Administration Act 1903

The Act has broad personal and territorial reach. It applies to any person who dies leaving real or personal property in Western Australia, regardless of domicile (s.6). Primary addressees are:

• Executors named in wills – they obtain probate (s.7 permits grant to one or more with leave reserved) and become vested with the entire estate (s.8(a)). They must collect assets, pay debts, file inventories (s.43) and distribute according to the will or, on partial intestacy, the statutory rules.
• Administrators – appointed by the Court where there is no will, where the executor renounces or is unable to act (ss.24–25, 32–38), or on intestacy. Priority is given to persons entitled in distribution (s.25(1)(a)), but the Court may appoint a creditor or other fit person (s.25(1)(b)). Administrators are subject to the same duties as executors (s.12) and must provide sureties unless the Public Trustee or another prescribed person is appointed (s.26(8)).
• Surviving spouses and de facto partners – they receive preferential entitlements under the s.14 Table and may elect to appropriate the matrimonial home under the Fourth Schedule. De facto partners must satisfy cohabitation thresholds (s.15) and, where multiple partners qualify, share equally (s.15(4)).
• Issue, parents, siblings, grandparents and more remote relatives – their entitlements are prescribed by the statutory hierarchy and per stirpes rules. Illegitimate relationships are equated with legitimate ones for distribution purposes provided parentage is established to the Court’s reasonable satisfaction (s.12A).
• Creditors – all stand in equal degree (s.23), subject only to secured rights and the insolvency regime in the Fifth Schedule. They may apply for administration if no entitled person does so (s.25(1)(b)) and may sue on administration bonds (s.26(5)).
• Infants and persons under disability – the Court may authorise expenditure of an infant’s share for maintenance (s.17), appoint trustees of an infant’s property (s.17A), and the Fourth Schedule makes special provision where the surviving spouse lacks mental capacity (cl. 8).
• The Public Trustee – may be appointed administrator, acts as district agent in some circumstances, and receives balances of estates of persons domiciled elsewhere (s.142).
• The Crown – takes by escheat where no relative survives (s.14 Table item 11) and is bound by the insolvency rules (s.10A(2)).
• Practitioners and Court officers – solicitors, the Principal Registrar, registrars and district agents (ss.5, 54–60) perform administrative and quasi-judicial functions. The Court itself exercises inherent probate jurisdiction (s.4) supplemented by the Act’s express powers.

Because the Act operates on any death occurring after its various amendment dates, every estate practitioner, financial adviser, bank, and family member in Western Australia must constantly check the date of death against the transitional tables to determine which version of the intestacy or election rules applies.

Duties of personal representatives are stated at a high level in s.43(1): to collect and get in the estate, administer it according to law, file inventories and pass accounts as prescribed or ordered, and deliver up the grant if required. More specifically:

• Real and personal estate are assets for payment of debts in the ordinary course (s.10(1)); no retainer or preference is permitted (s.10(2), (4)), although good-faith payments made before knowledge of insolvency are protected (s.10(5)).
• On intestacy the administrator holds on statutory trust (s.13(1)) and must distribute according to the Table, paying the indexed preferential legacy plus interest at 5 % from death until appropriation or payment (s.14(4)).
• Accounts must be filed within times fixed by rules or Court order; neglect triggers Registrar’s notice and potential removal (ss.43–44).
• Sureties may be required and can be called upon with leave (s.26); the guarantee enures for the benefit of all interested persons (s.26(4)).
• Personal representatives represent the real estate in litigation (s.21) and may relinquish office only with Court leave (s.20).

Rights are correspondingly extensive. Executors have the same powers over realty as they historically possessed over personalty (s.12), including sale, lease or mortgage for administration purposes (s.10(3)). Surviving spouses enjoy the household chattels absolutely, the preferential legacy, fractional residue, and the Fourth Schedule election to take the dwelling house at valuation (cl. 1), which can be exercised even if they are also a personal representative (cl. 7). Issue and other relatives have statutory entitlements that cannot be defeated except by a valid will or successful family provision claim.

The Court’s rights include revocation of grants (s.29), appointment of administrators pendente lite (s.35), directions on any administration question (s.45), and confirmation of partitions (s.19). Beneficiaries may apply for orders compelling transfer of devised land or payment of legacies (s.42) and may sue on sureties’ guarantees with leave (s.26(5)).

The Act is not primarily penal but creates civil enforcement mechanisms. Failure to file inventories or accounts can lead to Registrar-initiated proceedings, removal from office (s.29) and liability on the administration bond (s.26). An executor who neglects to apply for rescission of a special grant remains liable for all claims to the extent of assets that might have come to hand (s.40). Wilful or fraudulent errors in accounts prevent the prima-facie protection that flows from a Court order allowing them after three years (s.43(2)).

Breach of the duty to administer according to law exposes the personal representative to personal liability for losses, surcharge in accounts, and removal. Sureties’ liability is capped by the Court but is joint and several (s.26(4)). In insolvency, improper preference can be set aside under the bankruptcy rules imported by the Fifth Schedule.

The Court may revoke grants for cause (s.29), appoint new representatives (s.26(2)(a)), reduce surety liability (s.26(2)(b)), or grant relief to sureties where the estate is being wasted (s.26(6)). Contempt powers and costs orders provide indirect sanctions. There are no criminal offences created by the Act itself; prosecution for forgery or perjury would lie under general criminal law.

The Act is expressly to be read with the Supreme Court Act 1935 (s.1) and applies the electronic processes regime in the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (s.3A). Probate jurisdiction is declared to continue as heretofore (s.4).

Intestacy rules are subordinated to successful claims under the Family Provision Act 1972 (s.60A). Appropriation of the matrimonial home occurs under s.30(1)(k) of the Trustees Act 1962 (Fourth Schedule cl. 1), and trustees appointed under s.17A must invest under Part III of that Act. Insolvent estates follow Commonwealth bankruptcy rules current at death (Fifth Schedule cl. 3), giving the Act a federal interface.

The Wills Act 1970 governs validity of testamentary instruments; the Administration Act only operates once probate is granted or administration ordered. The Public Trustee Act 1941 supplies the Public Trustee as a possible administrator and recipient of interstate balances (s.142). Transfer of Land Act 1893 provisions are engaged when partitions or transmissions of Torrens title land occur (s.19(3)–(4)).

Transitional provisions in the Acts Amendment (Lesbian and Gay Law Reform) Act 2002, the Administration Amendment Act 2022 and earlier statutes determine which version of intestacy or election rules applies according to date of death, creating a layered interaction with historical law. The Interpretation Act 1984 governs the status of Ministerial indexing orders (s.14A(4)–(5)).

The most significant recent reform is the Administration Amendment Act 2022 (No. 5 of 2022), which inserted ss.14A and 14B. These sections empower the Minister to declare updated legacy sums for items 2, 3 and 6 of the s.14 Table by reference to a statutory formula tied to Australian Bureau of Statistics average weekly earnings, rounded up to the nearest $500. A biennial review obligation was imposed (s.14B), with reports to be tabled in Parliament. The change responded to long-standing criticism that the fixed sums inserted in 1976 and only sporadically increased had fallen behind cost of living, eroding the statutory preference intended to protect surviving spouses.

Section 14(11) provides a transitional rule preserving the old sums for deaths before commencement. The COVID-19 Response and Economic Recovery Omnibus Act 2020 added s.3A to facilitate electronic filing and processes.

Earlier amendments modernised family law intersections. The Acts Amendment (Lesbian and Gay Law Reform) Act 2002 and Family Court Amendment Act 2002 extended intestacy rights to de facto partners, including same-sex partners, with graduated sharing rules where a legal spouse also survived. The Administration Act Amendment Act 1984 abolished the right of preference between creditors of equal degree and introduced the insolvency code now in s.10A and the Fifth Schedule, aligning succession law with contemporary bankruptcy policy.

These changes reflect a consistent legislative policy of updating an essentially Edwardian statute to accommodate contemporary family structures, economic reality and administrative efficiency.

Because the Act supplies default rules rather than creating justiciable rights in the abstract, most litigation concerns construction of the s.14 Table, valuation disputes, election rights under the Fourth Schedule, and removal or passing of accounts.

Controversies have arisen over the meaning of “net value” (s.14(2)(b)), the calculation of interest under s.14(4), and whether particular relationships satisfy the cohabitation thresholds in s.15. The requirement in s.12A(2) that parentage of ex-nuptial children be “established to the reasonable satisfaction of the Court” has generated satellite litigation about standard of proof and admissibility of DNA evidence obtained after death.

Fourth Schedule elections have produced disputes about whether a dwelling house forms part of a larger building or agricultural land (cl. 2), the length of the election period, and valuation methodology (cl. 5 now requires a qualified valuer’s market-value opinion). The interaction between the statutory intestacy rules and Family Provision Act 1972 claims has been a fertile source of contested proceedings, particularly where adult children seek further provision from a large estate that would otherwise pass largely to a second spouse.

No High Court decisions directly construe the current WA intestacy Table, but principles from interstate and English decisions on analogous legislation are routinely applied. The abolition of dower and courtesy (s.16) and the ending of executor’s beneficial entitlement to undisposed residue (s.13(2)) removed historic controversies. The 2022 indexing mechanism is too recent to have generated reported litigation, but future challenges may test the validity of Ministerial orders or the rounding formula.

Most practitioners underestimate the granularity of the s.14 Table. The difference between “one-third/two-thirds” and “half/half” when there is only one child (s.14(3)) can be worth hundreds of thousands of dollars. The interest rate of 5 % per annum on the preferential legacy is simple interest only and runs only until appropriation or payment; many executors fail to calculate it correctly, exposing the estate to surcharge.

The Fourth Schedule election is not automatic; it must be exercised by written notice within 12 months (extendable) and, if the spouse is also sole personal representative, notice must go to the Principal Registrar. Failure to obtain a qualified valuer’s report can invalidate the appropriation. Where the deceased held only a half interest as tenant in common, the election still operates on that half interest, which can produce fractional ownership that is difficult to realise.

De facto partner claims under s.15 require strict proof of the qualifying period and, where a legal spouse also survives, evidence that the deceased and spouse were not living as husband and wife during the relevant period. Multiple de facto partners share equally, a result that surprises many families.

Transitional provisions are a minefield: an estate of a person who died in 2021 is still governed by the pre-2022 legacy sums, while the 1976 intestacy rules apply only to deaths after 1 March 1977. The Act’s definition of “real estate” and “personal estate” (s.3) still reflects pre-1893 concepts and can interact unexpectedly with Torrens title or leasehold interests.

Surety guarantees under s.26 or s.62 are deeds that bind sureties jointly and severally; a single missed inventory can trigger liability up to the penal sum. Finally, the protection in s.47A for executors who distribute without searching for illegitimate claimants is narrower than many realise: it applies only where the claim arises solely by virtue of the status provisions and the executor had no notice of the relationship.

Compliance begins with determining the exact date of death and identifying which version of the rules applies. For deaths after 30 March 2022, obtain the current Ministerial order under s.14A to ascertain the applicable legacy sums.

An executor or administrator should immediately secure the assets, open an estate bank account, and prepare a comprehensive inventory (s.43). Where the estate appears solvent, advertise for creditors. Calculate the net value of the intestate property excluding household chattels (s.14(2)). Apply the Table strictly, paying the preferential legacy plus 5 % interest from date of death. Where real estate is involved, decide whether to seek a Fourth Schedule election notice from the surviving spouse before any sale.

If the estate is or may become insolvent, administer strictly in accordance with the Fifth Schedule and applicable bankruptcy rules; do not prefer creditors. File accounts promptly; use the Court’s s.45 jurisdiction for directions on any doubtful point. Where infants are entitled, consider appointing trustees under s.17A to avoid personal liability.

For small estates, consider the simplified procedure under s.55. Foreign grants should be resealed under s.61 after checking surety requirements. Lodge caveats only where there is a genuine interest and be prepared to support them on affidavit.

Maintain meticulous records, obtain tax clearances, and transfer land using the appropriate transmission or survivorship applications. Where family provision claims are possible, reserve sufficient assets or seek Court approval before final distribution. Engage a qualified valuer for any Fourth Schedule election and document all decisions to obtain the protection of s.47.

Regular liaison with the Principal Registrar’s office, timely filing of inventories, and prompt response to any Registrar’s notice under s.44 will avoid removal applications. Where doubt exists, apply for directions under s.45 rather than risk personal liability. Compliance is not merely mechanical; it requires ongoing attention to the interaction between this Act, the Trustees Act 1962, the Family Provision Act 1972 and federal bankruptcy law.