Subdivision 1—Court's practice in testamentary jurisdiction
50—Practice of Court
Except as otherwise provided by the rules, the practice of the Court in its testamentary jurisdiction will be according to the practice of the Court in its jurisdiction under section 5 of the Administration and Probate Act 1919 and section 18 of the Supreme Court Act 1935 immediately before the commencement of this Act.
Subdivision 2—Registrar of Probates
51—Registrar of Probates
(1) The office of Registrar of Probates continues in existence.
(2) There will be such deputy or acting Registrars of Probate and other officers as may be necessary for the proper administration of this Act.
(3) A person is only eligible—
(a) for appointment as the Registrar or acting Registrar if the person is a legal practitioner of at least 5 years standing; or
(b) for appointment as a deputy if the person is a legal practitioner.
(4) A person may not be appointed as the Registrar or as a deputy or acting Registrar except on the recommendation of the Chief Justice.
(5) The Registrar or a deputy Registrar must not be dismissed or reduced in status except on the recommendation or with the concurrence of the Chief Justice.
52—Registrar's powers and authorities
The Registrar has the same powers and authorities with respect to proceedings in the Court as immediately before the commencement of this Act.
53—Exercise by Registrar of jurisdiction, powers or authorities of Court
(1) The Registrar may, to the extent authorised by the rules, exercise the jurisdiction, powers and authorities of the Court whether arising under this Act or otherwise.
(2) Subject to the rules, an appeal lies to a Judge against a judgment, determination, order, direction or decision given or made by the Registrar in the exercise of a jurisdiction, power or authority of the Court.
54—Probate of will deposited with Registrar
(1) If a testator whose will is deposited with the Registrar dies, any executor of the will may apply for probate of the will.
(2) An application for a grant of probate under this section must be made in accordance with the rules.
(3) On application made in accordance with the rules, the Registrar may grant probate of the will to the executor.
55—Registrar to obtain direction of Judge in doubtful case
(1) If the Registrar has doubt—
(a) as to whether probate or administration should be granted in a particular case; or
(b) whether the Registrar should exercise a power or discretion relating to the Registrar's office in any particular case,
the Registrar may obtain the direction of a Judge.
(2) If the Registrar obtains the direction of a Judge, the Registrar must act in accordance with the direction (and the Registrar is subject in all cases to the control and orders of the Court).
Subdivision 3—General provisions relating to granting and revoking of probate and administration
56—Grant of probate or administration to adults only
A grant of probate or administration may not be made to a person under the age of 18 years.
57—Effect of probate and administration granted interstate or overseas
(1) If an interstate grant of probate or administration is produced to the Registrar and a copy of it is deposited with the Registrar, the Registrar may register that grant and once so registered—
(a) that grant of probate or administration has the same force, effect and operation as if it had been originally granted by the Court; and
(b) subject to this Act, every executor or administrator under that grant of probate or administration has, the same rights and powers, and must perform the same duties and be subject to the same liabilities, as if the probate or administration had been originally granted by the Court.
(2) If a foreign grant of probate or administration is produced to the Registrar and a copy of it is deposited with the Registrar, that grant of probate or administration may be sealed with the seal of the Court and once so sealed—
(a) that grant of probate or administration has the same force, effect and operation as if it had been originally granted by the Court; and
(b) subject to this Act, every executor or administrator under that grant of probate or administration has, the same rights and powers, and must perform the same duties and be subject to the same liabilities, as if the probate or administration had been originally granted by the Court.
(3) For the purposes of this section, a foreign grant of probate or administration includes any document that the Registrar is satisfied—
(a) was issued by a court of competent jurisdiction of the relevant country; and
(b) corresponds, according to the law of that country, to probate of a will or to an administration in this State.
(4) For the purposes of subsection (3), the Registrar may accept—
(a) a certificate from a consul or consular agent in this State of the relevant country; or
(b) such other evidence as the Registrar considers sufficient.
(5) For the avoidance of doubt, it is not necessary for an interstate grant of probate or administration to be sealed by the Court.
(6) In this section—
administration includes exemplification of letters of administration and such other formal evidence of letters of administration purporting to be under the seal of a court of competent jurisdiction that the Registrar considers sufficient;
probate includes exemplification of probate and any other formal document purporting to be under the seal of a court of competent jurisdiction that the Registrar considers sufficient.
58—Provisions for evidence in case of foreign will
(1) If an application for probate or administration with the will annexed is made in relation to a foreign will and the application is not contentious, the Court may—
(a) grant probate or administration on the consul or consular agent in this State for the relevant country, or any other person acquainted with the law of the relevant country, testifying, to the satisfaction of the Court, that the will is valid according to such law; or
(b) issue a commission to take evidence in the relevant country in support of the will and in proof of the law affecting the validity of the will.
(2) The provisions of the law for the time being in force with regard to commissions issued from the Court in actions depending on commissions will, so far as applicable, apply to commissions issued under this section.
59—Appointment of joint administrators
The Court may grant administration to more than 1 person.
60—Examination of witnesses
(1) The Court may—
(a) require the attendance of a person the Court thinks fit to examine, or cause to be examined, in any proceedings in respect of testamentary matters; and
(b) examine orally, or cause to be examined orally, parties and witnesses under oath; and
(c) either before or after, or with or without such examination, cause any party or witness to be examined on interrogatories, or receive their affidavits or solemn affirmations (as the case may be).
(2) The Court may issue a subpoena to compel a person to attend the Court for examination under subsection (1).
61—Order to produce document purporting to be testamentary
(1) The Court may, whether or not any proceedings are pending in the Court with respect to probate or administration, issue a subpoena ordering a person to produce a document being or purporting to be testamentary which is shown to be in the possession of or under the control of that person.
(2) A subpoena issued under subsection (1) may, instead of providing for production of a document before the Court, provide for the production of the document to an officer of the Court nominated in the subpoena.
(3) If it is not shown that a document being or purporting to be testamentary is in the possession of or under the control of the person, but it appears that there are reasonable grounds for believing that the person has knowledge of such a document, the Court may, by subpoena, order the person to attend the Court for the purpose of being examined on oath in open court, or before a Judge in chambers, or on interrogatories, about the document.
(4) The costs of any proceedings under this section are in the discretion of the Court.
62—Caveats
(1) A caveat against the grant of probate or administration may be lodged in the Probate Registry of the Court.
(2) Except as otherwise provided by this Act or the rules, the practice and procedure with respect to caveats against the grant of probate or administration will correspond with the practice and procedure with respect to caveats in use in the Court immediately before the commencement of this Act.
63—When persons interested in real property affected by a will are to be served with proceedings
(1) If, in the case of a will that affects real property—
(a) proceedings are taken under this Act—
(i) for proving the will in solemn form; or
(ii) for revoking the grant of probate of the will on the ground of the invalidity of the will; or
(b) the validity of the will is disputed in a contentious cause or matter under this Act,
the devisees and other persons having or pretending interest in the real property affected by the will must, unless the Court otherwise directs, be served with the proceedings and, subject to the rules under this Act or under the Supreme Court Act 1935, may be permitted to become parties or intervene for their respective interests in that real property in the same manner as the next of kin or others having or pretending interest in personal property affected by a will are served.
(2) However—
(a) in a case in which the Court is not satisfied that the deceased was at the time of death seized of, or entitled to, or had power to appoint by will some real property beneficially; or
(b) in a case in which the will propounded, or of which the validity is in question, would not in the opinion of the Court, though established as to personal property, affect real property,
it is not necessary that any person having or pretending interest in the real property of the deceased be served with the proceedings.
(3) In—
(a) a case referred to in subsection (2); or
(b) a case in which the Court, with reference to the circumstances of the property of the deceased or otherwise, thinks fit,
the Court may proceed without serving with the proceedings the persons interested in real property provided that the probate, decree or order of the Court does not in any case affect any person in respect of their interest in real property, unless that person has been served with, or been made a party to, the proceedings, or derives title under or through a person who has been served with, or been made a party to, the proceedings.
64—Grant of administration to duly authorised attorney
If a person who is entitled to be granted probate or administration is outside the State, the person may, by power of attorney, appoint the Public Trustee or a person within the State to act for them, and administration may be granted to the Public Trustee or the other person on behalf of the person who appointed them on such terms and conditions as the Court thinks fit.
65—After grant of administration no person to have power to sue as executor
Subject to this Act, after a grant of administration no person has power to sue or prosecute any action, or otherwise act as executor of the deceased, as to the estate comprised in or affected by the grant, until that administration has been revoked.
66—Rights of executor renouncing, not acting, or not appearing when cited, to cease as if not named in will
If—
(a) a person renounces probate of the will of which the person is appointed executor or 1 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 cited to take probate but does not appear to the citation,
the right of that person or executor in respect of the executorship wholly ceases, and the representation of the testator and the administration of the testator's estate will and may, without any further renunciation, go, devolve and be committed in the same manner as if the person had not been appointed executor.
67—Grant of probate or administration to person other than the person otherwise entitled
(1) If the Court considers it appropriate—
(a) for the proper administration of the estate of a deceased person; and
(b) in the interests of the persons who are, or may be, interested in the estate of the deceased person,
to grant probate of the deceased person's will or administration of the deceased person's estate to a person other than the person, or all of the persons, otherwise entitled to the grant of probate or administration, the Court may instead, on application, grant probate or administration to—
(c) without limiting paragraph (b), if there is more than 1 person entitled to the grant—any or all of the other persons entitled; or
(d) any person the Court considers appropriate.
(2) If the Court considers that there are reasonable grounds for believing that a person otherwise entitled to a grant of probate of the will of a deceased person or administration of the estate of a deceased person has committed an offence relating to the deceased person's death, the Court may instead of granting probate or administration to that person, grant probate or administration to—
(a) without limiting paragraph (b), if there is more than 1 person entitled to the grant—any or all of the other persons entitled; or
(b) any person the Court considers appropriate.
(3) An application for a grant of probate or administration under this section must be made in accordance with the rules.
(4) The Court may make a grant of probate or administration under this section subject to such conditions that the Court thinks appropriate (but may not require any surety in relation to the grant).
68—Special administration
(1) If at the expiration of 12 months from the death of a person—
(a) the executor to whom probate of the will of the deceased person has been granted; or
(b) the administrator to whom administration of the estate of the deceased person has been granted,
(the original executor or administrator) is residing outside this State, the Court may grant a person special administration limited to the collection, management and distribution of the estate of the deceased person.
(2) A grant of special administration may only be made to—
(a) a person who was the spouse or domestic partner of the deceased; or
(b) a person who is the next of kin of the deceased; or
(c) a creditor of the deceased; or
(d) a person interested under the will; or
(e) the Public Trustee,
on application by that person.
(3) A person applying for a grant of special administration must, in addition to the oath usually taken by administrators—
(a) make oath that the original executor or administrator is resident outside this State; and
(b) if the applicant is not the Public Trustee—make oath that the person is, by reason that the original executor or administrator is outside the State, delayed in recovering or obtaining the payment of money or the possession of the estate to which the person is by law entitled.
(4) If the original executor or administrator returns to this State, the original executor or administrator may apply to the Court for an order revoking the grant of special administration.
(5) If the Court is satisfied that the original executor or administrator intends, in good faith, to remain within this State until the estate of the deceased has been duly administered, the Court may order the revocation of the grant of special administration on such terms and conditions as to security, costs or otherwise as seems reasonable to the Court.
(6) If the Court makes an order revoking a grant of special administration, the special administrator must duly account to the original executor or administrator and pay over and deliver all goods and money received by the special administrator, and transfer all lands vested in the special administrator, then remaining undisposed of.
(7) If the original executor or administrator returns to this State but fails to apply for an order revoking the grant of special administration, the original executor or administrator is, despite the grant of special administration remaining in effect, liable to answer and make good all claims and demands against the estate of the deceased to the extent of the assets that have come to the hands of the original executor or administrator, or that might have come to the hands of the original executor or administrator but for the wilful failure or default of the original executor or administrator.
69—Revocation of grant of probate or administration not to prejudice legal action
(1) If, before the revocation of a grant of probate or administration, proceedings are commenced against the executor or administrator who obtained the grant, the Court in which such proceedings are pending may order the revocation of the probate or administration, and the grant of any probate or administration which has been made consequent on the proceedings, to be notified on the record.
(2) If, before the revocation of a grant of special administration, proceedings are commenced against the administrator who obtained the grant, the Court in which such proceedings are pending may order the revocation of the special administration, and the grant of any administration which has been made consequent on the proceedings, to be notified on the record.
(3) On an order being made under this section, the proceedings will continue in the name of, or against, the new or original executor or administrator as if the proceedings had been originally commenced by or against the new or original executor or administrator, subject to such conditions and variations (if any) as the Court directs.
70—Protection to persons acting in reliance on probate or administration
(1) The revocation of a grant of probate or administration made under this Act does not render the executor or administrator liable for any prior act done by the executor or administrator in good faith and in reliance on the grant of probate or administration.
(2) Subject to this Act, if a person acting in good faith and in reliance on a grant of probate or administration made under this Act, deals with an asset of the estate of a deceased person, the person incurs no personal liability by so doing despite that the grant of probate or administration may subsequently prove to be invalid or be revoked.
(3) This section does not affect the rights that may lie against a person to whom property has been invalidly transferred, or to whom a payment has been invalidly made, by an executor or administrator.
administration includes an order under section 9 of the Public Trustee Act 1995 authorising the Public Trustee to administer the estate of a deceased person.
71—Statement of assets and liabilities to be provided with application for probate or administration
(1) A person who applies—
(a) for a grant of probate or administration; or
(b) for the sealing of any grant of probate or administration made by a court outside Australia,
in respect of the estate of a deceased person must, in accordance with the rules, disclose to the Court the assets and liabilities of the deceased known to the person at the time of making the application.
(2) If an interstate grant of probate or administration is registered under section 57, the executor or administrator must, in accordance with the rules, disclose to the Court the assets and liabilities of the deceased person known to the executor or administrator at the time that the grant was registered.
(3) An executor, administrator or trustee of the estate of a deceased person (being an estate in respect of which a grant of probate or administration has been made, registered or sealed by the Court) must, in accordance with the rules, disclose to the Court any assets or liabilities of the deceased person (not being assets or liabilities previously disclosed under this section) which come to the knowledge of the executor, administrator or trustee while acting in that capacity.
(4) An executor or administrator acting under an interstate grant of probate or administration that has been registered under section 57 is not required to disclose assets located outside this State or liabilities that arose outside this State.
(5) If the deceased person was not, at the time of death, domiciled in Australia, the disclosure under subsection (1) or (3) is only required in respect of—
(a) assets situated in Australia; and
(b) liabilities that are a charge on those assets or arose in Australia.
(6) For the purposes of subsection (5), if—
(a) it is uncertain whether an asset is situated, or a liability arose, in Australia or elsewhere; or
(b) an asset is situated, or a liability arose, in part in Australia and in part elsewhere,
the asset will be taken to be situated, or the liability will be taken to have arisen, in Australia.
(7) An executor, administrator or trustee of an estate must not dispose of an asset of the estate of a deceased person in respect of which disclosure has not been made to the Court under this section.
(8) Nothing in subsection (5) affects the interests of a person who acquires an asset of a deceased estate in good faith for valuable consideration and without knowing that the asset has not been disclosed to the Court under this section.
(9) A reference in this section to the assets and liabilities of a deceased person is a reference to—
(a) assets and liabilities of the deceased at the date of the person's death; and
(b) assets falling into the estate after the death of the deceased not being an accretion to the estate arising out of an asset existing at the date of the person's death,
but does not include a reference to any asset or liability prescribed by the rules.
(10) In this section—
administration includes an order under section 9 of the Public Trustee Act 1995 authorising the Public Trustee to administer the estate of a deceased person.
72—Obligation of person dealing with asset to ensure that it has been properly disclosed
A person who deals with an asset of the estate of a deceased person that is required to be disclosed under section 71 must satisfy themself—
(a) by examination of the grant of probate or administration; or
(b) by examination of the Registrar's certificate; or
(c) on the basis of some other reliable evidence,
that the asset has in fact been so disclosed.
Subdivision 4—Small estates
73—Deemed grant of probate or administration to Public Trustee for small estate
(1) For the purposes of this section, the maximum monetary value of property comprising a deceased person's estate is—
(a) $100 000; or
(b) such other amount—
(i) as may be fixed by the Minister by notice in the Gazette from time to time; or
(ii) as may be calculated in accordance with a formula or methodology determined by the Minister by notice in the Gazette from time to time.
(2) If—
(a) a person dies leaving personal property not exceeding the maximum monetary value; and
(b) the deceased person's estate consists only of personal property; and
(c) no application for a grant of probate or administration has been made in respect of the deceased person's estate; and
(d) the Public Trustee could apply for an administration order under section 9 of the Public Trustee Act 1995 in respect of the deceased person's estate,
the Public Trustee may, by notice in the Gazette, give notice of the Public Trustee's intention to administer the estate under this section in accordance with the rules.
(3) The Public Trustee must, as soon as practicable after giving notice under subsection (2)—
(a) cause a copy of the notice to be published on a website approved by the Minister; and
(b) file the deceased person's will (if any exists) with the Registrar.
(4) On the expiry of 14 days after the publication of the notice under subsection (2), the Public Trustee will be taken to have been granted—
(a) if the deceased person died leaving a will—probate of the will of the deceased person; or
(b) in any other case—administration of the estate of the deceased person.
(5) The Court may, on application by the Public Trustee or a person interested in the estate of the deceased person, make an order revoking the Public Trustee's administration of the estate under this section.
(6) If, in the course of administering an estate under a deemed grant of probate or administration under this section, the value of the estate is found to exceed 120% of the maximum monetary value, the Public Trustee must as soon as practicable, apply for a grant of probate or administration in respect of the estate.
(7) This section does not affect the right of any person to recover the whole or part of any payment made or property delivered under this section from any person who received it from the Public Trustee.