties Act 1920.

(5)  In this section:

executor includes a person to whom letters of administration are granted with the will annexed.

gift includes a devise, legacy, estate, interest or appointment of or affecting any real or personal estate, but does not include a charge or direction for the payment of any debt.

s 13: Subst 1970 No 60, First Sch; 1989 No 17, Sch 1 (6).

14 Operation of wills relating to transgender persons

A beneficiary under a will does not, except in so far as the will may otherwise expressly provide, lose any right or entitlement under the will merely because the beneficiary is a transgender person as referred to in Part 3A of the Anti-Discrimination Act 1977.

s 14: Rep 1989 No 17, Sch 1 (7). Ins 1996 No 22, Sch 4.

15 Effect of marriage

(1)  Every will made by any person shall be revoked by the person’s marriage (except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not, in default of such appointment, pass to the person’s executor or administrator).

(2)  A will made after the commencement of the Conveyancing (Amendment) Act 1930 and before the commencement of subsection (3) which is expressed to be made in contemplation of a marriage, shall not be revoked by the solemnisation of the marriage contemplated.

(3)  A will made after the commencement of this subsection in contemplation of a marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage contemplated.

(4)  A will made after the commencement of subsection (3) which is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.

s 15: Am 1930 No 44, sec 43 (a); 1989 No 17, Sch 1 (8); 1994 No 32, Sch 3.

15A Effect of termination of marriage

(1)  If, after a testator has made a will, the testator’s marriage is terminated:

(a)  any beneficial gift (including any devise, legacy, estate, interest or appointment of or affecting any real or personal estate, but not including any charge or direction for the payment of any debt) in favour of the former spouse of the testator and any power of appointment conferred on a former spouse is revoked, and

(b)  any appointment under the will of the former spouse of the testator as executor, trustee or guardian shall be taken to be omitted from the will, and

(c)  any property which would, but for this subsection, have passed to the former spouse of the testator pursuant to a beneficial gift referred to in paragraph (a) shall pass as if the former spouse had predeceased the testator, but no class of beneficiaries under the will shall close earlier than it would have closed if the beneficial gift had not been revoked.

(2)  A beneficial gift or power of appointment is not revoked pursuant to subsection (1) (a), and an appointment shall not be taken to be omitted from a will pursuant to subsection (1) (b), if:

(a)  the Court is satisfied by any evidence, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the testator, that the testator did not, at the time of termination of the marriage, intend to revoke the gift, power of appointment or appointment, or

(b)  the gift, power of appointment or appointment is contained in a will which is republished after the termination of the marriage by a will or codicil which evidences no intention of the testator to revoke the gift, power of appointment or appointment.

(3)  Nothing in this section affects:

(a)  any right of the former spouse of a testator to make any application under the Family Provision Act 1982, or

(b)  any direction, charge, trust or provision in the will of a testator for the payment of any amount in respect of a debt or liability (including any liability under a promise) of the testator to the former spouse of the testator or to the executor or administrator of the estate of the former spouse.

(4)  In this section:

Family Law Act means the Family Law Act 1975 of the Commonwealth.

former spouse, in relation to a testator, means the person who, immediately before the termination of the testator’s marriage, was the testator’s spouse, or, in the case of a purported marriage of the testator which is void, was the other party to the purported marriage.

promise includes any statement or representation of fact or intention.

(5)  For the purposes of this section, the termination of a marriage occurs or shall be taken to occur:

(a)  when a decree of dissolution of the marriage pursuant to the Family Law Act becomes absolute, or

(b)  on the making of a decree of nullity pursuant to the Family Law Act in respect of a purported marriage which is void, or

(c)  on the annulment of the marriage in accordance with the law of a place outside Australia if the annulment is recognised in Australia pursuant to the Family Law Act.

s 15A: Ins 1989 No 17, Sch 1 (9). Am 1990 No 46, Sch 1.

16 No will to be revoked by presumption

No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.

17 Manner of revocation

(1)  A will shall not be revoked wholly or in part except as mentioned in section 15 or 15A or in this section.

(2)  A will may be revoked by another will.

(3)  A will may be revoked:

(a)  by some writing declaring an intention to revoke the will and executed in the manner in which a will is required to be executed by section 7,

(b)  if the will is in writing, by the burning, tearing or destruction otherwise of the will by the testator or by some person in the testator’s presence and by the testator’s direction, with the intention of revoking the will, or

(c)  by some writing on the will, or by any dealing with the will, by the testator or by some person in the presence of the testator and by the testator’s direction, if the Court is satisfied from the state of the will that the writing was made or the dealing was done with the intention of revoking the will.

(4)  A testator may revoke the testator’s will as mentioned in subsection (3) notwithstanding that the testator is a minor.

(5)  This section applies to a revocation made after the commencement of the Minors (Property and Contracts) Act 1970.

s 17: Subst 1970 No 60, First Sch. Am 1989 No 17, Sch 1 (10); 1994 No 32, Sch 3.

18 Effect of alteration in a will

(1)  No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration are not apparent, unless such alteration is executed in like manner as hereinbefore is required for the execution of a will, but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses are made in the margin or on some other part of the will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.

(2)  Subsection (1) applies to and in respect of an obliteration, interlineation or other alteration made in the will of a minor who may make a valid will under this Act in the same way as it applies to and in respect of an obliteration, interlineation or other alteration made in the will of a testator who is not a minor.

s 18: Am 1970 No 60, First Sch; 1989 No 17, Sch 1 (11).

18A Certain documents to constitute wills etc

(1)  A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person’s will, an amendment of the person’s will or the revocation of the person’s will.

(2)  In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.

s 18A: Ins 1989 No 17, Sch 1 (12). Am 1994 No 32, Sch 3.

19 Revival

(1)  No will or any part thereof which is in any manner revoked shall be revived otherwise than by:

(a)  the re-execution thereof, or

(b)  a codicil executed in the manner required by section 7 and showing an intention to revive the same.

(2)    (Repealed)

(3)  Where a will which is partly revoked and afterwards wholly revoked is revived, the revival shall not extend to so much of the will as was revoked before the revocation of the whole of the will, unless an intention to the contrary is shown.

s 19: Subst 1970 No 60, First Sch. Am 1989 No 17, Sch 1 (13).

20 When a devise not to be rendered inoperative etc

No conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will is revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator has power to dispose of by will at the time of the testator’s death.

s 20: Am 1994 No 32, Sch 3.

21 A will to speak from the death of the testator

Every will shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been made immediately before the death of the testator, unless a contrary intention appears by the will.

s 21: Am 1970 No 60, First Sch.

22 What a residuary devise shall include

Unless a contrary intention appears by the will, such real estate or interest therein, as is comprised or intended to be comprised in any devise in such will contained, which fails or is void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will.

23 General devise—land, real estate, personal estate

(1)  A devise of the land of the testator or of the land of the testator in any place, or in the occupation of any person mentioned in the testator’s will, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to include the leasehold estates of the testator, or the testator’s leasehold estates, or any of them to which such description extends, as the case may be, as well as freehold estates, unless a contrary intention appears by the will.

(2)  A general devise of the real estate of the testator, or of the real estate of the testator in any place, or in the occupation of any person mentioned in the testator’s will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description extends (as the case may be), which the testator may have power to appoint in any manner the testator may think proper, and shall operate as an execution of such power, unless a contrary intention appears by the will.

(3)  In like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner shall be construed to include any personal estate, or any personal estate to which such description extends (as the case may be), which the testator may have power to appoint in any manner the testator may think proper, and shall operate as an execution of such power, unless a contrary intention appears by the will.

s 23: Am 1994 No 32, Sch 3.

24 How a devise without words of limitation shall be construed

Where any real estate is devised to any person without any words of limitation, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention appears by the will.

25 How the words “die without issue” or “die without leaving issue” or “have no issue” shall be construed

(1)  In any devise or bequest of real or personal estate, the words “die without issue,” or “die without leaving issue,” or “have no issue,” or any other words which may import either a want or failure of issue of any person in the person’s lifetime, or at the time of the person’s death, or an indefinite failure of the person’s issue shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of the person’s issue, unless a contrary intention appears by the will by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person, or issue, or otherwise.

(2)  This part shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift is born, or if there is no issue who lives to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue.

s 25: Am 1994 No 32, Sch 3.

26 No devise to trustees or executors etc shall pass a chattel interest

Where any real estate is devised to any trustee or executor, such devise shall be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a definite term of years absolute or determinable, or an estate of freehold is thereby given to the trustee or executor expressly or by implication.

s 26: Am 1994 No 32, Sch 3.

27 Trustees under an unlimited devise etc to take the fee

Where any real estate is devised to a trustee without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, is not given to any person for life, or such beneficial interest is given to any person for life but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust are satisfied.

28 Devises of estates tail shall not lapse

Where any person to whom any real estate is devised for an estate tail, or an estate in quasi entail, dies in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue are living at the time of the death of the testator, such devise shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will.

29 Gifts to children or other issue who leave issue living at the testator’s death shall not lapse

Where any person being a child or other issue of the testator to whom any real or personal estate is devised or bequeathed for any estate or interest not determinable at or before the death of such person dies in the lifetime of the testator, leaving issue, and any such issue of such person is living at the time of the death of the testator, such devise or bequest shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will.

Editorial note—

See also Conveyancing Act 1919, sec 37.

29A Power of the Court to rectify wills

(1)  If the Court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, it may order that the will be rectified so as to carry out the testator’s intention.

(2)  An application for an order under this section shall not be made after the expiration of the period of 18 months after the death of the testator, except as provided by subsection (3).

(3)  The Court may grant leave to make an application for an order under this section after the expiration of the 18-month period if the Court is satisfied that sufficient cause is shown for the failure to make the application within that period.

(4)  Nothing in this section renders the executor of the estate of a testator liable for having distributed the assets, or any part of the assets, of that estate if the executor has complied with section 92.

(5)  Nothing in subsection (4) prevents a person who becomes a beneficiary in respect of assets of the estate of a testator by virtue of an order under this section from recovering the assets if the assets have, or any part of the assets has, been distributed.

(6)  In this section:

executor includes a person to whom letters of administration are granted with the will annexed.

s 29A: Ins 1989 No 17, Sch 1 (14).

30 Place of original wills

All original wills brought into the Court or 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.

s 30: Am 1954 No 40, sec 3 (a); 1970 No 52, Second Sch.

31 Official copy of whole or part of will may be obtained

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.

s 31: Am 1938 No 30, sec 6 (a); 1970 No 52, Second Sch (am 1972 No 41, Second Sch).

32 Will may be deposited in the registry of the Court by testator in the testator’s lifetime

(1)  Any person residing in New South Wales may deposit in the registry of the Court the person’s will enclosed in a sealed envelope or cover endorsed with the full name, description, and the then address of the testator or other means of ready identification, and also the names in full, with descriptions and addresses of the executors named therein, and such will shall, unless previously required to be given up by the testator, remain in the registry until the death of the testator, and upon the testator’s death the Registrar shall deliver the same after examination to either of the executors named in the said will, or in case of doubt to such person as the Court may direct.

(2)  Regulations made under the Supreme Court Act 1970 may prescribe the fees to be paid for receiving and noting any will so deposited, for searches in the index of deposited wills, and for the delivery or return of the will to the persons entitled to receive the same. Until rules of court in that behalf are made the fees shall be those prescribed under section 202 of the Conveyancing Act 1919.

s 32: Am 1932 No 49, sec 7 (2) (a); 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1977 No 122, Sch 4 (1); 1994 No 32, Sch 3.

Part 1A Formal validity of wills

pt 1A: Ins 1977 No 122, Sch 1 (2).

32A Interpretation

(1)  In this Part, except so far as the context or subject-matter otherwise indicates or requires:

country means a territory or group of territories having its own law of citizenship, and includes the Commonwealth.

internal law, in relation to any country or territory, means the law of that country or territory excluding such part of that law as applies rules of private international law.

territory includes a State or territory of the Commonwealth.

(2)  Where under this Part the internal law in force in any country or territory is to be applied in the case of a will, but two or more systems of law relating to the formal validity of wills are in force in that country or territory, the system to be applied shall be ascertained as follows:

(a)  if there is in force throughout the country or territory a rule of law indicating which of those systems can properly be applied in the case in question, that rule shall be followed, or

(b)  if there is no such rule, the system to be applied shall be that with which the testator was most closely connected at the relevant time.

(3)  For the purpose of subsection (2) (b), the relevant time is the time of the testator’s death where the matter is to be determined by reference to circumstances prevailing at the testator’s death and the time of the execution of the will in any other case.

(4)  In determining for the purposes of this Part whether or not the execution of a will conformed to a particular law, regard shall be had to the formal requirements of that law at the time of execution, but this shall not prevent account being taken of an alteration in the law affecting wills executed at that time if the alteration enables the will to be treated as properly executed.

s 32A: Ins 1977 No 122, Sch 1 (2). Am 1994 No 32, Sch 3.

32B Application

This Part applies in respect of a will executed by a testator either before or after the commencement of section 4 of the Wills, Probate and Administration (Amendment) Act 1977, but only if the testator died after that commencement.

s 32B: Ins 1977 No 122, Sch 1 (2).

32C General rule as to formal validity

A will shall be treated as properly executed if its execution conformed to the internal law in force:

(a)  in the territory in which it was executed,

(b)  in the territory where the testator, at the time of its execution or at the time of the testator’s death, was domiciled or habitually resided, or

(c)  in a country of which the testator was, at either of the times referred to in paragraph (b), a citizen.

s 32C: Ins 1977 No 122, Sch 1 (2). Am 1994 No 32, Sch 3.

32D Additional rules

(1)  Without limiting section 32C, the following wills shall be treated as properly executed:

(a)  a will executed on board a vessel or an aircraft of any description, if its execution conformed to the internal law in force in the territory with which the vessel or aircraft may, having regard to its registration (if any) and other relevant circumstances, be taken to have been most closely connected,

(b)  a will, so far as it disposes of immovable property, if its execution conformed to the internal law in force in the territory where the property is situated,

(c)  a will, so far as it revokes a will which under this Part would be treated as properly executed or revokes a provision which under this Part would be treated as comprised in a properly executed will, if the execution of the later will conformed to any law by reference to which the revoked will or provision would be so treated, and

(d)  a will, so far as it exercises a power of appointment, if its execution conformed to the law governing the essential validity of the power.

(2)  A will, so far as it exercises a power of appointment, shall not be treated as improperly executed by reason only that its execution was not in accordance with any formal requirements contained in the instrument creating the power.

(3)  For the purposes of subsection (1) (a), vessel includes a hovercraft.

ss 32D–32F: Ins 1977 No 122, Sch 1 (2).

32E Certain requirements to be treated as formal

Where, whether pursuant to this Part or not, a law in force outside New South Wales falls to be applied in relation to a will, any requirement of that law by virtue of which:

(a)  special formalities are to be observed by testators answering a particular description, or

(b)  witnesses to the execution of a will are to possess certain qualifications,

shall, notwithstanding any rule of that law to the contrary, be treated as a formal requirement only.

ss 32D–32F: Ins 1977 No 122, Sch 1 (2).

32F Construction of wills

The construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will.

ss 32D–32F: Ins 1977 No 122, Sch 1 (2).

Part 2 Probate and administration

Division 1A Preliminary

pt 2, div 1A: Ins 1984 No 159, Sch 1 (2).

32G Interpretation

(1)  In this Part:

de facto relationship has the same meaning as in the Property (Relationships) Act 1984.

de facto spouse, in relation to a person dying wholly or partly intestate, means someone who:

(a)  was the sole partner in a de facto relationship with the person, and

(b)  was not a partner in any other de facto relationship.

(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.

s 32G: Ins 1984 No 159, Sch 1 (2). Subst 1999 No 4, Sch 2.25 [1].

Division 1 Jurisdiction of the Court

pt 2, div 1, hdg: Am 1970 No 52, Second Sch.

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.

s 33: Subst 1970 No 52, Second Sch.

34–39 (Repealed)

s 34: Rep 1970 No 52, Second Sch.

s 35: Rep 1970 No 52, Second Sch.

s 36: Am 1954 No 40, sec 3 (b). Rep 1970 No 52, Second Sch.

s 37: Rep 1913 No 19, Sch.

s 38: Am 1913 No 19, sec 60 (b); 1954 No 40, sec 3 (c). Rep 1970 No 52, Second Sch.

s 39: Rep 1913 No 19, Sch.

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 Testator’s Family Maintenance and Guardianship of Infants Act 1916, Part 15 of the Conveyancing Act 1919 and the Family Provision Act 1982 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.

s 40A: Ins 1932 No 49, sec 2. Am 1938 No 30, sec 6 (b); 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1977 No 122, Sch 4 (2); 1982 No 162, Sch 1 (1); 1994 No 32, Sch 3.

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.

s 40B: Ins 1932 No 49, sec 2. Am 1970 No 52, Second Sch; 1994 No 32, Sch 3.

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.

s 40C: Ins 1932 No 49, sec 2. Am 1970 No 52, Second Sch; 1994 No 32, Sch 3.

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.

s 40D: Ins 1932 No 49, sec 2. Am 1938 No 30, sec 6 (c); 1970 No 52, Second Sch; 1994 No 32, Sch 3.

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 Probate or administration for purpose of Family Provision Act 1982

(1)  The Court shall have jurisdiction to grant administration in respect of a deceased person in order to permit an application to be made under the Family Provision Act 1982 where it is satisfied that it is proper to make the grant, whether or not the deceased person left property in New South Wales.

(2)  A grant of administration made as referred to in subsection (1) shall be for the purposes only of making an application under the Family Provision Act 1982.

(3)  The Court may grant administration in respect of a deceased person as referred to in subsection (1) to any person who it is satisfied is an eligible person within the meaning of the Family Provision Act 1982 or to any person who it is satisfied intends to make application under that Act on behalf of such an eligible person.

(4)  The granting of administration or probate in respect of a deceased person under this or any other provision of this Act shall not prevent the Court from making a grant of administration as referred to in subsection (1) or, unless expressly provided by the Court, affect any such grant previously made.

(5)  Except in so far as the context or subject-matter otherwise indicates or requires:

(a)  a reference in this Act to a grant of administration of the estate of a deceased person shall include a reference to a grant of administration made as referred to in subsection (1), and

(b)  a reference in this Act to an administrator of the estate of a deceased person shall include a reference to a person to whom administration has been granted as referred to in subsection (1).

s 41A: Ins 1982 No 162, Sch 1 (2).

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 such intended application shall be published in such newspaper or newspapers as may be prescribed by the rules at least fourteen days before such application is made.

(3)  Application for probate of a will not deposited as in section 32 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).

s 42: Am 1932 No 49, sec 7 (2) (b); 1938 No 30, sec 6 (d); 1970 No 52, Second Sch.

43 (Repealed)

s 43: Subst 1906 No 14, sec 2. Am 1932 No 49, sec 3; 1954 No 40, sec 3 (d). Rep 1970 No 52, Second Sch.

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 Public 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 Public 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.

s 44: Am 1985 No 90, Sch 1 (1); 1994 No 32, Sch 3.

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.

s 45: Am 1994 No 32, Sch 3.

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.

s 46: Am 1932 No 49, sec 8 (1) (b); 1994 No 32, Sch 3.

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.

s 46A: Ins 1930 No 44, sec 43 (b). Am 1994 No 32, Sch 3.

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.

s 46B: Ins 1930 No 44, sec 43 (b). Am 1977 No 122, Sch 4 (3); 1994 No 32, Sch 3.

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.

s 46C: Ins 1930 No 44, sec 43 (b). Am 1977 No 122, Sch 4 (4); 1994 No 32, Sch 3.

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.

s 46D: Ins 1930 No 44, sec 43 (b). Am 1932 No 65, sec 5 (a).

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).

s 46E: Ins 1930 No 44, sec 43 (b). Am 1994 No 32, Sch 3.

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.

s 47: Am 1994 No 32, Sch 3.

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.

s 48: Am 1994 No 32, Sch 3.

49–51 (Repealed)

s 49: Rep 1977 No 122, Sch 2 (2).

s 50: Am 1938 No 30, sec 6 (e). Rep 1977 No 122, Sch 2 (3).

s 51: Rep 1977 No 122, Sch 2 (4).

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 a dwelling-house in respect of which the spouse has exercised the right conferred by section 61D) 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.

s 53: Subst 1977 No 122, Sch 2 (5). Am 1994 No 32, Sch 3; 1999 No 4, Sch 2.25 [2].

54–56 (Repealed)

s 54: Subst 1906 No 14, sec 3; 1932 No 49, sec 4. Rep 1970 No 52, Second Sch.

s 55: Rep 1977 No 122, Sch 2 (6).

s 56: Rep 1919 No 6, Sch 1B.

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.

s 58: Am 1977 No 122, Sch 4 (5); 1979 No 164, Sch 22; 1994 No 32, Sch 3.

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.

s 59: Am 1994 No 32, Sch 3.

60 (Repealed)

s 60: Rep 1970 No 52, Second Sch.

61 Property of deceased to vest in Public 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 Public Trustee in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England.

s 61: Am 1932 No 49, sec 5; 1994 No 32, Sch 3.

Division 2A Distribution of intestate estates

pt 2, div 2A: Ins 1954 No 40, sec 2 (1) (a). Subst 1977 No 122, Sch 2 (7).

61A Application and interpretation

(1)  This Division shall not apply in respect of the estate of a person who died wholly or partially intestate before the commencement of section 5 of the Wills, Probate and Administration (Amendment) Act 1977 and any such estate shall be distributed in accordance with the enactments and rules of law in force at the death of that person.

(2)  In this Division, except so far as the context or subject-matter otherwise indicates or requires:

dwelling-house means:

(a)  a building that is designed to be used, or designed to be used principally, as a separate residence for one family or person, together with the land which forms the curtilage of the building, or

(b)  an apartment or flat that is so designed, together with any interest in any part of the building of which the apartment or flat forms part, or in any part of the curtilage of that building, that is owned or otherwise held in conjunction with that apartment or flat.

household chattels, in relation to an intestate, means all furniture, curtains, drapes, carpets, linen, china, glassware, ornaments, domestic appliances and utensils, garden appliances, utensils and effects and other chattels of ordinary household use or decoration, liquors and consumable stores and domestic animals, which, immediately before the intestate’s death, were owned by the intestate (whether absolutely or subject to any charge, encumbrance or lien securing the payment of money) or in which, immediately before the intestate’s death, the intestate held an interest as grantor under a bill of sale or as hirer under a hire-purchase agreement within the meaning of subsection (1) of section 2 of the Hire-Purchase Act 1960 or within the meaning of any enactment of another State, or of a Territory, of the Commonwealth, corresponding to that subsection, but does not include any motor vehicle, boat, aircraft, racing animal, original painting, trophy, clothing, jewellery or other chattel of a personal nature which was so owned by the intestate or in which the intestate held such an interest.

interest, in relation to a shared home, means:

(a)  an estate in fee simple,

(b)  a leasehold estate which has not less than 14 years to run or, in the case of a leasehold estate having less than 14 years to run, which confers a right of renewal for one or more terms of not less than 14 years in the aggregate, or

(c)  an exclusive licence to occupy conferred by virtue of a holding of shares in a company that owns the parcel of land on which is erected the building in which the shared home is included,

and includes an interest held by an intestate as a tenant in common (but only if there is only one other tenant in common and that tenant in common is the surviving spouse of the intestate for whom part of the estate of the intestate is required to be held in trust under section 61B (3), (3A) or (3B)), but does not include an interest so held as a joint tenant.

prescribed amount, in relation to an intestate’s estate, means:

(a)  if no regulation referred to in paragraph (b) is in force at the death of the intestate—$50,000, or

(b)  if a regulation made under section 153 and prescribing another amount is in force at the death of the intestate—that other amount.

shared home, in relation to an intestate’s estate, means a dwelling-house in which the intestate held an interest in respect of which the surviving spouse or de facto spouse of the intestate for whom part of the estate of the intestate is required to be held in trust under section 61B (3), (3A) or (3B) is entitled to exercise the right conferred by section 61D.

value:

(a)  in relation to:

(i)  an intestate’s estate, or

(ii)  a share of any person in such an estate,

means the value, fixed in accordance with section 61E, of that estate or share at the date of the intestate’s death, and

(b)  in relation to an interest in a shared home included in an intestate’s estate, means the value, fixed in accordance with section 61E, of that interest:

(i)  where the right conferred by section 61D is exercised with respect to that interest within the period of 12 months after the intestate’s death—at the date of that death, or

(ii)  where that right is exercised after the expiration of that period—at the date on which the right is exercised.

(3)  References in this Division to a child or issue living at the date of death of any person shall be construed as including references to any child or issue who has been conceived and not born at that date but who is subsequently born alive.

s 61A: Ins 1954 No 40, sec 2 (1) (a). Am 1965 No 33, First Sch; 1976 No 97, Sch 1. Subst 1977 No 122, Sch 2 (7). Am 1984 No 159, Sch 1 (3); 1994 No 32, Sch 3; 1999 No 4, Sch 2.25 [2]–[5].

61B Succession to real and personal property on intestacy

(1)  Where a person dies wholly intestate, the real and personal estate of that person shall, subject to the payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate, be distributed or held in trust in the manner specified in this section, and the real estate of that person shall be held as if it had been devised to the persons for whom it is held in trust under this section.

(2)  If the intestate leaves a spouse but no issue, the estate shall be held in trust for the spouse absolutely.

(3)  If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceed the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then:

(a)  the household chattels (if any),

(b)  the prescribed amount, and

(c)  one-half of the estate (excluding any household chattels and the prescribed amount),

shall be held in trust for the spouse and the residue of the estate shall be held in statutory trust for the issue of the intestate.

(3A)  Notwithstanding subsections (2) and (3), if the intestate leaves a spouse and a de facto spouse, the whole or, as the case may be, such part of the estate of the intestate as is required to be held in trust for the spouse of the intestate shall be held in trust for:

(a)  where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate and the intestate did not, during the whole or any part of that period, live with the person to whom the intestate was married—the de facto spouse, or

(b)  in any other case—the spouse.

(3B)  Notwithstanding subsection (3), if the intestate leaves a de facto spouse and also leaves issue but no spouse, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a spouse, be required to be held in trust for the spouse of the intestate shall be held in trust for:

(a)  where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate—the de facto spouse, or

(b)  in any other case:

(i)  except as provided by subparagraph (ii)—the issue as if the intestate left no spouse, or

(ii)  where the intestate leaves no issue being children of the intestate or where such of the issue as are children of the intestate are issue also of the de facto spouse—the de facto spouse.

(4)  If the intestate leaves issue but no spouse, the estate shall be held in statutory trust for the issue of the intestate.

(5)  If the intestate leaves no spouse and no issue but one or both of the intestate’s parents, the estate shall be held:

(a)  where both parents survive the intestate, in trust for those parents in equal shares, or

(b)  where only one parent survives the intestate, in trust for that parent absolutely.

(6)  If the intestate leaves no spouse, no issue and no parents, the estate shall be held for the following persons living at the death of the intestate and in the following order and manner:

(a)  firstly, in statutory trust for the brothers and sisters of the whole blood of the intestate; but if there are no such brothers or sisters, then

(b)  secondly, in statutory trust for the brothers and sisters of the half blood of the intestate; but if there are no such brothers or sisters, then

(c)  thirdly, in trust for the grandparents of the intestate and, if more than one of them survive the intestate, in equal shares; but if there are no such grandparents, then

(d)  fourthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares; but if there are no such uncles or aunts, then

(e)  fifthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares.

(7)  In default of any person taking an interest under subsections (2) to (6), the estate shall belong to the Crown as bona vacantia, and in place of any right to escheat.

(8)  The Crown, without prejudice to any other powers, may, out of the whole or any part of the property devolving on it as bona vacantia, provide for dependants, whether kindred or not, of the intestate and any other persons for whom the intestate might reasonably have been expected to make provision.

(9)  Spouses shall for all purposes of distribution under this section be treated as separate persons.

(10)  Where household chattels referred to in subsection (3) (a) are subject to a hire-purchase agreement within the meaning of subsection (1) of section 2 of the Hire-Purchase Act 1960 or within the meaning of any enactment of another State, or of a Territory, of the Commonwealth corresponding to that subsection, the surviving spouse, as referred to in subsection (3), shall be entitled to those chattels but subject to the rights of the owner under the agreement and under the provisions of the Hire-Purchase Act 1960 or, as the case may be, of the enactment of that other State or that Territory corresponding to that Act.

(11)  Subsection (3) (a) has effect subject to section 145 of the Conveyancing Act 1919.

(12)  Where the prescribed amount is held in trust for a spouse of an intestate under subsection (3), the spouse is entitled, in addition to the spouse’s entitlement under that subsection, to interest on that amount at the rate prescribed for the purposes of section 84A from the date of death of the intestate until that amount is paid or appropriated to the spouse.

(13)  Notwithstanding subsection (3), where the interest of an intestate in a shared home is, under section 61D, held in trust for a surviving spouse of the intestate, the share of the intestate’s estate to which the spouse would, but for this subsection, have been entitled under subsection (3) (b) and (c) shall:

(a)  where the value of that interest is equal to or exceeds the value of that share, be deemed to be fully satisfied and, if the value of that interest exceeds the value of that share, the share of the issue under subsection (3) shall be reduced by the amount of the excess, or

(b)  where the value of that interest is less than the value of that share, be deemed to be satisfied to the extent of the value of that interest.

(14)  This section has effect subject to the provisions of section 24 (Effect of disposal of home shared by spouses under enduring power of attorney in cases of intestacy) of the Powers of Attorney Act 2003.

s 61B: Ins 1977 No 122, Sch 2 (7). Am 1984 No 153, Sch 16; 1984 No 159, Sch 1 (4); 1994 No 32, Sch 3; 1999 No 4, Sch 2.25 [3] [6]–[9]; 2003 No 53, Sch 4.7.

61C Statutory trusts in favour of issue and other classes of relatives of intestate

(1)  Where under this Division the estate, or any part of the estate, of an intestate is directed to be held in statutory trust for the issue of the intestate, that estate or part shall be held in trust:

(a)  for any child of the intestate, or if more than one, for any children of the intestate in equal shares, living at the death of the intestate, and

(b)  subject to subsection (2), for all or any issue living at the death of the intestate of any child of the intestate who predeceases the intestate but so that no issue shall take whose parent is living at the death of the intestate and is capable of so taking.

(2)  The issue referred to in subsection (1) (b) shall take through all degrees, according to their stocks, in equal shares if more than one, the share which their parents would have taken if living at the death of the intestate.

(3)  Where under this Act the estate, or any part of the estate, of an intestate is directed to be held in statutory trust for any class of relatives of the intestate other than the intestate’s issue, that estate or part shall be held in trust corresponding to the statutory trust for the issue of the intestate as if that trust were repeated with the substitution of references to the members or member of that class for references to the children or child of the intestate.

s 61C: Ins 1977 No 122, Sch 2 (7). Am 1994 No 32, Sch 3.

61D Rights of surviving spouse with respect to shared home

(1)  Subject to the Fourth Schedule, where:

(a)  an intestate dies leaving a spouse and issue,

(b)  the value of the estate of the intestate (excluding any household chattels) exceeds the prescribed amount,

(c)  the intestate, at the time of the intestate’s death, held an interest in a dwelling-house which is situated in New South Wales, and

(d)  that dwelling-house was, at that time, occupied by the intestate and the intestate’s spouse or by the intestate’s spouse as their, or as the spouse’s, only or principal residence,

the spouse may require the administrator to hold that interest in trust for the spouse, and on being so required, the administrator shall hold that interest accordingly.

(2)  A reference in subsection (1) to the spouse of an intestate is, where the intestate dies leaving a spouse and a de facto spouse, a reference to the spouse or de facto spouse for whom part of the estate is required to be held in trust under section 61B (3), (3A) or (3B).

s 61D: Ins 1977 No 122, Sch 2 (7). Am 1984 No 159, Sch 1 (5); 1994 No 32, Sch 3; 1999 No 4, Sch 2.25 [10]–[12].

61E Valuations

(1)  The administrator of the estate of an intestate may, for the purposes of this Division, from time to time, by duly qualified agents, ascertain and fix the value of:

(a)  the intestate’s estate,

(b)  a share of any person in the intestate’s estate, or

(c)  subject to subsection (3), the value of the interest of the intestate in a shared home.

(2)  Any valuation so made in good faith shall be binding on all persons interested in the intestate’s estate.

(3)  In ascertaining and fixing the value of the interest of an intestate in a shared home, the administrator shall:

(a)  ascertain the market value of the home as at the date at which the value is required to be ascertained,

(b)  ascertain the amount (if any) which was, as at that date, outstanding under any mortgage, charge or other encumbrance to which the home was subject as at that date, and

(c)  fix the value of the home as the difference between the market value ascertained under paragraph (a) and the amount (if any) ascertained under paragraph (b).

s 61E: Ins 1977 No 122, Sch 2 (7). Am 1999 No 4, Sch 2.25 [3].

61F Application to cases of partial intestacy

(1)  Where a person dies having made a will which effectively disposes of only part of the person’s estate, sections 61A, 61B, 61C, 61D and 61E, so far as applicable and subject to the modifications specified in subsection (2), shall apply to and in relation to the part of the person’s estate that is not disposed of by the will as if the last-mentioned part had comprised the whole of the person’s estate.

(2)  For the purpose of applying subsection (1):

(a)  references in the sections referred to in subsection (1) to the estate of a person who dies wholly intestate or to the estate of an intestate shall be construed as references to that part of the estate of a person who dies having made a will referred to in that subsection that is not disposed of by that will, and

(b)  references in those sections to a person who dies wholly intestate or to an intestate shall be construed as references to a person who dies as referred to in subsection (1).

(3)  The executor or administrator of the estate of a person who dies leaving a will referred to in subsection (1) shall, subject to the rights and powers conferred on the executor or administrator by law for the purposes of the administration of the estate, be a trustee for the persons entitled under this Division in respect of any part of that estate that is not expressly disposed of, unless it appears from the will that the executor or administrator is intended to take that part beneficially.

s 61F: Ins 1977 No 122, Sch 2 (7). Am 1994 No 32, Sch 3.

Division 3 Probate and administration

62 Practice as to granting administration of real and personal estate

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, 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.

s 62: Am 1970 No 52, Second Sch.

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 kin,

or if there be no such person or no such person within the jurisdiction:

(i)  who is, of the opinion of the Court, fit to be so trusted, or

(ii)  who, upon being required in accordance with the rules, or as the Court may direct, to pray for administration, complies with the requirement or direction,

then to:

(d)  any person, whether a creditor or not of the deceased, that the Court thinks fit.

s 63: Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1970 No 60, First Sch; 1999 No 4, Sch 2.25 [2].

64 Administration bond to be executed

(1)  Every person to whom a grant of administration is made shall, previous to the issue of such administration, execute a bond to Her Majesty and her successors with one or more sureties conditioned for duly collecting, getting in, and administering the personal estate or real and personal estate of the deceased, which bond shall be in the form directed by the rules.

(2)  It shall not be necessary for the Public Trustee or for any person obtaining administration to the use or for the benefit of Her Majesty to execute any such bond.

(3)  No such bond shall be required to be given by or on behalf of a trustee company, except in respect of estates exceeding $50,000 in value, in which the Court otherwise orders.

s 64: Am 1932 No 49, sec 8 (1) (c); 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1979 No 187, Sch 1 (2).

65 Amount of penalty in administration bond

Such bond shall be in a penalty equal to the amount under which the property of the deceased is sworn, but the Court may in any case dispense with the bond or with one or both of the sureties, or direct that such penalty be reduced in amount, and may also direct that more bonds than one be given so as to limit the liability of any surety to such amount as the Court thinks reasonable, and may, in place of such bond, accept the security of any incorporated company or guarantee society approved of by the Court in the form and as directed by the rules.

s 65: Am 1970 No 52, Second Sch.

66 Administration may be revoked or further bond required

The Court may at any time, upon the application of any person interested in the estate:

(a)  revoke the administration already granted, or

(b)  order the administrator to execute a further bond in such sum and within such time as may seem right with or without sureties as aforesaid, and

(c)  upon default remove the administrator and appoint an administrator in the removed administrator’s place, with power to sue or be sued upon any contract made by the removed administrator.

s 66: Am 1970 No 52, Second Sch; 1994 No 32, Sch 3.

67 Order may be made to assign the bond

(1)  The Court may, on being satisfied that the condition of any bond given hereunder has been broken, order the Registrar, for and on behalf of Her Majesty, to assign the same to some person to be named in such order.

(2)  Such person the person’s executors or administrators shall thereupon be entitled to sue upon the said bond in the person’s or their own name or names as if the same had been originally given to the person, and shall be entitled to recover thereon as trustee for all persons interested the full amount recoverable in respect of any breach of the condition of the said bond.

s 67: Am 1913 No 19, sec 60 (c); 1970 No 52, Second Sch; 1994 No 32, Sch 3.

68 Surety may apply to the Court for relief

If, upon application by a surety to an administration bond, it appear to the Court that:

(a)  the estate is being wasted, or

(b)  is in danger of being wasted, or

(c)  the surety is being in any way prejudiced, or in danger of being prejudiced by the act or default of the person administering the estate,

the Court may grant such relief as it may think fit, and for the purpose of making such relief effectual may have and exercise all the powers and jurisdiction of a court of equity.

s 68: Am 1970 No 52, Second Sch.

69 Executor renouncing probate or not acting or not appearing to a citation to be treated as if the executor had renounced

Where, after the passing of this Act:

(a)  any person renounces probate of the will of which the person is appointed executor or one of the executors, or

(b)  an executor appointed in a will survives the testator but dies without having taken probate, or

(c)  an executor named in a will is required in accordance with the rules, or as directed by the Court, to take probate and fails to comply with the requirement or direction,

the right of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of the testator’s estate shall, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor.

s 69: Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1994 No 32, Sch 3.

70 Minority of sole executor

Where a minor is sole executor, administration with the will annexed may be granted to:

(a)  a guardian of the person or of the estate of the minor, or

(b)  such other person as the Court thinks fit,

until the minor attains the age of eighteen years, with full or limited powers to act in the premises until probate is granted to the executor or administration is granted to some other person.

s 70: Subst 1970 No 60, First Sch.

71 Who shall have the same power as where administration is granted durante minore aetate of the next of kin

The person to whom such administration is granted shall have the same powers vested in the person as an administrator by virtue of an administration granted to the person durante minore aetate of the next of kin.

s 71: Am 1994 No 32, Sch 3.

72 Administration to be granted to attorney in certain cases

(1)  When any person named as executor, or any spouse or the next of kin entitled to probate or administration is out of the jurisdiction or is engaged on war service within the meaning of the Trustee and Wills (Emergency Provisions) Act 1940, but has some other person within the jurisdiction appointed under power of attorney to act for the person, administration may be granted to such attorney, but on behalf of the person entitled thereto, and on such terms and conditions as the Court thinks fit.

(2)  A grant of administration under this section shall continue in force notwithstanding the death of the donor of the power, unless the grant in terms provides that it shall determine on such event.

s 72: Am 1930 No 44, sec 43 (c); 1940 No 32, sec 13 (b); 1994 No 32, Sch 3; 1999 No 4, Sch 2.25 [2].

73 Administration pendente lite and receiver

(1)  The Court may:

(a)  pending any suit touching the validity of the will of any deceased person, or for obtaining, recalling, or revoking any probate or any grant of administration, or

(b)  during a contested right to administration,

appoint an administrator of the personal estate and the same or any other person to be receiver of the real estate of any deceased person, with such full or limited powers and with or without a bond or sureties as the Court may think right.

(2)  The Court may make such orders for the remuneration of such administrator or receiver out of the personal and real estate of the deceased as it may think right.

74 Power as to appointment of administrator

The Court may, in any case where a person dies:

(a)  intestate, or

(b)  leaving a will, but without having appointed an executor thereof, or

(c)  leaving a will and having appointed an executor thereof, where such executor:

(i)  is not willing and competent to take probate, or

(ii)  is resident out of New South Wales,

if it thinks it necessary or convenient, appoint some person to be the administrator of the estate of the deceased or of any part thereof, upon the appointed person giving such security (if any) as the Court directs, and every such administration may be limited as the Court thinks fit.

s 74: Am 1994 No 32, Sch 3.

75 Proceeding where executor neglects to prove will

(1)  In any case where the executor named in a will:

(a)  neglects or refuses to prove the same or to renounce probate thereof within three months from the death of the testator or from the time of such executor attaining the age of eighteen years, or

(b)  is unknown or cannot be found,

the Court may upon the application of:

(i)  any person interested in the estate, or

(ii)  the Public Trustee or a trustee company, or

(iii)  any creditor of the testator,

order that probate of the said will be granted to such executor or order that administration with such will annexed be granted to the applicant or make such other order for the administration of the estate as appears just.

(2)    (Repealed)

s 75: Am 1913 No 19, sec 60 (d); 1970 No 52, Second Sch; 1970 No 60, First Sch; 1985 No 90, Sch 1 (2).

75A Delegation

(1)  Any person who has been appointed executor of the will of a deceased person and has not renounced or taken probate thereof may by deed appoint the Public Trustee or a trustee company to be executor of the will in the person’s place or stead or as a co-executor with the person or with the continuing executors (including the appointor), as the case may be, and upon the registration and filing by subsections (8) and (9) directed such will shall be construed and take effect in all respects as if the name of the appointee had been originally inserted in such will as the executor or one of the executors thereof in lieu of the person in whose stead it has been appointed or as an additional executor thereof, as the case may be.

(2)  Any executor who has obtained probate or any administrator who has obtained letters of administration notwithstanding that the executor or administrator has acted in the administration of the deceased’s estate and notwithstanding the existence of any other executor or administrator may by deed appoint the Public Trustee or a trustee company to be executor or administrator in the executor’s or administrator’s place or stead or as co-executor or co-administrator with the executor or administrator or with the continuing executors or administrators (including the appointor) as the case may be and upon the registration and filing by subsections (8) and (9) directed the estate of the deceased left unadministered and all rights, powers and obligations in respect thereof shall without any conveyance or other assurance except as otherwise provided in this section vest in the appointee as executor or administrator as the case may be, either solely or jointly with the appointor as the case may be, or, when the appointor is one of several executors or administrators then in the appointee and the continuing executors or administrators or in the appointor, the appointee and the continuing executors or administrators as the case may be, as joint tenants:

Provided that where any portion of such estate is:

(a)  subject to the provisions of the Real Property Act 1900 such portion shall not vest until either:

(i)  the appropriate transfer is executed and registered so that such portion is duly transferred, or

(ii)  an entry of the vesting is made by the Registrar-General. Any such entry shall have the same effect as if the portion were duly transferred, or

(b)  subject to the provisions of the Closer Settlement Acts, the Crown Lands Act 1989, the Mining Act 1992 or the Offshore Minerals Act 1999 or any other Act relating to Crown lands such portion shall not vest until either:

(i)  the appropriate transfer is executed and registered so that such portion is duly transferred, or

(ii)  an entry of the vesting is made in the appropriate register kept under the provisions of the Act to which such portion is subject. Any such entry shall have the same effect as if the portion were duly transferred.

Until such transfer is so executed and registered or such entry of the vesting is made, such executor or administrator shall in any case in which the executor or administrator has appointed the appointee in the executor’s or administrator’s place or stead not be discharged from the trusts in respect of such portion of the estate.

An executor or administrator who has appointed the appointee in the executor’s or administrator’s place or stead shall not (except as mentioned in the foregoing proviso) be in any way liable in respect of any act or default in reference to such estate subsequent to the registration and filing of such deed other than the act or default of the executor or administrator or of persons other than the executor or administrator for whose conduct the executor or administrator is in law responsible.

(3)  No such appointment shall be made under subsection (1) or subsection (2) if the testator has by the testator’s will directed or intimated that the office of executor should not be delegated or that the proposed appointee should not act in the trusts of the will.

(4)  Prior to making any appointment under subsection (1) or subsection (2) the person proposing to make such appointment shall give twenty-eight days’ notice in writing thereof to:

(a)  the co-executor or co-administrator (if any) of such person, and

(b)  such of the persons entitled beneficially under the will or in consequence of the intestacy of the deceased person of whose will or estate the person proposing to make the appointment is executor or administrator, as are ordinarily resident in the Commonwealth of Australia and have attained the age of eighteen years:

Provided that the Court may, on the application of the person proposing to make the appointment, direct that service of any notice required by this paragraph be dispensed with.

(5)  Any person who is or who ought to be served or who if the person were ordinarily resident in the Commonwealth ought to be served with the notice required by subsection (4) (whether or not the Court has directed that service of notice on that person be dispensed with) may at any time prior to the expiration of the period of 28 days’ notice given to that person under subsection (4), or, where the Court has directed that service of notice on that person be dispensed with, the period of 28 days after the giving of that direction, lodge with the Registrar a notice in the form prescribed by the rules that the person objects to such appointment being made and serve a copy of such notice on the person proposing to make the appointment mentioned in subsection (1) or subsection (2).

(6)  In the event of any such notice of objection being filed and a copy thereof served as aforesaid:

(a)  the person proposing to make an appointment under subsection (1) shall not make such appointment unless the Court, on application made by the person, directs that the appointment be made; notice of such application shall be served on such persons as the Court may direct or as may be prescribed by the rules,

(b)  the person proposing to make an appointment under subsection (2) shall not make such appointment under that subsection.

(7)  In the case of the appointment of a trustee company the capital both paid and unpaid and all other assets of the company and the manager, assistant manager and directors and their respective estates shall be liable for the due administration of the estates of which the company shall be so appointed executor or administrator.

(8)  Any such deed as is referred to in subsection (1) or in subsection (2) shall be registered in the office of the Registrar-General in the manner and on payment of the fees prescribed by regulation under the Conveyancing Act 1919.

(9)  A duly verified copy of any such deed as is referred to in subsection (1) or in subsection (2) shall be filed in the registry of the Court.

(10)    (Repealed)

s 75A: Ins 1938 No 30, sec 6 (f). Am 1970 No 52, Second Sch; 1970 No 60, First Sch; 1977 No 122, Sch 4 (6); 1979 No 187, Sch 1 (3); 1985 No 90, Sch 1 (3); 1986 No 16, Sch 23; 1990 No 98, Sch 2 (1); 1992 No 29, Sch 5; 1994 No 32, Sch 3; 1999 No 42, Sch 3.18.

76 If executor or administrator out of jurisdiction special administrator may be appointed

If, at the expiration of six months from the death of any person, the executor to whom probate has been granted or the administrator is then residing out of the jurisdiction, the Court may, upon the application of any creditor, legatee, or next of kin, or the Public Trustee or a trustee company, grant to such creditor, legatee, or next of kin, or the Public Trustee or a trustee company so applying special letters of administration of such deceased person, nevertheless to cease upon an order being made for the rescission thereof as hereinafter mentioned.

s 76: Am 1913 No 19, sec 60 (e); 1990 No 98, Sch 2 (2).

77 Special administrator to make certain affidavits

The person applying for any such special grant as aforesaid shall, in addition to the oath usually taken by administrators, satisfy the Court by affidavit that:

(a)  the executor or administrator of such deceased person is resident out of the jurisdiction, and

(b)  except in the case of the Public Trustee or a trustee company, the applicant is thereby delayed in recovering or obtaining payment of moneys or the possession of goods and chattels, or real estate, to which the applicant is by law entitled, or

(c)  the estate is liable to loss or waste.

s 77: Am 1990 No 98, Sch 2 (3); 1994 No 32, Sch 3.

78 On return of original executor or administrator special administration to be rescinded

(1)  On the return within the jurisdiction of the executor to whom probate has originally been granted, or the administrator, such executor or administrator may apply to the Court to rescind such special grant of administration.

(2)  The Court may make an order to rescind such special grant of administration upon such terms and conditions as to security, costs, or otherwise as to the Court may seem reasonable, and thereafter the original probate or administration shall be and remain as valid and effectual as if such special grant of administration had never been made.

s 78: Am 1970 No 52, Second Sch.

79 On order being made for rescission special administrator to account and pay over moneys

Upon any order being made by the Court for the rescission of any grant of special administration as aforesaid, the special administrator shall be bound duly to account to the original executor or administrator, and to pay over all moneys received by the person as special administrator, and then remaining in the special administrator’s hands undisposed of as the Court may order.

s 79: Am 1994 No 32, Sch 3.

80 Original executor or administrator liable although special administration not rescinded

If such executor or administrator neglects to apply for an order for the rescission of such special administration, the executor or administrator shall, notwithstanding that such special administration remains unrescinded, be liable to answer and make good all claims and demands against the estate of the deceased to the extent of the assets which have come to the executor’s or administrator’s hands or which might have come to the executor’s or administrator’s hands but for the executor’s or administrator’s wilful neglect or default, including the neglect herein mentioned.

s 80: Am 1994 No 32, Sch 3.

81 Revocation of grants not to prejudice actions or suits

(1)  Where any proceedings at law or in equity have been commenced by or against any executor or administrator lawfully acting as such, and the grant of probate or administration is, pending such proceedings, revoked or rescinded, the court in which such proceedings are pending may order that a suggestion be made upon the records of:

(a)  the revocation or rescission of such probate or administration, and

(b)  the grant or restoration of probate or administration which has been made consequent thereon.

(2)  Thereupon the proceedings shall be continued in the name of the executor or administrator authorised to act as such by such grant or restoration of probate or administration as if the proceedings had been originally commenced by or against such last-mentioned executor or administrator, but subject to such conditions and variations (if any) as such court may direct.

(3)  If the grant of probate or administration is revoked under the provisions of section 40C the court in which the proceedings are pending may in lieu of the suggestion referred to in subsection (1), order that such suggestion be made as it deems proper, and thereupon the proceedings shall be continued in the name of such person as the court directs as if the proceedings had been originally commenced by or against that person, but subject to such conditions and variations, if any, as the court directs, or the court may stay the proceedings on such terms in respect of costs or otherwise as it thinks just.

s 81: Am 1932 No 49, sec 6; 1970 No 52, Second Sch.

81A Disclosure of assets and liabilities of deceased

(1)  A person who applies for a grant of probate or administration in respect of the estate of a person who dies on or after 31 December 1981 shall, in accordance with the rules of Court, disclose to the Court the assets and liabilities of the deceased.

(2)  An executor, administrator or trustee of the estate of a person who dies on or after 31 December 1981 shall, in accordance with the rules of Court, disclose to the Court any assets and liabilities of the deceased which have not previously been disclosed to the Court.

s 81A: Ins 1981 No 106, Sch 1 (2).

81B Power to deal with assets etc

(1)  Nothing in this Part enables an executor, administrator or trustee of the estate of a person who dies on or after 31 December 1981 to complete the disposition of, and such an executor, administrator or trustee shall not complete the disposition of, any property of the deceased vested in the deceased which has not been disclosed to the Court pursuant to section 81A (1) or (2).

(2)  Nothing in subsection (1) prevents an executor or administrator from effecting an appointment pursuant to section 75A.

(3)  Nothing in subsection (1) affects any interest in any property acquired from an executor, administrator or trustee referred to in that subsection by a person where the interest was acquired in good faith, for valuable consideration and without notice that the property had not been disclosed to the Court pursuant to section 81A (1) or (2).

s 81B: Ins 1981 No 106, Sch 1 (2). Am 1994 No 32, Sch 3.

82 All debts to stand in equal degree, and retainer abolished

(1)  In the administration of the estate of every person dying after the passing of this Act, all the creditors of every description of such person shall be treated as standing in equal degree and be paid accordingly out of the assets of such deceased person whether such assets are legal or equitable, any statute or law to the contrary notwithstanding.

(2)  In the administration of the estate of any person dying before or after the commencement of this Act, in respect of which probate or letters of administration is or are granted after such commencement, no debt or liability of such person shall be entitled to any priority or preference by reason only that it is due to an executor or administrator of such estate.

(3)  This Act shall not prejudice or affect any mortgage, lien, charge, or other security which any creditor may hold or be entitled to for payment of the debt concerned.

(4)  Nothing herein contained shall affect the provisions of any Acts protecting life assurance or other policies against creditors.

s 82: Am 1906 No 14, sec 4; 1932 No 49, sec 8 (2); 1994 No 32, Sch 3.

83 Executor may sign acknowledgment in lieu of conveyance

(1)  When any real estate not under the provisions of the Real Property Act 1900 is devised to any person by a will duly proved under the provisions of this Part, the executor of the will or the administrator with the will annexed may, as such executor or administrator, instead of executing a conveyance to such person, sign an acknowledgment in the form prescribed by the rules that the devisee is entitled to such real estate for the estate for which the same is devised for the devisee.

(2)  Such acknowledgment may be registered under the Acts in force regulating the registration of deeds; and upon registration thereof such real estate shall vest in the devisee for such estate as aforesaid in the same way and subject to the same trusts and liabilities as if the executor or administrator had executed a conveyance of the same.

s 83: Am 1970 No 52, Second Sch; 1977 No 122, Sch 4 (7); 1994 No 32, Sch 3.

84 Application for legacy etc

If the executor or administrator, after requesting in writing, neglects or refuses to:

(a)  sign such acknowledgment, or

(b)  execute a conveyance of land devised to the devisee, or

(c)  pay or hand over to the person entitled any legacy or residuary bequest,

the Court may, on the application of such devisee or person, make such order in the matter as it may think fit.

s 84: Subst 1970 No 52, Second Sch.

84A Interest on legacies and annuities

(1)  Subject to subsection (2), where interest is payable on any legacy or on any arrears of an annuity in accordance with the will or instrument pursuant to which the legacy or annuity is payable or with any enactment or rule of law, that interest shall, unless the will or instrument otherwise provides, or the Court otherwise orders, be payable at such rate as may be prescribed in a regulation made under section 153.

(2)  Where an executor or administrator, in accordance with any power conferred on the executor or administrator in that behalf, appropriates any property in or towards satisfaction of any legacy (other than an annuity), the legatee shall be entitled to the income from the property so appropriated, and interest shall not be payable out of any other part of the estate on so much of the legacy as has been satisfied by the appropriation.

s 84A: Ins 1977 No 122, Sch 2 (8). Am 1994 No 32, Sch 3.

85 Executor, administrator or trustee to pass accounts

(1)  In respect of the estate of a person who died before 31 December 1981 every person to whom probate or administration has been or is granted shall file an inventory of the estate of the deceased and file or file and pass the person’s accounts relating thereto within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

(1AA)  In respect of the estate of a person who dies on or after 31 December 1981 every person to whom probate or administration has been or is granted and who is:

(a)  a creditor of the estate of the deceased,

(b)  the guardian of a minor who is a beneficiary of the estate of the deceased,

(c)  the executor or administrator of the estate where the whole, or a part which, in the opinion of the Court, is a substantial part, of the estate passes to one or more charities or public benevolent institutions,

(d)  a person, not being a beneficiary, or, in the opinion of the Court, a substantial beneficiary, of the estate, selected at random by the Court, or

(e)  a person otherwise required to do so by the Court,

shall verify and file or verify, file and pass the person’s accounts relating to the estate within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

(1A)  Every trustee of the estate of a deceased person shall verify and file or verify, file and pass the trustee’s accounts relating thereto within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

Nothing in this subsection affects the operation of section 35A of the Public Trustee Act 1913.

(1B)  In respect of the estate of a person who dies on or after 31 December 1981 every person to whom probate or administration has been or is granted and who is not a person to whom subsection (1AA) applies may verify and file or verify, file and pass the person’s accounts relating to the estate within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

(2)  Every such person shall be subject to any order that the Court may on the application of any person interested make as to the production and verification of the accounts concerned.

(3)  The order of the Court allowing any such account shall be prima facie evidence of the correctness of the same, and shall, after the expiration of three years from the date of such order, operate as a release to the person filing the same, excepting so far as it is shown by some person interested therein that an error or omission or fraudulent entry has been made in such account.

(4)  Where the Court, in passing any such accounts, disallows in whole or in part the amount of any disbursement, the Court may order the executor, administrator or trustee to refund the amount disallowed to the estate of the deceased.

Nothing in this subsection alters or diminishes the right of any person to proceed in equity in the same way as if this subsection had not been enacted.

(5)  Every executor, administrator or trustee of the estate of a deceased person shall verify and file an inventory of the estate of the deceased within such time, and from time to time, and in such manner as may be fixed by the rules, or as the Court may order.

s 85: Am 1938 No 30, sec 6 (g); 1954 No 40, sec 3 (e); 1970 No 52, Second Sch; 1977 No 122, Sch 4 (8); 1981 No 106, Sch 1 (3); 1994 No 32, Sch 3.

86 Executors etc may be allowed commission

(1)  The Court may allow out of the assets of any deceased person to the deceased person’s executor, administrator, or trustee for the time being, in passing the accounts relating to the estate of the deceased person, such commission or percentage for the executor’s, administrator’s or trustee’s pains and trouble as is just and reasonable, and subject to such notices (if any) as the Court may direct.

(2)  No such allowance shall be made to any executor, administrator, or trustee who neglects or omits without good reason to pass the accounts relating to the estate of the deceased person pursuant to the rules or an order of the Court.

(3)  Where any executor, administrator or trustee renounces the executor’s, administrator’s or trustee’s right to such commission in respect of any particular year, the executor, administrator or trustee shall be entitled to indemnity out of the said assets for the amount of the executor’s, administrator’s or trustee’s Australian legal practitioner’s charges and disbursements, as moderated in accordance with the relevant professional scale, for non-professional work performed in that year, to an amount not exceeding that which the executor, administrator or trustee would have been in the opinion of the Court allowed by way of such commission for that year had the executor, administrator or trustee not so renounced but had applied therefor.

s 86: Am 1938 No 30, sec 6 (h); 1970 No 52, Second Sch; 1994 No 32, Sch 3; 2006 No 58, Sch 3.22 [1].

86A Reduction of excessive commission etc

Where the Court is of the opinion that a commission or amount charged or proposed to be charged in respect of any estate, or any part of any such commission or amount, is excessive, the Court may, of its own motion, or on the motion of any person interested in the estate, review the commission, amount or part and may, on that review, notwithstanding any provision contained in a will authorising the charging of the commission, amount or part, reduce that commission, amount or part.

s 86A: Ins 1981 No 106, Sch 1 (4).

87 Effect of neglect to file etc inventory or accounts

(1)  Where an executor, administrator or trustee neglects to file, or verify and file, an inventory of the estate of the deceased or to file, or file and pass, or verify and file, or verify, file and pass, the accounts relating to the estate in accordance with a requirement made by or under section 85 within one month after the expiration of the time fixed for compliance, the Registrar shall cause the executor, administrator or trustee to be notified of the executor’s, administrator’s or trustee’s neglect.

(2)  Where, on the expiration of one month after having been so notified, an executor, administrator or trustee further neglects to comply with the requirement in respect of which the notification under that subsection was given, the Court may, of its own motion, order the executor, administrator or trustee to show cause before the Court why the executor, administrator or trustee should not be ordered to file, or verify and file, an inventory of the estate of the deceased or to file, or file and pass, or verify and file, or verify, file and pass, the accounts relating to the estate, as the case may require, in the Court forthwith.

(3)  Where an executor, administrator or trustee to whom subsection (2) applies fails to show cause as referred to in that subsection, the executor, administrator or trustee shall be liable to punishment for contempt of court or to the payment of a fine not exceeding 20 penalty units.

(4)  An executor, administrator or trustee to whom subsection (2) applies shall, unless the Court otherwise orders, be personally liable for the cost and expenses of any proceedings pursuant to this section.

s 87: Am 1938 No 30, sec 6 (i); 1954 No 40, sec 3 (f). Subst 1970 No 52, Second Sch; 1981 No 106, Sch 1 (5). Am 1992 No 112, Sch 1; 1994 No 32, Sch 3.

88 Proceedings under section 87 not to prejudice proceedings on bond

Proceedings being taken under the last preceding section shall not prejudice the right to proceed against the executor, administrator or trustee for an account and administration, or prevent the Court from ordering the assignment of any bond to any person with a view of enforcing the penalty thereof as hereinbefore mentioned.

s 88: Am 1954 No 40, sec 3 (g).

89 Judge may make order as to disposal of moneys in hands of executor etc

(1)  The Court may make such order with reference to the distribution or application of any moneys which the executor or administrator or Public Trustee may have in hand, or as to the residue of the estate as it may think fit.

(2)  No final order for distribution shall be made except upon notice to all the parties entitled.

s 89: Am 1913 No 19, sec 60 (f).

90 Payments under revoked probates or administrations valid

(1)    (Repealed)

(2)  The executor or administrator who has acted under any revoked or rescinded probate or administration may retain and reimburse the executor or administrator or shall be entitled to be reimbursed in respect of any payments made by the executor or administrator which the person to whom probate or administration is afterwards or was originally granted might have lawfully made.

s 90: Am 1938 No 30, sec 6 (j); 1994 No 32, Sch 3.

91 Persons etc making payments upon probates granted for estate of deceased person to be indemnified

(1)  All persons making or permitting to be made any payment or transfer, bona fide, upon any probate or administration or order granted in respect of the estate of any deceased person under the authority of this part shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of such probate or administration or order not then known to such persons.

(2)  In respect of the estate of a person who dies on or after 31 December 1981, the indemnity and protection conferred by subsection (1) shall apply only in relation to property of the estate of the deceased which is listed in a document issued by the Court in relation to the probate, administration or order.

s 91: Am 1981 No 106, Sch 1 (6).

92 Distribution of assets after notice given by executor or administrator

(1)  Where the executor or administrator of the estate of a testator or an intestate has published notices in or to the effect of the form prescribed by rules of the Court requiring the claims of beneficiaries (including children conceived but not yet born at the death of the testator or intestate), creditors and other persons in respect of the assets of the estate of the testator or intestate to be submitted to the executor or administrator by or on behalf of those beneficiaries, creditors or other persons, the executor or administrator may, at the expiration of the period for submitting those claims specified in the notices or, as the case may be, specified in the last of the notices, distribute the assets, or any part of the assets, of that estate, among the persons entitled, having regard to the claims of which the executor or administrator has notice at the time of the distribution.

(2)  An executor or administrator who distributes the assets or any part of the assets of the estate of a testator or an intestate in accordance with subsection (1) is not liable in respect of those assets or that part of those assets to any person who has a claim in respect of those assets or that part unless the executor or administrator had notice of the claim at the time of the distribution.

(3)  In relation to a distribution of the assets of a testator or intestate dying after the commencement of the Children (Equality of Status) Act 1976, an executor or administrator referred to in subsection (2) shall be deemed to have notice of the claim of any person whose entitlement to the assets or to any part of them would have become apparent if the executor or administrator had applied for and obtained a certificate under section 50 of the Births, Deaths and Marriages Registration Act 1995.

s 92: Am 1970 No 52, Second Sch; 1976 No 97, Sch 1; 1977 No 122, Sch 2 (9); 1994 No 32, Sch 3; 1995 No 62, Sch 2.

93 Claims barred against executor or administrator in certain cases

(1)  When the executor or administrator of the estate of a testator or an intestate has published the notices referred to in section 92 (1) and a claim in respect of the assets of that estate is submitted to the executor or administrator, the executor or administrator may, if the executor or administrator disputes the claim, serve on the person by whom or on whose behalf the claim was submitted a notice calling on the person to take proceedings to enforce the person’s claim within a period of 3 months from the date of service of the notice and to prosecute the person’s claim.

(2)  If, after a notice has been served on a person in accordance with subsection (1) and the period of 3 months referred to in the notice has expired, that person does not satisfy the Court that the person is prosecuting the person’s claim, the Court may, on an application in that behalf made by the executor or administrator:

(a)  make an order barring the claim of that person as against the executor or administrator, subject to such conditions (if any) as it thinks just and equitable, or

(b)  make such other order in respect of the application as it thinks just and equitable, having regard to the circumstances of the case.

(3)  Where:

(a)  in its capacity as executor or administrator, a trustee company:

(i)  disputes any claim upon an estate (whether the claimant claims to be a creditor or to have a beneficial interest in the estate), and

(ii)  has served on the claimant a notice in accordance with subsection (1), and

(b)  the claimant has not, within the period of 3 months referred to in the notice served in accordance with subsection (1), commenced proceedings to enforce the claim,

the trustee company may serve a further notice on the claimant that unless, within the period of 2 months from the date of service of that further notice, the trustee company is duly served with process of court issued in proceedings to enforce the claim, the trustee company will distribute the estate without regard to the claim.

(4)  If, within the period of 2 months referred to in a notice served on a claimant in accordance with subsection (3), a trustee company has not been duly served with process as referred to in that subsection, the claimant’s claim shall thereupon be barred and become irrecoverable as against the trustee company and the trustee company may proceed to distribute the estate without regard to the claim.

(5)  A trustee company may, if it thinks fit, waive any objection which it might, by virtue of subsection (4), take to proceedings commenced by a claimant after the expiration of the period of 2 months referred to in a notice served on the claimant in accordance with subsection (3).

(6)  The powers conferred on a trustee company by subsections (3) and (4) are in addition to the powers exercisable under subsection (2).

s 93: Am 1954 No 40, sec 3 (h). Subst 1977 No 122, Sch 2 (10). Am 1985 No 90, Sch 1 (4); 1994 No 32, Sch 3.

94 Distribution of estate by executor or administrator

(1)  Where the executor or administrator of the estate of a testator or an intestate:

(a)  is, in the executor’s or administrator’s capacity as such, liable in respect of:

(i)  the rents, covenants or agreements contained in a lease, or in an agreement for a lease, granted or assigned to the testator or intestate, or

(ii)  the rents, covenants or agreements contained in any conveyance on chief rents or rent charges, or in an agreement for any such conveyance, made and entered into with the testator or intestate, and

(b)  has:

(i)  satisfied all liabilities under the lease or agreement for a lease, or, as the case may be, under the conveyance or agreement for a conveyance, that have accrued and been claimed up to the time of the assignment or conveyance referred to in subparagraph (iii),

(ii)  set aside an amount sufficient to meet any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the lessee or grantee to be expended in respect of the property leased or agreed to be leased, or conveyed or agreed to be conveyed, although the period for expending that sum may not have arrived, and

(iii)  assigned the lease or agreement for a lease or conveyed the property or assigned the agreement for the conveyance of the property, as the case may be, to a purchaser or to a legatee, devisee or other person entitled,

the executor or administrator may distribute those assets of the estate remaining in the executor’s or administrator’s hands among the parties entitled without appropriating any part or any further part of those assets, as the case may be, to meet any future liability under the lease, agreement for a lease, conveyance or agreement for a conveyance.

(2)  An executor or administrator who:

(a)  has assigned a lease or an agreement for a lease, made or executed a conveyance or assigned an agreement for a conveyance, as referred to in subsection (1) (b) (iii), and

(b)  has, where necessary, set aside a sufficient amount as referred to in subsection (1) (b) (ii),

shall not be personally liable in respect of any subsequent claim under any such lease, agreement for a lease, conveyance or agreement for a conveyance.

(3)  In this section:

assignment and conveyance include an acknowledgment within the meaning of section 83.

lease includes an under lease.

s 94: Am 1925 No 14, sec 105. Subst 1977 No 122, Sch 2 (10). Am 1994 No 32, Sch 3.

95 Right to follow assets

Nothing contained in section 92, 93 or 94 prejudices the right of any beneficiary, creditor or other person who has a claim in respect of the assets of the estate of a testator or an intestate or the right of a lessor or grantor under a lease, agreement for a lease, conveyance or agreement for a conveyance referred to in section 94, or any person claiming under any such lessor or grantor, to follow those assets or any part of those assets into the hands of the persons or any of the persons among whom those assets or that part may have been distributed or who may have received those assets or that part.

s 95: Subst 1977 No 122, Sch 2 (10).

96 (Repealed)

s 96: Rep 1925 No 14, Sch.

97 Every executor etc to be deemed resident in New South Wales

(1)  Every executor or administrator:

(a)  named in any probate or letters of administration granted by any court of competent jurisdiction in any portion of Her Majesty’s dominions and making application under the provisions of Division 5 for the sealing of such probate or administration, or

(b)  appointed under this Part,

shall be deemed to be resident in New South Wales.

(2)  Where not actually so resident, the executor or administrator shall, before the issue or sealing of any probate or administration, file with the Registrar an address, as prescribed by the rules, within New South Wales, at which notices and processes may be served upon the executor or administrator; and all services at such registered address shall be deemed personal service.

s 97: Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1977 No 122, Sch 4 (9); 1994 No 32, Sch 3.

Division 4 Small estates

98 District agents

(1)  For the purpose of receiving applications for probate or administration under this division, a person may be appointed, as provided by the rules, in any town beyond 48 kilometres from Sydney, where there is a Local Court, to act as district agent for the Registrar.

(2)  Any person holding the office of district registrar immediately prior to the commencement of the Supreme Court Act 1970 shall be deemed to have been appointed as provided by the rules.

s 98: Am 1938 No 30, sec 6 (k). Subst 1970 No 52, Second Sch. Am 1977 No 122, Sch 4 (10); 1999 No 31, Sch 4.106.

99 Power to administer oaths

(1)  All district agents may for the purposes of this part:

(a)  administer oaths, and

(b)  take declarations and affirmations, and

(c)  exercise any other powers which can be exercised by commissioners of the Court.

(2)  Applicants under this division may be sworn, and may execute all necessary documents before a commissioner of the Court.

s 99: Am 1970 No 52, Second Sch.

100 (Repealed)

s 100: Am 1977 No 122, Sch 4 (11). Rep 1981 No 106, Sch 1 (7).

101 Application to be made to Registrar or to district agent

In all cases where a person dies leaving property not exceeding $15,000 in value or, where some other amount is prescribed, not exceeding that other amount so prescribed in value, application for probate or administration may be made to the Registrar or to a district agent for the Registrar.

s 101: Am 1938 No 30, sec 6 (1); 1954 No 40, sec 3 (i); 1981 No 106, Sch 1 (8).

102 Duties of Registrar or district agent

(1)  The Registrar or district agent shall, upon being satisfied as to:

(a)  the identity of the applicant, and

(b)  the right of the applicant to administer the estate of the deceased, and

(c)  the value of the estate,

furnish the applicant with all necessary information for the purpose of enabling the applicant to fill up the advertisements, affidavits, and documents necessary for obtaining probate or administration, as the case may be.

(2)  The Registrar or district agent may:

(a)  swear the applicant and every deponent, and

(b)  attest the execution of the administration bond.

(3)  The Registrar or district agent shall receive payment of all proper fees in connection with the application.

s 102: Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch); 1994 No 32, Sch 3.

103 District agent to send all papers to Registrar

The district agent shall forthwith transmit to the Registrar all affidavits, documents, and fees received by the district agent, and upon receipt of the probate or letters of administration shall deliver the same to the applicant upon demand.

s 103: Am 1994 No 32, Sch 3.

104 Registrar to issue probate or administration in the name of the Court

(1)  The Registrar shall, upon being satisfied:

(a)  with the sufficiency of the evidence in support of the application, and

(b)  that the estate does not exceed the amount in value determined in accordance with section 101, and

(c)  that no caveat has been entered against the application, and

(d)  that no will has been deposited with the Registrar or with the Public Trustee (search for which it shall be the duty of the Registrar to make), and

(e)  that the fees have been duly paid,

cause probate or letters of administration (as the case may be) to be issued and delivered to the applicant on demand, or shall forward the same to the district agent for delivery by the district agent to the applicant.

(2)  Such probate or administration shall be issued in the name and under the seal of the Court.

s 104: Am 1932 No 49, sec 7 (2) (c); 1981 No 106, Sch 1 (9); 1994 No 32, Sch 3.

105 Where Registrar not satisfied with the material before the Registrar

(1)  In any case where the Registrar is not satisfied as aforesaid, the Registrar shall state the matters in respect of which the Registrar is not satisfied either to the applicant or to the district agent transmitting the application.

(2)  Such agent shall then inform the applicant accordingly, and shall take such further steps as may be proper to enable the applicant to satisfy the Registrar in respect of such matters.

s 105: Am 1994 No 32, Sch 3.

106 Registrar not bound to grant probate in certain cases

In no case shall the Registrar be under any obligation by reason of this division to deal with any application which the Registrar may think proper to be dealt with by the Court, or to be placed in the hands of an attorney or Australian legal practitioner.

s 106: Am 1994 No 32, Sch 3; 2006 No 58, Sch 3.22 [2].

Division 5 Foreign probates and letters of administration

107 Probates and letters of administration granted in other colonies or the United Kingdom to be of like force as if granted in New South Wales on being resealed

(1)  When any probate or letters of administration already granted or hereafter to be granted by any court of competent jurisdiction in any portion of Her Majesty’s dominions is or are produced to and a copy thereof deposited with the Registrar by any person being the executor or administrator therein named, or by any person duly authorised by power of attorney in that behalf under the hand and seal of such executor or administrator therein named, or by any person duly authorised by power of attorney in that behalf under the hand and seal of such executor or administrator such probate or letters of administration may be sealed with the seal of the Court.

(2)  When so sealed such probate or letters of administration shall have the like force and effect and the same operation in New South Wales, and every executor and administrator thereunder shall perform the same duties and be subject to the same liabilities as if such probate or administration had been originally granted by the Court.

(3)  The Court may require any such executor or administrator or person authorised as aforesaid to give security for the due administration of the estate in respect of matters or claims in New South Wales.

(4)  For the purposes of this Division the word executor shall be deemed to include executor by representation.

s 107: Am 1938 No 30, sec 6 (m); 1970 No 52, Second Sch.

108 Seal not to be affixed till duty is paid etc

(1)  The seal of the Court shall not be affixed to any such probate or letters of administration until all such probate, stamp, and other duties, if any, have been paid as would have been payable if such probate or administration had been originally granted by the Court.

(2)  Such letters of administration shall not be so sealed until such bond has been entered into as would have been required if such administration had been originally granted by the Court.

109 Notice of intention to apply

The seal of the Court shall not be affixed as aforesaid except upon an affidavit that notice of the intention to apply in that behalf has been published as prescribed by rules of Court fourteen days before the making of such affidavit, and that no caveat has been lodged in respect thereof.

s 109: Am 1954 No 40, sec 3 (j).

110 Not to apply to public officer or Public Trustee

No provision in this Act as to the sealing of probates or letters of administration shall apply to any public officer or to the Public Trustee.

s 110: Am 1932 No 49, sec 8 (1) (d).

Division 6 Curator of intestate estates

111–137 (Repealed)

ss 111–137: Rep 1913 No 19, Sch.

Division 7 Caveats and orders to produce

pt 2, div 7, hdg: Am 1970 No 52, Second Sch.

138–143 (Repealed)

s 138: Rep 1970 No 52, Second Sch.

s 139: Rep 1970 No 52, Second Sch.

s 140: Am 1947 No 41, sec 8 (2) (a). Rep 1970 No 52, Second Sch.

s 141: Am 1947 No 41, sec 8 (2) (a). Rep 1970 No 52, Second Sch.

s 142: Rep 1970 No 52, Second Sch.

s 143: Rep 1970 No 52, Second Sch.

144 Caveat may be lodged

(1)  Any person may lodge in the registry of the Court a caveat against any application for probate or administration, or for the sealing of any probate or letters of administration under Division 5, at any time previous to such probate or administration being granted, or to the sealing of any such probate or letters of administration.

(2)  Every such caveat shall set forth the name of the person lodging the same, and an address for service in accordance with the rules.

s 144: Am 1970 No 52, Second Sch; 1977 No 122, Sch 4 (12).

145 Application may proceed on notice

In every case where a caveat is lodged against an application the applicant may, subject to the giving of such notice to the caveator as the rules may require or the Court may direct, proceed, in accordance with the rules or as the Court may direct, with the application.

s 145: Subst 1970 No 52, Second Sch.

146 Court may order application to proceed

The Court, on the application of the caveator, may order that the application for grant or sealing, as the case may be, proceed and may give directions relating thereto.

s 146: Subst 1970 No 52, Second Sch.

147 (Repealed)

s 147: Rep 1970 No 52, Second Sch.

148 Caveats may be withdrawn

A caveat may be withdrawn at any time with the leave of the Court, subject to such order as to costs or otherwise as it may direct.

s 148: Subst 1970 No 52, Second Sch.

149 (Repealed)

s 149: Rep 1970 No 52, Second Sch.

150 Order to produce an instrument purporting to be testamentary

(1)  The Court may, on the application of any person, whether any proceedings are or are not pending in the Court with respect to any probate or administration, order any person to produce and bring into the registry any paper or writing, being or purporting to be testamentary, or otherwise material to the matter before the Court, which may be shown to be in the possession or under the control of such person.

(2)  If it is not shown that any such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that the person has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined in open Court or upon interrogatories respecting the same.

(3)  Such person shall be bound to answer such questions or interrogatories, and (if so ordered) to produce and bring in such paper or writing, and shall be subject to punishment for contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing.

(4)    (Repealed)

s 150: Am 1970 No 52, Second Sch; 1994 No 32, Sch 3.

Division 8 General matters

151 Oaths

The Registrar, Australian legal practitioners, commissioners for taking affidavits and justices of the peace shall have power to administer oaths under this part.

s 151: Am 1954 No 40, sec 3 (k); 1970 No 52, Second Sch; 2006 No 58, Sch 3.22 [3].

152 Registrar to keep record of probates etc

(1)  The Registrar shall cause entries to be made in a book to be kept for that purpose of:

(a)  all grants of probate and administration,

(b)  the filing, passing, and allowance of the accounts of executors and administrators, and of

(c)  any special order extending the time for passing such accounts,

(d)  all deeds copies whereof are filed pursuant to section 75A (9).

(2)  Such book shall set forth:

(a)  the dates of such grants,

(b)  the names of the testators or intestates,

(c)  the place and time of death,

(d)  the names and description of the executors or administrators,

(e)  the sworn value of the estates,

(f)  the dates of the filing, passing, allowance of, and special orders with reference to, the said accounts,

(g)  the dates and the names of parties to the deeds whereof copies are filed pursuant to section 75A (9).

s 152: Am 1938 No 30, sec 6 (n); 1977 No 122, Sch 4 (13); 1981 No 106, Sch 1 (10).

152A Rules of Court

(1)  Rules of Court may be made under the Supreme Court Act 1970 regulating practice and procedure in respect of proceedings under this Act.

(2)  Subsection (1) does not limit the rule-making powers conferred by the Supreme Court Act 1970.

s 152A: Ins 1989 No 17, Sch 1 (15).

153 Regulations

(1)  The Governor may make regulations for or with respect to:

(a)  prescribing an amount for the purpose of paragraph (b) of the definition of prescribed amount in section 61A (2),

(b)  prescribing a rate of interest for the purpose of section 84A (1), and

(c)  prescribing an amount for the purposes of section 101.

(2)    (Repealed)

s 153: Rep 1970 No 52, Second Sch. Ins 1977 No 122, Sch 2 (11). Am 1981 No 106, Sch 1 (11); 1987 No 48, Sch 32.

154 Savings and transitional provisions arising from amendments to this Act

The Fifth Schedule has effect.

s 154: Am 1954 No 40, sec 3 (1). Rep 1970 No 52, Second Sch. Ins 1989 No 17, Sch 1 (16).

155 (Repealed)

s 155: Rep 1970 No 52, Second Sch.

First Schedule

(Section 2 (1))

Number of Act	Title or short title	Extent of repeal
5 Wm IV No 8	An Act for adopting and applying certain Acts of Parliament, &c, &c, in the Administration of Justice in New South Wales in like manner, &c, &c.	So far as it adopts the Act of Parliament 11 Geo IV and 1 Wm, IV, cl 40.
3 Vic No 5	An Act for adopting a certain Act of Parliament intituled An Act for the amendment of the Laws with respect to Wills in the Administration of Justice in New South Wales in like manner as other laws of England are applied therein.	The whole.
17 Vic No 5	An Act to amend the Law with respect to the Execution of Wills.	The whole.
26 Vic No 12	Trust Property Act of 1862	Sections 27, 28, 29, 65.
54 Vic No 25	Probate Act of 1890.	The whole, except sections 21 and 98.
56 Vic No 30	Probate Act of 1890 Amendment Act	The whole.

Second Schedule (Repealed)

Second Sch: Rep 1932 No 49, sec 8 (1) (e).

Third Schedule

(Section 46C)

Part 1 Rules as to payment of debts and liabilities where the estate is insolvent

1 The funeral, testamentary, and administration expenses have priority.

2 Subject as aforesaid, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, and as to the priorities of debts and liabilities as are in force at the death of the deceased person under the law of bankruptcy with respect to the assets of persons adjudged bankrupt. In the application of such rules the date of the death of the deceased person shall be substituted for the date of the sequestration order.

Part 2 Order of application of assets where the estate is solvent

1 Assets undisposed of by will, subject to the retention thereout of a fund sufficient to meet any pecuniary legacies.

2 Assets not specifically disposed of by will but included (either by a specific or general description) in a residuary gift, subject to the retention out of such property of a fund sufficient to meet any pecuniary legacies, so far as not provided for as aforesaid.

3 Assets specifically appropriated or disposed of by will (either by a specific or general description) for the payment of debts.

4 Assets charged with or disposed of by will (either by a specific or general description) subject to a charge for the payment of debts.

5 The fund, if any, retained to meet pecuniary legacies.

6 Assets specifically disposed of by will, rateably according to value.

Third Sch: Ins 1930 No 44, sec 43 (d). Am 1932 No 65, sec 5 (b).

Fourth Schedule Rights of surviving spouse of intestate with respect to acquisition of the shared home

(Section 61D)

Fourth Sch, hdg: Ins 1977 No 122, Sch 2 (12). Am 1999 No 4, Sch 2.25 [13].

1 Construction of Schedule

This Schedule shall be construed as forming part of section 61D.

2 Exercise of right conferred by sec 61D

(1)  The right conferred by section 61D shall be exercisable by notification in writing:

(a)  where there is a sole administrator who is not the surviving spouse of the intestate, delivered to that administrator,

(b)  where there are two or more administrators, delivered to each of those administrators (other than one who is the surviving spouse of the intestate), or

(c)  where there is a sole administrator who is the surviving spouse of the intestate, filed in the office of the Registrar.

(2)  A notification delivered or filed under subclause (1) of this clause shall not be revocable except with the consent of the Court.

(3)  For the purpose of enabling the surviving spouse to decide whether or not to exercise the right conferred by section 61D, the spouse may require the administrator to ascertain and fix the value of the interest of the intestate in the shared home and to inform the spouse of that value.

3 Restrictions on the exercise of right conferred by sec 61D

(1)  The right conferred by section 61D shall not be exercisable:

(a)  after the death of the surviving spouse of the intestate,

(b)  after the expiration of 12 months from the date on which letters of administration were first taken out in respect of the estate of the intestate,

(c)  if the interest of the intestate in the shared home is required by the administrator to meet funeral and administration expenses, debts and other liabilities payable out of the estate of the intestate, or

(d)  in any case in which the transfer or conveyance by the administrator to the spouse of the interest of the intestate in the shared home would require compliance with the provisions of:

(i)  the Environmental Planning and Assessment Act 1979, the Conveyancing Act 1919 and any other Act with respect to the manner of dividing land into parts, and with respect to any requirement incidental to the manner of dividing land into parts,

(ii)  the Strata Schemes (Freehold Development) Act 1973 with respect to the manner of subdividing land within the meaning of section 7 (1) of that Act or of any lot within the meaning of section 5 (1) of that Act, and with respect to any requirement incidental to the manner of subdividing any such land or lot, or

(iii)  the Strata Schemes (Leasehold Development) Act 1986, with respect to the manner of subdividing land within the meaning of section 6 of that Act or of any lot within the meaning of section 4 (1) of that Act, and with respect to any requirement incidental to the manner of subdividing any such land or lot,

unless those provisions would be complied with.

(2)  Without limiting subclause (1) of this clause, where:

(a)  the shared home forms part of a building and an interest in the whole of the remainder of the building is comprised in the intestate’s estate,

(b)  the shared home is held with land used for agricultural, pastoral or horticultural purposes and an interest in that land is comprised in that estate,

(c)  the whole or a part of the shared home was, at the time of the intestate’s death, used as a hotel or lodging house, or

(d)  a part of the shared home was, at that time, used for purposes other than residential purposes,

the right conferred by section 61D shall not be exercisable unless the Court, on the application of the administrator or the surviving spouse of the intestate (not being the sole administrator), makes an order declaring itself to be satisfied that the exercise of that right is not likely to diminish the value of assets in the estate (disregarding household chattels, if any, and the interest of the intestate in the shared home) or to make those assets more difficult to dispose of.

(3)  During the period of 12 months referred to in subclause (1) (b) of this clause the administrator (not being the surviving spouse of the intestate) shall not, except as authorised under subclause (4) of this clause, without the written consent of the surviving spouse sell or otherwise dispose of the interest of the intestate in the shared home except in the course of administration due to want of other assets.

(4)  Where in respect of an application made under subclause (2) of this clause the Court does not order that the right conferred by section 61D shall be exercisable by the surviving spouse, it may authorise the administrator to dispose of the interest of the intestate in the shared home before the expiration of the period of 12 months referred to in subclause (1) (b) of this clause.

4 Determination of curtilage of building

(1)  Where, in any case in which the surviving spouse of an intestate exercises the right conferred by section 61D in relation to a building referred to in paragraph (a) of the definition of dwelling-house in section 61A (2), the area of:

(a)  the land on which the building is erected, and

(b)  the land which is attached to and occupied with the building for the amenity or convenience of the building,

does not exceed 2 500 square metres and no estate or interest in any land contiguous with the land comprised in that area is comprised in the intestate’s estate, the land referred to in paragraph (b) shall be presumed, until the contrary is proved, to form the curtilage of the building.

(2)  Where the surviving spouse of an intestate exercises the right conferred by section 61D in relation to a building referred to in paragraph (a) of the definition of dwelling-house in section 61A (2), but a question arises as to the curtilage of the building, the administrator or any person beneficially interested in the estate of the intestate may apply to the Court for an order to determine the question, and on any such application being made, the Court may make such order with respect to the question as it thinks just.

5 Power of administrator to create easements etc in certain cases

Where the right conferred by section 61D is exercised in respect of a shared home, being:

(a)  a dwelling-house referred to in paragraph (a) of the definition of dwelling-house in section 61A (2) which is contiguous with other land in which an estate or interest is comprised in the intestate’s estate, or

(b)  a dwelling-house referred to in paragraph (b) of the definition of dwelling-house in section 61A (2) which is contiguous with another part of the building of which the dwelling-house forms part and in which an estate or interest is comprised in the intestate’s estate,

the administrator, when transferring or conveying the interest of the intestate in the shared home or, as the case may be, the estate or interest in the other land or the other part of the building may, by the instrument of transfer or conveyance create such easements or restrictions as to user benefiting or burdening the shared home or benefiting or burdening that other land or part of the building as the administrator considers necessary for the purpose of rendering usable that other land or part of the building or, as the case may be, the shared home.

6 Power of surviving spouse to make valid requirement etc where spouse is a minor

A requirement or consent made or given under this Schedule by a surviving spouse who is a minor is as valid and effective as it would be if the spouse had attained majority.

7 Miscellaneous matters

(1)  Nothing in section 61D or in this Schedule confers on the surviving spouse of an intestate whose estate includes a shared home any right as against any person who has in good faith purchased for value from the administrator the interest of the intestate in the shared home.

(2)  Where the surviving spouse of an intestate whose estate includes a shared home is one of two or more administrators, the rule that a trustee may not be a purchaser of trust property shall not prevent the spouse from purchasing out of the intestate’s estate any interest of the intestate in the shared home.

Fourth Sch: Ins 1977 No 122, Sch 2 (12). Am 1986 No 220, Sch 1; 1994 No 32, Sch 3; 1996 No 139, Sch 2.37 [1] [2] (am 1997 No 55, Sch 2.18 [1] [2]); 1997 No 152, Sch 4.48; 1999 No 4, Sch 2.25 [2] [3].

Fifth Schedule Savings and transitional provisions arising from amendments to this Act

(Section 154)

Part 1A Provisions consequent on enactment of Wills, Probate and Administration (De Facto Relationships) Amendment Act 1984

1A Persons dying wholly or partially intestate before commencement of De Facto Relationships Act 1984

(1)  The amendments made to this Act by the Wills, Probate and Administration (De Facto Relationships) Amendment Act 1984 do not apply to or in respect of the estate of a person who died wholly or partially intestate before 1 July 1985 (the day appointed and notified under section 2 (2) of the De Facto Relationships Act 1984), and any such estate is to be distributed in accordance with the enactments and rules of law in force at the date of death of that person.

(2)  This clause is taken to have commenced on 1 July 1985.

(3)  Subclause (1) re-enacts (with minor modification) section 4 of the Wills, Probate and Administration (De Facto Relationships) Amendment Act 1984 and is a transferred provision to which section 30A of the Interpretation Act 1987 applies.

Part 1 Provisions consequent on enactment of Wills, Probate and Administration (Amendment) Act 1989

1 Definition

In this Part:

the 1989 Act means the Wills, Probate and Administration (Amendment) Act 1989.

2 Application of amendments—generally

(1)  An amendment to this Act made by the 1989 Act applies in relation to a will (whenever made) if the maker of the will dies after the commencement of the amendment to this Act, except in so far as another clause of this Part applies.

(2)  In this clause, a reference to a will includes a reference to a document (whenever made) which is held by the Court under section 18A to constitute a will.

3 Wills of minors

(1)  The law in force immediately before the commencement of the Minors (Property and Contracts) Act 1970 relating to testamentary capacity continues to apply to a will of a minor made before that commencement.

(2)  Section 6, as in force immediately before the commencement of Schedule 1 (2) to the 1989 Act, continues to apply to a will of a minor made after the commencement of the Minors (Property and Contracts) Act 1970 and before the commencement of Schedule 1 (2).

(3)  This clause has effect subject to clause 4.

4 Privileged testators

(1)  Where a will was made by a person as a privileged testator before section 10 was omitted by Schedule 1 (4) to the 1989 Act, then:

(a)  if the testator died before the commencement of that item—the omission does not affect the continued validity of the will, or

(b)  if the testator dies after that commencement—the omission invalidates the will to the extent that its validity depended on the testator’s status as a privileged testator at the relevant time.

(2)  Where a will was made by a person as a privileged testator before section 13 (2) was omitted by Schedule 1 (6) to the 1989 Act, then:

(a)  if the testator died before the commencement of that item—the omission does not affect the continued validity of a gift in the will, or

(b)  if the testator dies after that commencement—the omission invalidates a gift in the will to the extent that the validity of the gift depended on the testator’s status as a privileged testator at the relevant time.

(3)  The omission of sections 17 (3) (c), 18 (2) and 19 (2) by amendments made by the 1989 Act does not affect the continued validity of:

(a)  the revocation of a will, or

(b)  the obliteration, interlineation or alteration of a will, or

(c)  the revival of a will,

effected before the commencement of the relevant amendment by a person as a privileged testator, whether or not the person died before or dies after the commencement of the amendment.

(4)  References in this clause to a privileged testator extend to a person to whom section 10 applied before its substitution by the Minors (Property and Contracts) Act 1970.

5 Effect of termination of marriage

Section 15A applies in relation to a will (whenever made) if the termination of the marriage (within the meaning of that section) of the testator occurs after the commencement of that section.

6 Power of the Court to rectify wills

(1)  Section 29A applies in relation to a will (whenever made) if the will is not admitted to probate or letters of administration with the will annexed are not granted before the commencement of that section.

(2)  Nothing in this clause affects the period determined in accordance with section 29A within which an application for an order under that section may be made.

7 Gifts to interested witnesses

Section 13, as in force immediately before the commencement of Schedule 1 (6) to the 1989 Act, continues to apply in relation to a will made before that commencement if the maker of the will dies before that commencement.

Fifth Sch: Ins 1989 No 17, Sch 1 (17). Am 1995 No 99, Sch 4.