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Administration and Probate Act 2006 (NI)

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Act No. 8, 2006
Act Applied Law as amended, incorporating amendments up to Norfolk Island Continued Laws Amendment Ordinance 2015 (No. 2, 2015)
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure, Regional Development and Cities
Registered 26 Oct 2015
Start Date 18 Jun 2015
Table of contents.

 

NORFOLK                            ISLAND

 

Administration and Probate Act 2006

No. 8, 2006

Compilation No. 1

Compilation date:                              18 June 2015

Includes amendments up to:            Norfolk Island Continued Laws Amendment            Ordinance 2015
(No. 2, 2015)

Prepared Date:                                  26 August 2015

 


 

NORFOLK                            ISLAND

Administration and Probate Act 2006

TABLE OF PROVISIONS

                                                                                                                                                                                   Page


Part 1      Preliminary.. 1

1      Name of Act 1

2      Commencement 1

3      Interpretation for Act 1

Part 2      Administration.. 3

4      Registrar and deputy registrar of Probates. 3

5      Curator of deceased estates. 3

6      Registrar’s seal and stamps. 3

Part 3      Grant of representation.. 4

Division 3.1        Jurisdiction of the Supreme Court 4

7      Supreme Court to make finding about domicile of deceased person. 4

8      Probate or administration may be granted. 4

9      Evidence of death. 4

10     Grant on presumption of death. 4

11     Issue of probate by registrar 6

12     Sealing of probate and letters of administration. 6

13     Grant to single executor reserving leave to others to apply. 6

14     Grant of probate to curator 6

15     Practice about granting administration of real and personal estate. 6

16     Eligible administrators. 7

17     Rights and duties of administrator 7

18     Renunciation or non-appearance by executor 7

19     Renunciation etc by person appointed both executor and trustee of will 8

20     Administration to guardian of child sole executor 8

21     Administration under power of attorney. 8

22     Administration pendente lite and receiver 8

23     Power to appoint administrator 9

24     Proceeding if executor neglects to prove will 9

25     Issue of special letters of administration. 9

26     Special administrator to make certain affidavits. 9

27     On return of original executor or administrator special administration to be rescinded. 10

28     Accounting by special administrator 10

29     Liability of executor or administrator neglecting to apply for rescission of special
administration...................................................................................................................................... 10

30     Revocation of grants not to prejudice actions or suits. 10

31     Discharge or removal of executor or administrator 10

32     Revocation of grant if person living at date of grant 11

33     Effect of revocation of grant 11

Division 3.2        Caveats. 13

34     Caveat may be lodged. 13

35     If caveat lodged court may grant order nisi 13

36     Service of order nisi 13

37     Proceeding if caveator does not appear 13

38     Evidence on hearing of order nisi 13

39     Withdrawal and removal of caveat 13

Division 3.3        Effect of grant of representation. 14

40     Estate to vest in curator until grant 14

41     Real and personal estate to vest in executor or administrator 14

42     Real estate held in trust 14

43     Property of deceased to be assets. 14

44     Property of deceased liable for debts. 14

45     Appointments by will under general power 15

46     Administration of assets. 15

47     Application of income of settled residuary estate. 15

48     Real estate to be held on trusts of will 16

49     Rights of executor in relation to real estate. 16

Division 3.4        Position of executor of an executor. 17

50     Executor of executor 17

51     When ceases to represent deceased. 17

52     Rights and liabilities of executor of executor 17

Part 4      Intestacy.. 17

Division 4.1        Preliminary. 17

53     Interpretation for pt 4. 17

Division 4.2        Distribution on intestacy. 19

54     Executor or administrator to hold property of intestate on trust for persons entitled. 19

55     Distribution between spouse and eligible partner 19

56     Provisions relating to persons who at date of death of intestate are children. 19

57     Estate by courtesy or right of dower not to arise. 20

58     Distribution of intestate estate. 20

59     Interest of partner on intestacy in personal chattels. 21

60     Immovable property of intestate. 21

61     How distribution to issue is made. 22

62     Gifts made before death of intestate. 22

63     How distribution to next of kin is made. 23

64     How distribution to the Administration is made. 24

65     Partial intestacies. 24

66     Presumptions of parentage. 25

Division 4.3        Rights of partners to intestate dwelling houses. 25

67     Definitions for div 4.3. 25

68     Claim by partner to dwelling house. 25

69     Valuation. 26

70     Right not exercisable for certain tenancies. 26

71     Right not exercisable in certain other cases. 26

72     Personal representative not to sell or dispose of interest without consent 27

73     Rule that trustee not to purchase trust property. 27

74     If surviving partner is under legal disability. 27

Part 5      Simultaneous deaths. 27

75     Devolution of property. 27

Part 6      Functions of executors and administrators. 28

76     Powers of executors and administrators to sell, mortgage or lease real estate. 28

77     Supreme Court may make special order 29

78     Supreme Court may authorise postponement of realisation and carrying on of business. 29

79     Supreme Court may order partition in summary way. 29

80     Personal representative not required to continue to act against own consent 30

81     In suits executor or administrator to represent real estate. 30

82     All debts to stand in equal degree. 30

83     Interest on legacies. 31

84     Executor may sign acknowledgment instead of conveyance. 31

85     Summary application for legacy etc. 31

86     Filing and passing accounts. 31

87     Passing and allowance of accounts of executors and administrators. 32

88     If accounts not exhibited registrar to summon administrator before court, which may
 inflict penalty. 32

89     Proceedings under s 88 not to affect other proceedings. 32

90     Supreme Court may make order about disposal of money in hands of executor etc. 33

91     Payments under revoked probates or administrations valid. 33

92     Persons etc making payments on probate granted for estate of deceased person to be
indemnified. 33

93     Distribution of assets. 33

94     Claims barred against executor or administrator in certain cases. 34

95     Distribution of estate by executors and administrators. 34

96     Right to follow assets. 34

97     Executors may compound etc. 35

98     Every executor etc to be deemed resident in Norfolk Island. 35

99     Commission of executors etc and curator 35

100   Limits of professional charges for obtaining probate etc. 36

101   Bill to be taxed by taxing officer 37

102   Taxing rules to apply. 37

Part 7      Liability of certain persons in relation to deceased estates. 37

103   Fraudulently obtaining or keeping property. 37

104   Persons liable for waste of deceased estate. 38

Part 8      Small estates. 38

105   Application to registrar for probate or administration. 38

106   Duties of registrar 38

107   Issue of probate or administration in name of Supreme Court 38

108   Matters about which registrar not satisfied. 39

109   Obligation of registrar 39

Part 9      Recognition of foreign grants. 39

110   Orders to collect and administer estates for pt 9. 39

111   Inclusion of orders to collect and Scottish confirmation. 39

112   Reseal of grant made in reciprocating jurisdiction. 39

113   Registrar not to seal 40

114   Supreme Court may require security. 40

115   Effect of sealing. 40

116   Caveat 40

117   Seal not to be attached until duty is paid etc. 41

Part 10     Curator of Deceased Estates. 41

118   Duties functions and powers of the curator and the deputy curator 41

119   Estates to the value of $10 000 or less. 42

120   Election to administer estate. 42

121   Orders to curator to collect and administer 43

122   Effect of order 45

123   Grant of probate or administration notwithstanding appointment of curator 45

124   Cessation of rights and liabilities of curator 45

125   Order to curator to collect and administer in special circumstances. 46

126   Notice of order to be published. 46

127   Supreme Court orders against curator 46

128   Applications how heard. 47

129   Curator to act as Supreme Court directs. 47

130   Curator may obtain directions of Supreme Court 47

131   Mode of proceeding under this Act 47

132   Accounts to be kept etc. 48

133   Receipt of curator sufficient discharge. 48

Part 11 –Family provision.. 48

134   Application of part 11. 48

135   Eligibility. 48

136   Family provision orders. 50

137   Time for making application under s 136 (1) 51

138   Variation, suspension and discharge of orders. 51

139   Service of application for order under s 136 or s 138. 52

140   Form of order and burden of provision. 52

141   Class fund. 52

142   Property subject to power of appointment 53

143   Presumption of death. 54

144   Exoneration of part of estate from provision. 54

145   Operation of order for provision out of estate of deceased person. 55

146   Certified copy of order 55

147   Permission of court necessary to validity of mortgage, charge or assignment of an interest 55

148   Property available for provision. 55

149   Protection of administrator 56

150   Relevance of testator’s reasons. 56

Part 12     Procedure. 56

151   Method of taking evidence. 56

152   Order to produce instrument purporting to be testamentary. 56

Part 13     Miscellaneous. 57

153   Registrar to keep record of probates etc. 57

154   Proved wills and other documents to be held by Supreme Court 57

155   Official certificate or copy of grants and wills obtainable. 58

156   Costs. 58

157   Person fraudulently disposing of will liable for damages. 58

158   Application of certain sections. 58

159   Repeal and saving. 58

Schedule 1. 59

Part 1.1    Order of application of assets if estate solvent 59

Part 1.2    Rules about payment of debts and liabilities if estate insolvent 59

Schedule 2    Distribution of intestate estate on intestacy. 60

Part 2.1    Distribution of estate if intestate survived by partner 60

Part 2.2    Distribution of estate if intestate not survived by partner 61

Schedule 3. 62

Part 3.1    Imperial Acts repealed. 62

Part 3.2    Acts repealed. 62

 


 

 

 


 

NORFOLK                            ISLAND

Administration and Probate Act 2006

An Act relating to the administration of the estates of deceased persons.

    

    

    

    

BE IT ENACTED by the Legislative Assembly of Norfolk Island as follows —

Part 1                   Preliminary

1                Name of Act

This Act is the Administration and Probate Act 2006.

2                Commencement

This Act commences on the day that is 30 days following the day notice of assent is published in the Gazette.

3                Interpretation for Act

           (1)   In this Act:

administration includes all letters of administration of the real and personal estate of deceased persons whether with or without the will annexed and whether granted for general, special, or limited purposes, exemplification of letters of administration and any other formal evidence of the letters of administration purporting to be under the seal of a court of competent jurisdiction that is in the opinion of the Supreme Court sufficient.

administration bond means a bond or guarantee, with or without sureties, prescribed under the rules.

administrator includes any person to whom administration is granted.

court means the Supreme Court.

curator  means the Curator of Deceased Estates under section 5.

deceased person or the deceased means a person dying on or after 1 July 1929.

Note: This Act substantially follows the Administration and Probate Act 1929 of the ACT that was adopted as a law of Norfolk Island at on 14 April 1960 by the Probate and Administration Act 1960 and re-adopted on 28 October 1976 by the Probate and Administration Act 1976. Under the adopted law the legislation applied to deceased persons who died after 1 July 1929. As the legislation is largely a continued extension of the earlier legislation this enactment also applies to the estates of persons who died after 1 July 1929.

deputy curator  means the Deputy Curator of Deceased Estates under section 5.

deputy registrar means a Deputy Registrar of Probates under section 4.

distribute means to pay, deliver, or divide the estate or property referred to, to or among the person or persons entitled under any intestacy or under any will.

election means an election to administer the estate or a part of the estate of a deceased person.

issue of a person means all issue whether legitimate or illegitimate. and a reference to issue (however described) in a will unless a contrary intention appears from the will, must be construed as referring to all issue whether legitimate or illegitimate.

prescribed means prescribed by rules.

probate includes exemplification of probate or any other formal document, purporting to be under the seal of a court of competent jurisdiction, that, in the opinion of the Supreme Court, is deemed sufficient.

purposes of administration includes the payment in due course of administration of the debts, funeral and testamentary expenses  duties and commission, and the costs, charges and expenses of the executor or administrator, and any costs that may be ordered to be paid out of the estate.

registrar means the Registrar of Probates under section 4.

representation means the probate of a will and administration.

rules mean rules under the Supreme Court Act that apply in relation to the court.

seal of the court means the seal referred to in section 6.

will includes a codicil.

           (2)   In this Act, a reference to a curator, in relation to a country, includes a reference to an officer of that country who is entitled under a law of that country to apply, if a deceased person has died intestate leaving no next of kin, to a court for an order that authorises the officer to administer the estate of the deceased person.

           (3)   An example provided in this Act is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears.

           (4)   Until such time as they are amended or replaced by rules made by the Supreme Court, the Supreme Court Rules of the Supreme Court of the A.C.T,  Part 3, Order 72 and the forms in Part 1.2 (forms 2.1 to 2.29) made under the Supreme Court Act 1933  (A.C.T.) in force at the commencement of this Act apply to proceedings under this Act with such modification as may be necessary to comply with this Act including that a reference to the Territory includes reference to the Administratio of Norfolk island and to a public trustee in the Rules or forms includes a reference to the curator.


 

Part 2                   Administration

4                Registrar and deputy registrar of Probates

           (1)   There shall be a Registrar of Probates and at least one Deputy Registrar of Probates.

           (2)   The chief executive officer may create and maintain offices in the public sector the duties of which include exercising the functions of the registrar and deputy registrar

           (3)   The registrar and the deputy registrars, if there are more then one, shall be the public sector employees for the time being performing the duties of the public sector offices referred to in subsection (2).

           (4)   Until the chief executive officer otherwise determines the Registrar of the Supreme Court shall be the registrar and the Deputy Registrar of the Supreme Court shall be the deputy registrar.

5                Curator of deceased estates

           (1)   There shall be a curator and deputy curator of deceased estates.

           (2)   A deputy curator may exercise any function of the curator, subject to any direction of the curator.

           (3)   The curator must be a public sector employee qualified for admission to practice as a legal practitioner in Norfolk Island or a State or Territory.

           (4)   The curator and deputy curator shall be appointed by the Minister.

           (5)   If the office of the curator is vacant, or the curator is unable to act for any reason, the deputy curator may perform the duties and functions and exercise the powers of the curator even if he or she is not qualified in accordance with subsection (3).

           (6)   Until other appointments are made, the persons who immediately before the commencement of this Act were holding the offices of Curator of Deceased Estates and Deputy Curator of Deceased Estates shall be the curator and the deputy curator respectively and shall be deemed to have been appointed as such under this section.

                  Note:            The officer of Curator and Deputy Curator were previously established under the Probate and Administration Act 1976.

6                Registrar’s seal and stamps

           (1)   The registrar shall have a seal and a stamp, for use under this Act, the respective designs of which shall be determined by the Minister.

           (2)   A document that is required by this Act to be sealed with the seal of the Supreme Court may be stamped with the stamp referred to in subsection (1) and, when so stamped, has the same force and effect as if it had been sealed with the seal referred to in that subsection.

           (3)   The registrar and any deputy registrar may have a stamp for affixing on documents a mark that is a facsimile of his or her signature.

           (4)   Instead of signing a document, or a copy of or an extract from a document, for this Act, a person who exercises or who has exercised a function of the registrar or a deputy registrar may cause the document, copy or extract to be stamped with a facsimile of his or her signature, and the document, copy or extract shall then be deemed to have been signed by that person.

 

Part 3                   Grant of representation

Division 3.1             Jurisdiction of the Supreme Court

7                Supreme Court to make finding about domicile of deceased person

On an application made under this Act—

                   (a)    for the grant of probate of the will, or administration of the estate, of a deceased person; or

                   (b)    to have probate of the will, administration of the estate, or an order to collect and administer the estate, of a deceased person granted by a court of competent jurisdiction in a State or other Territory sealed with the seal of the Supreme Court; or

                   (c)    by the curator for an order to collect and administer the estate of a deceased person,

the Supreme Court shall not grant the application or the registrar shall not issue the grant of probate or administration, seal the probate, administration or order of the court, or grant an order to the curator unless the court or the registrar has made a finding in relation to the domicile of the deceased person at the time of death.

8                Probate or administration may be granted

           (1)   The Supreme Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, within Norfolk Island.

           (2)   The Supreme Court shall have jurisdiction to grant probate of the will, or administration of the estate, of a deceased person who did not leave property, whether real or personal, within Norfolk Island, if the court is satisfied that the grant of probate or administration is necessary.

9                Evidence of death

           (1)   Probate of the will, or administration of the estate, of a person may be granted by the Supreme Court if it is satisfied, by direct evidence or by evidence supporting a presumption of death, that the person is, or may be presumed to be, dead.

           (2)   A grant of probate of the will, or administration of the estate, of a person made on direct evidence of the death of the person or on evidence supporting a presumption of the death of the person is valid notwithstanding that the person is, after the day the grant was made, found to have been alive on that day.

10              Grant on presumption of death

           (1)   If the Supreme Court makes a grant of probate of the will, or administration of the estate, of a person on evidence supporting a presumption of the death of the person—

                   (a)    the grant shall be expressed to be made on presumption of the death of the person; and

                   (b)    the estate of the person shall not be distributed without the leave of the court; and

                   (c)    the court may, in the probate or administration or by an order made at any time, give leave to distribute the estate; and

                   (d)    the court may, in giving leave to distribute the estate of the person, direct that the distribution shall not be made unless each person who is to take under the distribution gives an undertaking or security that he or she will, if the probate or administration is revoked—

                            (i)   if the person has received property other than money under the order—restore the property or, at his or her option, pay an amount equal to the value of the property at the time he or she received the property to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person; or

                           (ii)   if the person has received money under the order—pay an amount equal to the amount of the money received under the order to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person; and

                   (e)    the court may direct the executor or the administrator to give, before the estate is distributed, the notices (including a notice specifying a date before which a caveat against the distribution of the estate may be lodged with the registrar) that the court considers appropriate.

           (2)   If an executor or administrator of an estate has given the notices directed by the Supreme Court under subsection (1) (e), the executor or administrator—

                   (a)    may, subject to subsection (3), after the end of the period specified in the notices, distribute the estate among the persons entitled to it, having regard only to the claims of which the executor or administrator has notice at the time of the distribution; and

                   (b)    is not liable, in relation to any part of the estate so distributed, to a person entitled to that part of whose claim he or she did not have notice at the time of the distribution.

           (3)   If a caveat against the distribution of an estate has been lodged with the registrar in accordance with a notice under subsection (1) (e)—

                   (a)    the executor or administrator shall not distribute the estate among the persons entitled to it except under an order of the Supreme Court under subsection (4); and

                   (b)    the executor or administrator, the person who lodged the caveat or a person interested in the distribution of the estate may make application to the court for an order under subsection (4).

           (4)   The Supreme Court may, on application under subsection (3) (b), make an order authorising the executor or administrator of an estate to distribute the estate among the persons entitled to it notwithstanding the lodging of the caveat.

           (5)   An order under subsection (4) may authorise the distribution of the estate subject to the conditions the Supreme Court considers appropriate.

11              Issue of probate by registrar

           (1)   Subject to this section, probate or administration may, on application to the registrar, supported by affidavits on which for the time being the Supreme Court would, in the opinion of the registrar, grant the probate or administration, be issued by the registrar as of course in the name and under the seal of the court, and every such probate or administration shall be deemed to have been granted by the court.

           (2)   The registrar shall not, without an order of the Supreme Court, issue probate of the will, or administration of the estate, of a deceased person if—

                   (a)    a caveat has been lodged; or

                   (b)    it appears to the registrar to be doubtful whether the probate or administration should be granted.

           (3)   Whenever the Supreme Court makes an order for the grant of probate or administration, the probate or administration shall be issued by the registrar in the name and under the seal of the court.

12              Sealing of probate and letters of administration

The seal of the Supreme Court shall not be attached to any probate or letters of administration—

                   (a)    until all probate, stamp and other duties or levies (if any) payable under any law in force in Norfolk Island have been paid; and

                   (b)    except on an affidavit that notice of the intention to apply in that behalf has been published once in the Gazette 14 days before the making of the affidavit and that no caveat has been lodged.

13              Grant to single executor reserving leave to others to apply

The Supreme Court may, if it considers appropriate, grant probate to 1 or more of the executors named in a will reserving leave to the executor who has not renounced, or the executors who have not renounced, to come in and apply for a grant of probate at a future time.

14              Grant of probate to curator

If a deceased person has named, as an executor of his or her will—

                   (a)    the curator; or

                   (b)    the curator of a State; or

                   (c)    the curator for a Territory,

the Supreme Court may grant probate of the will to that curator.

15              Practice about granting administration of real and personal estate

Subject to this Act and the rules, the practice and procedure in relation to the granting of administration of the personal estate of an intestate shall be applicable 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.

16              Eligible administrators

           (1)   The Supreme Court may grant administration of an intestate estate to any of the following persons, subject to this section:

                   (a)    the partner of the intestate;

                   (b)    1 or more of the next of kin of the intestate;

                   (c)    if the intestate is survived by 2 partners—either partner, or both partners conjointly;

                   (d)    a partner or partners of the intestate conjointly with 1 or more of the next of kin of the intestate;

                   (e)    any other person (whether or not a creditor of the intestate) the court considers appropriate.

           (2)   The Supreme Court shall only grant administration of an intestate estate to a person who is at least 18 years old.

           (3)   The Supreme Court shall not grant administration of an intestate estate to a person referred to in subsection (1) (e) if there is any other person to whom administration may be granted under this section:

                   (a)    who is fit to be trusted, in the opinion of the court; and

                   (b)    who appears and prays for administration after being duly cited.

           (4)   In this section:

partner, in relation to an intestate—see section 53.

17              Rights and duties of administrator

A person to whom administration of the estate of a deceased person is granted—

                   (a)    has, subject to any limitations in the grant, the same rights and liabilities as the person would have if the person were the executor of the deceased; and

                   (b)    is accountable in the same way as the person would be accountable if the person were the executor of the deceased person.

18              Renunciation or non-appearance by executor

If—

                   (a)    any person renounces probate of the will of which he or she is appointed an executor; 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 personally cited to take probate and does not appear to the citation,

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

19              Renunciation etc by person appointed both executor and trustee of will

           (1)   If a person who is appointed by will both executor and trustee renounces probate or after being duly cited fails to apply for probate, the renunciation or failure shall be deemed to be a disclaimer of the trust contained in the will.

           (2)   If there is any renunciation or failure or the person dies before probate is granted or instead of applying for probate authorises a trustee company to apply for administration with the will annexed and if administration with the will annexed is granted to a trustee company, the trustee company shall because of the grant and without any further appointment be deemed to be appointed trustee of the will in the place of the person appointed.

           (3)   In this section:

trustee company means any company authorised by or under any law in force in Norfolk Island to act as executor, administrator or trustee.

20              Administration to guardian of child sole executor

           (1)   If a child is sole executor, administration with the will annexed may be granted to—

                   (a)    the guardian of the child; or

                   (b)    any other person the court considers appropriate,

until the child is 18 years old, with full or limited powers to act in the premises until probate has been granted to the executor or administration has been granted to some other person.

           (2)   The person to whom that administration is granted shall have the same powers as an administrator under an administration granted during the minority of the child.

21              Administration under power of attorney

           (1)   If a person entitled to probate or administration of a deceased estate is out of the jurisdiction, and has appointed a person within the jurisdiction under a power of attorney to exercise that entitlement, the Supreme Court may grant administration to the attorney on behalf of the entitled person on the terms the court considers appropriate.

           (2)   The grant of administration under subsection (1) continues in force notwithstanding the death of the donor of the power of attorney, subject to the terms of the grant.

22              Administration pendente lite and receiver

           (1)   The Supreme 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 of 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 the full or limited powers that the court considers appropriate.

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

23              Power to appoint administrator

The Supreme Court may, if a person dies—

                   (a)    intestate; or

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

                   (c)    leaving a will and having appointed an executor, who—

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

                           (ii)   is resident out of Norfolk Island,

if it considers it necessary or convenient, appoint some person to be the administrator of the estate of the deceased or of any part of the estate, on giving the security (if any) that the court directs, and may limit the administration as the court considers appropriate.

24              Proceeding if executor neglects to prove will

           (1)   If the executor named in a will—

                   (a)    neglects or refuses to prove the will or to renounce probate within 3 months from the death of the testator or from the time of the executor reaching 18 years old; or

                   (b)    is unknown or cannot be found;

the Supreme Court may, on the application of—

                   (c)    any person interested in the estate; or

                   (d)    any creditor of the testator,

grant an order nisi calling on the executor to show cause why probate of the will should not be granted to the executor, or, in the alternative, why administration with the will annexed should not be granted to the applicant.

           (2)   On affidavit of service or of sufficient reasons for non-service of the order if the executor does not appear, or on cause being shown, the Supreme Court may make the order for the administration of the estate and costs as appears just.

25              Issue of special letters of administration

If, at the end of 6 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 Supreme Court may, on the application of any creditor, legatee, or next of kin, grant to the creditor, legatee or next of kin so applying special letters of administration of the estate of the deceased person, nevertheless to cease on an order being made for the rescission of the grant of the special letters of administration as mentioned in section 28.

26              Special administrator to make certain affidavits

The person applying for grant of special letters of administration shall, in addition to the oath usually taken by administrators, satisfy the Supreme Court by affidavit that the executor or administrator of the estate of the deceased person is resident out of the jurisdiction, and that—

                   (a)    the applicant is thereby delayed in recovering or obtaining payment of money or the possession of goods and chattels, or real estate, to which he or she is by law entitled; or

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

27              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, the executor or administrator may apply to the Supreme Court to rescind the special grant of administration.

           (2)   The Supreme Court, on the hearing of the application, may make an order to rescind the special grant of administration on the terms and conditions as to security, costs, or otherwise as to the court appear reasonable, and the original probate or administration shall be and remain as valid and effectual as if the special grant of administration had not been made.

28              Accounting by special administrator

On any order being made by the Supreme Court for the rescission of any grant of special administration the special administrator shall be bound duly to account to the original executor or administrator, and to pay over any money received by him or her as special administrator that is undisposed of as the court may order.

29              Liability of executor or administrator neglecting to apply for rescission of special administration

If the executor or administrator neglects to apply for an order for the rescission of the special administration, he or she shall, notwithstanding that the 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 that have come to his or her hands or that might have come to his or her hands apart from his or her wilful neglect, or default, including the neglect mentioned in this section.

30              Revocation of grants not to prejudice actions or suits

If, while any legal proceeding is pending in any court by or against any executor or administrator lawfully acting as such, the grant of probate or administration is revoked or rescinded, that court may order that the proceeding be continued by or against the new personal representative in like way, as if the proceeding had been originally begun by or against the new representative, but subject to the conditions and variations (if any) as that court directs.

31              Discharge or removal of executor or administrator

           (1)   Notwithstanding anything contained in any law in force in Norfolk Island, if an executor or administrator to whom representation has been granted, or if an administrator who has been appointed under this section—

                   (a)    remains out of Norfolk Island for more than 2 years; or

                   (b)    desires to be discharged from his or her office of executor or administrator; or

                   (c)    after the grant or appointment, refuses, or is unfit, to act in the office, or is incapable of acting,

the Supreme Court may order the discharge or removal of that executor or administrator, and the appointment of some proper person or trustee company as administrator in place of the executor or administrator so discharged or removed, on the terms and conditions the court considers appropriate, and may make all necessary orders for vesting the estate in the new administrator, and as to accounts, and any order as to costs, the court considers appropriate.

           (2)   Notice of the application may be served, if the Supreme Court considers it necessary, on the persons it directs.

           (3)   An executor or administrator so removed or discharged shall, from the date of the order, cease to be liable for acts and things done after that date.

           (4)   On the appointment of the new administrator the property and rights vested in, and the liabilities properly incurred in the due administration of the estate by, the executor or administrator so discharged or removed, shall become and be vested in, and transferred to, the new administrator, who shall, as administrator, have the same privileges, rights, powers, duties, discretions and liabilities, as if probate or administration had been granted to the new administrator originally.

32              Revocation of grant if person living at date of grant

           (1)   If the Supreme Court is satisfied that a person was living at the time when probate of his or her will, or administration of his or her estate, was granted by the court, the court—

                   (a)    shall revoke the grant on the terms (if any) the court considers appropriate in relation to proceedings that have been begun by or against the executor or administrator or in relation to costs or any other matter; and

                   (b)    may at any time, whether before or after the revocation of the grant, make the orders the court considers appropriate for the protection of the estate, including an order for an injunction against the executor or administrator or another person and an order for the appointment of a receiver.

           (2)   An application to the Supreme Court for the revocation, under subsection (1), of a grant of probate of the will, or administration of the estate, of a person may be made—

                   (a)    by the person; or

                   (b)    if the person has died since the grant—by any person entitled to apply for a grant of probate of the will, or administration of the estate, of the person or by a person interested in the estate of the person.

33              Effect of revocation of grant

           (1)   If a grant of probate or administration has been revoked under this Act—

                   (a)    the executor or administrator to whom the grant was made shall account to the Supreme Court for the property that he or she has received, or that has vested in him or her, as the executor or administrator, and the court may make the orders it considers appropriate in relation to the disposal by the executor or administrator of so much of that property as remains in his or her hands; and

                   (b)    the executor or administrator is not liable in relation to property that he or she has disposed of under the grant in good faith before the revocation of the grant if he or she complied with section 10 in relation to the disposing of that property; and

                   (c)    the revocation of the grant does not, of its own force, invalidate a disposal of property made by, or to, the executor or administrator before the revocation of the grant; and

                   (d)    a person entitled to any property that has been distributed by the executor or administrator to whom the grant was made may apply to the court for an order under subsection (2); and

                   (e)    an action does not lie against the registrar for loss suffered by any person in consequence of the registration of a dealing with land under the Land Titles Act 1996, being a dealing lawfully made by the executor or administrator before the revocation of the grant; and

                   (f)    the court may make the vesting orders it considers appropriate.

           (2)   If the Supreme Court, on application made under subsection (1) (d) in relation to property, is satisfied that the applicant is the person entitled to the property and that the respondent to the application is the appropriate person in relation to the property, the court may make an order directing the respondent—

                   (a)    if the respondent is in possession of the property—to return the property to the applicant or pay to the applicant the sum the court considers reasonable in the circumstances; or

                   (b)    in any other case—to pay to the applicant the sum the court considers reasonable in the circumstances.

           (3)   For this section, the appropriate person, in relation to property distributed under a probate or administration that has been revoked, is—

                   (a)    if the person to whom the property was so distributed is alive—that person; or

                   (b)    if the person to whom the property was so distributed is dead—the executor of the will or administrator of the will or estate of that person or a person who has benefited as a result of the property having been distributed to that person.

           (4)   This section does not affect any entitlement of an executor or administrator to commission, or to any protection, indemnity, reimbursement or right under any other section of this Act.

Division 3.2             Caveats

34              Caveat may be lodged

           (1)   Any person may lodge with the registrar a caveat against any application for representation at any time previous to the representation being granted.

           (2)   The caveat shall include the name of the person lodging it, and an address in Norfolk Island for the service of notices.

35              If caveat lodged court may grant order nisi

If a caveat is lodged, the Supreme Court may, on motion on behalf of the person applying for representation supported by affidavits on which, if there had been no caveat, representation would have been granted, make an order nisi for the grant of representation to the person applying, and every such order shall name a time for showing cause against it, and the court may enlarge the order from time to time.

36              Service of order nisi

Every such order nisi and every order enlarging it shall be served on the caveator by delivering a copy of the order at the address mentioned in the caveat.

37              Proceeding if caveator does not appear

If, on the day named in the order nisi or on the day to which the order has been enlarged, the caveator does not appear, the order nisi may be made absolute on an affidavit of service, but, if the caveator appears, the hearing shall be conducted in the same way as nearly as may be as on a trial, and the order nisi may be made absolute or discharged with or without costs as may be just, and, if the Supreme Court so directs, the costs may be paid out of the estate.

38              Evidence on hearing of order nisi

On the hearing of any order nisi, the parties shall be at liberty, subject to the rules, to verify their respective cases in whole or in part by affidavit, but so that the deponent in every affidavit shall, on the application of the opposite party, be subject to be cross-examined by or on behalf of the opposite party orally in open court, and after the cross-examination may be re-examined orally in open court by or on behalf of the party by whom the affidavit was filed.

39              Withdrawal and removal of caveat

           (1)   A caveat may, with the leave of the Supreme Court, be withdrawn at any time.

           (2)   Leave to withdraw a caveat may be given subject to the conditions as to payment of costs or otherwise the Supreme Court considers appropriate.

           (3)   A person applying for a grant of probate or administration may summon a person who has lodged a caveat against the grant to attend before the Supreme Court to show cause why the caveat should not be removed, and the court may, on proof that the caveator has been so summoned, make any order it considers appropriate.

Division 3.3             Effect of grant of representation

40              Estate to vest in curator until grant

On the death of a person, the real and personal property of the deceased person vests in the curator.

41              Real and personal estate to vest in executor or administrator

On the grant of representation of the estate of any deceased person, all real and personal estate of which the person dies seised or possessed of, or entitled to, in Norfolk Island, and that is unadministered at the date of the grant, shall pass to and become vested in the executor to whom probate has been granted or the administrator for all his or her estate and interest therein in the following way:

                   (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.

42              Real estate held in trust

All real estate held by any person in trust or by way of mortgage, and vesting under section 41, shall vest in his or her executor or administrator, subject to the trusts and equities affecting the estate.

43              Property of deceased to be assets

           (1)   The real, as well as the personal, estate of every deceased person shall be assets in the hands of his or her executor to whom probate has been granted, or his or her administrator, for the payment of all duties and fees, and for the payment of his or her debts in the ordinary course of administration.

           (2)   The executor or administrator for purposes of administration, may, subject to sections 76 and 77, sell that real estate, or mortgage it with or without a power of sale, and convey it to a purchaser or mortgagee in as full and effectual a way in law as the deceased person could have done in his or her lifetime.

44              Property of deceased liable for debts

           (1)   The real and personal property of a person who dies on or after 1 January 1966, to the extent of his or her beneficial interest in it, and the real and personal property (if any) disposed of by his or her will (whether made before or after the commencement of this section) in exercise of a general power, are assets for the payment of the funeral, testamentary and administrative expenses, the debts and the liabilities of the person.

           (2)   If a person—

                   (a)    on whom a beneficial interest in any property referred to in subsection (1) devolves; or

                   (b)    to whom such an interest is given; or

                   (c)    in whom such an interest vests,

disposes of the interest or of a part of the interest in good faith before a proceeding is taken or process is sued out against him or her, the person is personally liable for the value of the interest or part so disposed of, but the interest or part is not liable to be taken in execution in the proceeding or under the process.

Note: This and sections 45-47 were part of the Administration and Probate Act 1929 of the ACT that was re-adopted on 28 October 1976 by the Probate and Administration Act 1976. As this Act is largely a continued extension of the earlier legislation this and section 45-47 continue to apply to property of persons dying after 1 January 1966. However sec. 45(2) makes provision for persons dying after 1 January 1911 and 1 January 1966.

45              Appointments by will under general power

           (1)   If a provision contained in the will of a person dying on or after 1 January 1966 operates as an appointment under a general power to appoint by will, the property, whether real or personal, that passes because of the provision vests in the executor or administrator as if the testator had been entitled to the property at his or her death, whether or not he or she was so entitled for an estate or interest determining on his or her death or for any other estate or interest.

           (2)   If a provision contained in the will of a person who died on or after 1 January 1911 and before 1 January 1966, operated as an appointment under a general power to appoint by will, the property, whether real or personal, that passed because of the provision shall be deemed to have vested in the executor or administrator as if that property had been vested in the testator at the time of his or her death whether or not he or she was entitled to it for an estate or interest determining on his or her death or for any other estate or interest.

           (3)   Subsection (2) does not affect—

                   (a)    a right or title that accrued before 1 January 1966 under a disposition by an appointee that, apart from that subsection, would be valid; or

                   (b)    the operation of section 41.

46              Administration of assets

           (1)   If the estate of a person who dies on or after 1 January 1966 is sufficient for the payment in full of all the expenses, debts and liabilities payable from the estate, his or her real and personal property is, subject to the provisions of his or her will (if any) and to any law in force in Norfolk Island as to charges on property, applicable in the order set out in schedule 1, part 1.1 for the payment of the expenses, debts and liabilities payable from the estate.

           (2)   If the estate of a person who dies on or after 1 January 1966 is insufficient for the payment in full of all the expenses, debts and liabilities payable from the estate, his or her real and personal property shall, subject to the Bankruptcy Act 2005 and, if applicable, the Bankruptcy Act 1966 (Cwlth), be administered in accordance with the rules set out in schedule 4, part 4.2.

47              Application of income of settled residuary estate

           (1)   If a person who dies on or after 1 January 1966 leaves a will containing a residuary gift because of which real or personal property is settled by way of succession, this section applies to and in relation to the income derived from that property.

           (2)   The income to which this section applies is not applicable in payment of—

                   (a)    the funeral, testamentary or administrative expenses payable from the estate of the person; or

                   (b)    the debts or liabilities of the person; or

                   (c)    any interest that accrued on any such debts or liabilities before the death of the person; or

                   (d)    any legacies bequeathed by the will of the person.

           (3)   The income to which this section applies is applicable in payment of the interest (if any) that accrues—

                   (a)    on the funeral, testamentary or administrative expenses payable from the estate of the person; or

                   (b)    after the death of the person, on the debts or liabilities of the person; or

                   (c)    on any legacies bequeathed by the will of the person;

before payment, and the income is so applicable in priority to any other assets in the estate of the person.

           (4)   Subject to subsection (3), the income to which this section applies is payable to the person for the time being entitled to the income from the settled property.

           (5)   If, in the final adjustment of the estate of a deceased person among the persons entitled to share in the distribution of the estate—

                   (a)    property (other than property referred to in subsection (1)) is treated as if it had been used in the proper order in payment of the funeral, testamentary and administrative expenses, the debts and the liabilities of the estate or of any legacies bequeathed by the will of the deceased person although it was not in fact so used; and

                   (b)    income was earned by that property after the death of the person but before the property was so used or was deemed to have been so used;

that income shall, for this section, be deemed to be income to which this section applies.

           (6)   This section—

                   (a)    does not affect the rights of a creditor of the estate; and

                   (b)    applies subject to the provisions of the will of the deceased person and of any law in force in Norfolk Island in relation to charges on the property of a deceased person.

48              Real estate to be held on trusts of will

Subject to this part, the real estate of every such deceased person devising that estate by will shall be held by the executor to whom probate has been granted, or the administrator with the will annexed, according to the trusts and dispositions of the will.

49              Rights of executor in relation to real estate

The executor to whom probate has been granted shall have the same rights, and be subject to the same duties, in relation to the real estate of the testator, as executors had or were subject to in relation to personal assets under the law in force in New South Wales as in force immediately before 21 October 1929.

Note: The original section in force made reference to the law in force before the date of commencement of the Ordinance but to simplify matters the actual date of commencement has been substituted.

Division 3.4             Position of executor of an executor

50              Executor of executor

If—

                   (a)    probate of the will of a testator has been granted to a person (in this division called the original executor) as the sole executor, or as 1 of the executors, of the will of the testator; and

                   (b)    the original executor was, immediately before his or her death, the sole, or the last surviving, executor of the will of the testator; and

                   (c)    probate of the will of the original executor is granted to the executor, or 1 of the executors, (in this division called the succeeding executor) of the will of the original executor;

the succeeding executor becomes, on the grant of probate of the will of the original executor—

                   (d)    the executor of the will of the testator; and

                   (e)    the executor of the will of any other testator of whose will the testator was, immediately before his or her death, the executor under the application, or successive applications, of this section.

51              When ceases to represent deceased

If, after a person has become the executor of the will of a testator under the application, or of successive applications, of section 50, another person who was appointed an executor of the will of that testator is granted probate of that will, the firstmentioned person ceases, on the grant of that probate, to be the executor of the will of that testator.

52              Rights and liabilities of executor of executor

While a person who has become the executor of the will of a testator under the application, or of successive applications, of section 50, continues to be the executor of the will of the testator—

                   (a)    the person has the same rights in relation to the estate of that testator as the original executor, or the original executors, would have if living; and

                   (b)    the person is, to the extent to which the estate of the testator has come to his or her hands, answerable as if the person were the original executor, or 1 of the original executors of the will of the testator.

Part 4                   Intestacy

Division 4.1             Preliminary

53              Interpretation for pt 4

           (1)   In this part:

                  domestic partner is someone who lives with the person in a domestic partnership, and includes a reference to a spouse of the person.

Note         The Macquarie Dictionary, 3rd edition defines spouse as ‘either member of a married pair in relation to the other; one’s husband or wife’.

                  domestic partnership is the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.

Example of indicators to decide whether 2 people are in a domestic partnership

1       the length of their relationship

2       whether they are living together

3       if they are living together—how long and under what circumstances they have lived together

4       whether there is a sexual relationship between them

5       their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them

6       the ownership, use and acquisition of their property, including any property that they own individually

7       their degree of mutual commitment to a shared life

8       whether they mutually care for and support children

9       the performance of household duties

10    the reputation, and public aspects, of the relationship between them

Note         An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears see subsection 3(3) .

eligible partner, of an intestate, means someone, other than the spouse of the intestate, who—

                   (a)    was the intestate’s domestic partner when the intestate died; and

                   (b)    either—

                            (i)   had been the intestate’s domestic partner continuously for 2 or more years when the intestate died; or

                           (ii)   is the parent of the intestate’s child, if the child was under 18 years old when the intestate died.

intestate means a person who dies on or after 1 July 1967 and either does not leave a will or leaves a will but does not dispose effectively, by the will, of the whole or part of his or her real or personal property.

Note: This definition was part of the Act adopted by the Probate and Administration Act 1976 but the reference was to the “commencement of this section” this reference is changed to the actual date of commencement.

intestate estate, in relation to an intestate, means—

                   (a)    for an intestate who leaves a will—the real and personal property of the intestate that is not effectively disposed of by the will; or

                   (b)    in any other case—the real and personal property of the intestate.

partner—an intestate’s partner is either of the following:

                   (a)    the spouse of the intestate when the intestate died;

                   (b)    the eligible partner of the intestate.

personal chattels, in relation to an intestate, means—

                   (a)    the articles of household or personal use or adornment, plated articles, china, glassware, pictures, prints, linen, jewellery, clothing, books, musical instruments or apparatus, scientific instruments or apparatus, wines, liquors, consumable stores and domestic animals of the intestate; and

                   (b)    the motor cars and accessories of the intestate;

but does not include—

                   (c)    any chattels of the intestate used exclusively for business purposes; or

                   (d)    money and securities for money of the intestate.

personal representative, in relation to an intestate, means the executor of the will, or the administrator of the estate, of the intestate, as the case requires.

           (2)   For division 4.2—

                   (a)    a husband and wife shall be regarded as 2 persons; and

                   (b)    in ascertaining relationship it is immaterial whether the relationship is of the whole blood or the half-blood.

Division 4.2             Distribution on intestacy

54              Executor or administrator to hold property of intestate on trust for persons entitled

The personal representative of an intestate holds, subject to his or her rights, powers and duties for the purposes of administration, the intestate estate on trust for the persons entitled to it in accordance with this division.

55              Distribution between spouse and eligible partner

           (1)   If an intestate is survived by both a spouse and an eligible partner, the entitlement of each to the partnership share of the intestate estate must be worked out as follows:

                   (a)    if the eligible partner and the intestate had been domestic partners continuously for less than 5 years when the intestate died—the partnership share of the intestate estate must be distributed equally between the spouse and the eligible partner;

                   (b)    if the eligible partner and the intestate had been domestic partners continuously for 5 years or more when the intestate died—the eligible partner is exclusively entitled to the partnership share.

           (2)   In this section:

partnership share, in relation to an intestate, means the share of the estate to which the intestate’s partner is entitled under this division.

56              Provisions relating to persons who at date of death of intestate are children

           (1)   If a person who is entitled, under this division, to the whole of, or a share in, an intestate estate is not, at the date of death of the intestate, 18 years old and is not married, the person is entitled to take the intestate estate, or the share in the intestate estate, beneficially, on reaching 18 or marrying before that age.

           (2)   If a person to whom subsection (1) applies dies before reaching 18 years old and without having married, this division applies in relation to the intestate estate as if the person had died before the intestate.

           (3)   This section does not affect the operation of any law in force in Norfolk Island authorising expenditure for the maintenance, advancement or benefit of a person under 18 years old out of property held on trust for, or for the benefit of, the person and, if property forming part of the intestate estate is expended for the maintenance, advancement or benefit of the person and that person dies before reaching that age and without having married, the intestate estate shall, for this division, be deemed to have been reduced by the amount so expended.

57              Estate by courtesy or right of dower not to arise

An estate by courtesy or right of dower or an equivalent estate does not arise out of the real property as to which a person dies intestate.

58              Distribution of intestate estate

           (1)   The person or persons entitled to take an interest in an intestate estate, and the interest in that estate that that person or those persons are entitled to take shall, subject to this division, be ascertained by reference to schedule 2 according to the facts and circumstances existing in relation to the intestate.

           (2)   If an intestate is survived by his or her partner, the intestate estate shall be taken, for schedule 2 and subsection (3), not to include any personal chattels of the intestate.

           (3)   For schedule 2, the value of an intestate estate shall be ascertained by deducting from the gross value of that intestate estate an amount equal to such of the debts and liabilities of the estate, the funeral and testamentary expenses, the costs and expenses of administering the estate and the estate duties, probate duties and death duties payable in relation to the estate as are payable out of that intestate estate.

           (4)   If an item of schedule 2 provides for the payment of a sum and interest on that sum out of an intestate estate and then provides for the payment of an additional sum equal to a particular proportion of the value of the balance of the intestate estate, the value of the balance of the intestate estate shall be ascertained for that item by ascertaining the value of the intestate estate in the way provided by subsection (3) and deducting from that value the firstmentioned sum and the interest payable on that sum.

           (5)   For schedule 2—

                   (a)    the brothers and sisters of an intestate; and

                   (b)    the grandparents of an intestate; and

                   (c)    the brothers and sisters of a parent of an intestate; and

                   (d)    the issue of any of those brothers or sisters who predeceased the intestate,

are the next of kin of the intestate.

59              Interest of partner on intestacy in personal chattels

If an intestate is survived by his or her partner, the partner is entitled to take, absolutely, any personal chattels of the intestate that are not effectively disposed of by the will (if any) of the intestate.

60              Immovable property of intestate

           (1)   If—

                   (a)    an intestate was, at the time of death, domiciled in Norfolk Island; and

                   (b)    immovable property situated in a place outside Norfolk Island forms part of the intestate estate; and

                   (c)    the intestate is survived both by a partner and by issue; and

                   (d)    the partner is, under a law of that place, entitled to part or all of that property, or to a sum of money calculated by reference to the value of part or all of that property;

the property or part of the property, or the sum of money, to which, under that law, the partner is entitled, shall be taken to form part of the intestate estate for section 58(3).

           (2)   Subject to subsection (4), if—

                   (a)    an intestate was, at the time of death, domiciled outside Norfolk Island; and

                   (b)    the intestate is survived both by a partner and by issue; and

                   (c)    immovable property situated in Norfolk Island forms part of the intestate estate; and

                   (d)    the partner is, under a law of a place outside Norfolk Island, entitled to all or part of any other property (other than personal chattels) that forms part of the intestate estate, or to a sum of money calculated by reference to the value of all or part of that other property;

the property or part of the property, or the sum of money, to which, under that law, the partner is entitled, shall be taken to form part of the intestate estate for section 58 (3).

           (3)   If property or a sum of money is, under subsection (1) or (2), taken to form part of the intestate estate of an intestate, schedule 2, part 2.1, item 2 applies as if the references in that item to $150 000 were references to the sum ascertained by deducting from $150 000 an amount equal to the value of that property, or to that sum of money.

           (4)   Subsection (2) does not apply in relation to an intestate estate if the partner’s share in that part of the estate that devolves in accordance with the law of the place where the intestate was domiciled would, under that law, be reduced by an amount calculated by reference to the value of part or all of the immovable property referred to in subsection (2) (c).

61              How distribution to issue is made

           (1)   If an intestate is survived by issue who are entitled to the whole or a part of the intestate estate—

                   (a)    if only 1 child of the intestate survives the intestate—that person is entitled to the whole, or that part, of the intestate estate; or

                   (b)    if the intestate is survived by the issue of his or her child or 1 of his or her children but by no other issue—those issue are entitled to the whole, or that part, of the intestate estate through all degrees according to their stocks, and, if there are more than 1 issue, in equal shares; or

                   (c)    in any other case—the whole or that part of the intestate estate shall be divided into a number of parts ascertained in accordance with subsection (2) and—

                            (i)   any child of the intestate who survived the intestate is entitled to 1 of those parts; and

                           (ii)   the issue of any child of the intestate who died before the intestate leaving issue who survived the intestate are entitled to 1 of those parts through all degrees, according to their stocks, and, if there are more than 1 issue, in equal shares.

           (2)   The number of parts for subsection (1) (c) is a number equal to the sum of—

                   (a)    a number equal to the number of children (if any) of the intestate who survived the intestate; and

                   (b)    a number equal to the number of children (if any) of the intestate who died before the intestate leaving a child or remoter issue who survived the intestate.

62              Gifts made before death of intestate

           (1)   If—

                   (a)    an intestate has, within the period of 5 years immediately before death, given any money or property to or for the benefit of a person who is, under this division, entitled to a share in the intestate estate, or to or for the benefit of an unentitled partner of such a person; and

                   (b)    the intestate estate, or a part of the intestate estate, is divisible between that person, or the issue of that person, and another person or persons entitled under this division to a share in the intestate estate;

the money or property shall be taken to have been given in or towards satisfaction of the share that the person will become entitled to take, or would have become entitled to take if he or she had survived the intestate in the intestate estate or the part of the intestate estate unless—

                   (c)    the contrary intention appears from the circumstances of the particular case; or

                   (d)    the value, as at the date of death of the intestate, ascertained in accordance with the requirements of the personal representative of the intestate, of all the money or property or of so much of the money or property in relation to which such a contrary intention did not appear, does not exceed $10 000.

           (2)   If, under subsection (1), any money or property is taken to have been given in or towards satisfaction of the share of a person referred to in subsection (1), the money or property shall be brought into account at a valuation, as at the date of death of the intestate, in accordance with the requirements of the personal representative of the intestate, in calculating the share that the person or his or her issue is, under this division, entitled to take in the intestate estate or a part of the intestate estate.

           (3)   This section does not apply in relation to money or property given to or for the benefit of the intestate’s partner.

           (4)   If an intestate has made a gift to which this section applies, the unentitled partner of a person entitled to a share in the intestate’s estate is, for subsection (1), someone who—

                   (a)    is not entitled to a share in the intestate’s estate; and

                   (b)    was the domestic partner of the entitled person at the time of the gift; and

                   (c)    either—

                            (i)   was the entitled person’s spouse at that time; or

                           (ii)   had been the entitled person’s domestic partner continuously for 2 or more years at that time; or

                          (iii)   was at that time the parent of a child of the entitled person, if the child was less than 18 years old at that time.

           (5)   In this section:

given, in relation to money or property, means money or property paid, transferred, assigned or settled (otherwise than for valuable consideration).

63              How distribution to next of kin is made

           (1)   If, under this Act, the next of kin of an intestate are entitled to the intestate estate, the persons entitled to that intestate estate shall be ascertained as follows:

                   (a)    the brothers and sisters of the intestate who survived the intestate, and the issue of a brother or sister of the intestate who died before the intestate, being issue who survived the intestate, are entitled to the intestate estate;

                   (b)    if the intestate is not survived by any persons entitled to the intestate estate under paragraph (a) but is survived by 1 or more grandparents—the grandparent is entitled to the intestate estate or the grandparents are entitled to the intestate estate in equal shares;

                   (c)    if the intestate is not survived by any persons entitled to the intestate estate under paragraph (a) or (b)—the uncles and aunts of the intestate who survived the intestate and the issue of such an uncle or aunt who died before the intestate, being issue who survived the intestate, are entitled to the intestate estate.

           (2)   An intestate estate shall be divided among the brothers and sisters or the uncles and aunts of the intestate, and the issue of those brothers or sisters, or uncles or aunts, who died before the intestate, in the same way as the intestate estate would have been divided among those persons if the brothers and sisters or the uncles and aunts had been children of the intestate and the issue of a brother, sister, uncle or aunt who died before the intestate had been issue of a child of the intestate who died before the intestate.

64              How distribution to the Administration is made

If, under this Act, the Administration is entitled to an intestate estate, the curator—

                   (a)    shall hold the intestate estate on trust for the Adminsiatration; and

                   (b)    at the end of 6 years from the date of death of the intestate—

                            (i)   in relation to so much of the estate as is not money—shall sell the estate and, after deducting from the proceeds of the sale all costs and charges lawfully due to the curator or any other person, pay the balance of the proceeds to the Territory; or

                           (ii)   in relation to so much of the estate as is money—shall, after deducting all costs and charges lawfully due to the curator or any other person, pay the balance of the money to the Territory.

65              Partial intestacies

           (1)   If the partner of an intestate acquires a beneficial interest under the will of the intestate in the real or personal property of the intestate (other than in the personal chattels of the intestate), schedule 2 applies only to the extent it is expressed to apply under this section but the person or persons entitled to take an interest in the intestate estate, and the interest in that estate that that person or those persons are entitled to take, shall be ascertained in accordance with this section according to the facts and circumstances existing in relation to the intestate.

           (2)   If an intestate is survived by his or her partner but not by issue, the partner in entitled to the whole of the intestate estate.

           (3)   If the intestate is survived by his or her partner and by issue—

                   (a)    if the value of the beneficial interest that is acquired by the partner under the will does not exceed $150 000—schedule 2, part 2.1, item 2 applies as if the references to the sum of $150 000 were read as references to the sum ascertained by deducting from $150 000 the value of that beneficial interest; or

                   (b)    if the value of the beneficial interest that is acquired by the partner under the will exceeds $150 000—

                            (i)   the partner is entitled to be paid out of the intestate estate a sum equal to, if 1 child or the issue of 1 child of the intestate but no other issue of the intestate survives the intestate, 1/2 of the value of the intestate estate or, in any other case, 1/3 of the value of the intestate estate; and

                           (ii)   the issue of the intestate are entitled to the balance of the intestate estate after payment to the partner of the sum to which the partner is entitled under subparagraph (i).

           (4)   Section 58 (3) applies for subsection (3) in like way as it applies for schedule 2.

           (5)   If a child of an intestate who is entitled to take an interest in the intestate estate also acquires an interest under the will of the intestate in the real or personal property of the intestate, the interest to which the child is entitled under the will shall be brought into account, at a valuation, as at the date of death of the intestate, in accordance with the requirements of the personal representative of the intestate, in calculating the interest that the child is entitled to take under this division in the intestate estate.

           (6)   For this section, a beneficial interest in real or personal property acquired because of the exercise, by will, of a general power of appointment, shall be taken to be an interest acquired under that will.

66              Presumptions of parentage

For the application of this division and schedule 2 in relation to an intestate, any presumption of parentage arising in relation to a person shall be taken to operate only if the presumption arose before the intestate died.

Division 4.3             Rights of partners
to intestate dwelling houses

67              Definitions for div 4.3

In this division:

dwelling house includes—

                   (a)    a garden or portion of ground attached to, and usually occupied with, a dwelling house, or otherwise required for the amenity or convenience of a dwelling house; and

                   (b)    a part of a building occupied as a separate dwelling.

representation, in relation to an intestate, means probate of the will, or administration (including administration with the will of the intestate annexed) of the estate, of the intestate.

68              Claim by partner to dwelling house

           (1)   Subject to this division, if the intestate estate of an intestate who is survived by a partner comprises or includes an interest in a dwelling house where the partner was residing at the date of the intestate’s death, the partner may elect to have that interest appropriated under the Trustee Act 1925 (NSW), as applied by the Trustee Act 1931, section 46 in or towards the satisfaction of any interest of the partner in the real and personal property of the intestate.

           (2)   An election under this section may be exercised within a period of 1 year after the date representation in the estate of the intestate is granted by the Supreme Court or within any extended period the court allows.

           (3)   If—

                   (a)    probate of a will of the intestate has been revoked on the ground that the will was invalid; or

                   (b)    a question whether a person had an interest in the estate of the intestate, or a question as to the nature of an interest claimed in the estate of the intestate, had not been determined at the time when administration of the estate was granted or first granted; or

                   (c)    the Supreme Court, for any other reason affecting the administration or distribution of the estate, considers it proper to do so,

the court may extend the period specified in subsection (2).

           (4)   An election by a partner shall be given in writing—

                   (a)    if the partner is not a personal representative of the intestate—to the personal representative, or to each personal representative, of the intestate; or

                   (b)    if the partner is 1 of the personal representatives of the intestate—to the other personal representative, or to each other personal representative, of the intestate; or

                   (c)    if the partner is the sole personal representative of the intestate—to the registrar.

           (5)   An election is not revocable except with the consent of the personal representative or of each personal representative of the intestate.

           (6)   A partner may require the personal representative of the intestate to have the interest in the dwelling house valued, and to inform the partner of the result of that valuation, before deciding whether to exercise the right given by this division.

69              Valuation

For this division, the value of the interest of an intestate in a dwelling house is the amount determined by a qualified valuer engaged by the personal representatives of the intestate to be the market value of the interest.

70              Right not exercisable for certain tenancies

The right given by this division is not exercisable if the interest of the intestate in the dwelling house is a tenancy—

                   (a)    that will determine within a period of 2 years after the date of death of the intestate; or

                   (b)    that the landlord is, by notice given after the date of death of the intestate, entitled to determine before the end of that period.

71              Right not exercisable in certain other cases

If—

                   (a)    a dwelling house forms part of a building and an interest in the whole of the building is comprised in an intestate estate; or

                   (b)    a dwelling house is held with agricultural land and an interest in the agricultural land is comprised in an intestate estate; or

                   (c)    the whole or a part of a dwelling house was, at the date of an intestate’s death, used as a hotel or boarding house; or

                   (d)    a part of a dwelling house was, at the date of an intestate’s death, used for purposes other than domestic purposes,

the right given by this division to a partner of the intestate in relation to the dwelling house is not exercisable by the partner unless the Supreme Court so orders, being satisfied that the exercise of that right is not likely to—

                   (e)    diminish the value of the assets (other than the interest in the dwelling house) in the intestate estate; or

                   (f)    make those assets more difficult to dispose of.

72              Personal representative not to sell or dispose of interest without consent

           (1)   A personal representative of an intestate is not authorised to sell or otherwise dispose of the interest of the intestate in a dwelling house in which a partner of the intestate was residing at the date of the intestate’s death, during the period of 1 year after the date representation in the estate of the intestate is granted by the Supreme Court or, if that period is extended by the court, during that extended period without the written consent of the partner, except in the course of administration owing to want of other assets or except with the approval of the court.

           (2)   If on an application under section 71 made by a partner or by the personal representatives of the intestate, the Supreme Court does not order that the right given by section 68 may be exercised by the partner, the court may approve the disposal of the interest in the dwelling house within the period of 1 year referred to in subsection (1).

           (3)   This section does not apply if the partner of the intestate is the sole personal representative, or 1 of 2 or more personal representatives, of the intestate.

           (4)   Nothing in this section shall be taken to affect the validity of a sale by the personal representatives of an intestate of any part of the estate of the intestate.

73              Rule that trustee not to purchase trust property

If a partner of an intestate is the sole personal representative of the intestate or 1 of 2 or more personal representatives of the intestate, the partner may, notwithstanding that he or she is a trustee, acquire under this division the interest of the intestate in the dwelling house in which the partner was residing at the date of the intestate’s death.

74              If surviving partner is under legal disability

           (1)   If a partner of an intestate is a person of unsound mind, a requirement or consent under this division may be made or given on the partner’s behalf by his or her committee (if any) or, if there is no committee, by the Supreme Court.

           (2)   A requirement or consent made or given under this division by a surviving partner who is a child is as valid as it would be if he or she were at least 18 years old.

Part 5                   Simultaneous deaths

    

75              Devolution of property

           (1)   Notwithstanding any law to the contrary, if a deceased person (the beneficiary) who would, apart from his or her death, have been entitled, under a will or on an intestacy, to take an interest in the estate of another deceased person (the benefactor) died at the same time as the benefactor or in circumstances that give rise to uncertainty as to which of them survived the other, the property of the benefactor shall, subject to subsection (2), devolve as if the benefactor had survived the beneficiary and had died immediately after the beneficiary.

           (2)   Property owned jointly and exclusively by 2 or more persons who died at the same time or in circumstances that give rise to uncertainty as to which of them survived the other or others, other than property so owned by them as trustees, shall devolve as if, at the time of their deaths, it had been owned by them as tenants in common in equal shares.

Part 6                   Functions of executors and administrators

76              Powers of executors and administrators to sell, mortgage or lease real estate

           (1)   Subject to this section, an executor or an administrator may, without the consent of any person or the order of a court—

                   (a)    sell or mortgage the real estate of the deceased person for purposes of administration; or

                   (b)    sell the real estate of the deceased person as to which he or she died intestate, for purposes of distribution or division among the persons entitled; or

                   (c)    lease the real estate of the deceased person in possession for any term not exceeding 3 years; or

                   (d)    raise, on the security of the whole or any part of the intestate estate of the deceased person, any sum required by the executors or administrators for the purpose of paying to a partner of the person the share, or a part of the share, of the partner in the intestate estate of the person.

           (2)   Any conditions may be imposed on the exercise of the power of sale, mortgage, lease or raising of any sum by an administrator, and either generally or for a particular sale, mortgage, lease or raising of any sum, by rules of court, or by the Supreme Court in the grant of administration (if any), or by other order.

           (3)   A condition imposed, before 1 January 1966, on the exercise by an executor of a power given by this section shall not operate on or after that date.

           (4)   The registrar shall write on letters of administration issued by him or her, and on any copy of the letters of administration, a certified copy of any conditions imposed by the Supreme Court under subsection (2).

           (5)   A purchaser, mortgagee, lessee or other person who for valuable consideration acquires an interest in the estate of the deceased person, or the Registrar of Titles or other person registering title under any sale, mortgage or lease under this section, is not bound to inquire whether the powers mentioned in subsection (1) or any of them are being or have been exercised for the purposes specified in that subsection, and the receipt of the executor or administrator shall be a sufficient discharge, and shall exonerate the persons paying the money from any responsibility for the application of the money expressed to have been so received.

           (6)   Some or 1 only of several executors or administrators shall be entitled to exercise those powers with the leave of the Supreme Court, and not otherwise, and the court may make any orders it considers appropriate for the purpose of carrying out any such sale, mortgage, lease or raising of any sum.

           (7)   In this section:

intestate—see section 44.

intestate estate—see section 44.

partner, in relation to an intestate—see section 44.

77              Supreme Court may make special order

The Supreme Court may, if administration has been granted, on the application of the administrator, or for partial intestacy the executor or administrator with the will annexed, or of any person beneficially interested, and after the notice to the other parties and inquiry the court considers appropriate, order and direct the course of proceedings which shall be taken in regard to—

                   (a)    the time and method of sale of any real estate; and

                   (b)    the letting and management of any real estate until sale; and

                   (c)    the application for maintenance or advancement or otherwise of shares or income of shares of children; and

                   (d)    the expediency and mode of effecting a partition, if applied for,

and generally in regard to the administration of the real estate for the greatest advantage of all persons interested.

78              Supreme Court may authorise postponement of realisation and carrying on of business

           (1)   The Supreme Court may, if it considers it beneficial so to do and subject to the conditions it considers appropriate to impose, authorise an executor or administrator—

                   (a)    to postpone, for the period the court considers appropriate, the realisation of the real or personal estate of a deceased person, or any part of that estate; or

                   (b)    to carry on, for the period or periods that the court from time to time considers appropriate, the business, trade or occupation of the deceased person, and for that purpose to use the estate or part of it.

           (2)   An order under this section may be made either ex parte or on the notice the Supreme Court considers proper, and may be varied from time to time as the court considers appropriate.

79              Supreme Court may order partition in summary way

           (1)   If, on any such inquiry, the Supreme Court is satisfied that a partition of the real estate, or any part of it, will be advantageous to the parties interested, the court may appoint 1 or more arbitrators to effect the partition.

           (2)   The report and final award of the arbitrators setting out particulars of the land allotted to each party interested shall, when signed by them and confirmed by the order of the Supreme Court, and registered in the office of the registrar-general, be effectual without the necessity of any further conveyance to vest in each party the land allotted to the party, and an office copy of the award so signed, confirmed, and registered, shall for all purposes be equivalent to an indenture of conveyance to each party of the land allotted to the party.

           (3)   For land subject to the Land Titles Act 1996, each party shall be entitled to the issue of a certificate of title for the land allotted to the party.

           (4)   If the allotment be made subject to the charge of any money payable to any other party interested for equalising the partition, the charge shall take effect according to the terms and conditions in regard to time and method and otherwise that are expressed in the award without the necessity of any further instrument being made or executed.

           (5)   For land subject to the provisions of the Land Titles Act 1996, the certificate of title shall issue, subject to the charge, unless the charge is satisfied.

80              Personal representative not required to continue to act against own consent

A personal representative shall not be required against his or her consent to continue the duty of a trustee by managing the property during an enforced suspension of sale, but shall be entitled, on that suspension being ordered, to relinquish his or her trust to the person the Supreme Court appoints.

81              In suits executor or administrator to represent real estate

In all suits concerning the real estate of a deceased person, the executor to whom probate has been granted or administrator shall represent the real estate so long as it remains vested in the executor or administrator, and the persons interested, in the same way and to the same extent as, in suits concerning personal estate, the executor or administrator represents the estate and the persons interested.

82              All debts to stand in equal degree

           (1)   In the administration of the estate of every person dying after 21 October 1929, all the creditors of every description of that person shall, notwithstanding anything to the contrary contained in any law, be treated as standing in equal degree and be paid accordingly out of the assets of the deceased person.

           (2)   In the administration of the estate of any person dying before or after the commencement of this Act, in relation to which representation is granted under this Act, no debt or liability of that person shall be entitled to any priority or preference only because it is due to an executor or administrator of the estate.

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

           (4)   Nothing in this Act shall affect the provisions of any law protecting life assurance or other policies against creditors.

83              Interest on legacies

           (1)   Subject to subsection (2), if interest is payable on a legacy in accordance with the will under which the legacy is payable or in accordance with any enactment or rule of law, that interest shall, unless the will otherwise provides, or the Supreme Court otherwise orders, be payable at such rate as is determined by the Minister.

           (2)   If an executor or administrator, in accordance with any power given to him or her by a will under which a legacy (other than an annuity) is payable, appropriates any property in or towards satisfaction of the legacy, 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.

84              Executor may sign acknowledgment instead of conveyance

           (1)   If any real estate not under the Conveyancing Act 1913 or the Land Titles Act 1996 is devised to any person by a will duly proved under this Act, the executor of the will or the administrator with the will annexed may, as the executor or administrator, instead of executing a conveyance to that person, sign an acknowledgment, in the prescribed form, that the devisee is entitled to that real estate for the estate for which it is devised to him or her.

           (2)   The acknowledgment may be registered under the law in force regulating the registration of deeds, and on registration of the acknowledgment the real estate shall vest in the devisee for the estate for which it is devised to him or her in the same way, and subject to the same trusts and liabilities, as if the executor or administrator had executed a conveyance of the acknowledgment.

85              Summary application for legacy etc

If the executor or administrator, after written request, neglects or refuses to—

                   (a)    sign that 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 devisee or person may apply to the Supreme Court, calling on the executor or administrator to show cause why he or she should not comply with the request, and the court may make any order in the matter it considers appropriate.

86              Filing and passing accounts

           (1)   If a person to whom representation is granted is required to do so by the rules or by an order of the Supreme Court, the person—

                   (a)    shall file an inventory of the estate of the deceased; and

                   (b)    shall—

                            (i)   file; or

                           (ii)   file and pass,

his or her accounts relating to the estate;

within the time, and from time to time, and in the way that is prescribed or the Supreme Court orders.

           (2)   Every such person shall be subject to any special order that the Supreme Court, on the motion of any person interested, makes as to the production and verification of his or her accounts.

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

87              Passing and allowance of accounts of executors and administrators

The registrar in the name and under the seal of the Supreme Court may make any order or grant any certificate that the court may make or grant—

                   (a)    in and about the passing and allowance of the accounts of executors and administrators and the costs in connection therewith if no commission is applied for; or

                   (b)    in or in connection with the granting of further time to executors and administrators to file, to file and pass or to pass their accounts if no objection is raised to the granting of the further time by a person interested or if no doubt or difficulty arises.

88              If accounts not exhibited registrar to summon administrator before court, which may inflict penalty

           (1)   If any such executor or administrator neglects, for 1 month after the end of the period fixed, to file that inventory, or to file, to file and pass or to pass those accounts, the registrar shall cause the executor or administrator to be notified of the neglect.

           (2)   If there is further neglect for a period of 1 month, the registrar shall cause the executor or administrator to be summoned before the Supreme Court to show cause why he or she should not be ordered to file the inventory or to file, to file and pass or to pass the accounts forthwith.

           (3)   If the executor or administrator does not, within the prescribed time, or within any further time allowed by the Supreme Court, file the inventory or file, file and pass or pass the accounts, in the prescribed way, the executor or administrator shall be liable to attachment in accordance with the practice of the court.

89              Proceedings under s 88 not to affect other proceedings

A proceeding under section 88 does not—

                   (a)    affect the right to proceed against the executor or administrator of the estate for an account and administration; or

                   (b)    stop the Supreme Court from making an order under the rules about the administration bond for the estate.

90              Supreme Court may make order about disposal of money in hands of executor etc

           (1)   The Supreme Court may make any order it considers appropriate in relation to the distribution or application of any money that the executor or administrator has in hand, or as to the residue of the estate.

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

91              Payments under revoked probates or administrations valid

The executor or administrator who has acted under any revoked or rescinded probate or administration may keep and reimburse himself or herself, or shall be entitled to be reimbursed for, an amount equal to the amount of any payments made by him or her that the person to whom probate or administration is afterwards, or was originally, granted might have lawfully made.

92              Persons etc making payments on probate granted for estate of deceased person to be indemnified

All persons making or permitting to be made any payment or transfer, bona fide, on any probate or administration or order granted in relation to the estate of any deceased person under this Act shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of the probate or administration or order not then known to those persons.

93              Distribution of assets

           (1)   If an executor or administrator has given such or the like notices as, in the opinion of the Supreme Court in which the executor or administrator is sought to be charged, would have been given by the court in an administration suit, for creditors and others to send in to the executor or administrator their claims against the estate of the testator or intestate, the executor or administrator may, at the end of the time named in the notices, or the last of the notices, for sending in those claims, distribute the assets of the testator or intestate, or any part of the assets, among the persons entitled, having regard to the claims of which the executor or administrator has then notice.

           (2)   An executor or administrator shall not distribute the assets of the testator or intestate, or any part of them, unless he or she has—

                   (a)    applied under the Registration of Births, Deaths and Marriages Act 1963 for a search of the register for information about the parents or any children—

                            (i)   of the deceased; or

                           (ii)   of any other person known by the executor or administrator to be relevant to the distribution of the assets; and

                   (b)    taken into account any relevant information, documents or certified copies of, or extracts from, documents obtained from the registrar‑general as a result of the search.

           (3)   If an executor or administrator has complied with subsection (2), he or she shall not be liable for the assets or any part of the assets so distributed to any person of whose claim he or she has not had notice at the time of the distribution.

94              Claims barred against executor or administrator in certain cases

           (1)   If an executor or administrator has given notices under section 93 and a claim against the estate is sent to him or her, the executor or administrator may serve a notice on the claimant calling the claimant to take proceedings to enforce the claim within a period of 6 months, and to duly prosecute the claim.

           (2)   If, after that period of 6 months has ended, that person does not satisfy the Supreme Court that he or she is duly prosecuting the claim, the court may, on application by the executor or administrator, make an order barring the claim against the executor or administrator, subject to any conditions that appear just, or make any other order the court considers appropriate.

95              Distribution of estate by executors and administrators

           (1)   If an executor or administrator liable as such, under any lease or agreement for a lease granted or assigned to, or made and entered into with, the testator or intestate whose estate is being administered, to the rents, covenants, or agreements contained in the lease or agreement has—

                   (a)    satisfied all liabilities under the lease, or agreement for a lease, as have accrued due and been claimed up to the assignment mentioned in paragraph (c); and

                   (b)    set apart a sufficient sum to answer any future claim that may be made in relation to any fixed and ascertained sum, covenanted or agreed by the lessee, to be laid out on the property demised, or agreed to be demised, although the period for laying out the sum may not have arrived; and

                   (c)    assigned the lease, or agreement for a lease, to a purchaser, or to a legatee, devisee, or other person entitled to call for a conveyance of it;

the executor or administrator may distribute the estate of the testator or intestate remaining in his or her hands among the parties entitled respectively, without appropriating any part or any further part of it to meet any future liability under the lease or agreement.

           (2)   An executor or administrator so distributing the estate shall not, after having made or executed that assignment, and having, if necessary, set apart that sufficient fund, be personally liable in relation to any subsequent claim under any such lease, or agreement for a lease.

           (3)   In this section:

assignment includes an acknowledgment within the meaning of section 56.

lease includes an underlease.

96              Right to follow assets

Nothing in section 93, 94 or 95 shall prejudice the right of any creditor or claimant or lessor, or those claiming under any lessor, to follow the assets or estate, or any part of the assets or estate, into the hands of the persons, or any of them, among whom they may have been distributed, or who may have received them.

97              Executors may compound etc

An executor or administrator may—

                   (a)    pay any debts or claims on any evidence that he or she considers sufficient; or

                   (b)    accept any composition, or any security, real or personal, for any debts due to the deceased; or

                   (c)    allow any time for the payment of any such debts as he or she considers appropriate; or

                   (d)    compromise, compound, or submit to arbitration, all debts, accounts, claims, and things whatsoever relating to the estate of the deceased; and

                   (e)    for any of the purposes mentioned in this section, enter into, give, and execute any agreements, instruments of composition, releases, and other things he or she considers expedient, without being responsible for any loss occasioned thereby.

98              Every executor etc to be deemed resident in Norfolk Island

           (1)   Every executor or administrator—

                   (a)    named in any probate or letters of administration granted by any court of competent jurisdiction in any part of a Commonwealth country and making application under this Act for the sealing of the probate or administration; or

                   (b)    appointed under this Act,

shall be deemed to be resident in Norfolk Island.

           (2)   If an executor or administrator is not actually resident in Norfolk Island, he or she shall lodge with the registrar for filing an address for service within Norfolk Island before the issue or sealing of any probate or administration.

           (3)   Any document served on an executor or administrator referred to in subsection (2) at the address referred to in that subsection is to be taken to have been served personally on the executor or administrator.

99              Commission of executors etc and curator

           (1)   Subject to subsection (2), the Supreme Court or the registrar may allow out of the assets of any deceased person to his or her executor, administrator or trustee, in passing his or her accounts, the commission or percentage for his or her services that is just.

           (2)   A commission or percentage allowed by the registrar under subsection (1) must not exceed 5%.

           (3)   No such allowance shall be made to any executor, administrator or trustee who neglects or omits, without a special order of the Supreme Court, to pass his or her accounts under any general or special rule or order of the court.

           (4)   The curator shall charge an estate that he or she is administering under a will or intestacy, and take from the estate, a commission —

                   (a)    at the rate of —

(i)          5% on money in the estate collected, including money received as income or from the realisation of assets of the estate; and

(ii)         1% on the value, as fixed by the curator, of unrealised real and personal property in the estate transferred or delivered unconverted into money to a person entitled to the property under the will or intestacy, or

(b)     of $100,

                  whichever amount is the greater.

           (5)   The curator must pay commission received under subsection (4) into the Revenue Fund of the Public Account.”

100            Limits of professional charges for obtaining probate etc

           (1)   Subject to this section, if the gross value of an estate does not exceed $20 000, the costs to be allowed out of the estate to a solicitor for professional services rendered in connection with the obtaining of a grant of probate or administration in Norfolk Island shall, if no contention has arisen, be in accordance with the following scale:

item

where the gross value of the estate is—

the costs
shall be—

 

 

$

1

not more than $1 000

60

2

more than $1 000 but not more than $2 000

80

3

more than $2 000 but not more than $4 000

100

4

more than $4 000 but not more than $6 000

120

5

more than $6 000 but not more than $8 000

140

6

more than $8 000 but not more than $10 000

160

7

more than $10 000 but not more than $12 000

180

8

more than $12 000 but not more than $14000

200

9

more than $14 000 but not more than $16 000

220

10

more than $16 000 but not more than $18 000

240

11

more than $18 000 but not more than $20 000

260

           (2)   Subject to this section, if the gross value of the estate exceeds $20 000, the costs to be allowed out of the estate to a solicitor for professional services rendered in connection with the obtaining of a grant of probate or administration are—

                   (a)    $260 plus an additional $10 for each complete $2 000 by which the gross value of the estate exceeds $20 000; or

                   (b)    $2 000,

whichever is less.

           (3)   Necessary disbursements are not included in the amounts mentioned in subsections (1) and (2) and must be allowed and paid out of the estate:

           (4)   If the net value of the estate exceeds $4 000, a solicitor may deliver a bill of costs to the executor or administrator and cause it to be submitted for taxation and the amount of the bill when so taxed and no more shall be allowed and paid out of the estate.

           (5)   If the net value of the estate does not exceed $4 000, the Supreme Court may, if the work has been of exceptional length or difficulty, grant leave to the solicitor to submit his or her bill of costs for taxation, and the amount of the bill when so taxed and no more shall be allowed and paid out of the estate.

           (6)   An application for leave under subsection (5) shall be supported by an affidavit setting out the exceptional circumstances on which the applicant relies.

           (7)   If a bill of costs is taxed under subsection (4) or (5) and the amount of the bill (exclusive of the costs of submitting it for taxation and of amounts referred to in subsection (3)) does not, after taxation, exceed the amount that would otherwise have been payable under subsection (1), the costs of submitting the bill for taxation shall be paid by the solicitor.

Note: the costs allowed under this section are solely in connection with obtaining a grant and do not include such things as the ascertaining of the estate, or advice or assistance to an executor, administrator or beneficiary

101            Bill to be taxed by taxing officer

A taxing officer of the Supreme Court shall tax and settle all bills of costs submitted for taxation under section 100.

102            Taxing rules to apply

The rules of the court for the time being in force relating to the taxation of bills of costs shall, so far as practicable, apply to bills of costs so taxed and settled by a taxing officer.

Part 7                   Liability of certain persons in relation to deceased estates

103            Fraudulently obtaining or keeping property

A person—

                   (a)    who—

                            (i)   by obtaining, receiving or holding any real or personal property forming part of the estate of a deceased person; or

                           (ii)   by effecting the release of a debt or liability due to the estate of a deceased person;

                           defrauds any creditor of the estate of the deceased person; or

                   (b)    who, without full valuable consideration—

                            (i)   obtains, receives or holds any real or personal property forming part of the estate of a deceased person; or

                           (ii)   effects the release of a debt or liability due to the estate of a deceased person,

is liable and chargeable as an executor in his or her own wrong to the extent of the real and personal property forming part of the estate of the deceased person that the person receives, or that comes into his or her hands, less—

                   (c)    the amount of any debt incurred for valuable consideration and without fraud that was due to the person from the deceased person at the time of his or her death; and

the amount of any payment made by the person that might have been properly made by the personal representative of the deceased person.

104            Persons liable for waste of deceased estate

If a person (the relevant person) has, as the personal representative of a deceased person or as the executor in his or her own wrong of the will of a deceased person, wasted or converted to his or her own use any part of the estate of the deceased person, then, on the death of the relevant person, the personal representative of the relevant person is, to the extent of the available assets of the relevant person, liable and chargeable in relation to that waste or conversion in the same way as the relevant person would have been if the relevant person has not died.

Part 8                   Small estates

105            Application to registrar for probate or administration

If a person dies leaving property not exceeding $100 000 in value, application for representation may be made direct to the registrar.

106            Duties of registrar

           (1)   The registrar shall, on being satisfied about—

                   (a)    the identity of the applicant;

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

                   (c)    the value of the estate,

give the applicant all necessary information for the purpose of enabling him or her to fill up advertisements, affidavits, and documents necessary for obtaining representation.

           (2)   The registrar may swear the applicant and each person making an affidavit.

107            Issue of probate or administration in name of Supreme Court

           (1)   The registrar shall, on being satisfied—

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

                   (b)    that the estate does not exceed $100 000 in value; and

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

                   (d)    that no will has been deposited with the registrar,

cause probate or letters of administration to be issued and delivered to the applicant on demand.

           (2)   Probate or administration under this section shall be issued in the name and under the seal of the Supreme Court.

108            Matters about which registrar not satisfied

If the registrar is not satisfied about the matters mentioned in section 107, the registrar shall state, to the applicant, the matters in relation to which he or she is not satisfied.

109            Obligation of registrar

In no case shall the registrar be under any obligation because of this part to deal with any application that the registrar may consider proper to be dealt with by the Supreme Court, or to be placed in the hands of a legal practitioner.

Part 9                   Recognition of foreign grants

110            Orders to collect and administer estates for pt 9

For this part, a reference to an order to collect and administer an estate includes a reference to an exemplification of an order to collect and administer.

111            Inclusion of orders to collect and Scottish confirmation

For this part, a reference to probate or administration includes a reference to—

                   (a)    an order to a curator or someone else to collect and administer an estate; and

                   (b)    a confirmation of the executor or someone else granted in a sheriff court in Scotland.

112            Reseal of grant made in reciprocating jurisdiction

Note         Section 113 contains qualifications on the registrar’s power under this section.

           (1)   This section applies if a court of competent jurisdiction in a reciprocating jurisdiction has granted probate of a will, administration of an estate or an order to collect and administer an estate.

           (2)   The registrar may seal the probate, administration or order if the relevant person—

                   (a)    produces the probate, administration or order to the registrar; and

                   (b)    deposits a copy with the registrar; and

                   (c)    applies to the registrar to have it sealed with the seal of the Supreme Court.

           (3)   The registrar may, at any time, refer an application under this section to the Supreme Court.

           (4)   For subsection (2), each of the following is a relevant person:

                   (a)    for a probate of a will—

                            (i)   the executor to whom the probate was granted; or

                           (ii)   a person authorised by the executor, under a power of attorney, to make the application; or

                          (iii)   the executor, by representation, of the will;

                   (b)    for administration of an estate—

                            (i)   the administrator to whom the administration was granted; or

                           (ii)   the person authorised by the administrator, under a power of attorney, to make the application;

                   (c)    for an order to collect and administer an estate—a curator in the reciprocating jurisdiction to whom the order was granted.

           (5)   In this section:

reciprocating jurisdiction means—

                   (a)    a State or Territory; or

                   (b)    a Commonwealth country; or

                   (c)    a country, or part of a country, prescribed under the regulations.

113            Registrar not to seal

           (1)   If a caveat against the sealing of a probate or administration has been lodged with the registrar, the registrar must not seal the probate or administration under section 112 unless the Supreme Court otherwise orders.

           (2)   If the registrar refers an application to the Supreme Court under section 112 (3), the registrar must not seal the probate, administration or order to collect and administer an estate to which the application relates unless the court otherwise orders.

114            Supreme Court may require security

The Supreme Court may, before or after sealing a probate, administration or order to collect and administer an estate under section 112 (Reseal of grant made in reciprocating jurisdiction), require the applicant to give security for the proper administration of the estate to which it relates.

115            Effect of sealing

                  If a probate or administration is sealed under section 112 (Reseal of grant made in reciprocating jurisdiction)—

                   (a)    the probate or administration has the same effect as if it had been originally granted by the Supreme Court; and

                   (b)    the person who applied under section 112 must exercise the same functions, and is subject to the same liabilities, as if the person had been originally granted the probate or administration by the court.

116            Caveat

Any person may lodge with the registrar a caveat against the sealing of any such probate or administration, and any such caveat shall have the same effect, and shall be dealt with in the same way, as if it were a caveat against the granting of probate or administration.

117            Seal not to be attached until duty is paid etc

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

           (2)   The administration must not be sealed until the administration bond (if any) that would have been required if the administration had been originally granted by the Supreme Court has been entered into.

           (3)   The seal of the Supreme Court shall not be attached to any such probate or administration except on an affidavit that notice of the intention to apply in that behalf has been published once in a newspaper published and circulating in Norfolk Island 14 days before the making of the affidavit, and that no caveat has been lodged in relation to the probate or administration.

Part 10                 Curator of Deceased Estates

118            Duties functions and powers of the curator and the deputy curator

           (1)   The curator has power in accordance with this Act to —

                   (a)    obtain administration of the estate of a person who has died intestate leaving real or personal property in Norfolk Island;

                   (b)    obtain probate of the will of any person who has died, if the curator is appointed executor by the will;

                   (c)    obtain administration with the will annexed of the estate of any person who has died testate leaving real or personal property in Norfolk Island where —

                            (i)   there is no executor of or beneficiary under the will in Norfolk Island who is sui juris, other than an executor who has renounced probate of the will  or a beneficiary who has filed with the Registrar a statement in writing under his or her hand declining to apply for administration; or

                           (ii)   no application for probate or administration has been made within 3 months of the testator’s death;

                   (d)    obtain administration with or without the will annexed of the estate of a person who has died leaving real or personal property in Norfolk Island where —

                            (i)   the estate or a substantial part of the estate is of perishable nature or in danger of being lost or destroyed;

                           (ii)   the court is satisfied that the grant should be made to protect the interests of a person or persons entitled to the estate whether as beneficiaries or creditors; or

                          (iii)   the court is satisfied that there is doubt who is entitled to the grant;

                   (e)    obtain administration of an estate in any circumstances or for any reason provided by this or any other Act.

119            Estates to the value of $20 000 or less

           (1)   If the curator is satisfied—

                   (a)    that the net value of the estate of a deceased person does not exceed $20 000; and

                   (b)    that application has not been made for a grant of probate of the will, or administration of the estate, of the deceased person,

the curator may administer the estate of the deceased person, and for that purpose may call in the estate of the deceased person, sell and convert into money the part of that estate that does not consist of money, pay any debts and liabilities of or relating to the deceased person, being debts and liabilities of which he or she has notice, and deal with the balance (if any) of that estate as if probate of the will or administration of the estate of the deceased person had been granted to him or her by the Supreme Court.

           (2)   If the curator administers the estate of a deceased person under subsection (1) and a balance remains after he or she has dealt with the estate in accordance with that subsection, the curator shall deal with the balance of the estate in the following way:

                   (a)    if the curator is of the opinion that the person died testate—as if probate of the last will of the person had been granted to him or her by the Supreme Court;

                   (b)    in any other case—as if administration of the estate had been granted to him or her by the Supreme Court.

           (3)   The curator shall not administer an estate under subsection (1) unless notice of intention to do so has been given by advertisement or otherwise, in the way and form the curator considers appropriate.

           (4)   If the curator is in, or comes into, possession of a will of a deceased person whose estate is being administered or has been administered under subsection (1), the curator shall deposit the will with the registrar.

120            Election to administer estate

           (1)   The curator may file in the office of the registrar an election, signed by the curator, to administer the estate of a deceased person if—

                   (a)    the person left property in Norfolk Island; and

                   (b)    the gross value of that property does not, in the opinion of the curator, exceed $100 000; and

                   (c)    probate of the will, or administration of the estate, of the person has not been granted by the Supreme Court to any person; and

                   (d)    the curator is entitled under section 121 to apply for an order to collect and administer the estate of the person.

           (2)   An election under subsection (1) in relation to the estate of a deceased person shall contain—

                   (a)    particulars of the name of the deceased person; and

                   (b)    the particulars of the place of residence, and the occupation, of the deceased person at the time of death that are known to the curator; and

                   (c)    the particulars of the date of death, and the property forming part of the estate, of the deceased person that are known to the curator.

           (3)   If, in the opinion of the curator, a deceased person died testate, an election shall have the will of the person annexed to it and shall state that the will was, in the opinion of the curator, duly executed by the person.

           (4)   If the curator has filed an election, the estate of the person vests in the curator, and the curator has the powers and duties that he or she would have had if the Supreme Court had, under section 121, granted to the curator an order to collect and administer the estate of the person.

           (5)   The curator shall publish notice of each election filed under this section in a newspaper published and circulating in Norfolk Island, and publication of a notice accordingly in relation to an estate is conclusive evidence that the curator is entitled to administer the estate of the deceased person.

           (6)   If, after the curator has filed an election—

                   (a)    if the will of the deceased person was annexed to the election—a later will; or

                   (b)    in any other case—a will,

of the deceased person comes into the possession of the curator, the curator shall, forthwith, file in the office of the registrar a notice, signed by the curator, containing particulars of that will.

           (7)   If the curator files a notice under subsection (6), the election shall be deemed to have been revoked and the curator ceases to have the powers and duties given by this section in relation to the estate.

           (8)   If, after the curator has filed an election in relation to the estate of a deceased person, the gross value of the estate is found to exceed $100 000, the curator shall, forthwith, file in the office of the registrar a notice, signed by the curator, certifying that the value of the estate exceeds that amount.

           (9)   If the curator files a notice under subsection (8), the election shall be deemed to have been revoked and the curator ceases to have the powers and duties given by this section in relation to the estate.

         (10)   The filing of a notice under subsection (6) or (8) in relation to the estate of a deceased person does not prevent the curator from applying, under section 120, for an order to collect and administer that estate.

         (11)   If the curator has filed a notice under subsection (6) or (8) in relation to the estate of a deceased person, the provisions of section 33 apply as if the filing of an election under this section was the grant of probate of the will, or administration of the estate, of the deceased person and the filing of the notice was the revocation of that grant.

121            Orders to curator to collect and administer

           (1)   The Supreme Court may, on the application of the curator, grant to the curator an order to collect and administer the estate of any deceased person leaving real or personal estate within the jurisdiction in any of the following cases:

                   (a)    if the deceased leaves no executor, partner or next of kin, resident within the jurisdiction, willing and capable of acting in execution of his or her will or administration of his or her estate;

                   (b)    if the executors named renounce probate of the will of the deceased, and all the persons primarily entitled to administration by writing filed with the registrar decline to apply for administration;

                   (c)    if probate or administration is not applied for within 3 months after the death of the deceased;

                   (d)    if, after the end of 30 days from the death there is no reasonable probability of application being made within that period of 3 months;

                   (e)    if the estate or any part of the estate is liable to waste and the executor, any partner or the next of kin—

                            (i)   is absent from the locality of the estate; or

                           (ii)   is not known; or

                          (iii)   has not been found; or

                          (iv)   requests the curator in writing to apply for the order;

                   (f)    if the estate, or any part of it, is—

                            (i)   of a perishable nature; or

                           (ii)   in danger of being lost or destroyed;

                   (g)    if great expense may be incurred because of delay;

                   (h)    if by the will of the deceased the curator of estates of deceased persons or the curator is appointed to act.

           (2)   The Supreme Court may in any case require the curator to—

                   (a)    give the notices; or

                   (b)    cite the person; or

                   (c)    produce the evidence,

it considers appropriate before granting the order applied for, or may make a temporary order for collection and protection only or limited to a part of the estate or otherwise.

           (3)   The registrar may, on the application of the curator, supported by affidavits on which the Supreme Court would, in the opinion of the registrar, grant to the curator an order to collect and administer the estate of a deceased person, grant such an order as of course in the name and under the seal of the court, and the order shall be deemed to have been made by the court.

           (4)   In any application under subsection (3) the registrar may make any requirement which the Supreme Court could, under subsection (2), make on an application to the court, and may make a temporary or limited order of the kind referred to in subsection (2).

           (5)   The registrar shall not grant an order to the curator to collect and administer the estate of a deceased person in any case in which it appears to him or her to be doubtful whether the order ought to be granted.

           (6)   In this section:

partner, in relation to a deceased person, has the same meaning as it has in part 3A in relation to an intestate.

122            Effect of order

           (1)   If an order to collect and administer the estate of any deceased person is granted, the curator shall have the same powers, rights, and obligations in relation to the estate, except as otherwise expressly provided, as the curator would have had if administration had been granted to him or her, and the estate of the deceased shall vest in the curator.

           (2)   If the Supreme Court grants an order to collect and administer the estate of a deceased person after having been satisfied that the deceased made a valid will that had not been revoked before death—

                   (a)    a copy of that will shall be annexed to the order; and

                   (b)    the curator has, subject to this part, the same rights and duties in relation to the estate of the person as the curator would have if administration with the will annexed of the estate of the deceased person had been granted to the curator.

           (3)   All laws for the time being in force in relation to the administration of the estates of deceased persons shall apply to the administration of estates by the curator.

123            Grant of probate or administration notwithstanding appointment of curator

           (1)   Notwithstanding that—

                   (a)    the curator is administering the estate of a deceased person under section 119; or

                   (b)    the curator has filed an election to administer the estate of a deceased person under section 120; or

                   (c)    the curator has been granted an order to collect and administer the estate of a deceased person under section 121,

the Supreme Court may grant probate of the will, or administration of the estate, of the deceased person to an appropriate person on the conditions it considers appropriate.

           (2)   No application for any such grant shall be made until 7 days after written notice of the intention to apply for the grant has been left at the office of the curator.

124            Cessation of rights and liabilities of curator

           (1)   Immediately on the grant of any such probate or administration, all the interest, powers, rights, and duties of the curator (except rights given by this section) in regard to the estate of the deceased person whose estate is affected by the grant, and all liabilities of the curator under any contract or agreement entered into in relation to the estate, or any part of the estate, shall cease.

           (2)   The part of the estate of the deceased left unadministered by the curator, and all rights and obligations of the curator in relation to it, shall vest in the executor or administrator obtaining the probate or administration.

           (3)   Nothing in this section shall interfere with the allowance and payment of—

                   (a)    all money due for the commission of the curator; and

                   (b)    the necessary outlay, disbursements, costs, charges, and expenses in relation to the estate, including all costs in relation to appearing on the application for the probate or administration.

           (4)   Nothing in this section shall relieve the curator from any liability in relation to the management of the estate up to the time of granting the probate or administration.

125            Order to curator to collect and administer in special circumstances

           (1)   If it is made to appear to the Supreme Court that there is reasonable ground to suppose that any person has died, either in or out of the jurisdiction of the court, intestate, leaving property within the jurisdiction, the court may order and empower the curator to collect and administer the estate, both real and personal, of that person.

           (2)   The order shall be valid until revoked, and shall empower the curator to—

                   (a)    collect, manage, and administer the personal estate of the supposed deceased person; and

                   (b)    enter on and receive the rents and profits and otherwise manage the real estate; and

                   (c)    pay and discharge the debts and liabilities of that person,

in like way as if he or she were certainly dead and the curator had obtained an order to collect and administer the estate of the person under section 121.

           (3)   The curator shall not proceed to any distribution of the assets without an order of the Supreme Court specially authorising the curator to make the distribution.

126            Notice of order to be published

Within 1 month after any order to collect and administer has been granted, the curator shall, unless the Supreme Court otherwise orders, cause notice of the fact that the order has been granted to be published twice in some newspaper circulating in or near to Norfolk Island.

127            Supreme Court orders against curator

           (1)   This section applies if—

                   (a)    the curator has the responsibility of collecting and administering a deceased estate; and

                   (b)    the curator or the curator of estates of deceased persons has—

                            (i)   neglected or refused to do any act in relation to the administration of the estate; or

                           (ii)   acted, or threatened to act, in breach of his or her duty in relation to the administration of the estate.

           (2)   If this section applies, a person interested in an estate referred to in subsection (1) may apply to the Supreme Court on affidavit—

                   (a)    for an order calling on the curator to show cause before the court, within 2 days after the date of service of the order, why the curator should act, or fail to act, in the way complained of; or

                   (b)    for an interim injunction.

           (3)   On application under subsection (2), the Supreme Court may grant an order or interim injunction subject to any conditions about giving security for costs the court considers appropriate.

128            Applications how heard

           (1)   On the hearing of any such complaint the Supreme Court may receive proof of the matters in relation to the complaint orally or by affidavit, and may make any order that the circumstances of the case require, and about payment of costs—

                   (a)    by the complainant; or

                   (b)    by the curator; or

                   (c)    from the estate administered by the curator,

as, in its discretion, seems just.

           (2)   Any orders shall have the same effect and be enforceable by the same process as if made by the Supreme Court in a suit between the parties to the complaint.

129            Curator to act as Supreme Court directs

If an order to collect and administer is made under this part, the Supreme Court may, on the application of the curator or any person interested in the estate, make any orders about the collection, sale, investment, and disposal of the estate, that the court considers appropriate.

130            Curator may obtain directions of Supreme Court

           (1)   The curator may, ex parte, take the opinion or obtain the direction of the Supreme Court on any question, whether of law or of fact, arising under this part, or in the course of his or her duties.

           (2)   Any question shall be submitted to the Supreme Court in the way and at the time it directs, and shall be accompanied by any statement of facts, documents and other information it requires and the curator shall, if the court so desires, attend on it at the time and place it appoints.

           (3)   The Supreme Court may, before giving its opinion or direction, require the attendance of, or communication with, any person interested in the estate to which the question relates, but no person shall have a right to be heard unless the court otherwise directs.

           (4)   The Supreme Court shall give its opinion or direction to the curator, and the curator shall act in accordance with its opinion or direction and shall, on the request of any person interested in the estate, communicate to the person the effect of the opinion or direction.

131            Mode of proceeding under this Act

           (1)   If the estate of any deceased person is administered by the curator under this part—

                   (a)    all disputes and matters about the collection, management, or administration of the estate; and

                   (b)    all claims and demands on the estate,

shall, subject to subsection (2), be decided by the Supreme Court.

           (2)   If it appears to be not desirable that the matter in question should be so decided, the Supreme Court may direct such proceedings to be instituted as appear proper for the due decision of the matter.

132            Accounts to be kept etc

The curator shall—

                   (a)    make an inventory or list of all the estates of the persons that the curator has been ordered to collect and administer and keep it in his or her office; and

                   (c)    keep all letters received, and copies of all letters written by the curator, and all deeds, papers, and writings of and relating to those estates.

133            Receipt of curator sufficient discharge

The written receipt of the curator for any money payable to the curator under this part shall be a sufficient discharge for the money to the person paying it, and the person shall not afterwards be liable for any misapplication of the money.

Part 11 –Family provision

134            Application of part 11

           (1)   Subject to this section, this Part applies in relation to the estates of all deceased persons, including a person who died before 1 December 2005.

           (2)   If the whole or any part of the estate of a deceased person has been lawfully distributed before 1 December 2005, a person is not entitled to make application under this Part for provision out of that estate or the part of the estate that has been so distributed, as the case may be.

135            Eligibility

           (1)   Subject to this section, each of the following persons is entitled to make application to the Supreme Court for provision out of the estate of a deceased person:

                   (a)    a partner of the deceased person;

                   (b)    a person (other than a partner of the deceased person) who was in a de facto relationship with the deceased person for 2 or more years continuously at any time;

                   (c)    a child of the deceased person;

                   (d)    a stepchild of the deceased person;

                   (e)    a grandchild of the deceased person;

                   (f)    a parent of the deceased person.

           (2)   A stepchild of a deceased person is not entitled to make an application to the Supreme Court for provision out of the estate of the deceased person unless the stepchild was maintained by the deceased person immediately before his or her death.

           (3)   A grandchild of a deceased person is not entitled to make an application to the Supreme Court for provision out of the estate of the deceased person unless—

                   (a)    the parent of the grandchild who was a child of the deceased person died before the deceased person died; or

                   (b)    1 or both of the parents of the grandchild was alive at the date of the death of the deceased person and the grandchild was not maintained by that parent or by either of those parents immediately before the death of the deceased person.

           (4)   A parent of a deceased person is not entitled to make an application to the Supreme Court for provision out of the estate of the deceased person unless—

                   (a)    the parent was maintained by the deceased person immediately before his or her death; or

                   (b)    the deceased person was not survived by any partner or any of the children of the deceased person.

           (7)   For this section, a person shall not be regarded as having been maintained by the deceased person immediately before his or her death unless—

                   (a)    there was in force at that time an order of a court requiring the deceased person to pay maintenance to or for the benefit of the other person; or

                   (b)    the deceased person was, at that time, whether under a written agreement or otherwise, maintaining that other person or making a contribution to the maintenance of that other person, being a contribution that, in all of the circumstances, can be regarded as other than a nominal contribution; or

                   (c)    a court would, if the deceased person were still living, have power to make an order requiring the deceased person to pay maintenance to or for the benefit of the other person.

           (8)   For this section, a child of the deceased person born alive after the death of that person shall be regarded as having been born before the death of the deceased person.

           (9)   In this section:

de facto relationship—see the De facto Relationships  Act 2005,
section 3 (1).

domestic partner of a deceased person means a spouse or person who lived with the deceased in a domestic partnership and a domestic partnership includes a marriage and a de facto relationship.

partner, of a deceased person, means someone who—

                   (a)    was the domestic partner of the person at any time; and

                   (b)    either—

                            (i)   was the person’s spouse at any time; or

                           (ii)   was the person’s domestic partner continuously for 2 or more years at any time; or

                          (iii)   is the parent of a child of the person.

136            Family provision orders

           (1)   On application by a person entitled, under section 135, to apply for provision out of the estate of a deceased person, the Supreme Court may order that the provision as that court thinks fit be made for the applicant out of the estate.

           (2)   The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available—

                   (a)    under the will of the deceased; or

                   (b)    if the deceased died intestate—under the law applicable to that intestacy; or

                   (c)    under that will and that law combined.

           (3)   The criteria for the Supreme Court’s decision under subsection (2) in relation to the deceased and the applicant are as follows:

                   (a)    the character and conduct of the applicant;

                   (b)    the nature and duration of the relationship between the applicant and the deceased;

                   (c)    any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;

                   (d)    any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;

                   (e)    the income, property and financial resources of the applicant and the deceased;

                   (f)    the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;

                   (g)    the financial needs and obligations of the applicant and the deceased (during the life of the deceased);

                   (h)    the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;

                    (i)    the terms of any order made under the De Facto Relationships Act 2005, section 13 with respect to the property of the applicant or the deceased;

                    (j)    any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person;

                   (k)    any other matter the court considers relevant.

           (4)   The Supreme Court may regard an application for provision out of the estate of a deceased person by a single person as an application made on behalf of all the persons entitled to make applications for provision out of the estate of the deceased person.

137            Time for making application under s 136 (1)

           (1)   Subject to subsection (2), an application for an order under section 136 shall be made within a period of 12 months after the date when administration in respect of the estate of the deceased person has been granted.

           (2)   The Supreme Court may, after hearing such of the persons affected as the court thinks necessary, extend the time within which an application may be made under section 136.

           (3)   An extension of time under this section may be granted—

                   (a)    on any conditions that the Supreme Court thinks fit; and

                   (b)    whether or not the time for making an application has ended.

           (4)   An application for the extension, under this section, of the time within which an application for provision out of the estate of the deceased person may be made under section 8 shall not be made after the estate of a deceased person has been lawfully and fully distributed.

           (5)   An application for provision out of the estate of a deceased person shall, for this section, be deemed to have been made on the day when the notice of motion or other document instituting the application is filed.

138            Variation, suspension and discharge of orders

           (1)   In this section:

                           previous order means an order made under this Part that has not been discharged.

           (2)   Subject to this Part, on application made by or on behalf of the administrator of the estate of a deceased person or a person beneficially entitled to, or having an interest in, a part of the estate of a deceased person, the Supreme Court may, in its discretion and having regard to all the circumstances of the case, by order—

                   (a)    vary a previous order relating to that estate by reducing the amount of the provision made by that previous order; or

                   (b)    suspend a previous order relating to that estate for a specified period; or

                   (c)    discharge a previous order relating to that estate.

           (3)   Subject to this Part, if by a previous order the Supreme Court has directed that provision by way of periodical payments or the benefit of the investment of a lump sum be made for a person out of the estate of a deceased person, on application made by or on behalf of the person, if the court is satisfied that the provision is not adequate for the proper maintenance, education or advancement in life of the person, the court may, in its discretion and having regard to all the circumstances of the case, by order, vary the previous order by increasing the amount of the provision.

           (4)   The applicant for an order under subsection (2) shall cause notice of the application to be served on the person in whose favour the previous order was made.

           (5)   If the Supreme Court makes an order under subsection (2), the court may make any further orders that it thinks fit for the purpose of giving effect to the order under subsection (2) and any other orders that it considers just.

139            Service of application for order under s 136 or s 138

           (1)   If an application has been made to the Supreme Court for an order under section 136 or 138 for or in relation to provision out of the estate of a deceased person, the applicant shall cause notice of the application to be served on each person who is an administrator of the estate of the deceased person.

           (2)   The Supreme Court may—

                   (a)    on its own initiative and either before or during the hearing of an application for an order under section 136 or 138 for or in relation to provision out of the estate of a deceased person; or

                   (b)    on an application made by the applicant for such an order or by the administrator of the estate of the deceased person;

order that notice of the application be served on the persons that the court thinks fit.

140            Form of order and burden of provision

           (1)   An order under section 136 or 138A shall specify the amount and nature of the provision (if any) to be made and may specify conditions, restrictions and limitations subject to which the provision is to be made that the Supreme Court thinks fit to impose.

           (2)   Unless the Supreme Court otherwise orders, the burden of the provision ordered by the court to be made for the benefit of a person shall, subject to subsection (3), be borne between the persons beneficially entitled to the estate of the deceased person (other than the person or persons in whose favour an order or orders under this Part is or are made), in proportion to the values of their respective interests in the estate.

           (3)   If persons are successively entitled to estates or interests in any property that is settled by the will of the deceased person, those estates and interests shall not, unless the Supreme Court otherwise orders, be valued separately but the proportion of the provision required by subsection (2) to be borne by those persons out of those estates and interests shall be raised or charged against the corpus of that property.

141            Class fund

           (1)   Without limiting the powers of the Supreme Court under this Part, the court may order that an amount specified in the order be set aside out of the estate of the deceased person and held on trust as a class fund for the benefit of 2 or more persons specified in the order in whose favour orders for provision out of the estate of the deceased person have been made.

           (2)   If an amount is ordered to be held in trust as a class fund, the trustee of the fund shall invest so much of the amount as is not applied in accordance with this subsection and may, subject to any directions or conditions that the Supreme Court gives or imposes, but otherwise as the trustee thinks fit, apply the whole or any part of the income and capital of the fund for or towards the maintenance, education or advancement in life of the persons for whose benefit the class fund is held, or any 1 or more of them to the exclusion of the other or others of them in the shares and in the way that the trustee, from time to time, determines.

           (3)   If 1 or more of the persons for whose benefit money is held in trust as a class fund dies, a reference in subsection (2) to the persons for whose benefit money is held in trust as a class fund is, after the death of that person, a reference to the survivor or survivors of those persons.

           (4)   If an amount is set aside as a class fund, the administrator of the estate of the deceased person shall, unless the Supreme Court otherwise orders, be the trustee of the class fund.

142            Property subject to power of appointment

           (1)   If—

                   (a)    application is made under section 136 or 138 for an order that provision be made out of the estate of a deceased person; and

                   (b)    the deceased person has, by will, exercised a general or a special power of appointment in respect of property, being a power under which the deceased person was, immediately before death, entitled to appoint the property to himself or herself; and

                   (c)    the Supreme Court is satisfied that—

                            (i)   adequate provision for the person who has made the application cannot justly be made out of other property forming part of the estate of the deceased person; or

                           (ii)   because of the existence of special circumstances, an order should be made that provision be made out of, or charged on, the property in respect of which the deceased person has exercised the general or special power of appointment,

the court may order that provision be made out of, or charged on, the property in respect of which the deceased person has exercised the general or special power of appointment.

           (2)   If—

                   (a)    a testator has power to appoint, by will, any real property in the way that he or she thinks fit; and

                   (b)    by will, the testator has made a general devise of his or her real property or of his or her real property at a particular place, in the occupation of a particular person or otherwise described in a general way without expressly exercising the power of appointment; and

                   (c)    under the Wills Act 1973, section 24 (2), that general devise is to be construed as including the real property over which the deceased person had that power of appointment,

the other property forming part of the estate of the deceased person referred to in subsection (1) (c) (i) shall be deemed to include the real property over which the deceased person had that power of appointment.

           (3)   If—

                   (a)    a testator has power to appoint, by will, any personal property in the way that he or she thinks fit;

                   (b)    by will, the testator has made a general bequest of personal property or of any class of personal property described in a general way without expressly exercising the power of appointment; and

                   (c)    under the Wills Act 1973, subsection 24 (3) that general bequest is to be construed as including the personal property over which the deceased person had that power of appointment,

the other property forming part of the estate of the deceased person referred to in subsection (1) (c) (i) shall be deemed to include the personal property over which the deceased person had that power of appointment.

143            Presumption of death

If the Supreme Court makes an order under section 136 or 138 that provision be made out of the estate of a person of which the court has granted administration on being satisfied by evidence supporting the presumption that the person may be presumed to be dead, the court may direct that the provision shall not be made unless the person in whose favour the order is made gives an undertaking or security that he or she will, if the grant of administration is revoked on the ground that the person was living at the time of the grant—

                   (a)    if he or she has received property other than money under the order—restore the property or, at his or her option, pay an amount equal to the value of the property at the time he or she receives the property to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person; or

                   (b)    if he or she has received money under the order—pay an amount equal to the amount of the money received by him or her under the order to the person whose death was presumed or, if that person has subsequently died, to the administrator of the estate of that person.

144            Exoneration of part of estate from provision

           (1)   The Supreme Court may, when making, or at any time after having made, an order under section 136 or 138, order a person who is entitled to a share in the estate of the deceased person as a legatee, devisee or beneficiary to pay a lump sum or periodical payments, or a lump sum and periodical payments, to represent, or in commutation of, a proportion of the provision ordered to be made for the person in whose favour the order is made that falls on the legatee, devisee or beneficiary, and may exonerate the property or a specified part of the property to which the legatee, devisee or beneficiary is entitled from further liability in respect of that provision.

           (2)   If the Supreme Court makes an order under subsection (1), the court may direct—

                   (a)    how a lump sum or periodical payment is to be secured; and

                   (b)    the person to whom such a lump sum or periodical payment is to be made; and

                   (c)    how (if at all) the lump sum or periodical payment is to be invested for the benefit of the person in whose favour the order under section 136 or 138 has been made.

145            Operation of order for provision out of estate of deceased person

           (1)   Subject to subsection (2), an order under section 136 operates as if it were a codicil to the will of the deceased person executed by the deceased person immediately before death.

           (2)   An order under section 136 in relation to property of a deceased person who died intestate operates as a modification of the part 4 in its application to that property.

146            Certified copy of order

The Supreme Court shall, if it makes an order under section 136, 138 or 144 in relation to the estate of a deceased person, direct that a certified copy of the order be endorsed on, or annexed to, the probate of the will or letters of administration with the will annexed or letters of administration of the estate of the deceased person, as the case may be, and, for that purpose, may require the production of the probate or letters of administration.

147            Permission of court necessary to validity of mortgage, charge or assignment of an interest

A mortgage, charge or assignment of any kind whatsoever, of or over the provision made, or to be made, by an order under this Part, is of no force or effect unless that mortgage, charge or assignment is made with the permission of the Supreme Court.

148            Property available for provision

           (1)   Subject to subsection (2), notwithstanding any distribution of property forming part of the estate of a deceased person made by the administrator of the estate, the Supreme Court may, in an order under section 136 or 138 in relation to that estate, direct that provision be made for a person out of that property.

           (2)   In an order under section 136 or 138, the Supreme Court shall not direct that provision be made for a person out of any property that has been the subject of a distribution referred to in subsection (1) if—

                   (a)    the distribution was properly made for the purpose of providing for the proper maintenance, education or advancement in life of a person who was totally or partially dependent on the deceased person immediately before the death of the deceased person; or

                   (b)    the distribution was made—

                            (i)   more than 12 months after the date when administration of the estate was granted; and

                           (ii)   before the administrator had notice of the application for the order or, if an application was made under section 9 for an extension of time within which an application for an order under section 8 may be made, the application under section 9,

and the property that was so distributed has vested in possession of any person.

149            Protection of administrator

An action does not lie against the administrator of the estate of a deceased person because of his or her having distributed the whole or any part of the estate of the deceased person if the distribution was a distribution referred to in section 148 (2) or if—

                   (a)    the distribution was made before the administrator had notice of an application for an order under this Part or notice of an application to extend the time within which an application for an order under this Part may be made under this Part; and

                   (b)    before making the distribution, the administrator had given notices in accordance with section 93 and the time specified in the notice or in the last of the notices for sending in claims had expired.

150            Relevance of testator’s reasons

           (1)   The Supreme Court shall, in determining an application for an order under section 136 or 138, have regard to the testator’s reasons, so far as they are ascertainable, for making the dispositions made by will or for not making provision or further provision, as the case may be, for a person who is entitled to make an application under this Part.

           (2)   The Supreme Court may receive in evidence a statement signed by the testator and purporting to bear the date when it was signed and to set out reasons for making or not making provision or further provision by the will of the testator for a person as evidence of those reasons.

           (3)   If a statement of a kind referred to in subsection (2) is received in evidence, the Supreme Court shall, in determining what weight (if any) ought to be attached to the statement, have regard to all the circumstances from which any inference may reasonably be drawn about the accuracy of the matters referred to in the statement.

Part 12                 Procedure

151            Method of taking evidence

           (1)   Subject to the rules, the witnesses, and, if necessary, the parties in all matters if their attendance can be had, shall be examined orally in open court.

           (2)   By leave of the Supreme Court in every case the parties may verify their respective cases in whole or in part by affidavit.

           (3)   The deponent in every affidavit shall be subject to be cross-examined by or on behalf of the opposite party orally in open court, and on that cross-examination may be re-examined orally in open court by or on behalf of the party using the affidavit.

152            Order to produce instrument purporting to be testamentary

           (1)   The Supreme Court may, whether any suit or other proceeding is or is not pending in the court in relation 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, that is shown to be in the possession or under the control of that person.

           (2)   If it is not shown that the paper or writing is in the possession or under the control of that person, but it appears that there are reasonable grounds for believing that the person has the knowledge of the paper or writing, the Supreme Court may direct him or her to attend for the purpose of being examined in open court or on interrogatories in relation to the paper or writing.

           (3)   Any person directed so to attend shall be bound to answer the questions or interrogatories, and (if so ordered) to produce and bring in the paper or writing, and shall be subject to the like process of contempt for default in not attending or in not answering those questions or interrogatories, or not bringing in that paper or writing, that the person would have been subject to in case he or she had been a party to a suit in the Supreme Court and had made that default.

           (4)   The costs of the motion, petition, or other proceeding shall be in the discretion of the Supreme Court.

Part 13                 Miscellaneous

153            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; and

                   (b)    all elections and orders to collect; and

                   (c)    the filing, passing, and allowance of the accounts of all executors and administrators; and

                   (d)    any special order extending the time for passing those accounts.

           (2)   The book referred to in subsection (1) shall set out—

                   (a)    the dates of the grants, elections and orders; and

                   (b)    the names of the testators or intestates; and

                   (c)    the place and time of death; and

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

                   (e)    the sworn value of the estates; and

                   (f)    the dates of the filing, passing, allowance of, and special orders in relation to, the accounts.

154            Proved wills and other documents to be held by Supreme Court

An original will—

                   (a)    that is brought into the Supreme Court; or

                   (b)    probate of which is granted under this Act; or

                   (c)    a copy of which is annexed to administration granted under this Act; or

                   (d)    that is deposited with the registrar under section 118; or

                   (e)    a copy of which is annexed to an election filed under section 119 or

                   (f)    a copy of which is annexed to an order to collect and administer an estate granted under section 120,

and any other documents the Supreme Court directs shall be deposited and preserved at the office of the court and may, subject to the rules, be inspected there.

155            Official certificate or copy of grants and wills obtainable

A person may, obtain from the registrar—

                   (a)    a certificate or exemplification of a grant of probate or administration; or

                   (b)    a copy of—

                            (i)   the whole or a part of a will; or

                           (ii)   any other document the Supreme Court approves.

156            Costs

In all matters under this Act the question of costs and how they shall be paid shall be in the discretion of the Supreme Court.

157            Person fraudulently disposing of will liable for damages

If a person suffers damage as a result of the stealing of a will or a part of a will, or as a result of the fraudulent destroying, cancelling, obliterating or concealing of a will or a part of a will, the person may recover damages in relation to the damage by action in a court of competent jurisdiction from the person who stole, destroyed, cancelled, obliterated or concealed the will or part.

158            Application of certain sections

The following provisions apply only in relation to the distribution of the estates of people who die on or after the commencement of this Act:

                   (a)    section 62;

                   (b)    section 65;

                   (c)    section 94;

                   (d)    section 98;

                   (e)    127;

                   (f)    schedule 2.

159            Repeal and saving

The Acts listed in Part 3.1 and 3.2 of schedule are repealed in respect of the estate of a person who dies after the date of commencement of this Act.


Schedule 1         

(see s 46)

Part 1.1                Order of application of assets if estate solvent

             1   Assets undisposed of by will, subject to the retention out of those assets 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 those assets of a fund sufficient to meet any pecuniary legacies that are not provided for out of the assets undisposed of by will.

             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) kept to meet pecuniary legacies.

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

 

Part 1.2                Rules about payment of debts and liabilities if estate insolvent

             1   The funeral, testamentary and administration expenses have priority.

             2   Subject to rule 1, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors 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 in relation to the assets of persons adjudged bankrupt.

             3   In the application of those rules, the date of the death of the deceased person shall be substituted for the date of the sequestration order.


Schedule 2        Distribution of intestate estate on intestacy

(See s 58)

Part 2.1                Distribution of estate if intestate survived by partner

 

Item

Circumstances

How intestate estate of intestate is to be distributed

1

if the intestate is not survived by issue

The partner is entitled to the whole of the intestate estate.

2

if the intestate is survived by issue

1  If the value of the intestate estate does not exceed $150 000, the partner is entitled to the whole of the intestate estate.

2  If the value of the intestate estate exceeds $150 000, the partner is entitled to be paid out of the intestate estate—

(a)   $150 000; and

(b)    interest on that sum, calculated at the rate of 8% per annum from the date of the death of the intestate to the date that sum is paid or appropriated to the partner (inclusive); and

 

 

    (c)    an additional sum equal to—

        (i)     if 1 child or the issue of 1 child of the intestate survives the intestate but no other issue of the intestate survives the intestate—1/2 of the value of the balance of the intestate estate; or

      (ii)      in any other case—1/3 of the value of the balance of the intestate estate.

3  The issue of the intestate are entitled to the balance (if any) of the intestate estate after payment to the partner of the sum or sums to which the partner is entitled under this item.

 

Part 2.2                Distribution of estate if intestate not survived by partner

 

item

Circumstances

How intestate estate of intestate is to be distributed

1

if the intestate is survived by issue

the issue are entitled to the whole of the intestate estate.

2

if the intestate is not survived by issue but is survived by a parent or both parents

the parent is entitled to the whole of the intestate estate or, if both parents survive the intestate, the parents are entitled to the whole of the intestate estate in equal shares.

3

if the intestate is not survived by issue or by a parent but is survived by next of kin

the next of kin are entitled to the intestate estate in accordance with section 46

[NB – Reference to section 46 is an error.  The correct reference should be section 63.]

4

if the intestate is not survived by issue, by a parent or by next of kin

the Administration is entitled to the intestate estate.

 


Schedule 3         

(see s 142)

Part 3.1                Imperial Acts repealed

 

Year and                                 Subject matter

Citation of Act                                    of Act

 


(1351) 25 Edw.3 St 5             Duties of executor of executor

 

(1357) 31 Edw. 3, St 1           Duties of administrator on intestacy

 

(1678) 30 Chas. 2 c. 7             Liability of estate of executor for waste

 

(1685) 1 Jas.2 c.17                  Administration of estate of intestate

 

(1692)  4 Will and Mary c.24  Liability of estate of personal representative for

waste

 


Part 3.2   Acts repealed

Probate and Administration Act 1976

Probate and Administration Act 1980

Probate and Administration (Amendment) Act 1980

Probate and Administration Amendment Act 1989

 

 


NOTES

The Administration and Probate Act 2006 as shown in this consolidation comprises Act No. 8 of 2006 and amendments as indicated in the Tables below.

Enactment

Number and year

Date of commencement

Application saving or transitional provision

Administration and Probate Act 2006

8, 2006

7.5.06

 

 

 

 

 

Interpretation (Amendment) Act 2012

[to substitute throughout —Commonwealth Minister for Minister; and to substitute Minister for executive member]

14, 2012

28.12.12

 

 

 

 

 

 

[Previously consolidated as at 28 October 2013]

 

 

 

 

 

 

 

Ordinance

FRLI registration

Commencement

Application, saving and transitional provision

Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)

17 June 2015 (F2015L00835)

Sch 1 (items 1, 344, 345): 18 June 2015 (s 2(1) item 1)

Sch 1 (items 344, 345)

Table of Amendments

 

ad =    added or inserted

am = amended

rep = repealed

rs =      repealed and substituted

Provisions affected            How affected

5

am

14, 2012

6

am

14, 2012

83

am

14, 2012; Ord No 2, 2015