Chapter 6. General

Updates and background for this project (Digest)

• Part 1 Subsisting causes of action
• Part 2 Supreme Court practice and the Registrar
• Part 3 Concealing wills etc.
• Part 4 Other provisions

PART 1 SUBSISTING CAUSES OF ACTION

Division 1 Causes of action continue

600 Survival of causes of actions

(1) On a person’s death, all causes of action subsisting against or vested in the person survive against, or for the benefit of, the person’s estate.

(2) However, subsection (1) does not apply if, or to the extent, [insert any provisions providing exceptions] or another Act provides otherwise in relation to a specific cause of action.

6.2 In recommending this provision, the National Committee decided not to refer specifically to the exceptions contained in the various similar provisions around Australia. For example, in NSW, exceptions include claims for the adjustment of property interests under the Property (Relationships) Act 1984 (NSW),¹ and causes of action for defamation, seduction and “for inducing one spouse to leave or remain apart from the other”.² The National Committee considered that such matters are essentially ones of tort law and are “more properly located in separate legislation dealing with the survival of specific causes of action”.³ The National Committee applied the same reasoning to specific provisions detailing what damages should be recoverable when a cause of action survives for the benefit of an estate. In NSW, these include specific provisions barring exemplary damages and damages for future loss and pain and suffering.⁴

6.3 The National Committee observed that this provision simply “reflects the fact that a cause of action that survives for the benefit of an estate is an asset of the estate, while a cause of action that survives against an estate is a liability of the estate”.⁵

601 Cause of action subsists in particular circumstances

(1) This section applies if damage has been suffered because of an act or omission in relation to which a cause of action would have subsisted against a person (the respondent) if the respondent had not died before or at the same time as the damage was suffered.

(2) For section 600, a cause of action, of the same kind as would have subsisted if the respondent had died after the damage was suffered, is taken to have been subsisting against the respondent before his or her death in relation to the act or omission.

602 Rights are additional

The rights conferred by this division for the benefit of the estates of deceased persons are in addition to, and do not limit, any rights conferred on the dependants of deceased persons by [insert local equivalent of the Supreme Court Act 1995 (Qld), part 4, division 5²].

2 Supreme Court Act 1995, part 4 (Provisions from Common Law Practice Act 1867), division 5 (Actions against and by executors)

603 Part does not revive cause of action not previously maintainable

Nothing in this division enables a proceeding to be started for a cause of action that ceased to be maintainable before the commencement of this Act.

Division 2 Proceedings for causes of action that continue

6.7 This division deals with proceedings for causes of action against an estate that have continued under cl 600. It covers:

• the ability to bring an action against a personal representative or a beneficiary (cl 606);
• a beneficiary’s entitlement to seek contribution or indemnity from the personal representative, contribution from beneficiaries of equal degree, and indemnity from beneficiaries of lower degree (cl 607 and cl 608);
• the defences available to a beneficiary (cl 609); and
• limitations on the amounts for which each beneficiary is liable (cl 610).

604 Application of division

(1) This division applies if a cause of action survives against a deceased person’s estate.

(2) This division applies in relation to causes of action under [insert local equivalent of the Supreme Court Act 1995 (Qld), part 4, division 5] as it applies in relation to other causes of action that survive under division 1.

605 Definitions for division

In this division—

claimant means a person whose cause of action survives against a deceased person’s estate.

court means the court of this jurisdiction in which a proceeding is brought.

(1) A claimant may start a proceeding, for the cause of action, against any or all of the following—

(a) the personal representative of the deceased person’s estate;

(b) any beneficiary of the estate to whom the estate has been distributed (a prescribed person).


(2) It is not necessary for the claimant to exhaust all remedies against the personal representative before proceeding against a prescribed person.

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

(4) A proceeding against a prescribed person that is not also against the personal representative requires the court’s leave.

6.11 Sub-clause 606(1) confirms, in conjunction with the definition in cl 605, that “claimant” is not restricted to a creditor, beneficiary or next-of-kin of the deceased.¹⁸

607 Beneficiary is entitled to contribution or indemnity

(1) If a claimant starts a proceeding, for the cause of action, against a beneficiary of a deceased person’s estate, the beneficiary is entitled—

(a) to an indemnity, from any other beneficiary of the estate to whom a distribution has been made who ranks in lower degree than the beneficiary, for the payment of the debts of the estate; and

(b) to a contribution, from any other beneficiary of the estate to whom a distribution has been made who ranks in equal degree with the beneficiary, for the payment of the debts of the estate; and

(c) to a contribution and indemnity from the personal representative in the amount or on the terms that the court considers appropriate.


(2) If a beneficiary of the estate starts a proceeding, for an indemnity or contribution mentioned in subsection (1)(a) or (b), against another beneficiary of the estate (the respondent beneficiary), the respondent beneficiary is entitled—

(a) to an indemnity, from any other beneficiary of the estate to whom a distribution has been made who ranks in lower degree than the respondent beneficiary, for the payment of the debts of the estate; and

(b) to a contribution, from any other beneficiary of the estate to whom a distribution has been made who ranks in equal degree with the respondent beneficiary, for the payment of the debts of the estate; and

(c) to a contribution and indemnity from the personal representative in the amount or on the terms that the court considers appropriate.


(3) Subsection (2) may be re-applied, with necessary changes, so that a beneficiary against whom a proceeding is started (as mentioned in subsection (2)(a) or (b) or the re-application of subsection (2) under this subsection) is entitled to the indemnity, contribution, or contribution and indemnity mentioned in subsection (2)(a), (b) or (c).

(4) A beneficiary of the estate may join as a party to a proceeding brought against the beneficiary the following persons—


(a) for a proceeding mentioned in subsection (1)—any other beneficiary mentioned in subsection (1)(a) or (b);

(b) for a proceeding mentioned in subsection (2), including as re-applied under subsection (3)—any other beneficiary mentioned in subsection (2)(a) or (b);

(c) for either of the proceedings mentioned in subsections (1) and (2)—the personal representative.

6.13 Clause 607 is derived from s 66(7) of the Succession Act 1981 (Qld).¹⁹ However, it goes further than s 66(7) since it allows a beneficiary to seek contribution and indemnity from the personal representative²⁰ and also allows a beneficiary against whom proceedings for indemnity or contribution have been commenced to seek contribution or indemnity from other beneficiaries.²¹

608 Ranking of beneficiaries

(1) For section 607, beneficiaries are ranked for the payment of the debts of the estate as follows—

(a) a beneficiary ranks in equal degree to another beneficiary if each beneficiary is a beneficiary of property that is in the same class under section 502; and

Example—

Each beneficiary is a beneficiary of class 2 property.

(b) a beneficiary (the first beneficiary) ranks in lower degree to another beneficiary if, under section 502, the property of which the first beneficiary is a beneficiary must be used for the payment of the debts before the property of which the other beneficiary is a beneficiary.


Example—

A is a beneficiary of class 2 property and B is a beneficiary of class 3 property. A ranks in lower degree than B because the debts of the estate must first be paid from class 2 property.

(2) If a beneficiary is a beneficiary of a particular class of property and of other property that is of a different class, the beneficiary may be ranked in more than 1 way against another beneficiary for the purposes of contribution and indemnity.

Example—


Assume an action is brought against B who is the beneficiary of class 3 property. A is the beneficiary of class 2 and class 3 property. B is entitled to an indemnity from A to the extent of A’s class 2 property and to a contribution from A in relation to A’s class 3 property. Under section 610, the liability of a beneficiary can not be more than the amount distributed to the beneficiary.

6.15 Sub-clause 608(2) has been included to address the situation where a beneficiary holds property from the estate from more than one class, for example, property that was the subject of a specific disposition (class 3) and other property that was part of a gift of residue (class 2).²²

609 Defences available to a beneficiary

(1) If—

(a) a proceeding is brought, under section 606 or 607, against a beneficiary of a deceased person’s estate to whom a distribution has been made; and

(b) the beneficiary—


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

(ii) has so altered the beneficiary’s position in reliance on the correctness of the distribution that, in the court’s opinion, it would be inequitable to enforce the action;


the court may make any order it considers appropriate.

(2) Subsection (1) applies whether the proceeding is brought by another beneficiary or someone else.

(3) Subsection (1) does not limit any other defence available, under an Act or at law or in equity, to the beneficiary.

6.17 The Queensland Law Reform Commission, in originally proposing this provision, considered that beneficiaries ought to be able to plead change of position in much the same way as beneficiaries who have received a wrongful distribution,²⁴ as now provided for in cl 425(6) of the model legislation. The Queensland Law Reform Commission considered that this protection for beneficiaries should “constitute an added incentive to claimants against estates to come into the open and pursue their claims against the personal representatives promptly”.²⁵

6.18 Sub-section 609(3) follows a similar provision in cl 425(7). It goes beyond the Queensland provision which merely states that the beneficiary “may plead equitable defences”.²⁶

610 Judgement limited to amount of distribution

(1) In a proceeding against a beneficiary under this division, judgement against the beneficiary must not be for an amount more than the amount of the distribution made to the beneficiary.

(2) 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.

6.20 The Queensland Law Reform Commission considered that this protection for beneficiaries should “constitute an added incentive to claimants against estates to come into the open and pursue their claims against the personal representatives promptly”.²⁷

6.21 Sub-clause 610(2) has been included to make it clear that any interest awarded on the judgment should not be included when deciding whether the amount of the judgment is greater than the amount the beneficiary has received from the estate.²⁸

PART 2 SUPREME COURT PRACTICE AND THE REGISTRAR

611 Practice

(1) The practice of the Supreme Court is as provided for under this or another Act or by the rules of court [as in force from time to time].

Drafter’s note: The bracketed words may be unnecessary in some jurisdictions (Acts Interpretation Act 1954 (Qld), s 14H).

(2) If, in relation to a particular matter, the practice of the Supreme Court can not be ascertained under subsection (1), the practice of the court is the practice of the court before the passing of this Act to the extent the circumstances of the matter will allow.

6.23 Sub-clause 611(2), in ensuring that, if the Court’s practice is not otherwise provided for, the practice is to be the Court’s practice before the passing of the model legislation, is intended to fill any “gaps” in the Court’s rules.²⁹ The equivalent provision in NSW is s 62 of the Probate and Administration Act 1898 (NSW) which applies the practice and proceedings of the Court in relation to the granting of administration of an intestate’s personal estate to the granting of administration under the Act except where the Rules of Court have altered that practice. Such provisions, although considered unnecessary by some,³⁰ appear to have been included to ensure the continuity of the Court’s practice when new statutes are enacted.³¹

6.24 Consideration will need to be given to the interaction of this model provision with s 102 of the Succession Act 2006 (NSW), which provides for Rules of Court to be made “for or with respect to the practice and procedure to be followed in respect of proceedings under [the] Act and any matters incidental to, or relating to, such practice and procedure”.

Rules of court

6.25 The National Committee has recommended that each jurisdiction adopt rules of court that:

• establish a summary enforcement procedure to support a beneficiary’s right, under cl 615, to access information held by a personal representative;³²
• establish a form of summary relief for a beneficiary when a personal representative fails to make a disposition to which he or she is entitled;³³
• establish the procedure that creditors or potential claimants for family provision must follow in applying to the Court, under cl 616, to access information held by a personal representative;³⁴
• establish a summary procedure to enforce any right of access that the Court orders under cl 616;³⁵
• set out the documentation that an applicant for resealing under Chapter 3 Part 11 must produce in his or her application in relation to grants of representation,³⁶ and to require the applicant to deposit with the registrar a copy of the instrument,³⁷ and the will (if any, and if it has not already been included in the other documentation);³⁸
• set out the procedures to be followed in an application for the resealing of an original grant of probate or an exemplification of a grant together with a grant of double probate;³⁹
• set out the procedures to be followed when resealing original grants of probate or exemplifications of grants to substituted personal representatives where the substituted personal representatives do not appear on the grant;⁴⁰
• set out the procedures in relation to caveats against original grants and resealing applications;⁴¹
• require the Court to include on a grant a list of Australian jurisdictions in which the grant will be effective without the need to apply for resealing⁴² together with a “short statement explaining that, in any State or Territory in which the grant is effective, the personal representative is required to comply with the law in that jurisdiction regarding the duties of a personal representative”;⁴³
• set out the procedural requirements for obtaining a grant under s 306;⁴⁴
• deal with grants when the sole executor is under 18 years of age;⁴⁵
• set out the requirements for documents establishing a person’s priority in an application for letters of administration with the will annexed under cl 321(4);⁴⁶ and
• set out the requirements for documents establishing a person’s priority in an application for letters of administration under cl 322(4).⁴⁷

• make provision for a person to advertise an intention to apply for the making of an original grant of representation⁴⁸ or for the resealing of a grant of representation;⁴⁹
• set out the procedure by which a trustee company may apply for the resealing of a grant of probate under cl 360;⁵⁰
• require a person applying for a grant of representation more than six months after the deceased’s death to file an affidavit explaining the delay;⁵¹ and
• allow the Court to require evidence of a deceased’s domicile and other matters under the law of the deceased’s domicile affecting the validity of a will or the entitlements of beneficiaries.⁵²

Subject to this Act, the registrar, in relation to proceedings in the Supreme Court under this Act, has and may exercise—

(a) the functions and powers that may be conferred on the registrar [from time to time] by the court and by the rules of court; and

Drafter’s note: The bracketed words may be unnecessary in some jurisdictions. The Supreme Court of Qld has power to confer jurisdiction on registrars under the rules of court. (See also, Acts Interpretation Act 1954 (Qld), s 23.)

(b) the functions and powers that the registrar exercised before the passing of this Act.

PART 3 CONCEALING WILLS ETC.

6.28 The provisions in this part are aimed at ensuring that testamentary documents are made available to the Court, an executor, and other interested people in the most complete state possible by allowing:

• the Court to order that a person produce such documents and to question people about the existence of such documents (cl 613); and
• a person who suffers loss to recover damages from a person who fraudulently interferes with a testamentary document (cl 614).

613 Supreme Court may require production of testamentary documents

(1) This section applies if a person (the applicant) applies to the Supreme Court for an order that a person produce to the court a testamentary document of a deceased person or any other document relevant to the matter before the court (each of which is a relevant document).

(2) For subsection (1), it does not matter whether a proceeding about any probate or administration matter in relation to the deceased person is pending in the Supreme Court.

(3) If the Supreme Court is satisfied that the person may have a relevant document in the person’s possession or under the person’s control, the court may order the person to produce the relevant document to the court.

(4) If the Supreme Court is not satisfied that a relevant document is in the person’s possession or under the person’s control, but the court is satisfied that the person has knowledge of the relevant document, the court may—


(a) direct the person to attend before the court to be examined about the relevant document; or

(b) give the applicant leave to serve interrogatories on the person about the relevant document.


(5) The person must—

(a) if subsection (4)(a) applies—answer questions put to the person; or

(b) if subsection (4)(b) applies—answer, directly and without evasion or resort to technicality, the interrogatories and return the completed interrogatories to the applicant.


(6) If the person fails, without reasonable excuse—

(a) to produce the relevant document as required under subsection (3); or

(b) to answer questions on the examination or interrogatories as required under subsection (5);

the person commits a contempt of court.


(7) In this section—

testamentary document includes a document purporting to be a testamentary document.

6.31 This clause is in addition to provisions, such as the one currently in force in NSW, which set out who a person in possession of a will must allow to inspect or take copies of that will and which also require a person in possession of a will to deliver that will up if the Court orders him or her to do so.⁵⁶

6.32 This clause derives mostly from s 150 of the Probate and Administration Act 1898 (NSW). The National Committee considered the provisions particularly desirable because cl 613(1) also covers any other documents relevant to the matter before the Court and because cl 613(6) gives the Court the specific power to punish a person for contempt for failure to comply with its orders or questions.⁵⁷

6.33 In adopting the NSW provisions, the National Committee preferred to use the term “document” rather than the narrower expression “paper or writing” used in s 150.⁵⁸

6.34 The requirement, in cl 613(5)(b), that a person must, in relation to interrogatories about the existence of any relevant documents, answer “directly and without evasion or resort to technicality” and return them to the applicant, is based on a provision in the Queensland civil procedure rules.⁵⁹

6.35 The model provision has been drafted to state that the Supreme Court may exercise the relevant powers. However, the National Committee⁶⁰ has noted that rules of court can provide that the registrar may exercise the powers, as is currently the case in NSW.⁶¹

614 Person fraudulently disposing of will liable in damages

(1) This section applies if a person suffers loss as a result of a person interfering with a will.

Editor’s note—


See [insert local equivalent of the Criminal Code (Qld), sections 398 and 399] for offences involving interfering with wills.

(2) The person may recover damages in relation to the loss by action in a court of competent jurisdiction from the person who interfered with the will.

(3) In this section—


interfere, with a will, includes either or both of the following—

(a) steal the will;

(b) fraudulently destroy, cancel, obliterate or conceal the will.

will includes part of a will.

6.37 In recommending this provision, the National Committee rejected the inclusion in the model legislation of a provision making it an offence to steal or conceal a will, preferring that the relevant criminal statutes should deal with such matters,⁶³ as is the case in NSW with respect to a person who “for any fraudulent purpose destroys, cancels, obliterates, or conceals, the whole or any part of any will, codicil, or other testamentary instrument”.⁶⁴ The National Committee, however, did suggest that this model provision should contain a note that refers to the relevant criminal offences.⁶⁵

6.38 The definition of “interfere” in cl 614(3) which draws on the terms from the criminal offence in NSW, is not exclusive and must also be taken to include such actions as altering or otherwise damaging a will.

PART 4 OTHER PROVISIONS

615 Access to information held by personal representative—beneficiaries

(1) This section applies to documents the personal representative is required to keep under section 403.

(2) A beneficiary of the deceased person’s estate may, on giving reasonable notice to the personal representative—


(a) inspect the documents; and

(b) obtain copies of the documents.


(3) The personal representative must allow the beneficiary, or the beneficiary’s agent—

(a) to inspect the documents; or

(b) to obtain copies of the documents on payment to the personal representative of the personal representative’s reasonable costs of providing the copies.


(4) If the personal representative fails to comply with subsection (3), the beneficiary may apply to the Supreme Court for an order requiring the personal representative to comply with subsection (3).

6.40 In recommending this provision, the National Committee noted the desirability of encouraging openness in the administration of estates while not imposing unnecessary burdens on personal representatives, adding:

In an area where suspicion and distrust are common, access to information has the potential to diffuse many conflicts and avoid unnecessary litigation.⁶⁸

6.42 Paragraph 615(3)(b) is consistent with the position at general law that an executor is not bound to supply copies of the relevant documents unless the beneficiary meets the reasonable costs involved.⁷⁰

6.43 In recommending cl 615(4), the National Committee drew on the recommendation of the Ontario Law Reform Commission that provisions giving a beneficiary the right of access to information should be backed by an “expeditious enforcement procedure” in the nature of a summary procedure against a personal representative who fails to allow access.⁷¹ The National Committee, therefore, proposed that rules of court should support cl 615(4) by creating a summary procedure to enforce a beneficiary’s right of access.⁷²

Privilege against self-incrimination

6.44 This provision, and cl 616, makes no provision relating to the privilege against self-incrimination that a personal representative may claim in some cases. The National Committee has taken the view that the model legislation, by not expressly abrogating the privilege against self-incrimination, is preserving it. The Committee has decided to preserve the privilege because it considers that the main problem that the model legislation should address is “not the prosecution of personal representatives who may have defrauded beneficiaries, but the lack of certainty surrounding the rights of beneficiaries to information about the administration of estates”.⁷³ The National Committee was of the view that it could deal with the problem of lack of certainty surrounding beneficiaries’ rights to information without taking the further step of abrogating the personal representative’s right to claim the privilege against self-incrimination with respect to some information.⁷⁴

616 Access to information held by personal representative—family provision applicants and creditors

(1) This section applies to documents the personal representative is required to keep under section 403.

(2) A person eligible to apply for provision out of the deceased person’s estate under [insert local equivalent of the Succession Act 1981, section 41], or a creditor of the estate, may apply to the Supreme Court for access to the documents.

(3) The Supreme Court may order that the personal representative give the person or creditor access to all or some of the documents as the court considers appropriate.

Examples of giving access—


• allowing inspection of the documents

• providing copies of the documents


(4) If the Supreme Court orders access under subsection (3), the right to access may be exercised by the person or creditor personally, or by the person’s or creditor’s agent.

(5) The person or creditor must pay to the personal representative the personal representative’s reasonable costs of providing the access.

6.46 In NSW, s 57 of the Succession Act 2006 (NSW) sets out who is eligible to apply for a family provision order, including the deceased’s (current and/or former) wife or husband, de facto partner, child, and grandchild (if a member of the deceased’s household), a person was wholly or partly dependent on the deceased at any time, or a person with whom the deceased was living in a close personal relationship.

6.47 In recommending this provision, the National Committee considered that creditors and people who are eligible to apply for family provision should not have an automatic right to inspect and copy documents, but should rather be able to apply to the Court for such access as the Court considers appropriate.⁷⁵ The National Committee⁷⁶ drew on a recommendation of the Ontario Law Reform Commission and particularly noted its observation that, while creditors and claimants for family provision share an interest in the proper administration of the estate, their interests are adverse to the estate and its beneficiaries.⁷⁷

6.48 The National Committee further recommended that rules of court should set out the procedure for making such applications,⁷⁸ and should also support cl 616 by providing for a summary procedure to enforce any right of access that the Court orders.⁷⁹

617 Abolition of administration bond and sureties

(1) An administrator of a deceased person’s estate can not be required to provide an administration bond or a surety for an administration bond in relation to the grant of representation.

(2) The holder of a foreign grant of representation or another person applying to reseal a foreign grant of representation can not be required to provide an administration bond or a surety for an administration bond for the resealing of the foreign grant of representation.

6.50 In NSW, s 64-68 of the Probate and Administration Act 1898 (NSW) govern the requirement of administration bonds and sureties with respect to both original grants and applications for resealing.⁸¹ The provisions generally require an administrator to enter a bond in an amount equal to the value of the estate as sworn. However, the Court may reduce the amount or dispense with the bond or with one or both of the sureties.⁸² In practice, while the registrar retains the discretion to require a bond with sureties where appropriate, bonds are generally dispensed with unless a beneficiary opposes an administrator’s application.⁸³ The NSW Law Reform Commission proposed the abolition of administration bonds in 1978.⁸⁴

6.51 The National Committee observed a general trend in Australia, over the past 30 years, away from requiring administration bonds and an extension of the circumstances in which a court may dispense with the requirement for a bond and surety.⁸⁵

6.52 The National Committee has also noted a number of concerns about the existing system of administration bonds and sureties.

6.53 An administration bond does not serve any real purpose since a statement of the duties of the office for the benefit of an administrator is better set out in the legislation and in the administrator’s oath and because a beneficiary or creditor will still have a remedy against an administrator who fails to perform his or her duties under cl 404.⁸⁶

6.54 Arguments have also been regularly advanced that sureties should be abolished on the grounds of their cost,⁸⁷ the difficulty involved in obtaining them,⁸⁸ the infrequent recourse to them as a remedy⁸⁹ and their inability to afford meaningful protection.⁹⁰

6.55 The application of administration bonds and sureties only to administrators is inconsistent with the general assimilation of the offices of administrator and executor. The justification for the current distinction, that security is required in the case of a court-appointed administrator but not in the case of a testator-chosen executor, has also been rejected as not very convincing.⁹¹ The National Committee considered that there was, in fact, no reason to suppose that an estate administered by an administrator is at any greater risk of maladministration than an estate administered by an executor, adding that an administrator under the statutory order of entitlement in cl 322 is likely to be an intestacy beneficiary and will have, at least, the same interest in an estate’s proper administration as an executor, and possibly an even greater interest, where the executor is not a beneficiary.⁹²

6.56 In recent years it has become more difficult to obtain corporate sureties following the withdrawal of many insurers and guarantee companies from the market.⁹³ In the case of personal sureties, there is also the potential for unconscionability if an individual is pressured to provide a surety to save the estate the expense involved if he or she refuses to supply the surety.⁹⁴

6.57 The National Committee also emphasised the point that the Court will scrutinise an applicant before appointing him or her as an administrator,⁹⁵ and concluded that, “if there is a serious question about a person’s suitability... the more appropriate course is for the court to appoint another person”.⁹⁶

6.58 Finally, in relation to applicants for resealing of foreign grants, the National Committee concluded that, since there are no features of the resealing process that would justify a different approach to that adopted in relation to original grants, the Court should not require an applicant for resealing to provide any form of security.⁹⁷ The National Committee added that, if a Court did have doubts about an applicant’s suitability, the better course of action would be to decline the application for resealing.⁹⁸

618 Service

(1) This section applies if—

(a) a person wishes to serve, within a prescribed time, notice of a proceeding, or any other document that is required or permitted to be served in relation to a deceased person’s estate; and

(b) the person is uncertain as to the person to be served.


(2) The person wishing to serve the document may, within the prescribed time, apply to the Supreme Court for directions as to service.

(3) The Supreme Court may direct how service is to be effected and, if the court considers it appropriate, extend the time within which service may be effected.

(4) In this section—


prescribed time means a time prescribed [by or] under this or another Act.

Drafter’s note: The bracketed words may be unnecessary in some jurisdictions.

6.60 An example of a situation where a person might be uncertain on whom he she should serve a document is where he or she needs to serve a notice on a person who has recently died and must, therefore, serve the notice on the deceased’s personal representative, but it is unclear whether there are yet personal representatives for the deceased’s estate.⁹⁹

6.61 The National Committee considered that this provision will perform a “useful function where it is necessary for a document to be served on the personal representative of an estate, especially where there may be some doubt as to the identity of the personal representative”.¹⁰⁰

619 Approval of forms

(1) The [insert relevant officer or body of local jurisdiction] may approve forms for use under this Act.

(2) Without limiting subsection (1), the [insert relevant officer or body of local jurisdiction] may approve the form of an election to administer for use under this Act.

620 Regulation-making power

(1) The Governor in Council may make regulations under this Act.

(2) Without limiting subsection (1), a regulation may prescribe the fees and charges payable for doing a thing under this Act.

1. Property (Relationships) Act 1984 (NSW) part 3 div 2.

2. Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1).

3. Queensland Law Reform Commission, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General, Report 65 (2009) (“QLRC, Report 65”) [26.38].

4. See Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2).

5. QLRC, Report 65 [26.39].

6. QLRC, Report 65 [26.40].

7. QLRC, Report 65 [26.40].

8. Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(6) referring to the Motor Vehicles (Third Party Insurance) Act 1942 (NSW), the Transport Accidents Compensation Act 1987 (NSW) and the Motor Accidents Act 1988 (NSW).

9. QLRC, Report 65 [26.40].

10. England and Wales, Law Commission, Proceedings Against Estates, Report 19 (1969).

11. England and Wales, Law Commission, Proceedings Against Estates, Report 19 (1969) [24].

12. Law Reform (Miscellaneous Provisions) Act 1934 (Eng) s 1(3).

13. Airey v Airey [1958] 1 WLR 729, 734.

14. England and Wales, Law Commission, Proceedings Against Estates, Report 19 (1969) [2].

15. Queensland Law Reform Commission, The Law Relating to Succession, Report 22 (1978) (“QLRC, Report 22”) 50.

16. Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(3) originally preserved actions in tort pending against the estate at the deceased’s death and actions arising 12 months before death, so long as the plaintiff commenced proceedings within 12 months of the grant of representation.

17. QLRC, Report 65 [26.42]-[26.46].

18. QLRC, Report 65 [26.41].

19. QLRC, Report 65 [26.47]-[26.50].

20. QLRC, Report 65 [26.52].

21. QLRC, Report 65 [26.52]-[26.55].

22. QLRC, Report 65 [26.51].

23. QLRC, Report 65 [26.41].

24. QLRC, Report 22, 51.

25. QLRC, Report 22, 51.

26. QLRC, Report 65 [26.57].

27. QLRC, Report 22, 51.

28. QLRC, Report 65 [26.59].

29. QLRC, Report 65 [40.134].

30. See, eg, QLRC, Report 22, 52; QLRC, Report 65 [40.131].

31. See New South Wales Law Reform Commission, Uniform Succession Laws: Administration of Estates of Deceased Persons, Discussion Paper 42 (1999) [18.8].

32. QLRC, Report 65 [11.207]. See para 6.43.

33. QLRC, Report 65 [14.43]-[14.46]. See Appendix A, para A.23 and Probate and Administration Act 1898 (NSW) s 84.

34. QLRC, Report 65 [11.212]. See para 6.48.

35. QLRC, Report 65 [11.214]. See para 6.48.

36. QLRC, Report 65 [35.18], [35.29]. The requirement to produce the original instrument or an exemplification in NSW is found in Probate and Administration Act 1898 (NSW) s 107(1) and s 3 (definition of “probate” and “administration”).

37. QLRC, Report 65 [35.19], [35.22], [35.26], [35.29]. The requirement to deposit a copy of the instrument in NSW is found in Probate and Administration Act 1898 (NSW) s 107(1).

38. QLRC, Report 65 [35.27], [35.29].

39. QLRC, Report 65 [35.56]-[35.64]. NSW does not currently have a provision dealing with the procedures to be followed when resealing grants of probate together with grants of double probate.

40. QLRC, Report 65 [35.79]-[35.80]. NSW does not currently have a provision dealing with the procedures to be followed when resealing grants of probate where a personal representative has been substituted.

41. QLRC, Report 65 [8.68]. The relevant NSW provisions are Probate and Administration Act 1898 (NSW) s 144(2), s 145, s 146, s 148; and Supreme Court Rules 1970 (NSW) pt 78 r 61-70.

42. QLRC, Report 65 [38.74].

43. QLRC, Report 65 [38.222].

44. QLRC, Report 65 [40.15]. The current NSW provisions are in Probate and Administration Act 1898 (NSW) s 42(2)-(5).

45. QLRC, Report 65 [4.233]-[4.235]. The current NSW provisions are Probate and Administration Act 1898 (NSW) s 70 and s 71. See para 3.43.

46. QLRC, Report 65 [5.71]. Such a provision may be found in Uniform Civil Procedure Rules 1999 (Qld) r 603(5).

47. QLRC, Report 65 [5.62]. Such a provision may be found in Uniform Civil Procedure Rules 1999 (Qld) r 610(6).

48. QLRC, Report 65 [8.25]-[8.26]. The National Committee particularly expressed doubts about the utility of advertising such matters in newspapers.

49. QLRC, Report 65 [8.41]. The National Committee particularly expressed doubts about the utility of advertising such matters in newspapers: QLRC, Report 65 [8.26].

50. QLRC, Report 65 [35.93]. An example of such a provision is Probate Rules 2004 (SA) r 50.01(d).

51. QLRC, Report 65 [40.25]. The current NSW provision is Supreme Court Rules 1970 (NSW) pt 78 r 11.

52. QLRC, Report 65 [40.86]. The current NSW provision is Supreme Court Rules 1970 (NSW) pt 78 r 12.

53. QLRC, Report 65 [40.108].

54. See, eg, Administration and Probate Act 1919 (SA) s 7 and s 7A; and Administration Act 1903 (WA) s 5.

55. Hawkins v Clayton (1988) 164 CLR 539, 552-553.

56. Succession Act 2006 (NSW) s 54. See also Wills Act (NT) s 54; Succession Act 1981 (Qld) s 33Z; and Wills Act 2008 (Tas) s 63. See also Wills Act 1997 (Vic) s 50.

57. QLRC, Report 65 [28.32].

58. QLRC, Report 65 [28.33].

59. Uniform Civil Procedure Rules 1999 (Qld) r 232(3). Uniform Civil Procedure Rules 2005 (NSW) r 22.3(2)(b) requires the substance of each interrogatory to be answered “without evasion”.

60. QLRC, Report 65 [28.35].

61. Supreme Court Rules 1970 (NSW) pt 78 r 5(1)(r).

62. QLRC, Report 65 [28.61].

63. QLRC, Report 65 [28.60].

64. Crimes Act 1900 (NSW) s 135.

65. QLRC, Report 65 [28.60].

66. Re Craig (1952) 52 SR (NSW) 265, 267: “It is the duty of an executor... to render accounts when properly called upon and to be constantly ready to do so”. See also Williams v Stephens (unreported, NSW Supreme Court, Young J, 24 March 1986), 3.

67. Ontario Law Reform Commission, Administration of Estates of Deceased Persons, Report (1991) 47-48.

68. QLRC, Report 65 [11.201].

69. QLRC, Report 65 [11.203].

70. See Williams v Stephens (unreported, NSW Supreme Court, Young J, 24 March 1986) 4.

71. Ontario Law Reform Commission, Administration of Estates of Deceased Persons, Report (1991) 47-48.

72. QLRC, Report 65 [11.207].

73. QLRC, Report 65 [11.216].

74. QLRC, Report 65 [11.216].

75. QLRC, Report 65 [11.211].

76. QLRC, Report 65 [11.199]-[11.200].

77. Ontario Law Reform Commission, Administration of Estates of Deceased Persons, Report (1991) 48.

78. QLRC, Report 65 [11.212].

79. QLRC, Report 65 [11.214].

80. QLRC, Report 65 [9.86].

81. Probate and Administration Act 1898 (NSW) s 108(2). The Court has a general power, under s 107(3), to require security.

82. Probate and Administration Act 1898 (NSW) s 65.

83. NSW Supreme Court, Probate Registry, “Probate Office Change of Practice” (3 December 2001).

84. NSWLRC, Administration Bonds, Working Paper 18 (1978) [23].

85. QLRC, Report 65 [9.9], [9.78].

86. QLRC, Report 65 [9.79].

87. QLRC, Report 65 [9.55]-[9.61]. The National Committee noted that, even when there is no premium to pay in relation to a personal surety, there is still a cost to the estate in preparing the necessary legal documentation: QLRC, Report 65 [9.58]; and there are also costs involved in applications to dispense with bonds and sureties: [9.59].

88. QLRC, Report 65 [9.52], [9.84].

89. QLRC, Report 65 [9.47]-[9.51].

90. QLRC, Report 65 [9.54]. Especially in light of one practice identified of some companies requiring releases and indemnities from adult beneficiaries: Law Reform Commission of Western Australia, Administration Bonds and Sureties, Report, Project No 34, pt 2 (1976) [17].

91. QLRC, Report 65 [9.42]-[9.46], [9.81].

92. QLRC, Report 65 [9.82].

93. QLRC, Report 65 [9.52].

94. QLRC, Report 65 [9.85].

95. QLRC, Report 65 [9.63], [9.82].

96. QLRC, Report 65 [9.87].

97. QLRC, Report 65 [9.102]-[9.103].

98. QLRC, Report 65 [9.102].

99. See A A Preece, Lee’s Manual of Queensland Succession Law (6th ed, Law Book Company, 2007) [1.60].

100. QLRC, Report 65 [40.141].

101. Supreme Court Rules 1970 (NSW) pt 1 r 11.

102. Civil Procedure Act 2005 (NSW) s 17.

103. Probate and Administration Act 1898 (NSW) s 153.