PREFACE
The Law Reform Commission is constituted by the Law Reform Commission Act, 1967. The Commissioners are:
Chairman: The Honourable Mr. Justice J.H. Wootten
Deputy Chairman: Mr. R.D. Conacher
Others: Mr. J.H.P. Disney
Mr. J.M. Bennett is Executive Member of the Commission.
This is a working paper prepared within the Commission as a basis for discussion and decision. The proposals in it may or may not be adopted by the Commission. The working paper is being circulated at this stage in order that the Commission may have the benefit of comment, criticism and alternative proposals before deciding on its recommendations.
The Commission is sending this working paper to a small number of people having a particular concern with or experience of administration bonds and by separate letter is inviting these people to criticise and otherwise comment on the proposals.
The Commission is also sending this working paper to all those to whom it customarily sends its working papers. The Commission does so rather for information and record than to invite comment, because the subject is a small one and has already been extensively examined by law reform agencies. The Commission will, however, welcome comment from any source. The Commission requests that any comment to be made be made so as to reach the Commission by 26th April, 1978.
In making its report, the Commission will assume, unless otherwise advised, that any contributor of comment or criticism has no objection to the Commission quoting or referring to it, in whole or in part, or attributing it to him.
Correspondence should be addressed to Mr. B. Buchanan, Secretary of the Commission, at its offices, 16th Level, Goodsell Building, 8-12 Chifley Square, Sydney, New South Wales, 2000. Telephone: 2387213.
1. We publish this working paper under our reference -
To review the procedures used and remedies available in the civil and criminal courts, including the enforcement of judgments and orders; in doing so, to have regard for the functions of the Rule Committee of the Supreme Court, other rule making authorities, and of the Criminal Law Committee; and to consider what reforms should be made for the more convenient, cheap and efficient disposal of legal matters which now come or might be brought before the courts.
2. References to sections and rules.
Unless otherwise stated, in this paper a reference to a section subsection etc. is a reference to that section, subsection, etc. in the Wills, Probate and Administration Act, 1898, and a reference to a rule, subrule, form etc. is a reference to that rule, subrule, form etc. in the Probate Rules, Part 78 of the Supreme Court Rules, 1970, or the forms in Schedule F to the Supreme Court Rules, 1970.
3. General requirement.
An applicant for letters of administration must as a rule execute a bond to Her Majesty with one or more sureties conditioned for duly collecting, getting in and administering the estate of the deceased.1 The bond must be in the form directed by rules of Court.2 By the prescribed form of bond3 the administrator and the sureties jointly and severally covenant to pay to Her Majesty a specified sum if the administrator -
(a) does not collect, get in and administer the estate according to law;
(b) does not pay out of the estate the just debts of the deceased;
(c) prefers any debt of the deceased to him; or
(d) does not duly file and pass his accounts.
The phrase “administer the estate according to law” includes the due distribution of the estate to those beneficially entitled, or other lawful disposal of the estate, e.g. disposal to trustees to hold on the appropriate trusts.4
4. History.
The history of the administration bond has been discussed in the books and in a report made in Victoria.5 It is of little importance to-day, except as showing that some of the reasons for adoption of the bond are not reasons for its retention to-day. It seems likely that the bond was adopted so as
(a) to give a better remedy than that given by the ecclesiastical courts, or to give a remedy where the ecclesiastical courts gave no remedy;
(b) to enlarge the jurisdiction of the King’s courts at the expense of the ecclesiastical courts; and
(c) perhaps to enlarge the jurisdiction of the courts of common law at the expense of the Court of Chancery.
To-day there are ample remedies against a defaulting administrator in the Equity Division, though of course their ultimate effectiveness may depend on the solvency of the administrator. The questions of substance are whether and, if so, in what cases, there should be a surety for due administration by the administrator.
5. Exceptions.
A bond need not be given -
(a) by the public trustee6
(b) by a person obtaining administration on behalf of the Crown;7
(c) by a trustee company, unless the estate exceeds $50,000 in value and the court so orders.8
6. Dispensing with the bond.
The Court may dispense with the bond.9 Further, in some cases a bond need not be given unless the Court so orders.10
7. Security on resealing probate.
Where an executor or his attorney applies for resealing of a foreign probate, the Court may require that the applicant give security for due administration.11
8. Penalty of bond.
Prima facie, the bond must be in a penalty equal to the amount under which the property of the deceased is sworn.12 But the Court may direct that the penalty be reduced in amount.13
9. Sureties to the Bond.
Prima facie, there must be two sureties.14 But if a guarantee company approved by the Court is surety, a second surety is not required.15 The Court may dispense with one or both sureties.16
10. Justification by sureties.
A surety must give an affidavit of justification, i.e., an affidavit swearing to what he is worth and listing his assets.17 As a rule, a surety must justify to the amount of the penalty of the bond.18
11. Ancillary matters.
The Court may direct that more bonds than one be given so as to limit the liability of a surety and may accept, in place of a bond, a security given by a corporation.19
12. Subsequent action.
The Court may direct an administrator to give a further bond20 and may, on proof of breach of a condition of a bond, order assignment of the bond;21 the assignee may sue on the bond for all persons interested.22 The Court may give quia timet and other relief to a surety.23
13. The registrar.
The registrar may exercise the powers of the Court mentioned in paragraphs 6 to 12 above.24 In the ordinary course it is he, and not a judge, who exercises these powers.
14. Practice of the registrar.
In the following account of the practice, “sui juris” means aged 14 years or upwards and of sound mind. The registrar’s practice is as follows:
The foregoing is a re-arrangement of information given by the present and a former registrar. Accuracy may have yielded to convenience of statement, but it is accurate enough for the present.
15. Recent experience.
In his letter of 5th September 1975 to the Secretary of the Law Society, of New South Wales, Mr. James, Registrar in Probate, said that when his staff examined the lodgements of applications it was found that only 15 bonds were filed or were required to be filed out of 100 applications for administration. Mr. James added that in some of these cases bonds with sureties had been filed, but sureties could have been dispensed with. Presumably in a good many of the remaining 85 cases the applicant had gone to some trouble and expense to make a case for dispensing with the bond.
16. Advantages.
The advantages of the bond procedure are
(a) It gives a remedy against a defendant of substance.
(b) It tends to weed out incompetent or dishonest applicants for administration, because they cannot find sureties.
(c) It promotes good administration in that a surety may supervise the administrator, though the law does not give a surety a right to supervise.
17. An advantage falsely so called.
Some say that the bond is a solemn and effective way of bringing home to the administrator that his is a fiduciary office. The advantage is illusory because in this respect the bond duplicates the separate oath of office which must be given by an applicant for administration.25
18. Disadvantages.
These are -
(a) Expense to the parties. We have some figures on the premiums charged by insurance companies, but no figures on, and no means of estimating, the overall expense to applicants for administration. Actions on bonds are very uncommon. It is probably fair to say that over the years the expense of giving bonds incurred by applicants for administration is hundreds of times greater than the money recovered under bonds.
(b) Delay. The work of getting a bond with sureties takes time and therefore delays applications for administration.
(c) Hardship on administrator and sureties. It may be that in an action on the bond neither the administrator nor a surety can rely on section 85 of the Trustee Act, 1925 (excusable breaches of trust)26
(d) Public expense. The work of supervising the giving of bonds contributes to the administrative expenses of the Probate Office.
19. Bond not required of executor.
A bond is not required of an executor but is required of an administrator. Some see this as an irrational anomaly and use the anomaly in support of schemes to limit the use of, or abolish the bond. It is not an irrational anomaly as between legatees under a will and those taking on intestacy. The legatees take under the will and take subject to all the terms of the will, including the directions of the testator on who is to be executor. If the chosen executor is incompetent or dishonest and the rights of legatees are thus imperilled, that only means that the legacies given by the will are perilous legacies. This is not attractive reasoning, but it has a logic common enough in the past. The reasoning, such as it is, has however, no bearing on the claims of creditors nor on the claims of those who get an order for provision under the Testator’s Family Maintenance Act. On the other hand, the deceased does not appoint an administrator of his estate. That appointment is made by the State acting through the Supreme Court. A case can be made for saying that the State should protect those interested in the estate from the consequences of the State’s appointment of an incompetent or dishonest administrator.
20. The law of trustees compared.
The Supreme Court has a statutory jurisdiction to appoint a new trustee27 In exercising its jurisdiction, the Court requires evidence of the fitness of the new trustee, but does not require a bond or other security for his good behaviour. A new trustee may be appointed out of Court under a power in the instrument creating the trust or under a statutory power28 Those making an appointment out of Court should, of course, be satisfied of the fitness of the new trustee, but there is nothing in the Trustee Act or in ordinary forms of trust instrument requiring a new trustee appointed out of Court to give a bond or other security. There is thus a marked contrast between the law relating to trustees and the law relating to administrators. In this respect the law relating to trustees has the merit of simplicity and cheapness. Of course sometimes beneficiaries suffer through the insolvency of a defaulting trustee, but so far as we know no one has seen in this a case for a general rule requiring trustees to give security.
21. Number of trustees.
In some cases it is necessary to have two or more trustees.29 It is the practice of the Supreme Court that as a rule an order will not be made by which the trust property comes into the hands of a sole trustee.30 The reasons have not been much articulated in the reports. It is evident enough, however, that the practice stems from a concern with the safety of beneficial interests: it is less likely that two trustees will join in committing a breach of trust, than that a sole trustee will commit a breach of trust. Further, if there is only one trustee, there is the risk that when he dies he will leave a fraudulent executor.31
22. Limited protection of the bond.
There is a significant consequence of the divergence between the law relating to trustees and the law relating to administrators. It is that the beneficiaries of an estate of which there is an administrator may easily lose the protection of the bond. When an administrator on intestacy has cleared the estate, that is, has got it in and has paid the debts and expenses, he holds the estate on trust for the beneficiaries.32 Being a trustee, he may retire from the trusts and appoint new trustees in his place.33 All this may happen before there is any distribution to the beneficiaries. If the new trustees abscond with the estate, the beneficiaries have no remedy under the administration bond. An administrator with the will annexed may do likewise after he has cleared the estate and has assented to the beneficial dispositions of the will. The same things can happen under the new laws adopted or recommended in England, South Australia, Victoria and Western Australia discussed below.
23. General proposal.
The proposal in this working paper is that administration bonds be abolished altogether, but that evidence should be given of the fitness of an applicant for letters of administration. The grounds for the proposal are that bonds do not have a utility commensurate with the trouble and expense of giving them, or of getting orders dispensing with them, and that the practice on the appointment of new trustees is simple and cheap and has not been found ineffective save in exceptional cases. But we must look at some particular problems.
24. Number of administrators.
As a rule the Court grants letters of administration to a single administrator, not to two or more, because (as it was said a long time ago) problems may arise out of the need to act jointly.34 to this we add that a joint grant is likely to entail more administrative expense than a sole grant. But a joint grant can be made and sometimes is made where convenient.35 In England a joint grant, or a grant to a trust corporation, is required where there is a beneficiary not of full age, or there is a life interest.36 Since in proposing that the bond be abolished this working paper relies largely on the analogy of the law of trusts, there are questions whether the law should not require two or more administrators in some cases and whether the Court should not be authorised in its discretion so to require. The view now put is that each of these questions be answered in the affirmative, unless the applicant is the Public Trustee or another person evidence of whose fitness would not be required under the present proposals. It is not proposed that our law should go as far as English law and require two or more administrators (or a trust corporation) wherever there is a beneficiary not of full age or there is a life interest. Rather, it is proposed that a sole grant to a private person should in general not be made where the estate is sworn at a value exceeding a figure prescribed by rules of Court, and that, where the estate is sworn at less value, the Court should be authorised to withhold a sole grant to a private person, having regard to, amongst other things, the existence of beneficiaries not of full age and the evidence of fitness of the applicant. A joint grant should not be required, however, in cases where to-day a bond would be dispensed with or a bond without sureties would be accepted. This proposal of a less stringent arrangement is made with an awareness of a common case,namely, that a man dies leaving a widow and infant children, a sole grant is made to the widow, and she acts honestly for the benefit of the children though not always within the letter of her legal powers and duties. There is another analogy with trusteeship to be drawn from the aphorism of Lord Lindley that the great use of a trustee is to commit judicious breaches of trust.37 It is further proposed that requirements for a joint grant, or powers in the Court to insist on a joint grant, should be made or given by rules of Court rather than by Act.
25. No bond to protect creditor.
On the view now put forward the law should not be concerned to see that a creditor is protected by bond. Assume that just before the death of the deceased, money was due by the deceased to the creditor. Had the deceased not died, the creditor would not have had any right to require the deceased to give security for the debt. The death of the deceased and the need for administration of his estate should not put the creditor in a better position. Here the analogy with probate is close. If the deceased left a will appointing an executor and the executor proved the will, the law would not require the executor to give a bond.
26. Beneficiaries not sui juris.
Beneficiaries who are under 18 or are mentally ill raise a case for protection by bond or other security. But the law allows executors and trustees to act without security. This working paper proposes the additional safeguard that there must be evidence of fitness. On the view now put, that is enough.
27. Beneficiaries not in existence or not identified.
These raise a like case to that of beneficiaries not sui juris.
28. The law in other places.
Until recently, the laws of England, of all the Australian States, of the Territories of the Commonwealth, and of many other places which have taken their law from England, have required the giving of administration bonds, with a variety of arrangements for dispensing with the bond and for other related matters.
29. Reform in England.
In 1970 the Law Commission in England made a report on administration bonds and other matters.38 That report was adopted and its recommendations (so far as here relevant) are now embodied in a new section 167 of the Supreme Court of Judicature (Consolidation) Act 1925 and in a new rule 38 in the Non-Contentious Probate Rules, 1954. The new section and rule are as follows -
| Power to require administrators to produce sureties. | 167. (1) As a condition of granting administration to any person the High Court may, subject to the following provisions of this section and subject to and in accordance with probate rules and orders, require one or more sureties to guarantee that they will make good, within any limit imposed by the court on the total liability of the surety or sureties, any loss which any person interested in the administration of the estate of the deceased may suffer in consequence of a breach by the administrator of his duties as such. |
 | (2) A guarantee given in pursuance of any such requirement shall enure for the benefit of every person interested in the administration of the estate of the deceased as if contained in a contract under seal made by the surety or sureties with every such person and, where there are two or more sureties, as if they had bound themselves jointly and severally. |
| (3) No action shall be brought on any such guarantee without the leave of the High Court. |
| (4) Stamp duty shall not be chargeable on any such guarantee. |
| (5) This section does not apply where administration is granted to the Treasury Solicitor, the Public Trustee, the Solicitor for the affairs of the Duchy of Lancaster or the Duchy of Cornwall or the Chief Crown Solicitor for Northern Ireland, or to the consular officer of a foreign state to which Section 1 of the Consular Conventions Act 1949 applies, or in such other cases as may be prescribed by probate rules and orders. |
| Guarantee | 38. (1) The registrar shall not require a guarantee under section 167 of the Act as a condition of granting administration except where it is proposed to grant it - |
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(a) by virtue of rule l9(v) or rule 21(4) to a creditor or the personal representative of a creditor or to a person who has no immediate beneficial interest in the estate of the deceased but may have such an interest in the event of an accretion to the estate;
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(b) under rule 27 to a person or some of the persons who would, if the person beneficially entitled to the whole of the estate died intestate, be entitled to his estate;
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(c) under rule 30 to the attorney of a person entitled to a grant;
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(d) under rule 31 for the use and benefit of a minor;
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(e) under rule 33 for the use and benefit of a person who is by reason of mental or physical incapacity in capable of managing his affairs;
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(f) to an applicant who appears to the registrar to be resident elsewhere than in the United Kingdom;
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| or except where the registrar considers that there are special circumstances making it desirable to require a guarantee. |
| (2) Notwithstanding that it is proposed to grant administration as aforesaid a guarantee shall not be required,except in special circumstances, on an application for administration where the applicant or one of the applicant is - |
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(b) a solicitor holding a current practising certificate under the Solicitors Acts, 1957 to 1965;
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(c) a servant of the Crown acting in his official capacity;
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(d) a nominee of a public department or of a local authority within the meaning of the Local Government Act, 1933.
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| (3) Every guarantee entered into by a surety for the purpose of section 167 of the Act shall be in Form 1. |
| (4) Except where the surety is a corporation, the signature of the surety on every such guarantee shall be attested by an authorised officer, commissioner for oaths or other person authorised by law to administer an oath - |
| (5) Unless the registrar otherwise directs - |
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(a) if it is decided to require a guarantee, it shall be given by two sureties, except where the gross value of the estate does not exceed £500 or a corporation is a proposed surety, and in those cases one will suffice;
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(b) no person shall be accepted as a surety unless he is resident in the United Kingdom;
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(c) no officer of a registry or sub-registry shall become a surety;
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(d) the limit of the liability of the surety or sureties under a guarantee given for the purposes of section 167 of the Act shall be the gross amount of the estate as sworn on the application for the grant;
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(e) every surety, other than a corporation, shall justify.
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| (6) Where the proposed surety is a corporation there shall be filed an affidavit by the proper officer of the corporation to the effect that it has power to act as surety and has executed the guarantee in the manner prescribed by its constitution, and containing sufficient information as to the financial position of the corporation to satisfy the registrar that its assets are sufficient to satisfy all claims which may be made against it under any guarantee which it has given or is likely to give for the purposes of section 167 of the Act: |
| Provided that the Senior Registrar may instead of requiring an affidavit in every case accept an affidavit made not less often than once in every year together with an undertaking by the corporation to notify the Senior Registrar forthwith in the event of any alteration in its constitution affecting its power to become a surety under that section. |
30. Reform in Australia.
The report of the Law Commission in England has been followed by reports of law reform agencies in South Australia,39 Victoria,40 and Western Australia.41 These Australian reports recommended adoption of the English scheme with some variations. In 1975 the Queensland Law Reform Commission published a working paper and in that paper the question was raised whether administration bonds ought not to be abolished. The recommendations of the Victorian reports were adopted by Parliament in 1977 in the Administration and Probate Act 1958, s.57.42 The new section is as follows -
| Administration guarantees. | 57. (1) As a condition of granting administration to any person the Court or the Registrar may, subject to and in accordance with any rules made under section 68, require one or more sureties to guarantee that they will make good, in an amount not exceeding the amount at which the property of the deceased is sworn, any loss which any person interested in the administration of the estate of a deceased may suffer in consequence of a breach by the administrator of his duties as such. |
| (2) A guarantee shall enure for the benefit of every person interested in the administration of the estate of the deceased as if contained in a contract under seal made by the surety or sureties with every such person and, where there are two or more sureties, as if they had bound themselves jointly and severally. |
| (3) No action shall be brought on any such guarantee without the leave of the Court or a judge. |
| (4) This section does not apply where administration is granted to a person for the use or benefit of Her Majesty or to the Public Trustee or to any person body corporate or holder of an office specially exempted by any Act or by rules made under section 68. |
So far as we know rules of Court have not yet been made for the purposes of the new Victorian section 57.
31. Cases for security in other places.
In paragraphs 32 to 39 we look at cases where a guarantee is prima facie required by rules of Court in England and where a similar arrangement is recommended in South Australia, Victoria and Western Australia.
32. Creditor administrator.
All the reports recommend that a creditor who applies as such for letters of administration should give security. But a creditor is likely to be a businessman who will not want to expose himself to claims by beneficiaries or other creditors and who will probably have assets enough for satisfaction of a judgment against him. On the view now put, it is enough that there should be evidence of his fitness.
33. Prospective beneficiaries.
We use this heading for two classes of applicant for whom security is required in England pursuant to the Law Commission’s report.43 These classes comprise -
These are classes which rank in order of entitlement to a grant prescribed by rules of court in England.44 The ranking of these classes for entitlement to a grant has utility where there is a fixed order of entitlement. It has this utility in common cases, e.g., where a man dies intestate leaving an elderly widow and an adult son. If the net worth of the estate on probate values is $x and the widow’s share on intestacy is greater than $x, the son will be treated as not having an immediate beneficial interest. But if the estate is realised for more than the widow’s share, there will be deemed to have been an accretion to the estate and the excess will go to the son. Under the English rules, the son would rank for a grant but would have to give security (class (a) above). On the same facts and if on the widow’s death intestate the son would take all her estate, the son would also rank for a grant but would have to give security (class (b) above). But we do not have a prescribed order of entitlement like the English one. On the view now put, the nature of the case does not involve any special risk of maladministration.
34. Grant to attorney of person entitled.
This is another case adopted in England in pursuance of the Law Commission’s report. It is also recommended by the Australian reports. If, as put in this working paper, the relevant criterion is the fitness of the administrator, there is no particular reason for requiring security in this case.
35. Grant for the use and benefit of a person not sui juris.
This case, adopted in England, takes some note of the relevant considerations, but it ought to be concerned with the question whether any beneficiary (not just the one with the best right to a grant) is not sui juris. As has been mentioned, on the view now put, such a case calls for evidence of fitness of the applicant for administration, but does not call for security.
36. Grant to a person resident abroad.
Again this case is adopted in England in pursuance of the recommendations of the Law Commission and is recommended in all the Australian reports. Residence abroad has some relevance in that (at least if he is resident outside Australia there may be difficulty in forcing the administrator to account, hand over assets and so on. But our Court does not as a rule grant administration to a person resident outside the State. The view is put in this working paper that residence abroad is a matter going to fitness, not to the need for security. An administrator so resident should be required to give and maintain an address for service in New South Wales and to submit to the jurisdiction of the Supreme Court in all matters relating to the estate.45
37. Special circumstances.
A power in the Court to call for security in special circumstances is also adopted in England in pursuance of the report of the Law Commission and is recommended in all the Australian reports. This working paper does not propose such a power. If the applicant for administration is fit for the office that should be the end of the matter. If he is not fit he should not be given a grant. A discretion to require security may harden into a practice to require security. That risk should, we think, be avoided.
38. Grant ad litem.
The Victorian and Western Australian reports recommend that security should be given where the grant is of letters of administration ad litem. This is a grant limited to bringing or defending particular proceedings, most commonly to defend proceedings for damages for personal injury or death. In these cases it is a procedural formality which enables the plaintiff to reach the deceased’s insurer. Grants ad litem for other purposes are extremely rare, on the view put in this working paper there is no special risk and it is not a special case calling for security. It is note-worthy that in England before 1971 a bond was required, but sureties were not required.46 Such a bond is worthless. The inference is that the English experience, though vast, had not shown a special case for security.
39. Grant ad colligenda bona.
The Victorian and Western Australian reports also recommend that there should be security where the grant is of letters of administration ad colligenda bona. Such a grant is made for the preservation of the estate where something needs to be done before a full grant can be made. This is a case in which in England before 1971 a bond with sureties was required but the sureties were not as a rule required to justify,47 that is the sureties might be men of straw and the bond was likely to be worthless. On the view now put there is no special risk and it is not a special case for security.
40. Fitness of the applicant.
The evidence of fitness should, it is suggested, be given by affidavit of two people in responsible callings. “Responsible callings” would include solicitors, accountants and bank managers. A beneficiary or other person with a right to a grant should be empowered to authorise some one else to take the grant. In this way, a beneficiary or other person with a right to grant, but unable to produce evidence of fitness, could authorise someone else who can produce evidence of fitness. Evidence of fitness should not, on the view put in this working paper, be required where the administrator
(a) takes the grant to the use or for the benefit of the Crown in any right;48
(b) is the public trustee of any State or Territory of the Commonwealth or of England or New Zealand or of any Canadian Province or Territory or of Papua New Guinea;49
(c) is a trustee company within the meaning of the Trustee Companies Act, 1964;50 or
(d) is a solicitor of any State or Territory of the Commonwealth holding a current practising certificate.51
41. Summary of proposals.
In brief the proposals of this working paper are that -
(a) the provisions of the Wills, Probate and Administration Act, 1898, relating to administration bonds should be repealed;
(b) the same Act should be amended so as to enable any person with a claim to a grant of administration to authorise another person to apply for a grant.52
(c) the Supreme Court Act, 1970, s.124, should be considered on the question whether it gives adequate power -
(i) to require evidence of the fitness of an applicant for administration;
(ii) to prescribe cases where a grant of administration may not be made to less than two administrators.
(iii) to require an administrator to give and maintain an address for service in New South Wales; and
(iv) to require an applicant for administration to submit to the jurisdiction of the Supreme Court in all matters relating to the Estate.
Any necessary amendments should be made.
(d) rules on the above subjects should be made.
FOOTNOTES
1. S. 64(1). See also s.108(2), rr.25(5) (a), 26(1) (a). 34(5) (c).
2. S.64(1).
3. Form 102.
4. Harvell v. Foster [1954] 2 Q.B. 367; [1954] 3 W.L.R.351
5. Holdsworth, History of English Law, Vol. 1, 6th edn. revised (1938), 626,627, Vol. 3 5th edn. (1942) Chapter 5; Chief Justice’s Law Reform Committee (Victoria), Report of Sub-committee re Administration Bonds, 197, pp.4-8.
6. S.64(2); Public Trustee Act, 1913, s.49.
7. S.64(2).
8. Trustee Companies Act, 1964, s.10(1).
9. S.65, rr.25(6)(a), 28(2).
10. SS. 73(1), 74.
11. S.107(3), r.28(2).
12. S.65, and, as to this amount, see the form of affidavit of applicant for administration, form 100 paragraph 13.
13. S.65, rr.25(6)(c),28(2).
14. S.64(1), rr.25(5)(b), 28(2), 34(6).
15. Rr.25(5)(b), 28(2), 34(6).
16. S.65, rr.25(6)(b), 28(2).
17. Rr.25(8), 26(1)(a), 28(2), 34(5)(d), form 103.
18. Hastings & Weir: Probate Law and Practice 2nd edn. (l948), p. 635.
19. S.65.
20. S.66.
21. S.67(1).
22. S.67(2)
23. S.68.
24. R.5(1)(a),(b).
25. R. 25(9) and form 99.
26. So the Law Commission in England thought, but for reasons not expressed (Law Commission, Report on Administration Bonds and other matters, 1970, Law Com. no. 31, p. 7).
27. Trustee Act, 1925, s.70.
28. Trustee Act, 1925, s.6.
29. Trustee Act, 1925, s.6(5); Jacobs on Trusts, 3rd Edn. (l97l) 373
30. Re Badger (1915) 84 L.J. Ch. 567; Jacobs on Trusts, 3rd Edn.(1971) 386
31. Grant v.Grant (1865) 6 N.R. 347, 348.
32. Wills, Probate and Administration Act, 1898, s.49; Bryen v. Reus [1961] S.R. 397
33. Trustee Act, 1925, s.6(2)(d),4(b); In re Cockburn’s Will Trusts [1957] Ch. 438; [1957] 3 W.L.R. 212.
34. Bell v. Timiswood (1812) 2 Phill. Ecc. 22; 161 E.R. 1066; Hastings & Weir; Probate Law & Practice, 2nd edn. (1948), p.212.
35. S.63; Hastings & Weir; Probate Law & Practice, 2nd edn. (1948), pp.212, 213.
36. Supreme Court of Judicature (Consolidation) Act 1925, (U.K.), s.160(2).
37. National Trustees Co. of A/asia Ltd. v. General Finance Co. of A/asia Ltd. [1905] A.C. 373, 375, 376.
38. Law Com. No. 31.
39. 22nd report of the Law Reform Committee, 1972.
40. Report of a Sub-committee of the Chief Justice Law Reform Committee, 1971; Statute Law Revision Committee, 1974.
41. Report of the Law Reform Commission 16th March, 1976.
42. Inserted by Act No. 9041.
43. Non-Contentious Probate Rules, 1954 (Eng.), r.38(1)(a),(b).
44. Non-Contentious Probate Rules, 1954 (Eng.), rr.21(4),27.
46. Tristram and Coote’s Probate Practice, 23rd edn. (1970) p. 373.
47. Tristram and Coote’s Probate Practice, 23rd edn. (1970) p.577.
48. Cf. s.64(2); Non-Contentious Probate Rules, 1954 (Eng.), r.38(2)(a),(c),(d); Administration and Probate Act 1958 (Vic.) s.57(4); Western Australian Report para 25.
49. Cf. s,64(2); Public Trustee Act, 1913, s.49; Non-Contentious Probate Rules, 1954 (Eng.) r.38(2)(a): Administration and Probate Ordinance 1929 (A.C.T.), s.14(4)(d); Administration and Probate Act 1958(Vic.), s.57(4); Western Australian Report para. 25.
50. Cf. s.64(3); Trustee Companies Act, 1964, s.10(1); Non-Contentious Probate Rules, 1954 (Eng.), r.38(2)(a); Western Australian Report para. 25.
51. Cf. Non-Contentious Probate Rules (Eng.), 1954, r.38(2)(b); Western Australian Report para. 25.
52. Cf. s.72
