Appendix A. Provisions in probate and administration legislation not directly addressed by the model legislation
Updates and background for this project (Digest)
PROBATE AND ADMINISTRATION ACT 1898
A.1 The model legislation has not expressly replaced or otherwise dealt with a number of provisions in the Probate and Administration Act 1898 (NSW).
A.2 In some cases, the National Committee has suggested that:
- some of the provisions should be repealed;
- some of the provisions (or similar provisions) should be included in rules of court; and
- consideration should be given to including a version of some of the provisions in other, more appropriate statutes, or rules of court.
A.3 The National Committee did not expressly consider some because of their specific relevance to NSW.
A.4 Others are commencement provisions relating to previous amendments to the Act,1 while others are no longer relevant as relating to succession duties.2 The National Committee concluded that it was not necessary to include any mechanism to assist in the collection of succession duties since “it would now be extremely rare for an estate to be liable to succession duty”.3
Storage and access to wills and other documents
A.5 Sections 30 and 31 deal with storage and access to wills and other documents within the control of the Court after probate has been granted. They are to be distinguished from the provisions in s 51-54 of the Succession Act 2006 (NSW) that deal with the deposit and access to wills before probate has been granted and from the provisions in cl 615 and cl 616 that deal with access to documents held by personal representatives during the course of an administration.
A.6 Consistent with the National Committee’s conclusions with respect to s 152 of the Probate and Administration Act 1898 (NSW),4 such provisions are more appropriately located in the rules of court.
Application of income of settled residuary estate
A.7 Section 46D abolishes the rule in Allhusen v Whittell,5 an equitable rule that sought to achieve fairness between beneficiaries where the income of the residuary estate is left to one beneficiary and the capital is left to another and the capital is required to meet the liabilities of the estate. It provides that a trustee is not required to apportion the income produced by the gross estate.
A.8 The National Committee considered that, because this provision is settled on beneficiaries by way of succession, it would be more appropriately located in trustee legislation, for example, the Trustee Act 1925 (NSW), as is the case in other Australian jurisdictions.6
Mode of divesting land from a personal representative
A.9 Section 46E provides that the only ways that a personal representative can divest himself or herself of real estate and vest it in another person is by a registered conveyance, an acknowledgement under s 837 or under the provisions of the Real Property Act 1900 (NSW). The definition of “real estate” in s 3 applies to this section so that it extends to “lands held under building leases or any lease for twenty-one years and upwards”. This varies the general law position that a leasehold vests absolutely in a legatee “upon the assent of the executor”.8
A.10 In light of the National Committee’s conclusion that s 83 should be located in legislation relating to the conveyancing of old system land,9 it may be desirable to locate this provision, if it is to be retained as serving any purpose, in the Conveyancing Act 1919 (NSW).
No dower or courtesy
A.11 Section 52 abolishes courtesy and right of dower.
A.12 In its report on intestacy, the National Committee observed that, as courtesy and right of dower have been abolished in all Australian jurisdictions, there was no reason why such a provision should be included in any future legislation relating to intestacy.10 Section 52, therefore, does not need to be re-enacted in the model legislation.
Spouse of intestate to accept value instead of partition
A.13 Section 53 requires an intestate’s spouse who is entitled to a share of real estate (other than real estate that the spouse has elected to acquire under s 115 of the Succession Act 2006 (NSW)) together with other beneficiaries to accept the value of the property instead of partition if all the other beneficiaries require it. This section obviates the need, when the spouse refuses to accept the value of the property, for the other beneficiaries to apply to the Court under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale or partition.
A.14 This provision should be reviewed together with the partition provisions referred to below.11
Partition of land
A.15 Section 58 sets out a summary procedure by which the Court, in the administration of a wholly or partially intestate estate, may order the partition of land that is subject to a joint tenancy.
A.16 Having noted that there is an alternative regime in NSW for partitioning land under s 66F-66I of the Conveyancing Act 1919 (NSW), the National Committee concluded that “ideally, there should be one simple, uniform, summary procedure for effecting the partition of land”12 and that the question of the partition of land ought to be the subject of a broader review of partition legislation generally.13 It, therefore, recommended that the model legislation should not contain a provision to the effect of s 58. However, it did recommend that jurisdictions with a provision to the effect of s 58 might wish to retain that provision in their administration legislation pending such a review.14
Personal representative not required to continue as a trustee during an enforced suspension of sale
A.17 Section 59 allows a personal representative, when the Court orders a postponement of the sale of estate property,15 to relinquish the office of trustee to such person as the Court may appoint.
A.18 The National Committee considered that the preferred means of removing a personal representative should be by revoking the grant and making a fresh grant to any new or continuing personal representatives. However, in doing so, the National Committee considered that no provision was necessary to achieve this other than those provisions16 based on s 6 of the Succession Act 1981 (Qld).17 The Committee further considered that the Court’s guiding principle in deciding whether to revoke a grant should be the “due and proper administration of the estate” and that accordingly, the model legislation should not “prescribe specific grounds for the revocation of a grant”.18 Specific grounds would include the grounds in s 59.
Delegation to NSW Trustee or a trustee company
A.19 Section 75A allows a personal representative (including a person who has been appointed executor by a will, but has not obtained a grant of representation) to delegate the office of executor to the NSW Trustee or a trustee company or to have the NSW Trustee or a trustee company appointed as an additional executor.
A.20 The National Committee concluded that the model legislation should not include a provision to the effect of s 75A on the grounds that such provisions are more appropriately contained in the relevant parts of the NSW Trustee and trustee company legislation.19 Consideration will need to be given to the interaction of s 75A with the alternative procedures for appointment that also exist in the respective statutes.20
Personal representative may sign acknowledgement in lieu of conveyance
A.21 Section 83 facilitates the transfer of old system land that has been devised by will by allowing the personal representative to sign an acknowledgment instead of executing a conveyance.
A.22 The National Committee considered that such provisions are primarily concerned with the conveyance of old system land and are, therefore, more appropriately located in legislation dealing with old system land.21 In NSW, the relevant statute is the Conveyancing Act 1919 (NSW).
Application for legacy etc
A.23 Section 84 allows the Court to grant summary relief to a beneficiary against a personal representative who neglects or refuses to make a disposition to which he or she is entitled. The National Committee, while concluding that such provisions are more appropriately located in rules of court, considered that the mechanism contained in s 84 is useful and, therefore, recommended that each jurisdiction should include in its rules of court “a specific provision dealing with the payment or transfer of legacies that are being withheld”.22 However, the National Committee preferred a rule based on r 643 of the Uniform Civil Procedure Rules 1999 (Qld), in part, because of the Queensland provision’s specific reference to a “trustee”.23
Effect of neglect to file inventory or accounts
A.24 Section 87 sets out the procedure that the registry must follow for notifying a personal representative that he or she has failed to file an inventory or accounts and, ultimately, for penalising them for failure to show cause.
A.25 This provision is unnecessary in light of the Court’s inherent power to commence proceedings for contempt for failure to comply with an order, for example, to file accounts.24
A.26 Section 88, which states that proceedings under s 87 will not prejudice any proceedings with respect to an administration bond, is unnecessary in light of the National Committee’s recommended abolition of administration bonds and sureties.25
Orders as to disposal of moneys in hands of personal representative
A.27 Section 89 allows the Court to make orders “with reference to the distribution or application of any moneys” which a personal representative may hold, or with reference to the residue of the estate. The NSW Supreme Court gave it a limited construction in 1905 stating that it should only apply as to moneys “appearing by the accounts to be held in trust for any persons”.26
A.28 It is similar in some respects to s 45 of the Administration Act 1903 (WA), although the WA provision has a broader application. The National Committee dealt with the WA provision along with those allowing personal representatives to seek the Court’s advice or directions.27 As such, it has been superseded by cl 412 of the model legislation.
Notice of ex-nuptial children
A.29 Sub-section 92(3) deems a personal representative to have notice of the claim of any person whose entitlement to any part of the estate would become apparent upon a search being made under s 50 of the Births, Deaths and Marriages Registration Act 1995 (NSW). This provision was designed to deal with recognition of ex-nuptial children following the enactment of the Children (Equality of Status) Act 1976 (NSW).
A.30 The National Committee considered this NSW provision within the broader context of provisions in other jurisdictions dealing with the interests of children, including ex-nuptial children. With regards to provisions dealing with the interests of ex-nuptial children, the National Committee concluded that the claims of ex-nuptial children, or people claiming through them, “should not be treated any differently from the claim of any other beneficiary of whose existence a personal representative may be unaware”.28 The National Committee also rejected the need, in the model legislation, for provisions which deem a personal representative to have undertaken certain searches at a registry of births, deaths and marriages. In particular, it noted that s 50 of the Births, Deaths and Marriages Registration Act 1995 (NSW) related only to the children of the deceased person and would not assist in the identification of other beneficiaries who may be described as the children of some other person. It was also noted that such provisions are limited in operation, since they relate only to registrations within a particular jurisdiction and do not extend to registrations in other Australian jurisdictions or overseas.29
Personal representatives may make maintenance distributions
A.31 Section 92A protects a personal representative who makes distributions for proper maintenance, support or education of people who were wholly or partly dependent on the deceased at the deceased’s death. The distributions can be made at any time including within 30 days after the death of the deceased person and must be made in good faith.
A.32 It was inserted in the Probate and Administration Act 1898 (NSW) in 2006,30 following the recommendations of the National Committee in its report on wills.31 It should now be relocated to an appropriate part of the Succession Act 2006 (NSW).
Protection of personal representative with respect to rents, covenants or agreements
A.33 Section 94 aims to facilitate the distribution of assets by protecting a personal representative who, in his or her capacity as such, distributes the assets in an estate without providing for future breach of covenant or other liability with respect to any real estate or leaseholds which the personal representative has transferred to a beneficiary or otherwise sold. The personal representative must, however, satisfy the obligations to date with respect to the property and provide for future fixed or ascertained amounts. It is a variation of provisions that originally appeared in what was known as Lord St Leonard’s Act.32
A.34 Section 61 of the Trustee Act 1925 (NSW) currently states that s 94 of the Probate and Administration Act 1898 (NSW) is to apply to the distribution of trust property in the same way that it applies to property in an estate.
A.35 Consideration should be given to amending s 61 of the Trustee Act 1925 (NSW) to take account of the absence from the model legislation of a provision to the effect of s 94.
Facilitating probate from small estates
A.36 Division 4 of Part 2 sets out a procedure that can be followed when seeking a grant of representation where the property in the estate does not exceed $15,000 in value. (These provisions should be distinguished from the provisions allowing for the administration of small estates without a grant of representation.33 ) A person can apply for probate under this procedure through either the Registrar or through a district agent. The rules of court provide that the registrar of a Local Court in any town beyond 48 km from Sydney may act as a district agent.34
A.37 The National Committee has characterised these provisions, and similar ones in other jurisdictions,35 as dealing with “the registrar’s obligation to provide assistance to certain persons who apply for a grant of a ‘small estate’.”36 The National Committee considered that such provisions were not a matter for uniform legislation and depended, ultimately, upon the level of public funding in individual jurisdictions.37
Resealing: seal not to be affixed till duty is paid etc
A.38 Sub-section 108(1) provides that the Court is not to affix its seal to any foreign grants of representation until such duties are paid as would have been payable if the Court had originally made the grant.
A.39 While the provisions relating to succession duty have been repealed in NSW,38 the estates of those who died before 1 January 1982 are still liable to succession duty. The National Committee concluded that the model legislation should not include a provision to facilitate the collection of succession duty because it would only be relevant to some jurisdictions and would only be used in rare circumstances given the small and diminishing number of estates that would still be liable.39 The National Committee left it to individual jurisdictions to decide whether to include such provisions in their implementation of the model legislation.40
Resealing requirements not to apply to public officer or NSW Trustee
A.40 Section 110 has its origins in s 68 of the Probate Act 1890 (NSW). It appears to have been included among the provisions relating to the resealing of grants of representation to relieve public officers and the NSW Trustee from certain obligations in much the same way as the current s 64(2) excludes the requirement of an administration bond for “any person obtaining administration to the use or for the benefit of Her Majesty”.41
A.41 There is considerable doubt as to what this provision actually achieves. The Commissioner for the Consolidation of the Statute Law, in 1898, noted that the provision had been reproduced in s 110 “though there had been a temptation to leave it out as really unnecessary”.42 Early attempts at interpreting the provision suggested that it, at least, relieved the Public Trustee or other public officer applying for a reseal from having to provide security under s 107(3).43 Justice Street, in 1917, considered that the provision must go beyond simply relieving the Public Trustee from providing security, but concluded:
The more I speculate on the matter the more difficult I find it to arrive at any really satisfactory conclusion as to the intention of the Legislature.44
A.42 To the extent that it applies to s 107(3), s 110 is unnecessary in light of the model legislation’s abolition of administration bonds and sureties in cl 617. Any other ground of operation of the provision has not been identified in nearly 120 years. The provision should, therefore, be repealed and not enacted in any other NSW statute.
Oaths
A.43 Section 151 gives the power to administer oaths to the Registrar, Australian legal practitioners, commissioners for taking affidavits and justices of the peace.
A.44 Affidavits are required to prove certain matters under cl 322(5), cl 357(3), cl 358(3). However, the major provisions relating to presenting evidence by affidavit are contained in the rules of court.45 Provisions relating to the people entitled to administer oaths are more appropriately included in the rules of court.
Registrar to keep record of probates etc
A.45 Section 152 sets out the requirements for the Probate Registrar to maintain records in relation to the grants of probate made by the Court.
A.46 The National Committee considered that a provision dealing with the recording of grants was “not an appropriate matter for the model legislation”, being generally of the view that such provisions would be better placed in the rules of court,46 as had occurred in the ACT.47
Rules of Court
A.47 Section 152A allows rules of court to be made under the Supreme Court Act 1970 (NSW) with respect to proceedings under the Act. It also confirms that the power conferred by this section does not limit the Court’s rule-making power under s 124 of the Supreme Court Act 1970 (NSW).
A.48 Section 152A is a standard provision included in many NSW statutes that deal with court procedure. Such provisions were first included in statutes in 1970, with the passing of the Supreme Court Act 1970 (NSW).48 The Supreme Court Act 1970 (NSW) also included amendments to the Wills, Probate and Administration Act 1898 (NSW) which repealed the old rule-making power in s 154.49 However, these amendments did not insert the new rule-making provision. It would appear that this omission was rectified by the insertion of s 152A in 1989.50
A.49 A provision to the effect of s 152A should, therefore, be included in the NSW bill that implements the model legislation.
ADMINISTRATION (VALIDATING) ACT 1900
A.50 Sections 4 and 5 of the Administration (Validating) Act 1900 (NSW) have been dealt with elsewhere in this Report.51 The continuing relevance of s 2 and s 3 to the administration of estates in NSW is doubtful, given their application to grants of representation issued before the commencement of the Act in 1900.
FOOTNOTES
1. Probate and Administration Act 1898 (NSW) s 40B(6), s 40C(4), s 40D(6), and s 91(2).
2. Probate and Administration Act 1898 (NSW) s 40D(4).
3. Queensland Law Reform Commission, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General, Report 65 (2009) (“QLRC, Report 65”) [38.237].
4. See para A.46.
5. Allhusen v Whittell (1867) LR 4 Eq 295.
6. Trusts Act 1973 (Qld) s 78; Trustee Act 1958 (Vic) s 74; and Trustees Act 1962 (WA) s 104.
7. See para A.21-A.22.
8. Re Cluverhouse [1896] 2 Ch 251, 253; L Handler and R Neal, Succession Law and Practice NSW (LexisNexis, online) [1241.1] at 13 October 2009.
9. See para A.22.
10. New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy, Report 116 (2007) [15.25].
11. Probate and Administration Act 1898 (NSW) s 58: see para A.15-A.16.
12. QLRC, Report 65 [19.39].
13. QLRC, Report 65 [19.40].
14. QLRC, Report 65 [19.42].
15. See Trustee Act 1925 (NSW) s 57 or s 63: L Handler and R Neal, Succession Law and Practice NSW (LexisNexis, online) [1293.1] at 13 October 2009.
16. Clause 301 and related provisions.
17. QLRC, Report 65 [25.33]-[25.38].
18. QLRC, Report 65 [25.59].
19. QLRC, Report 65 [6.38].
20. NSW Trustee and Guardian Act 2009 (NSW) s 24; Trustee Companies Act 1964 (NSW) s 5, s 6.
21. QLRC, Report 65 [12.141].
22. QLRC, Report 65 [14.43]-[14.44].
23. QLRC, Report 65 [14.45].
24. See cl 402.
25. See cl 617.
26. In the Will of Mossop (1905) 5 SR (NSW) 722, 723.
27. QLRC, Report 65 [20.69]-[20.70].
28. QLRC, Report 65 [21.118].
29. QLRC, Report 65 [21.120]-[21.122].
30. Succession Act 2006 (NSW) sch 2[7].
31. New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills, Report 85 (1998) [9.20]-[9.29]. See also QLRC, Report 65 [13.140].
32. Law of Property and Trustees Relief Amendment Act 1859 (Eng) 22 & 23 Vict c 35 s 27-28. The National Committee, in DP 42, grouped it with various “assent” provisions and considered that there was no longer any need for assent provisions and that “it is difficult to apply the principles of assent in practice”: New South Wales Law Reform Commission, Uniform Succession Laws: Administration of Estates of Deceased Persons, Discussion Paper 42 (1999) [8.114].
33. See cl 324-334.
34. Supreme Court Rules 1970 (NSW) pt 78 r 4A.
35. See, eg, Administration and Probate Act 1919 (SA) s 9-12; Administration and Probate Act 1958 (Vic) s 71-78; Administration and Probate Act (NT) s 106-110; Administration Act 1903 (WA) s 55-60.
36. QLRC, Report 65 [29.121].
37. QLRC, Report 65 [29.121].
38. Stamp Duties (Amendment) Act 1991 (NSW) s 3, sch 3(11) (repealing Stamp Duties Act 1920 (NSW) pt 4), sch 5(20).
39. QLRC, Report 65 [35.138]-[35.139].
40. QLRC, Report 65 [35.139].
41. The provision was originally contained in Probate Act 1890 (NSW) s 28.
42. Wills, Probate and Administration Act 1898, Commissioner’s Memorandum and Certificate.
43. In the Estate of Hall (1917) 34 WN (NSW) 160, 161; In the Will of Constant (1924) 42 WN (NSW) 12.
44. In the Estate of Hall (1917) 34 WN (NSW) 160, 161.
45. See, eg, Supreme Court Rules 1970 (NSW) pt 78 r 24-26A, 28-28A.
46. QLRC, Report 65 [40.92], [40.95].
47. Court Procedures Rules 2006 (ACT) r 3119.
48. Supreme Court Act 1970 (NSW) sch 2.
49. Supreme Court Act 1970 (NSW) sch 2.
50. Wills, Probate and Administration (Amendment) Act 1989 (NSW) sch 1(15).
51. See para 4.37, para 4.44 and para 7.2.
