Chapter 4. Personal representatives

Updates and background for this project (Digest)

• Part 1 Accountability
• Part 2 Duties
• Part 3 Failure to perform duties
• Part 4 Powers
• Part 5 Obtaining the Supreme Court’s advice or directions
• Part 6 Protection for personal representatives
• Part 7 Barring of claims
• Part 8 Wrongful distributions
• Part 9 Approval of accounts
• Part 10 Payment for services
• Part 11 Informal administration

PART 1 ACCOUNTABILITY

400 Rights and liabilities of administrators

(1) A person to whom the Supreme Court makes a grant of letters of administration of a deceased person’s estate has the same rights and liabilities, and is accountable in the same way, as the person would be if the person were the deceased’s executor.

Note—


See section 339 for the accountability of executors and administrators by representation.

(2) Subsection (1) is subject to any condition or limitation of the grant of letters of administration.

4.2 These provisions derived originally from old English statutes of 1357 and 1685.¹ Such provisions are of long standing and the presence of such a provision in the model legislation has not been challenged.²

PART 2 DUTIES

401 General duties

(1) A personal representative has the following general duties—

(a) to collect the deceased person’s real and personal estate and administer it according to law;

(b) if the personal representative is appointed under a grant of representation—to deliver up the grant of representation to the Supreme Court, when required to do so by the court;

(c) to distribute the deceased person’s estate, subject to its administration, as soon as practicable.


(2) Subsection (1) does not limit any other duty to which a personal representative may be subject under an Act, at law or in equity.

4.4 The provisions are based on s 52(1)(a), (c) and (d) of the Succession Act 1981 (Qld). There are no equivalent provisions in NSW.

4.5 The Queensland provisions upon which cl 401(1)(a) and (b) are based³ were derived from provisions in s 25 of the Administration of Estates Act 1925 (Eng). The English provisions were enacted upon the abolition of administration bonds in that jurisdiction to serve as a simple, clear statement of the duties of an administrator that would previously have been set out in an administration bond.⁴ Currently, in NSW, an administration bond, if entered into, requires the proposed administrator to covenant to pay a certain amount if, amongst other things, he or she:

• “does not collect, get in and administer the estate according to law”;
• “does not pay out of the estate the just debts of the deceased”;
• prefers any debt of the deceased to him or her; and
• does not verify, file (and pass) accounts relating to the estate, depending on the circumstances of the grant, within 12 months of the grant or such time as the Court may order.⁵

4.6 The National Committee considered that, while the statement of duties of a personal representative would be well-known to lawyers and professional personal representatives, the provisions in cl 401 would serve to emphasise the importance of the duties and also bring them to the attention of lay personal representatives.⁷

4.7 The Queensland Law Reform Commission originally recommended the provision upon which cl 401(1)(c) is based⁸ as a statement, in positive terms, of the provision in the Statute of Distributions of 1670 (Eng)⁹ that an administrator in an intestacy was not under a duty to distribute the estate less than a year after the deceased’s death.¹⁰

402 Providing information

(1) A personal representative has a duty, whenever required by the Supreme Court, to do any or all of the following—

(a) file a statement of the assets and liabilities of the deceased person’s estate, whether situated within this jurisdiction or outside this jurisdiction, including outside Australia;

(b) file, or file and have approved by the Supreme Court, the personal representative’s accounts of the administration of the deceased person’s estate.


Notes—

1 For the effect of the Supreme Court approving a personal representative’s accounts, see section 429(2).

2 For a personal representative’s ability to apply to the Supreme Court to have his or her accounts approved, see section 428.


(2) The Supreme Court may require a personal representative to do a thing mentioned in subsection (1)(a) or (b) if the court considers it necessary in a particular case.

4.9 The provisions cover both personal representatives who are operating under a grant of representation and personal representatives who are not operating under a grant,¹¹ for example, an executor appointed under a will who has not sought a grant.¹²

4.10 The provisions also cover, by force of cl 364(2), those who have successfully applied to the Court to reseal a foreign grant.¹³

Statement of assets and liabilities

4.11 In allowing the Court the discretion to require a statement of assets and liabilities, the National Committee considered that the cost and inconvenience involved in preparing such a statement should only be incurred when there is a particular reason for requiring it.¹⁴ However, it should be noted that personal representatives are still required to maintain the necessary records of their administration under cl 403.

4.12 NSW currently has quite detailed provisions requiring an applicant for a grant of administration to file an inventory of assets and liabilities in court,¹⁵ and imposing a continuing duty of disclosure with respect to subsequently discovered assets and liabilities.¹⁶ However, the assets covered by these provisions are thought to be only those located in NSW.¹⁷ Similar requirements exist in the Supreme Court Rules 1970 (NSW) with respect to applications for resealing.¹⁸ NSW also prohibits personal representatives from disposing of property that has not been disclosed to the Court.¹⁹ The National Committee noted that such a requirement could operate only in the context of a mandatory requirement to file a statement of assets and liabilities. Such a provision would, therefore, be inconsistent with the discretion granted to the Court under cl 402(2).²⁰

Accounts of the administration

4.13 NSW currently has provisions that differ substantially from those in cl 402 relating to the filing and passing of accounts in that they require certain categories of personal representative to verify and file, or verify, file and pass, accounts, including:

• a creditor of the estate;
• a guardian of a minor beneficiary;
• the personal representative of the estate where the whole, or a substantial part of the estate passes to one or more charities or public benevolent institutions; and
• a person not being a beneficiary or substantial beneficiary of the estate, selected at random by the Court.²¹

4.14 The National Committee, in recommending the inclusion of the accounts provisions in cl 402, acknowledged the importance of recognising the interests of people with an interest in the proper administration of the estate, but concluded that their interests were not best met by routinely requiring all personal representatives or particular categories of personal representatives to file, or file and pass, accounts. It considered that, even where the personal representative was a creditor of the estate, there would be at least one other person with an interest in the due administration of the estate to seek an appropriate order from the Court, if the circumstances required it.²³ The National Committee concluded that allowing the Court to order that accounts be filed, or filed and passed, only when the circumstances require it would avoid the cost and inconvenience of preparing formal accounts for estates that do not require such a course of action.²⁴ The National Committee emphasised that the requirement to file, or file and pass, accounts should be made only where there is a reason and should not be imposed on the basis of random selection as is currently the case in NSW.²⁵

403 Maintaining documents

A personal representative must keep the documents necessary to enable the personal representative to comply with the duty mentioned in section 402 for 3 years after the administration of the deceased person’s estate is complete.

Note—


See section 615 for a beneficiary’s right to access particular documents.

4.16 The current law in NSW is that it is a personal representative’s duty “to render accounts when properly called upon and to be constantly ready so to do”.²⁶

4.17 In recommending this provision, the National Committee acknowledged that the duty under cl 402 to file statements and accounts when required to do so would encompass a duty to keep the necessary records. However, it considered it desirable to include an express statement of the duty to keep the necessary records in order to make lay personal representatives aware of this requirement and, thus, reduce the possibility of compromising their ability to comply with a court order because of failure to maintain the necessary documents.²⁷

4.18 In recommending that the personal representative be under a duty to maintain records for three years after the completion of the administration, the National Committee noted that some personal representatives choose to maintain documents for a longer period, having regard to the limitation periods that apply to some causes of action against personal representatives and trustees.²⁸

PART 3 FAILURE TO PERFORM DUTIES

404 Remedy if personal representative fails to perform duties

(1) If a personal representative fails to perform his or her duties as personal representative, the Supreme Court may, on the application of any person aggrieved by the failure, make any order it considers appropriate.

(2) Without limiting subsection (1), the court may make any or all of the following orders—


(a) an order for damages;

(b) an order requiring the personal representative to pay interest on any amount under the personal representative’s control;

(c) an order for the costs of the application.

4.20 The National Committee noted that, despite, the widening of the Court’s power, the Court would still retain its discretion under s 85 of the Trustee Act 1925 (NSW) to relieve a personal representative from personal liability if the Court considers that he or she “acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the direction of the Court in the matter in which [he or she] committed the breach”.³⁰

4.21 The Queensland Law Reform Commission, in its 1978 report, observed that such a provision was “probably unnecessary, apart from the provision for the payment of interest which may be desirable and which should be expressly stated”.³¹ The National Committee has, however, concluded that such a provision is “a useful provision, as it enables the court to make a wide range of orders in circumstances where a personal representative has not performed his or her duties”.³² For example, the Court could award damages against a personal representative for failure to provide a beneficiary access to information under cl 615.³³

405 Relief from liability for failing to maintain documents

If it appears to the Supreme Court that a personal representative—

(a) may be liable for a breach of statutory duty because of a failure to comply with section 403; but

(b) has acted honestly and reasonably and ought fairly to be excused for the breach;

the court may relieve the personal representative either entirely or partly from liability for the breach.

4.23 This provision reflects the wording in s 85 of the Trustee Act 1925 (NSW). The National Committee recommended its inclusion in the model bill to “avoid any doubt about whether the provisions in the trustee legislation would apply to a personal representative who failed to maintain the relevant documents”.³⁴

PART 4 POWERS

406 Real and personal estate

(1) A personal representative—

(a) represents the deceased person in relation to his or her real and personal estate; and

(b) has, in relation to the real and personal estate, from the deceased’s death—


(i) all the powers exercisable by an executor in relation to personal estate; and

(ii) all the powers conferred on personal representatives by [insert local equivalent of the Trusts Act 1973 (Qld)].

(2) The Supreme Court may confer on the personal representative any further powers for the administration of the deceased’s estate that the court considers appropriate.

(3) If there is more than 1 personal representative of a deceased person, the powers of the personal representatives must be exercised by them jointly.

• exercisable by an executor in relation to personal estate in relation to both the real and personal estate of the deceased; and
• conferred on personal representatives by the Trustee Act 1925 (NSW).

4.25 This provision also allows the Court to confer on a personal representative such further powers as the Court considers appropriate for the administration of an estate.

Powers in relation to real and personal estate

4.26 Paragraph 406(1)(a) and cl 406(1)(b)(i) both derive from part of s 49(1) of the Succession Act 1981 (Qld). Together, they ensure that the personal representative has the same powers in relation to both the real and personal estate of the deceased and remove any remaining distinctions between executors and administrators.³⁵

4.27 NSW currently has a provision that gives an executor the same rights and imposes the same duties with respect to the real estate that executors had previously had with respect to personal estate.³⁶ However, no provision in NSW assimilates the office of administrator with that of executor.

4.28 Provisions such as those in cl 406(1)(a) and (2)(b)(i) are necessary because, historically:

• personal representatives’ powers were only exercisable in relation to personal property as the real property of a deceased person did not vest in the personal representative but rather in the devisee under a will or in the heir-at-law under an intestacy;³⁷ and
• executors had extensive powers to deal with the deceased’s personal estate at general law whereas administrators had more limited powers because of the different origins of the office.³⁸

4.29 In relation to the assimilation of the offices of executor and administrator, the National Committee has noted that there are limitations. For example, unlike an executor, an administrator cannot exercise any powers before the grant of representation and some administrators may receive only a limited grant.⁴⁰

Personal representatives’ powers under the Trust Act

4.30 Sub-paragraph 406(1)(b)(ii) derives from the part of s 49(1) of the Succession Act 1981 (Qld) that relates to personal representatives’ powers under the Trusts Act 1973 (Qld). It confirms that personal representatives can exercise the powers conferred under the NSW equivalent, the Trustee Act 1925 (NSW), in particular those in relation to investment and property transactions under Part 2 Division 2.

4.31 Commentary on the Queensland provision has suggested that, while the powers appear to be very extensive, they are effectively limited to the particular purpose of administering the estate and should, therefore, not be used in a way that would impede the distribution, for example, by investing funds for a lengthy term.⁴¹

Joint exercise of powers

4.32 Clause 406(3) derives from s 49(4) of the Succession Act 1981 (Qld). The Queensland Law Reform Commission, in originally proposing s 49(4), noted that third parties were “rightly reluctant” to deal with only one executor in situations where there was more than one executor. The Commission also commented that the new provision would not require every executor to perform every act since some executors could easily authorise another to act as their agent.⁴²

4.33 While noting the potential for practical difficulties, the National Committee considered that personal representatives should be required to act jointly because this would:⁴³

• create certainty, especially about the manner in which administrators must exercise their powers;⁴⁴
• potentially provide some additional protections for beneficiaries; and
• be consistent with the requirement that trustees act jointly⁴⁵ (this is especially important in light of the fact that some personal representatives will continue to act as trustees).

Court may grant additional powers

4.35 Clause 406(2) is based on s 49(5) of the Succession Act 1981 (Qld). In NSW, the Court can already extend the powers conferred on executors and administrators in certain circumstances under s 81 of the Trustee Act 1925 (NSW).

4.36 The National Committee considered a specific provision of this sort desirable to make it clear, in the model legislation, that the Court can confer on a “personal representative” such further powers as it considers appropriate for the administration of the estate.⁴⁷

4.37 This provision will also render unnecessary s 4 of the Administration (Validating) Act 1900 (NSW) which grants the Court power to authorise an administrator or an executor of a partially intestate estate to “sell, mortgage, or lease all or any of the real estate of the deceased person”.

407 On the making of a grant of representation

(1) On the making of a grant of representation, only a personal representative to whom the grant is made may—

(a) exercise the powers of a personal representative; and

(b) bring actions or otherwise act as personal representative without the Supreme Court’s consent.


(2) The personal representative’s powers relate back to, and are taken to have arisen on, the deceased person’s death as if the making of the grant happened immediately after the deceased’s death.

(3) Subsections (1) and (2) are subject to the terms of the grant.

Only personal representative with grant may act

4.39 Sub-clause 407(1) is based on s 49(2) of the Succession Act 1981 (Qld). It is particularly intended to make clear that a person who is named as an executor in a will, but who does not seek a grant, cannot act as a personal representative once the court has made a grant of representation to another person.⁴⁸ This provision is necessary because of the model bill’s recognition of informal administration where a person named in a will may act as executor without a formal grant.⁴⁹

4.40 This provision is also consistent with cl 202 which provides for the vesting of the estate in the person to whom the Court has made a grant of representation.⁵⁰

Relation back of powers of personal representative

4.41 Sub-clause 407(2) is based on s 49(3) of the Succession Act 1981 (Qld) and is intended to ensure that the powers of a personal representative with respect to the estate relate back to the deceased’s death.⁵¹ It has been included for consistency with cl 206(2) which relates back to the deceased’s death the title to property that has vested in a personal representative.⁵²

4.42 No other Australian jurisdiction provides for the relation back of a personal representative’s powers.

408 Carrying on a business

(1) This section applies if, at the time of a person’s death, the person is engaged in carrying on a business.

(2) Subject to any other Act, it is lawful for the deceased person’s personal representative to continue to carry on the business for—


(a) the period, up to 2 years from the person’s death, necessary or desirable for the winding up of the business; or

(b) the further period or periods that the Supreme Court approves.


(3) For the purpose of carrying on the business, the personal representative may do any of the following—

(a) use any part of the deceased’s estate that is reasonably necessary;

(b) increase or reduce, as necessary, usage of the estate under paragraph (a);

(c) purchase stock, machinery, implements and chattels;

(d) employ the managers, agents, workers and others the personal representative considers appropriate;

(e) at any time, enter into a partnership agreement to take the place of any partnership agreement subsisting immediately before the deceased’s death or at any time after;

(f) enter into share-farming agreements.


(4) For subsection (3)(e), it does not matter that the personal representative was a partner of the deceased in his or her own right.

(5) The personal representative or a beneficiary of the deceased’s estate may apply to the Supreme Court for leave to carry on the business at any time, whether or not any previous authority to carry on the business has ended.

(6) For subsection (5), the Supreme Court may make the order, including an order subject to conditions, it considers appropriate.

(7) Nothing in this section affects any other authority to do the acts authorised to be done under this section.

(8) If the deceased’s estate is being administered under the deceased’s will, this section is subject to a contrary intention appearing in the will.

4.44 In NSW, s 5 of the Administration (Validating) Act 1900 (NSW) allows the Court to postpone the sale of any real property in a wholly intestate estate or that is subject to a partial intestacy in order to allow the personal representative to carry on the deceased’s “trade, business or occupation” on the property subject to such conditions as the Court sees fit to impose. With respect to property that is used for business purposes but that is not subject to an intestacy, the law is currently less simple. The power to postpone the sale of trust property⁵³ has been held to imply a power in the personal representatives to carry on a deceased’s business.⁵⁴ At general law, a personal representative’s power to carry on the deceased’s business is limited to such activities as are necessary for the sole purpose of realising it.⁵⁵ Under the Trustee Act 1925 (NSW), the Court may, where a trustee (including a personal representative) does not have the necessary power to manage an estate, confer such powers on personal representatives as the Court may think fit, including the power to postpone the sale of property and to carry on any business during the period of the postponement.⁵⁶ The model provision, by contrast, gives the personal representative specific powers in relation to carrying on a business of the deceased without the need to refer to the Court for at least two years following the deceased’s death.⁵⁷

4.45 The provisions in this clause are generally based on s 55 of the Trustees Act 1962 (WA). In importing provisions to the effect of the Western Australian provision into the model legislation, the National Committee considered that, while it would be ideal to have provisions relating to the carrying on of a business that applied to both personal representatives and trustees, specific provisions should be included in the model legislation because of the differences in the relevant provisions in trustee legislation of the various Australian jurisdictions.⁵⁸

4.46 Sub-clause 408(2) has been drafted to make it clear that the business should only be continued for as long as is necessary or desirable to wind it up. The period of two years, with leave to apply to the Court, has been set to avoid disputes with beneficiaries about what time, beyond two years, is necessary or desirable for the winding up of the business.⁵⁹

4.47 Paragraph 408(3)(a), in permitting the personal representative to use any part of the estate that is “reasonably necessary” for carrying on the business, departs from s 55(2)(a) of the Western Australian Act which allows the use of any part of the estate “that is subject to the same trusts”.⁶⁰

409 Subscribing to a relevant fund if carrying on a business

(1) This section applies if a personal representative is carrying on a business under section 408.

(2) The personal representative may subscribe to any relevant fund in connection with the business that the personal representative considers would be prudent to subscribe to if he or she were acting for himself or herself.

(3) Subscriptions must be paid from the business income.

(4) Nothing in this section affects any other authority the personal representative may have to subscribe to a relevant fund.

(5) If the deceased’s estate is being administered under the deceased’s will, this section is subject to a contrary intention appearing in the will.

(6) In this section—


relevant fund, in connection with a business, means any fund created for objects or purposes in support of any business of a similar nature and subscribed to by other persons engaged in a similar business.

410 Postponing realisation of estate

(1) A personal representative may apply to the Supreme Court for an order to postpone the realisation of the deceased person’s estate.

(2) The Supreme Court may, if it considers it appropriate to do so, order that the realisation of the estate be postponed for the period it decides.

4.50 In NSW, under the Trustee Act 1925 (NSW), the Court may, where a trustee (including a personal representative) does not have the necessary power to manage an estate, confer such powers on personal representatives as the Court may think fit, including the power to postpone the sale of property in the estate.⁶¹

4.51 This clause is based on s 43(2)(a) of the Administration and Probate Act 1935 (Tas). The National Committee noted that there will inevitably be circumstances where it is in the “best interests” of an estate for the personal representative to postpone the realisation of assets.⁶²

4.52 In importing provisions to the effect of the Tasmanian provision into the model legislation, the National Committee considered that, while it would be ideal to have provisions relating to the postponement of the realisation of an estate that applied to both personal representatives and trustees, specific provisions should be included in the model legislation because of the differences in the relevant provisions in the trustee legislation of the various Australian jurisdictions.⁶³

411 Ratifying particular acts

A personal representative may ratify and adopt any act done on behalf of the deceased person’s estate by someone else if the act was one that the personal representative might properly have done himself or herself.

4.54 It is based on s 54(3) of the Succession Act 1981 (Qld). There are no equivalent provisions in any other Australian jurisdiction. However, the Law Reform Commission of WA has recommended the adoption of a similar provision in WA.⁶⁵

PART 5 OBTAINING THE SUPREME COURT’S ADVICE OR DIRECTIONS

412 Applying to Supreme Court for advice or directions

(1) A personal representative may apply to the Supreme Court for advice or directions about—

(a) property in the deceased person’s estate, or the management or administration of the property; or

(b) the exercise of a power or discretion vested in the personal representative.


(2) The application must—

(a) state all relevant facts; and

(b) be served on each person having an interest in the application.


(3) However, the Supreme Court may dispense with service on a person mentioned in subsection (2)(b) if it considers it appropriate.

(4) This section does not limit any other right the personal representative may have to seek the advice or direction of the Supreme Court under another law.

(5) In this section—


estate, of a deceased person, includes property held on trust for a person because of the person’s beneficial interest in the deceased’s estate.

personal representative includes trustee.

4.56 At general law, a personal representative who does not know what course of action to take is always entitled to seek the opinion of the Court as to what to do. The personal representative is then protected from claims of beneficiaries or creditors with respect to the course of action adopted.⁶⁶ In NSW, the rules of court have set out the procedure for seeking the Court’s determination of questions arising in the administration of an estate.⁶⁷ Under trustee legislation, a trustee (including a personal representative) may apply for the Court’s opinion, advice or direction concerning any question regarding the management or administration of the trust or the interpretation of the trust instrument. A trustee acting on such opinion, advice or direction is deemed to have discharged his or her trustee’s duty with regard to the matter.⁶⁸

4.57 The National Committee acknowledged that these other mechanisms are available for seeking the Court’s advice, but considered that an express provision in the model legislation would alert personal representatives and trustees to the existence of the Court’s advisory jurisdiction.⁶⁹ The National Committee also acknowledged that, while these procedures may not be suitable for all questions that may arise in the administration of an estate, they may provide a convenient way of obtaining the Court’s assistance where the question is a discrete one and the material facts are not in dispute.⁷⁰

4.58 In NSW, the Court also currently has a limited power, in the case of a total or partial intestacy, to give directions about real estate, including its sale or management, and about the application of infants’ shares.⁷¹ The National Committee concluded that such a provision, already considered “redundant” by commentators⁷² in light of the availability of other procedures in the rules of court and trustee legislation,⁷³ is unnecessary in light of the more general provisions contained in this model clause.⁷⁴

4.59 The National Committee recommended the express inclusion of cl 412(4) to confirm that this model clause is not intended to limit a personal representative’s or trustee’s right to seek advice or directions under any other law, including the relevant trustee legislation.⁷⁵

4.60 Sub-clause 412(5) includes trustee in the definition of personal representative. The National Committee recommended this provision to avoid any disputes about whether a person is acting in the capacity of a personal representative or whether he or she is acting as a trustee. Such disputes could arise from the fact that, in the normal course of an administration, a personal representative will become a trustee and that, in many cases, a will can also make a personal representative the trustee of a testamentary trust.⁷⁶

4.61 The National Committee decided not to include provisions dealing with the extent to which anyone is bound by the Court’s advice or directions, since the primary purpose of cl 412 and cl 414 is to protect a personal representative who acts in accordance with the advice or directions of the Court. It also considered that there are more suitable procedures available where a personal representative seeks a binding determination of the rights of beneficiaries and, therefore, did not seek to overturn the Queensland Supreme Court’s ruling⁷⁷ that an application under s 96 of the Trusts Act 1973 (Qld) is not the proper means of seeking a determination on the construction of a will.⁷⁸

PART 6 PROTECTION FOR PERSONAL REPRESENTATIVES

413 Definitions for part

In this part—

estate, of a deceased person, includes property held on trust for a person because of the person’s beneficial interest in the deceased’s estate.

personal representative includes trustee.

414 Acting in accordance with Supreme Court advice or direction

(1) This section applies if a personal representative is acting in accordance with the advice or direction of the Supreme Court under section 412.

(2) The personal representative is taken, in relation to the personal representative’s own liability, to have discharged his or her duty as personal representative in the subject matter of the advice or direction.

(3) Subsection (2) applies even if the advice or direction is later varied or set aside.

(4) This section does not protect the personal representative from liability for an act done in accordance with the advice or direction if the personal representative commits a fraud or wilfully conceals or misrepresents a material matter—


(a) in obtaining the advice or direction; or

(b) in agreeing, either expressly or impliedly, with the Supreme Court in giving the advice or in making the order giving the direction.


(5) In this section—

varied or set aside includes invalidated, overruled and declared to be of no effect.

4.64 It is based on s 97 of the Trusts Act 1973 (Qld)⁷⁹ and follows on from cl 412, which is based on s 96 of the Trusts Act 1973 (Qld). A provision in similar terms may be found in s 63(1) of the Trustee Act 1925 (NSW).

415 Advertising intention to distribute

(1) A personal representative intending to distribute the deceased person’s estate may give notice of that intention—

(a) by advertising—

(i) in a newspaper circulating throughout this jurisdiction and sold at least once each week; or

[(ii) on the Supreme Court’s website in the way prescribed under the rules of court]; and


(b) in the other ways the Supreme Court would direct notice to be given in an action for administration.

(2) The notice must require any person having a claim to, or against, the estate, whether as beneficiary or creditor or otherwise, to send particulars of the person’s claim to the personal representative not later than the date stated in the notice (the closing date).

(3) For the purposes of subsection (1)(a)(i), the notice is sufficient if given in the approved form.

(4) The closing date must be at least 2 months after the date of publication of the notice.

(5) After the closing date, the personal representative may distribute the estate having regard only to the claims, whether formal or not, of which the personal representative has notice at the time of the distribution.

(6) For subsection (5), it does not matter whether the personal representative has notice of a claim because it has been made in response to the advertising or has otherwise come to the personal representative’s notice.

(7) The personal representative is not liable to any person of whose claim the personal representative had no notice at the time of the distribution for any of the estate distributed after the closing date.

(8) This section does not limit any other protection the personal representative may have in relation to the distribution of the estate.

(9) This section does not affect the right of a person to enforce a remedy for the person’s claim against a person to whom a distribution of the estate has been made.

Note—


See sections 424 and 606.

(10) Subsection (9) does not limit section 424(6) or any other defence available, under an Act or at law or in equity, to the person to whom the distribution is made.

(11) In this section—


personal representative includes a person administering a deceased person’s estate without a grant of representation.

Drafter’s note: Each jurisdiction should amend its trustee provisions to ensure consistency with this clause. See Trusts Act 1973 (Qld), s 67; Trustee Act 1925 (NSW), s 60 and Supreme Court Rules 1970 (NSW), pt 78, r 91; Trustee Act 1958 (Vic), s 33; Trustee Act 1925 (ACT), s 60; Trustee Act 1898 (Tas), s 25A; Trustee Act (NT), s 22; Trustee Act 1936 (SA), s 29; Trustees Act 1962 (WA), s 63.

Drafter’s note: Section 47A of the Administration Act 1903 (WA) and equivalent provisions in the status of children legislation in Qld, Vic, Tas, NT and SA should be repealed.

· advertised that he or she intends to distribute the estate and requires any person having a claim to, or against, the estate to provide particulars of that claim; and

· waited at least 2 months (or such other longer period as may be advertised) since the publication of the advertisement.

4.66 In proposing this model clause, the National Committee concluded that there should be a specific provision of this sort because the distribution of the estate is one of the most important duties that a personal representative must undertake.⁸⁰ The National Committee was also of the view that the inclusion of specific provisions setting out the procedures to be followed was the “only viable way to achieve uniformity” in relation to these requirements.⁸¹ It also considered that the inclusion of these specific provisions in the model legislation would create greater awareness among personal representatives about the availability of this mechanism for securing relief from liability with respect to unknown claims.⁸²

4.67 The National Committee considered, but rejected, a proposal to require personal representatives to advertise their intention to distribute, noting that the incentive to advertise was obvious. It was noted that there are some cases where the expense of advertising would not be justified, for example, where the personal representative is also the sole beneficiary of the estate and would, as a beneficiary, still be open to claims by creditors.⁸³

Application to personal representatives and trustees

4.68 This provision, by force of the definitions in cl 413, applies to both personal representatives and trustees and covers both property in the estate and property that is held on trust for a person because of his or her beneficial interest in the estate. The National Committee recommended this approach as being simpler and offering more certain protection to both personal representatives and trustees. In particular, it would avoid disputes about the status of some personal representatives in circumstances where they have also been appointed trustees of a testamentary trust or have simply become trustees because of the stage of administration that they have reached.⁸⁴

4.69 The National Committee considered cl 415(8) necessary to ensure that a personal representative can claim protection under any other law, including any relevant provisions of trustee legislation.⁸⁵ The National Committee also recommended that the relevant trustee provisions should be amended to be consistent with the notice provisions of this clause.⁸⁶

Extension to personal representatives acting without a grant

4.70 Sub-clause 415(11) gives effect to the National Committee’s decision to make the protection offered by cl 415 available to an executor named in a will who has not sought a grant of probate but who has assumed the duties of office, so long as that person follows the advertising and notice requirements.⁸⁷ In its discussion paper, the National Committee observed:

It is arguably in the interests of all parties for a person administering an estate – whether or not pursuant to a grant – to be able to “draw out” claims against the estate, rather than for those claims to be made, after the distribution of the estate, against a person who might not be able to satisfy them.⁸⁸

4.71 In NSW, it is currently not possible for a personal representative acting without a grant to take advantage of the procedure under s 92 of the Probate and Administration Act 1898 (NSW).⁹⁰ However, the relevant provisions in Queensland and Western Australia would appear to extend to an executor who is administering an estate without a grant.⁹¹

Manner of giving notice of an intention to distribute the estate

4.72 Paragraphs 415(1)(a) and (1)(b) set out the manner in which the personal representative must advertise his or her intention to distribute the estate. In addition to requiring the notice to be inserted in a newspaper circulating throughout the jurisdiction and sold at least once a week or on a dedicated, publicly searchable section of the Supreme Court’s website,⁹² the National Committee has recommended that the personal representative must give such other notices as the Court may direct in an administration action. This additional requirement, which appears in one form or other in some Australian jurisdictions,⁹³ will have effect depending on the circumstances of the case. For example, a personal representative may need to give notices in other jurisdictions if there are likely to be creditors or other claimants in those jurisdictions. The National Committee considered that this was preferable to a more prescriptive provision and observed that personal representatives could always apply to the Court for direction under cl 412.⁹⁴

4.73 Currently, in NSW, a personal representative is merely required to advertise, if the deceased was resident in NSW when he or she died, “in a newspaper circulating in the district where the deceased resided” or, otherwise, “in a Sydney daily newspaper”.⁹⁵ The National Committee has observed that a personal representative following this requirement cannot be deprived of the protection offered on the basis that the Court, in an administration suit, would have required publication of the notice in a wider area.⁹⁶

Approved form of advertisement

4.74 Sub-clause 415(3), in stating that an advertisement in the “approved form” is sufficient to meet the requirements of cl 415(1)(a)(ii), is based on s 67(2) of the Trusts Act 1973 (Qld).

Time limit for claims

4.75 Under cl 415(2) and (5), the notice is required to state that claims should be made not later than at least two months after the notice’s publication. After this date, under cl 415(5), the personal representative may distribute having regard only to the claims of which he or she has notice at the time. This, therefore, includes any claims made between the advertised date and the actual distribution.

4.76 Currently, in NSW, for the protection to take effect, the personal representative must distribute the estate at least six months after the deceased’s death and the date specified in the notice of intended distribution must be at least 30 days after publication.⁹⁷

Claims to which the personal representative must have regard

4.77 Sub-clause 415(5), which allows the personal representative to distribute the estate having regard to such claims, whether formal or not, of which he or she has notice at the time, is generally based on s 67(3) of the Trusts Act 1973 (Qld).

4.78 Sub-clause 415(6) confirms that the personal representative may receive notice of claims by any means and that the notice need not come to the personal representative’s attention only by way of response to the advertisement. This model provision draws on a Tasmanian provision⁹⁸ which states that the claims of which the personal representative has notice may be filed in accordance with the advertisement or otherwise.⁹⁹ However, it goes further than this, by confirming that beneficiaries, of whom the personal representative is already aware, do not need to give notice of their claim at all.

Claims against a person to whom the property has been wrongly distributed

4.79 The National Committee has observed that, because the purpose of this clause is to “facilitate the efficient administration of estates”, it only affects the rights of claimants against personal representatives or trustees. However, it considered it desirable to follow s 67(4)(a) of the Trusts Act 1973 (Qld) and confirm that this clause does not affect the right of a claimant to any remedy against a person to whom the property in the estate has been distributed.¹⁰⁰ Sub-clause 415(9) achieves this outcome. This provision, and similar ones in other Australian jurisdictions, are generally based on part of s 29 of Lord St Leonard’s Act.¹⁰¹ The National Committee favoured the use of the term “any remedy” as this would cover personal actions in equity as well as the right to trace money or property.¹⁰² The equivalent provision in NSW¹⁰³ refers only to the narrower “right to follow assets”.¹⁰⁴

4.80 The National Committee considered cl 415(10) necessary to make it clear that the right to enforce any remedy against a person to whom a wrongful distribution has been made is subject to the defence of change of position established under cl 424(6)¹⁰⁵ or any other defence that may be available.¹⁰⁶ Examples of such defences, with respect to the right to trace property, include laches, acquiescence and being a purchaser in good faith for value without notice of the wrongful distribution.¹⁰⁷

PART 7 BARRING OF CLAIMS

4.81 Normally, when a personal representative comes to know of a claim (under cl 415, or otherwise), he or she can set a sum aside to meet that claim and distribute the balance of the estate pending the resolution of the claim. Matters can, however, become complicated when the claim is for an unliquidated sum or is speculative. This can leave a personal representative with the choice of either delaying the distribution of the estate until the limitation period for the claim expires and, thereby, potentially depriving the beneficiaries of their entitlements for that period, or compromising the claim. The strong pressure on personal representatives to compromise so that they can, at least, distribute the balance of the estate has led to suggestions that some claims against estates in these circumstances may almost amount to a “blackmailing proceeding”.¹⁰⁸

4.82 All Australian jurisdictions have sought to alleviate this problem by setting up procedures that a personal representative can follow so that a claim will be barred if the claimant does not take the required steps to enforce it within the specified period. The NSW provisions are contained in s 93 of the Probate and Administration Act 1898 (NSW). Such provisions have been said to complement provisions such as cl 415 which establish procedures to invite notice of claims against an estate.¹⁰⁹ The clauses in this Part are, therefore, intended to complement the provisions in cl 415 and ensure that estates are administered expeditiously and are not unduly delayed by the actions, or lack of action, of claimants.¹¹⁰ The National Committee has recommended that the provisions in this Part should be generally based on s 68 of the Trusts Act 1973 (Qld).¹¹¹

416 Application of part

This part does not apply to a claim—

(a) under the [insert local equivalent of the Succession Act 1981 (Qld), part 4]; or

(b) that is an application to revoke a grant of representation.

417 Definitions for part

In this part—

claim does not include a claim for which insurance is required to be, and is, maintained under an Act.

claimant includes each of the following—


(a) a creditor;

(b) a person who makes a claim as a beneficiary;

(c) a person who the personal representative has reason to believe may become a claimant.


estate, of a deceased person, includes property held on trust for a person because of the person’s beneficial interest in the deceased’s estate.

personal representative includes trustee.

4.85 The definition of “claim” has been included to accord with the exclusion, in s 68(1) of the Trusts Act 1973 (Qld), of claims “in respect of which any insurance is on foot, being insurance required by any Act”.¹¹⁵ The provision was included in the Queensland Act because it was felt that cases under statutory insurance schemes, for example, motor accident cases, where the claim is, in reality, decided between the claimant and the insurance company, should not have any effect on the distribution of an estate.¹¹⁶

4.86 Paragraphs (a) and (b) of the definition of “claimant” derive from s 68(5) of the Trusts Act 1973 (Qld).

4.87 The definition of “personal representative” accords with the National Committee’s view that the procedures under this Part should be available to trustees as well as personal representatives for the same reasons as those given with respect to cl 412(5) and cl 415.¹¹⁷ The extension of the definition of “personal representative” to include a trustee means that the definition of “estate” must also include property held on trust for a person because of his or her beneficial interest in the estate.¹¹⁸

418 Requiring claimant to start a proceeding

(1) Subsection (2) applies if a personal representative does not accept a claim that has been made, or that the personal representative has reason to believe may be made—

(a) to, or against, the deceased person’s estate; or

(b) against the personal representative personally because the personal representative is under a liability for which the personal representative is entitled to reimbursement out of the estate.


(2) The personal representative may serve on the claimant a notice requiring the claimant, within 6 months after the date of service of the notice, to start a proceeding to enforce the claim and to prosecute the proceeding with proper diligence.

Drafter’s note: Provisions in jurisdictions that create special procedures for trustee companies are to be repealed [R 22-7]. See Public Trustee Act 1978 (Qld), s 131 and Trustee Companies Act 1968 (Qld), s 32; Public Trustee Act 1913 (NSW), s 34B and Probate and Administration Act 1898 (NSW), s 93(3) and (4); Trustee Companies Act 1984 (Vic), s 43; Public Trustee Act 1930 (Tas), s 58 and Trustee Companies Act 1953 (Tas), s 26; Public Trustee Act 1985 (ACT), s 33.

4.89 Sub-clause 418(1), which is generally based on s 68(1) of the Trusts Act 1973 (Qld), applies to a claim that the personal representative “does not accept”. This is different to the provision in s 68(1) of the Trusts Act 1973 (Qld) which refers to a claim that the personal representative “wishes to reject”. The National Committee recommended the phrasing in the model provision to “cover those situations where a personal representative or trustee has not actually rejected a claim, but does not have sufficient information to accept the claim”.¹¹⁹

4.90 Sub-clause 418(1) applies not only to a claim that has been made in response to an advertisement under cl 415 but also to any claim that the personal representative has reason to believe may be made. The National Committee considered this preferable to provisions, such as s 93(1) of the Probate and Administration Act 1898 (NSW), that appear only to apply to claims that have been received following the placing of an advertisement under cl 415.¹²⁰

4.91 The time period of six months in cl 418(2) and in cl 419, below, follows the period specified in the relevant provisions in the ACT, NT, Queensland, SA and Tasmania.¹²¹ The current period in NSW is three months.¹²²

4.92 The repeal of special provisions barring claims against public trustees or trustee companies is dealt with in the commentary to cl 419.¹²³

419 Applying to Supreme Court to make orders

(1) At the end of the 6 month period, the personal representative may apply to the Supreme Court for an order under subsection (4).

(2) A copy of the application must be served on the claimant.

(3) The Supreme Court may make an order under subsection (4) if, on the hearing of the application, the claimant does not satisfy the Supreme Court that the claimant—


(a) has started a proceeding to enforce the claim; and

(b) is prosecuting the proceeding with proper diligence.


(4) The Supreme Court may, by order—

(a) extend the period, or bar the claim (including for all purposes), or enable the estate to be dealt with without regard to the claim; and

(b) impose the conditions and give the directions, including a direction as to the payment of the costs of or incidental to the application, that the court considers appropriate.


(5) If a personal representative has served notices under section 418 on 2 or more claimants, the personal representative may seek orders against any or all of the claimants in a single application and the Supreme Court may make orders accordingly.

4.94 The provisions are generally based on s 68(2)-(4) of the Trusts Act 1973 (Qld). Sub-clauses 419(1) and (2) are based on s 68(2), cl 419(3) and (4) are based on s 68(3) and cl 419(5) is based on s 68(4).

4.95 Sub-clause 419(4), in setting out the orders that the Court may make, differs from the equivalent NSW provision. The model clause states that the Court may do one of three things (subject to such conditions as the Court considers appropriate), namely:

• extend the period for the claimant to commence proceedings;
• bar the claim; or
• enable the personal representative to deal with the estate without regard to the claim.

4.96 In empowering the Court to order the barring of claims only against the executor or administrator, the NSW provision simply allows the personal representative, in such circumstances, to distribute the estate without regard to the claim but does not prevent the claimant from proceeding against those to whom the estate has been distributed.¹²⁵ The current Queensland provision, in referring simply to an order “barring the claim”, in addition to an order allowing the estate to be dealt with without regard to the claim,¹²⁶ leaves open the possibility that the claim could also be barred in relation to people to whom the estate has been distributed.¹²⁷ Paragraph 419(4)(a), however, departs from the Queensland provision by expressly stating that the Court may order that a claim be barred for “all purposes”. The expression derives from s 30(3)(b) of the Administration and Probate Act 1958 (Vic). The National Committee recommended its inclusion to “avoid any doubt about the extent of the court’s power”.¹²⁸

4.97 In recommending this clause, the National Committee was strongly of the view that the barring of claims should occur only by order of the Court and not by any other procedure. It considered the barring of a claim, even if only against the personal representative or trustee, could significantly affect the claimant’s rights, for example, if a beneficiary has dissipated the property in question.¹²⁹ The National Committee, therefore, did not recommend the inclusion of any provisions that bar claims (without the need for a Court order) against a personal representative who is the NSW Trustee or a trustee company simply because of a claimant’s failure to commence proceedings.¹³⁰ It considered such provisions, including s 93(3)-(6) of the Probate and Administration Act 1898 (NSW) “anomalous” and recommended their repeal.¹³¹

420 Contesting personal representative’s right to indemnity

(1) Subsection (2) applies if a beneficiary of the deceased person’s estate is not made a party to an application by a personal representative under this part.

(2) An order made by the Supreme Court on the application does not affect the beneficiary’s right to contest the claim of the personal representative to be entitled to indemnify himself or herself out of the estate.

421 Service

Without limiting the [insert local equivalent of the Acts Interpretation Act 1954 (Qld), section 39], a notice or application under this part may be served in any way directed by the Supreme Court.

PART 8 WRONGFUL DISTRIBUTIONS

4.100 The clauses in this Part provide a procedure whereby a person who has suffered loss, because a personal representative has wrongfully distributed the estate, can seek a remedy against both the personal representative (so long as the personal representative is not protected under the advertising provisions in Part 6 of Chapter 4 or the barring of claims provisions in Part 7) and any person to whom the estate has been distributed.¹³³

422 Application of part

This part applies if a personal representative wrongfully distributes a deceased person’s estate.

In this part—

estate, of a deceased person, includes property held on trust for a person because of the person’s beneficial interest in the deceased’s estate.

personal representative includes—

(a) a trustee; and

(b) a person who is administering a deceased person’s estate without a grant of representation.

prescribed person means a person to whom a deceased person’s estate has been wrongfully distributed.

4.102 The definition of “personal representative” accords with the National Committee’s view that the procedures under this Part should be available against trustees as well as personal representatives for the same reasons as those given with respect to cl 412(5) and cl 415.¹³⁴ The extension of the definition of “personal representative” to include a trustee means that the definition of “estate” must also include property held on trust for a person because of his or her beneficial interest in the estate.¹³⁵

4.103 The definition of “personal representative” also includes a personal representative acting without a grant. This is consistent with cl 415(11).¹³⁶

424 Rights of persons suffering loss

(1) A person who suffers loss because of the wrongful distribution may start a proceeding to enforce a remedy against either or both of the following—

(a) the personal representative;

(b) a prescribed person.


(2) If the wrongful distribution was a distribution of trust property made by a trustee, the person who suffers loss may enforce the same remedies against the trustee and against the prescribed person that the person could enforce if the wrongful distribution—

(a) were a distribution of property in the estate, other than trust property; and

(b) had been made by the executor or administrator of the estate.


(3) It is not necessary for the person to exhaust the person’s remedies against the personal representative before proceeding against a prescribed person.

(4) Proceedings against persons mentioned in subsection (1) may be started and progressed at the same time.

(5) However, a proceeding against a prescribed person that is not also against the personal representative requires the Supreme Court’s leave.

(6) If—


(a) a proceeding is started against a prescribed person; and

(b) the prescribed person—


(i) has received the distribution in good faith; and

(ii) has so altered the person’s position in reliance on the correctness of the distribution that, in the Supreme Court’s opinion, it would be inequitable to enforce the remedy;


the Supreme Court may make any order it considers to be just in all the circumstances.

(7) Subsection (6) does not limit any other defence available, under an Act or at law or in equity, to the prescribed person.

4.105 Sub-clause 424(2), which is based on s 109(1) of the Trusts Act 1973 (Qld) ensures that the remedies for the wrongful distribution of trust property are the same as those for the wrongful distribution of a deceased estate.¹³⁷ It is included here because of doubts¹³⁸ about the availability of some actions in relation to the distribution of trust property.¹³⁹

4.106 Sub-clause 424(3), in providing that it is not necessary for the person to exhaust the remedies against the personal representative before he or she can proceed against a person to whom the estate has been distributed, removes an “unnecessary restriction” on a claimant’s rights that exists at general law¹⁴⁰ and under s 109(2) of the Trusts Act 1973 (Qld).¹⁴¹

4.107 Sub-clause 424(4), therefore, allows proceedings to be brought at the same time against both personal representatives and people to whom the personal representatives have distributed the estate.¹⁴² However, cl 424(5) requires the Court’s leave if proceedings are not also brought against the personal representatives.¹⁴³

4.108 Sub-clause 424(6), which is based on s 109(3) of the Trusts Act 1973 (Qld), establishes the defence of change of position for a person to whom a wrongful distribution has been made. Sub-section 424(7), however, makes it clear that a person to whom a wrongful distribution has been made is not limited to this statutory defence, but may take advantage of other defences under statute, at law or in equity, including such defences as may become available in the future.¹⁴⁴

425 Rights of prescribed persons

(1) This section applies if a person who suffers loss because of the wrongful distribution by the personal representative starts a proceeding against a prescribed person.

(2) The prescribed person—


(a) is entitled to a contribution and indemnity from the personal representative in the amount or on the terms that the Supreme Court considers appropriate; and

(b) may join the personal representative as a party to an action started against the prescribed person.

426 Judgement limited to amount of wrongful distribution

(1) This section applies if a prescribed person has received the distribution in good faith.

(2) In a proceeding against the prescribed person under this part, judgement against the prescribed person must not be for an amount more than the amount of the distribution made to the prescribed person.

(3) In deciding whether the amount of the judgement is more than the amount of the distribution, any amount awarded by way of interest is to be disregarded.

PART 9 APPROVAL OF ACCOUNTS

4.111 The clauses in this Part:

• allow a personal representative to apply to the Court to approve the accounts of the administration of the estate;
• set out the Court’s power to approve accounts (whether the personal representative files them voluntarily or in accordance with an order of the Court); and
• set out the effect of the Court’s approval of accounts.

In this part—

estate, of a deceased person, includes property held on trust for a person because of the person’s beneficial interest in the deceased’s estate.

personal representative includes trustee.

428 Applying for approval of accounts

A personal representative may apply to the Supreme Court to file, and have approved, the personal representative’s accounts of the administration of the deceased person’s estate.

4.114 The National Committee noted that there are “several reasons” why a personal representative or trustee might wish to file the accounts of the administration and have the Court approve them.¹⁴⁹ One reason is that the personal representative might intend to apply for commission.¹⁵⁰ Others are to seek exoneration and to bind the beneficiaries, especially where there may be some dissatisfaction with the administration or where some of the beneficiaries are unable to give releases.¹⁵¹

429 Approval of accounts by the Supreme Court

(1) This section applies if—

(a) a personal representative applies to the Supreme Court under section 428 to file, and have approved, the personal representative’s accounts of the administration of the deceased person’s estate; or

(b) the Supreme Court requires a personal representative to file, and have approved, the personal representative’s accounts of the administration of the deceased person’s estate under section 402(1)(b).


(2) If the Supreme Court, by order, approves the accounts, the order is evidence of the correctness of the accounts and, subject to subsections (3) and (4), operates as a release for the personal representative.

(3) If, in approving the accounts, the Supreme Court disallows, wholly or partly, the amount of any disbursement, the court may order the personal representative to refund the amount disallowed to the estate.

(4) The approval of the accounts does not—


(a) prevent a person who is interested in the accounts applying to the Supreme Court, within 3 years after the order, to show that there is an error or omission in the accounts; or

(b) operate as a release for the personal representative in relation to any material nondisclosure or fraudulent entry in the accounts.


(5) Nothing in subsection (3) limits a right a person may have, apart from this section, to proceed against a personal representative.

4.116 Sub-clause 429(2) is based on the first part of s 85(3) of the Probate and Administration Act 1898 (NSW).

4.117 Sub-clause 429(3) is based on the first part of s 85(4) of the Probate and Administration Act 1898 (NSW). Subsection 85(4) was first introduced to overcome the position at general law that the Court’s disallowance of an item in the accounts did not determine the liability of the personal representative to repay the amount to the estate.¹⁵³ The National Committee considered that allowing the Court to order the repayment of a disallowed amount would increase the “efficacy of the passing of accounts”.¹⁵⁴

4.118 Sub-clause 429(4) is based on the second part of s 85(3) of the Probate and Administration Act 1898 (NSW). However, s 85(3) provides for the release of the personal representative only three years after the order and only if an interested person has not shown an error, omission or fraudulent entry. Unlike s 85(3), the combined effect of cl 429(2) and cl 429(4) is to allow for an immediate release. However, cl 429(4)(a) allows a person interested in the accounts to show an error or omission in the accounts within three years of the order and cl 429(4)(b) provides that there will be no release where there is a material nondisclosure or fraudulent entry in the accounts even after the expiration of three years. The National Committee recommended these changes because it considered that exceptions provided by s 85(3) were too extensive and that the exceptions of error or omission provided “very limited protection” to a personal representative.¹⁵⁵ The National Committee also considered that the passing of the accounts should not release the personal representative from liability in the case of a fraudulent entry, “irrespective of the period of time that has elapsed since the order was made”.¹⁵⁶

4.119 Sub-clause 429(5) is based on the second part of s 85(4) of the Probate and Administration Act 1898 (NSW).

PART 10 PAYMENT FOR SERVICES

4.120 The provisions in this Part deal with the entitlement of personal representatives (whether acting on their own behalf, or engaging a legal practitioner) to remuneration for personal representative’s services, sometimes referred to as “commission”. It also includes provisions aimed at keeping the amount of that remuneration within reasonable bounds.

430 Definitions for part

In this part—

estate, of a deceased person, includes property held on trust for a person because of the person’s beneficial interest in the deceased’s estate.

personal representative includes trustee.

4.122 The extension of the definition of personal representative to include a trustee means that the definition of “estate” must also include property held on trust for a person because of his or her beneficial interest in the estate.¹⁵⁸

431 Supreme Court may authorise payment for services

(1) The Supreme Court may authorise the payment of an amount, from a deceased person’s estate, to the personal representative for the personal representative’s services.

(2) The amount to be paid to the personal representative is the amount that the court considers appropriate.

(3) The court may attach any conditions to the payment that it considers appropriate.

(4) Without limiting when the court may authorise the payment to be made, the court may authorise payment to be made periodically.

4.124 In recommending this provision, the National Committee preferred the phrase “payment of an amount ... for services” and deliberately refrained from using terms such as “commission” and “percentage” in order to reflect better the nature of the Court’s assessment. The National Committee was of the view that terms such as “commission” and “percentage” did not “sufficiently emphasise that the court’s primary assessment must be of the services provided, rather than of the size of the estate”.¹⁶⁰ The National Committee also decided not to impose a maximum rate of commission on the basis that such a figure could wrongly be taken to apply to estates without complicating factors, or could act as a cap in cases where greater remuneration was justified.¹⁶¹ It also felt that a reference to a “maximum rate of commission” would be inconsistent with the view that the model legislation should not refer to “commission”.¹⁶²

4.125 The National Committee considered that the “appropriate” amount referred to in cl 431(2) would depend on such matters as the nature of the services provided and the size of the estate. It considered, for example, that an appropriate amount for a very large estate might not be appropriate for a relatively small estate.¹⁶³

4.126 The periodic payments in cl 431(4) may be necessary when an estate is administered over a long period, for example, where the personal representative must wind up an ongoing business. The National Committee considered that, in such cases, periodic payments might be preferable to making the personal representative wait until the estate is fully distributed.¹⁶⁴

432 Supreme Court may reduce amounts that are excessive

(1) This section applies if the Supreme Court considers that either of the following amounts is excessive—

(a) an amount payable to a personal representative for the personal representative’s services;

(b) an amount charged or proposed to be charged by the personal representative in relation to the deceased person’s estate.


(2) The Supreme Court may, on its own initiative or on the application of a person interested in the estate, review the amount and may, on the review, reduce the amount.

(3) Subsection (2) applies despite—


(a) any provision of a will authorising the charging of the amount; or

(b) any provision of an Act [or subordinate legislation] authorising the charging of the amount.


(4) In this section—

amount includes a part of the amount.

4.128 The National Committee, in proposing this mechanism for review, expressed particular concern about some solicitors acting as personal representatives who have drafted wills that “give them an entitlement to commission at a much higher rate than they would be likely to be awarded if they applied to the court”.¹⁶⁵

4.129 The National Committee opted for a provision that requires either the Court or an interested person to commence proceedings for review, for the sake of certainty and to ensure that only those matters where there is a dispute about remuneration for personal representative’s services will come before the Court.¹⁶⁶

4.130 The National Committee also expressed concern that the statutory fee structures for public trustees¹⁶⁷ and trustee companies,¹⁶⁸ which are generally based on a percentage of the value of the estate and of income generated, are inconsistent with the view that remuneration of personal representatives should be based on the value of the services provided and not on the value of the estate.¹⁶⁹ The National Committee noted that a review of the fees charged under these structures could not take place in the context of a project on the administration of deceased estates because they related to the management of property in many capacities other than as a personal representative.¹⁷⁰ However, the National Committee considered that it was appropriate that a public trustee or a trustee company should be subject to the same review of their remuneration as applies to any other personal representative.¹⁷¹ Sub-clause 432(3), by stating that this clause applies despite any statutory provision authorising the charging of an amount, is, therefore, intended to ensure that the Court may review and, if appropriate, reduce the fees and charges of a public trustee or a trustee company that acts as a personal representative.¹⁷²

433 Limited right to indemnity for costs in a particular case

(1) This section applies if a personal representative renounces the personal representative’s right to an amount for the personal representative’s services for a particular 12 month period.

(2) The personal representative is entitled to indemnity out of the deceased person’s estate for the charges and disbursements of an Australian legal practitioner engaged by the personal representative to undertake non-professional work in the 12 month period.

(3) However, the entitlement under subsection (2) can not be more than the lesser of the following amounts—


(a) the amount to which the personal representative would have been entitled if the personal representative had undertaken the work personally and not renounced the personal representative’s right to an amount for the services;

(b) [the amount of the legal practitioner’s charges and disbursements, as moderated in accordance with the relevant professional scale].

4.132 The National Committee recommended that the model provision be to the general effect of s 86(3) of the Probate and Administration Act 1898 (NSW).¹⁷⁶

PART 11 INFORMAL ADMINISTRATION

4.133 This Part deals with the liability or release from liability of a person acting in the administration of an estate without a grant of representation, whether they have been named as executor in the will, or not. The National Committee, in discussing this provision, noted that, in all jurisdictions, a significant number of people administer estates informally and that they are assisted by such factors as survivorship in relation to jointly owned property, and the policies of certain financial and other organisations to release money up to a specified amount without the production of a grant.¹⁷⁷ In response to suggestions that the model legislation should not give recognition to informal administration, the National Committee stated:

Given the acknowledged high level of incidence of informal administration in all jurisdictions, it would be unrealistic for the model legislation simply to ignore the extent to which informal administration was presently occurring, and that to exclude it from the legislation would give the impression that a matter of considerable significance had been overlooked.¹⁷⁸

• cl 315 which allows a person to renounce his or her executorship of an estate notwithstanding that he or she has acted informally in the administration of that estate;
• cl 411 which allows a personal representative who holds a grant to ratify any act done on behalf of the estate by a person acting informally; and
• cl 415 which allows a person who acts informally to take advantage of the provisions relating to the advertising of an intention to distribute the estate.

434 Protection for limited payments made without production of a grant of representation

(1) This section applies if a person holds money or personal property for a deceased person of not more than $15000 in value.

(2) The person may, without requiring production of a grant of representation, pay the money or transfer the personal property to any of the following persons having legal capacity—


(a) a surviving spouse of the deceased; or

(b) a child of the deceased; or

(c) another person who appears to be entitled to the money or personal property.


(3) A payment of money or transfer of personal property under subsection (2), if made in good faith, is a complete discharge to the person of all liability for the money or personal property.

(4) This section does not affect the right of a person who has a claim to, or against, the deceased’s estate to enforce a remedy for the person’s claim against a person to whom a payment or transfer has been made under subsection (2).

4.137 The National Committee reviewed a number of provisions from various jurisdictions that facilitate the informal administration of small estates by offering protection to certain institutions which transfer money or property to people who do not have a grant of representation (without the need to seek indemnity from them).¹⁸⁰ It concluded that the “specific nature” of the provisions “significantly reduces their potential to facilitate the informal administration of small estates”. The National Committee, therefore, proposed a provision of general application.¹⁸¹

4.138 Clause 435 is derived from s 32 of the Administration and Probate Act 1958 (Vic) but is of general application, unlike the Victorian provision which applies only to distributions by people who were employers of the deceased and held money or personal property on their behalf.¹⁸²

4.139 The reference to “holding” money or personal property to the value of $15,000 in cl 434(1) is intended to ensure that people holding a large sum of money or property with a high value cannot take advantage of the protection offered by transferring that money or property by way of a series of smaller transactions designed to get around the $15,000 limit.¹⁸³ However, the National Committee noted that it would be possible for several institutions or individuals each to hold money or property up to the monetary limit and that this could amount to a considerable sum in total.¹⁸⁴ However, if an upper limit were to be imposed on the value of all property transferred in this way, there would be considerable difficulty involved in, for example, satisfying each financial institution that the total sums held by all financial institutions did not amount to more than the prescribed amount.¹⁸⁵ The National Committee also decided not to restrict the provision further by requiring (as is the case in Victoria¹⁸⁶ ) that the person transferring the money or property be satisfied that the value of the estate was less than a certain amount.¹⁸⁷

4.140 The National Committee also noted that this model provision will not prevent a person holding money or property valued at more than $15,000 from transferring it. Any person transferring money or property valued at more than $15,000 will simply not be able to discharge his or her liability under this provision.¹⁸⁸ He or she will, however, still be able to seek indemnity from the person receiving the property.

4.141 The amount of $15,000 is not indexed. Unlike other provisions in the model legislation that refer to indexed amounts,¹⁸⁹ this provision may need to be interpreted by a person informally administering an estate or a person who simply holds assets of a deceased person up to a value of $15,000. The need to calculate CPI increases or to refer to tables setting out such increases would arguably make the administration of small estates unnecessarily complex for some people.

4.142 Sub-clause 434(2) is based on part of s 32(1) of the Administration and Probate Act 1958 (Vic). The National Committee noted that the final category of “another person who appears to be entitled to the money or personal property” would include a person named in a will that had not been admitted to probate.¹⁹⁰ Again, the National Committee emphasised that a person who does not transfer the money or property in accordance with this provision will not discharge his or her liability with respect to it.¹⁹¹

4.143 The requirement that the person to whom the transfer is made be of full legal capacity is intended to ensure that the person holding the property cannot obtain a discharge by transferring the money or property to a person who is not capable of giving a valid discharge.¹⁹²

4.144 Sub-clause 434(4) is based on s 32(3) of the Administration and Probate Act 1958 (Vic). However, it goes beyond the Victorian provision by preserving the rights or remedies of “a person who has a claim to, or against, the deceased’s estate” rather than simply a person entitled to claim under the deceased’s will or under the law relating to the disposition of deceased estates.¹⁹³

435 Persons acting informally

(1) This section applies if a person who does not hold a grant of representation of a deceased person’s estate—

(a) obtains, receives or holds the estate other than for full and valuable consideration; or

(b) effects the release of any debt payable to the estate.


(2) The person is liable to account for estate assets to the extent of—

(a) the estate obtained, received or held by the person; or

(b) the debt released.


(3) However, the person’s liability is reduced to the extent of any payment made by the person that might properly be made by a personal representative to whom a grant of representation of the estate is made.

4.146 The clause is based on s 54(1) of the Succession Act 1981 (Qld).¹⁹⁴ In recommending s 54(1), the Queensland Law Reform Commission, in 1978, noted the desirability of protecting people who “act informally, but properly” in the administration of an estate and further observed that “provided such person does what a duly constituted personal representative should properly do the estate will not be harmed”.¹⁹⁵

4.147 The model provision essentially states the current general law with respect to people who act in the administration of an estate without a grant of representation.¹⁹⁶ The National Committee preferred a statutory statement of the law because it would make the law “more accessible to non-lawyers”.¹⁹⁷ The National Committee also considered that a statement to the effect of s 54(1) would clarify the extent to which a person administering an estate without a grant is liable to account for assets in the estate.¹⁹⁸

1. 31 Edward III St 1 c 11 (1357) and 1 James II c 17 (1685) s 6.

2. 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”) [11.4]-[11.6].

3. Succession Act 1981 (Qld) s 52(1)(a), (c).

4. England and Wales, Law Commission, Administration Bonds, Personal Representatives’ Rights of Retainer and Preference and Related Matters, Report 31 (1970) [10]-[11].

5. Supreme Court Rules 1970 (NSW) sch F form 102.

6. See cl 617.

7. QLRC, Report 65 [11.19].

8. Succession Act 1981 (Qld) s 52(1)(d).

9. 22 & 23 Charles II c 10 (1670).

10. Queensland Law Reform Commission, The Law Relating to Succession, Report 22 (1978) (“QLRC, Report 22”) 36. The National Committee has, however, decided that there is no need to enact a provision to the effect of Succession Act 1981 (Qld) s 52(1A) which preserves any role or practice deriving from the principle of the executor’s year: QLRC, Report 65 [11.251].

11. See para 4.133-4.135.

12. QLRC, Report 65 [11.79], [11.153].

13. QLRC, Report 65 [11.96].

14. QLRC, Report 65 [11.77].

15. Probate and Administration Act 1898 (NSW) s 81A(1) and Supreme Court Rules 1970 (NSW) pt 78 r 24 and r 24A. See also Probate and Administration Act 1898 (NSW) s 85(1), (5).

16. Probate and Administration Act 1898 (NSW) s 81A(2).

17. R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (LBC Information Services, 1996) 544.

18. Supreme Court Rules 1970 (NSW) pt 78 r 28; sch F form 106 item 12-14.

19. Probate and Administration Act 1898 (NSW) s 81B(1).

20. QLRC, Report 65 [11.80].

21. Probate and Administration Act 1898 (NSW) s 85(1AA)(a)-(d).

22. Probate and Administration Act 1898 (NSW) s 85(1AA)(e).

23. QLRC, Report 65 [11.148].

24. QLRC, Report 65 [11.149].

25. Probate and Administration Act 1898 (NSW) s 85(1AA)(d).

26. Re Craig (1952) 52 SR (NSW) 265, 267. See also Freeman v Fairlie (1817) 3 Mer 24, 43; 36 ER 10, 17; Pearse v Green (1819) 1 Jac & W 135, 140; 37 ER 327, 329.

27. QLRC, Report 65 [11.181].

28. QLRC, Report 65 [11.188]. See, eg, Limitation Act 1969 (NSW) s 47-50.

29. QLRC, Report 65 [14.15].

30. QLRC, Report 65 [14.16].

31. QLRC, Report 22, 36.

32. QLRC, Report 65 [14.13]. See, eg, Re Hill (unreported, Queensland Supreme Court, Carter J, 17 June 1988).

33. QLRC, Report 65 [11.210].

34. QLRC, Report 65 [11.191].

35. QLRC, Report 65 [12.26].

36. Probate and Administration Act 1898 (NSW) s 48.

37. QLRC, Report 65 [12.3].

38. QLRC, Report 65 [12.2]-[12.4].

39. QLRC, Report 65 [12.7].

40. QLRC, Report 65 [12.11], [12.28]. See also QLRC, Report 22, 32-33.

41. A A Preece, Lee’s Manual of Queensland Succession Law (6th ed, Law Book Company, 2007) [9.140], [9.160].

42. QLRC, Report 22, 33.

43. QLRC, Report 65 [12.63].

44. For a discussion of some of the uncertainty surrounding the powers of personal representatives, see: R A Sundberg, “Powers of One of Several Personal Representatives” (1985) 59 Australian Law Journal 649; Exception Holdings Pty Ltd v Albarran (2005) 223 ALR 487 [20]-[27].

45. Sky v Body (1970) 92 WN (NSW) 934, 935.

46. NSW Trustee and Guardian Act 2009 (NSW) s 15.

47. QLRC, Report 65 [12.36]-[12.37].

48. QLRC, Report 65 [12.45]-[12.46]. See QLRC, Report 22, 33.

49. See Chapter 4 part 11; para 4.133-4.135.

50. QLRC, Report 65 [12.39].

51. QLRC, Report 65 [12.27].

52. QLRC, Report 65 [12.12]. See also QLRC, Report 22, 32.

53. Trustee Act 1925 (NSW) s 27B(1).

54. Re Hammond (1903) 3 SR (NSW) 270, 272.

55. Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319, 324.

56. Trustee Act 1925 (NSW) s 81(2)(b), (c).

57. QLRC, Report 65 [11.263].

58. QLRC, Report 65 [11.274].

59. QLRC, Report 65 [11.279].

60. QLRC, Report 65 [11.280].

61. Trustee Act 1925 (NSW) s 81(2)(b).

62. QLRC, Report 65 [11.274].

63. QLRC, Report 65 [11.274].

64. See para 4.133-4.135.

65. Law Reform Commission of Western Australia, The Administration Act 1903, Report, Project No 88 (1990) [4.10].

66. Re Atkinson [1971] VR 612, 615. See also Re Lemon Tree Passage and Districts RSL and Citizens Club Co-operative Ltd (1987) 11 ACLR 796, 799.

67. Uniform Civil Procedure Rules 2005 (NSW) r 54.3.

68. Trustee Act 1925 (NSW) s 63.

69. QLRC, Report 65 [20.85].

70. QLRC, Report 65 [20.91].

71. Probate and Administration Act 1898 (NSW) s 57.

72. R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (LBC Information Services, 1996) 426.

73. See para 4.56.

74. QLRC, Report 65 [20.93]-[20.95].

75. QLRC, Report 65 [20.92].

76. QLRC, Report 65 [20.84].

77. Re Petersen [1920] St R Qd 42, 47; Re Kirkegaard [1950] St R Qd 144, 146.

78. QLRC, Report 65 [20.90].

79. QLRC, Report 65 [20.89].

80. QLRC, Report 65 [21.54].

81. QLRC, Report 65 [21.55].

82. QLRC, Report 65 [21.56].

83. QLRC, Report 65 [21.163].

84. QLRC, Report 65 [21.186]-[21.187].

85. QLRC, Report 65 [21.185]. In NSW, these provisions are Trustee Act 1925 (NSW) s 60.

86. QLRC, Report 65 [21.188].

87. QLRC, Report 65 [21.182].

88. New South Wales Law Reform Commission, Uniform Succession Laws: Administration of Estates of Deceased Persons, Discussion Paper 42 (1999) (“NSWLRC, DP 42”) [10.34].

89. QLRC, Report 65 [21.183].

90. R S Geddes, C J Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (LBC Information Services, 1996) 608.

91. See QLRC, Report 65 [21.171]-[21.172].

92. As is the case in Victoria: “Probate Online Advertising System Home” (2009) Supreme Court of Victoria «https://online.justice.vic.gov.au/poas» at 28 August 2009.

93. See, eg, Trustee Act 1925 (ACT) s 60(2); Trusts Act 1973 (Qld) s 67(1); Trustee Act 1958 (Vic) s 33(1)(a).

94. QLRC, Report 65 [21.140].

95. Supreme Court Rules 1970 (NSW) pt 78 r 91(1).

96. QLRC, Report 65 [21.25].

97. Probate and Administration Act 1898 (NSW) s 92(1)(a), (c).

98. Administration and Probate Act 1935 (Tas) s 55.

99. QLRC, Report 65 [21.153].

100. QLRC, Report 65 [22.51]-[22.52].

101. Law of Property and Trustees Relief Amendment Act 1859 (Eng) 22 & 23 Vict c 35.

102. These are the two remedies, described, respectively, as “in personam” and “in rem” identified in Re Diplock [1948] Ch 465, 502, 536-537.

103. Probate and Administration Act 1898 (NSW) s 95.

104. QLRC, Report 65 [22.52].

105. See para 4.108.

106. QLRC, Report 65 [22.53].

107. See H A J Ford and W A Lee, Principles of the Law of Trusts (Thomson Reuters online service) [17.3060], [18.3070]-[18.3090], [18.5010]-[18.5070] at 12 October 2009.

108. Victoria, Parliamentary Debates (Hansard) Legislative Assembly, 19 October 1911, 2023. See also Ludwig v Public Trustee (2006) 68 NSWLR 69, 77.

109. See QLRC, Report 65 [22.63].

110. QLRC, Report 65 [22.64], [22.96].

111. QLRC, Report 65 [22.98].

112. Succession Act 2006 (NSW) Chapter 3.

113. See cl 301(1)(a).

114. Bramston v Morris (Unreported, NSW Supreme Court, Powell J, 20 August 1993) 11. See also Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115.

115. QLRC, Report 65 [22.98].

116. H A J Ford and W A Lee, Principles of the Law of Trusts (Thomson Reuters online service) [16340] at 12 October 2009.

117. QLRC, Report 65 [22.97]. See para 4.57 and para 4.68-4.69.

118. QLRC, Report 65 [22.98].

119. QLRC, Report 65 [22.100].

120. QLRC, Report 65 [22.98].

121. Administration and Probate Act 1929 (ACT) s 65(1); Trustee Act (NT) s 22(2); Administration and Probate Act (NT) s 97(1); Trusts Act 1973 (Qld) s 68(1); Trustee Act 1936 (SA) s 29(2); and Trustee Act 1898 (Tas) s 25A(5).

122. Probate and Administration Act 1898 (NSW) s 93(1) and (2).

123. See para 4.97.

124. Probate and Administration Act 1898 (NSW) s 93(2).

125. See QLRC, Report 65 [22.86].

126. Trusts Act 1973 (Qld) s 68(3)(a).

127. QLRC, Report 65 [22.88].

128. QLRC, Report 65 [22.101]. Notwithstanding the National Committee’s view that the expression “barring the claim” in Trusts Act 1973 (Qld) s 68(3)(a) would include an order barring the claim for all purposes.

129. QLRC, Report 65 [22.102].

130. QLRC, Report 65 [22.103].

131. QLRC, Report 65 [22.103]. The National Committee also recommended the repeal of Public Trustee Act 1913 (NSW) s 34B. This provision does not appear to have been re-enacted in the NSW Trustee and Guardian Act 2009 (NSW).

132. Interpretation Act 1987 (NSW) s 76 does not deal with service of documents generally, but merely makes provision for situations where “an Act or instrument authorises or requires any document to be served by post”.

133. QLRC, Report 65 [22.54].

134. QLRC, Report 65 [22.54]. See para 4.57 and para 4.68-4.69.

135. QLRC, Report 65 [22.98].

136. See para 4.70-4.71.

137. QLRC, The Law Relating to Trusts, Trustees, Settled Lands and Charities, Report 8 (1971) 74.

138. Raised in Ministry of Health v Simpson [1951] AC 251, 265-266.

139. QLRC, Report 65 [22.55].

140. Re Diplock [1948] Ch 465, 503.

141. QLRC, Report 65 [22.57].

142. QLRC, Report 65 [22.57].

143. QLRC, Report 65 [22.58].

144. QLRC, Report 65 [22.61].

145. QLRC, Report 65 [22.59].

146. QLRC, Report 65 [22.60].

147. See para 4.57 and para 4.68-4.69.

148. QLRC, Report 65 [22.98].

149. QLRC, Report 65 [11.153].

150. QLRC, Report 65 [11.119] footnote 1293. See Chapter 4 part 10.

151. QLRC, Report 65 [11.154]-[11.156].

152. QLRC, Report 65 [11.161].

153. In the Will of Lucas-Tooth (No 2) (1932) 50 WN (NSW) 86.

154. QLRC, Report 65 [11.166].

155. QLRC, Report 65 [11.161].

156. QLRC, Report 65 [11.161].

157. Probate and Administration Act 1898 (NSW) s 86.

158. QLRC, Report 65 [27.90].

159. See cl 432.

160. QLRC, Report 65 [27.82].

161. QLRC, Report 65 [27.86].

162. QLRC, Report 65 [27.87].

163. QLRC, Report 65 [27.83].

164. QLRC, Report 65 [27.84].

165. QLRC, Report 65 [27.124].

166. QLRC, Report 65 [27.125]-[27.127].

167. See NSW Trustee and Guardian Act 2009 (NSW) s 111; NSW Trustee and Guardian Regulation 2008 (NSW) cl 16-19, 21.

168. See Trustee Companies Act 1964 (NSW) s 18, 18A.

169. QLRC, Report 65 [27.166]. See para 4.124.

170. QLRC, Report 65 [27.167].

171. QLRC, Report 65 [27.168].

172. QLRC, Report 65 [27.169].

173. In the Will of Douglas (1951) 51 SR (NSW) 282, 283-284.

174. QLRC, Report 65 [27.91].

175. However, in NSW, paragraph (b) will need to be omitted or redrafted because there is no relevant professional scale for a legal practitioner’s charges and disbursements in such matters under Legal Profession Regulation 2005 (NSW) Part 9.

176. QLRC, Report 65 [27.91].

177. NSWLRC, DP 42 [10.25]. See also QLRC, Report 65 [29.230]-[29.231].

178. NSWLRC, DP 42 [10.27].

179. QLRC, Report 65 [29.275]. See, eg, Sykes v Sykes (1870) LR 5 CP 113, 114 (Montague Smith J).

180. Administration and Probate Act 1919 (SA) s 71, s 72; Administration and Probate Act 1958 (Vic) s 32; Administration Act 1903 (WA) s 139.

181. QLRC, Report 65 [29.313].

182. QLRC, Report 65 [29.314].

183. QLRC, Report 65 [29.316].

184. QLRC, Report 65 [29.316].

185. See QLRC, Report 65 [29.304]. See also Law Reform Commission of Western Australia, The Administration Act 1903, Report, Project No 88 (1990) [3.23].

186. See Administration and Probate Act 1958 (Vic) s 32(1)(b).

187. QLRC, Report 65 [29.317].

188. QLRC, Report 65 [29.318].

189. See cl 325 and cl 355; para 3.98 and para 3.236.

190. QLRC, Report 65 [29.319].

191. QLRC, Report 65 [29.320].

192. QLRC, Report 65 [29.322]. The model provision, therefore, differs from Administration and Probate Act 1958 (Vic) s 32(2) which allows a person over 16 years of age to give a valid receipt.

193. QLRC, Report 65 [29.324].

194. QLRC, Report 65 [29.274]. Succession Act 1981 (Qld) s 54(1) is based on Administration and Probate Act 1958 (Vic) s 33(1) which, in turn, derived from Administration of Estates Act 1925 (Eng) s 28, a descendant of the original provision (which dealt only with fraudulent practices) in 43 Elizabeth I c 8 (1601) s 2. The Elizabethan provision was repealed as unnecessary in NSW by Imperial Acts Application Act 1969 (NSW) s 8(1).

195. QLRC, Report 22 (1978) 37.

196. For example, in relation to the discharge of debts: Parker v Kett (1701) 1 Ld Raym 658, 661; 91 ER 1338, 1340; and in relation to liability for property received: Yardley v Arnold (1842) Car & M 434, 438; 174 ER 577, 579; Lowry v Fulton (1839) 9 Sim 104, 123; 59 ER 298, 305.

197. NSWLRC, DP 42 [10.28].

198. QLRC, Report 65 [29.274].