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Contents (1970 - 01)
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Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 27 March 2017 at 05:54)
Part 78 Division 3
Division 3 Non-contentious proceedings
Subdivision 1 General provisions in relation to non-contentious proceedings
7   Application of Division
This Division applies to all non-contentious proceedings.
8   Commencement of non-contentious proceedings
(cf former Part 78, rule 8)
Subject to rule 72, non-contentious proceedings are to be commenced by summons.
9   Disposal of non-contentious proceedings
(cf former Part 78, rule 9)
(1)  Non-contentious proceedings may be dealt with by the registrar in the absence of the public and without any attendance by or on behalf of any person.
(2)  Rules 6.14, 6.15 and 6.16 of the Uniform Civil Procedure Rules 2005 do not apply to the proceedings.
10   Documents to accompany application for grant of probate or administration
(1)  An application for the grant of probate or administration must be accompanied by:
(a)  2 separate sets of the following documents, each stapled together on the left hand side, in the following order:
(i)  the proposed form of the grant of probate or administration,
(ii)  if applicable, a copy of the will and any codicils,
(iii)  an inventory of the assets of the estate, and
(b)  if applicable, a certified copy of the relevant death certificate, and
(c)  a stamped self-addressed A4 envelope.
(2)  Without limiting rule 4.3 (1) of the Uniform Civil Procedure Rules 2005, archival paper may be used for the proposed form of the grant of probate.
(3)  Unless the court otherwise orders, the certified copy of the death certificate referred to in subrule (1) (b) is to be returned to the applicant when the grant of probate or administration is made.
11   Documents to accompany application for resealing of foreign grant
(1)  An application for the resealing of a foreign grant must be accompanied by:
(a)  a master set of the documents referred to in subrule (2), and
(b)  a copy of each of the documents in the master set, and
(c)  a stamped self-addressed A4 envelope.
(2)  The master set must consist of:
(a)  the document to be resealed, being:
(i)  the original grant of probate or administration, or
(ii)  an exemplification or copy of the original grant bearing the original seal of the court in which the grant was made, and
(b)  a notice of reseal, and
(c)  an inventory of the assets of the estate.
12   Supporting affidavits
In addition to the documents referred to in rule 10 (1) or 11, as the case requires, an application:
(a)  for the grant of probate or administration, or
(b)  for the resealing of a foreign grant,
must be accompanied by:
(c)  an affidavit in support containing such information as may be required by the relevant form, and Subdivisions 2 and 3, and
(d)  such additional affidavits as may be required by Subdivisions 2 and 3 if the evidence cannot be given by the deponent of the affidavit in support.
Note.
 The prescribed forms of affidavit in support of an application for probate, administration or resealing of a foreign grant are as follows:
(a)  probate—UCPR Form 118,
(b)  administration—UCPR Form 119,
(c)  administration with the will annexed—UCPR Form 120,
(d)  administration pursuant to section 91 of the Succession Act 2006—UCPR Form 122,
(e)  resealing of a foreign grant—UCPR Form 121.
13   Domicile outside New South Wales
If an application for the grant of probate or administration, or for the resealing of a foreign grant, is made in respect of a person who has died while domiciled outside New South Wales, the affidavit in support must include evidence as to:
(a)  the domicile of the deceased, and
(b)  the requirements of the law of the domicile:
(i)  as to the validity of any will made by the deceased, and
(ii)  as to the persons who may be entitled in distribution of the estate.
Subdivision 2 Evidence in support in non-contentious applications
14   Informal testamentary documents
(cf former Part 78, rule 24)
If an application for the grant of probate or administration is made in respect of the estate of a person who has died leaving an informal testamentary document, the affidavit in support must include:
(a)  the name and address of each person whose interests may be affected by the Court’s decision as to the deceased’s intentions in relation to the document (designating which of them, in the plaintiff’s opinion, is or may be a person under legal incapacity), or
(b)  if the name and address of any such person cannot be ascertained, the best information the plaintiff can give to assist in ascertaining the person’s identity and whereabouts.
15   Will made prior to divorce
If an application for the grant of probate or administration relies on:
(a)  section 13 of the Succession Act 2006, or
(b)  section 15A of the Probate and Administration Act 1898, as in force before the repeal of that section,
the affidavit in support must include a statement of the facts on which the plaintiff relies.
Note.
 The provisions referred to in paragraph (b) were repealed, and replaced by the provisions referred to in paragraph (a), on 1 March 2008.
16   Delay
(1)  If an application for the grant of probate or administration:
(a)  is filed later than 6 months after the death of the deceased, and
(b)  is the first application for such a grant,
the affidavit in support must include a statement explaining the delay.
(2)  Subrule (1) does not apply to the grant of administration under section 91 of the Succession Act 2006.
17   Application for grant of probate where named executor has renounced probate or reserved leave to apply
(1)  In proceedings on an application for the grant of probate in which one or more, but not all, named executors have renounced probate:
(a)  evidence of each such renunciation must be furnished, and
(b)  if any such renunciation has been signed by a named executor, the renunciation must be filed.
(2)  If a named executor is not joining in the application, but leave is sought to be reserved to the executor to come in and apply for probate at some future date, evidence must be furnished:
(a)  that the executor was served with notice of the intended proceedings at least 14 days before the proceedings were commenced, or
(b)  that the executor is a person under legal incapacity.
18   Application for grant of administration with will annexed where named executor has renounced probate
(cf former Part 78, rule 26 (3))
(1)  In proceedings on an application for the grant of administration with the will annexed in which all named executors have renounced probate:
(a)  evidence of each such renunciation must be furnished, and
(b)  if any such renunciation has been signed by a named executor, the renunciation must be filed.
(2)  Where the executor or executors in a will have renounced probate in favour of the NSW Trustee and Guardian, administration with the will annexed may be granted to the NSW Trustee and Guardian without the consent of, or giving notice to, any person.
19   Application for grant of administration by some only of those entitled to administration
(1)  If a grant of administration is applied for by some only of the persons within Australia who are entitled to administration, the application must, in relation to each such person not applying, be supported by:
(a)  the written consent of that person to the grant of administration to the applicant, with an affidavit verifying the consent endorsed on the document containing the consent, or
(b)  an affidavit as to service on that person of the applicant’s notice of intention to make such an application.
(2)  Service of the notice referred to in subrule (1) (b) must have occurred at least 14 days before the proceedings commence.
(3)  The affidavits and notice referred to in subrule (1) (b) may be served personally or by post.
20   Affidavit in support of application for administration generally
(cf former Part 78, rule 24A)
(1)  This rule applies to an application for the grant of administration made in respect of the estate of a person who died before 1 March 2010, other than:
(a)  an application for the grant of administration with the will annexed, or
(b)  an application for the grant of administration made by or on behalf of a de facto partner, or
(c)  an application for the grant of administration under section 91 of the Succession Act 2006.
Note.
 1 March 2010 was the date on which the provisions of the Probate and Administration Act 1898 referred to in subrule (3) (a) were repealed by the Succession Amendment (Intestacy) Act 2009.
(2)  The affidavit in support of an application for the grant of administration made by or on behalf of any person (other than a de facto partner of the deceased) must show that the deceased did not leave a de facto partner for whom the estate, or any part of it, is required to be held under a statutory trust for de facto partners.
(3)  In this rule, statutory trust for de facto partners means a trust for the benefit of a de facto partner:
(a)  that arises under section 61B (3A) (a) or (3B) (a) or (b) (ii) of the Probate and Administration Act 1898 (as in force before 1 March 2010), or
(b)  that, by operation of section 32G (2) of that Act, arises under any other provision of that Act (as so in force).
21   Evidence in support of application for administration by de facto partner
(cf former Part 78, rule 25A)
(1)  This rule applies to an application for the grant of administration made by or on behalf of a de facto partner of the deceased in respect of the estate of a person who died before 1 March 2010, other than:
(a)  an application for the grant of administration with the will annexed, or
(b)  an application for the grant of administration under section 91 of the Succession Act 2006.
Note.
 1 March 2010 was the date on which the provisions of the Probate and Administration Act 1898 referred to in subrule (3) (a) were repealed by the Succession Amendment (Intestacy) Act 2009.
(2)  The affidavit in support of an application for the grant of administration made by or on behalf of a de facto partner must show that the estate, or some part of it, is required to be held under a statutory trust for de facto partners.
(3)  The application must be supported by the written consent of each person who would be entitled to distribution of the estate if the deceased had not left a de facto spouse, or an affidavit of service on such a person of the applicant’s intention to make such an application.
(4)  The provision of consents and service of notices is to be in accordance with rule 19.
(5)  In this rule, statutory trust for de facto partners means a trust for the benefit of a de facto partner:
(a)  that arises under section 61B (3A) (a) or (3B) (a) or (b) (ii) of the Probate and Administration Act 1898 (as in force before 1 March 2010), or
(b)  that, by operation of section 32G (2) of that Act, arises under any other provision of that Act (as so in force).
22   Affidavit in support of application for administration—domestic partnerships
(1)  This rule applies to an application for a grant of administration made in respect of a person who died after 1 March 2010, other than:
(a)  an application for a grant of administration with the will annexed, or
(b)  an application for a grant of administration under section 91 of the Succession Act 2006.
(2)  If the application is not made by a person claiming to have been a party to a domestic partnership with the deceased the affidavit in support of the application must show that the deceased did not leave a domestic partner who would be entitled to the estate or any part of it.
(3)  If the application is made by a person claiming to have been in a domestic partnership with the deceased:
(a)  the affidavit in support of the application must show that the applicant is entitled to the estate or some part of it, and
(b)  the application must be supported by the written consent of each person who would be entitled to distribution of the estate if the deceased person had not left a partner to a domestic partnership, or an affidavit of service on such persons of notice of the applicant’s intention to make such an application.
(4)  The provision of consents and service of notices is to be in accordance with rule 19.
(5)  In this rule, domestic partnership has the same meaning as it has in section 105 of the Succession Act 2006.
23   Administration bonds
(1)  Before granting administration, the Court may require an administration bond to be filed.
(2)  Unless the Court otherwise orders, an administration bond must have 2 sureties conditioned for duly collecting and getting in the deceased’s assets and administering the deceased’s estate.
24   Evidence in support of application for administration for the purposes only of Chapter 3 of the Succession Act 2006
(cf former Part 78, rule 26A)
If the plaintiff under an application referred to in section 91 of the Succession Act 2006 is aware of a proposal by any other person to make such an application, the affidavit in support must include a statement to the effect that notice of the plaintiff’s intended application was served on the other person at least 14 days before the application was made.
Subdivision 3 Proof of wills in non-contentious proceedings
25   Application of Division
This Subdivision applies to proceedings in which the plaintiff seeks to prove a will.
26   Will not sufficiently attested
(cf former Part 78, rule 15)
(1)  If the will contains either no attestation clause or an insufficient attestation clause, the plaintiff must file an affidavit by one or more of the attesting witnesses to the due execution of the will.
(2)  A plaintiff who is unable to comply with subrule (1) must file:
(a)  an affidavit as to the reason for the inability, and
(b)  a further affidavit by some other person who was present when the will was executed.
(3)  A plaintiff who is unable to comply with subrule (1) or (2) must file an affidavit as to:
(a)  the reason for the inability, and
(b)  either:
(i)  the signatures of the testator and the attesting witnesses, or
(ii)  other facts from which it may be inferred that the will was duly executed.
27   Blind or illiterate testator’s will or will at another’s direction
(cf former Part 78, rule 16)
If the will was or appears to have been signed by:
(a)  a blind or illiterate testator, or
(b)  some other person at the testator’s direction,
the affidavit in support must include all available evidence as to the manner in which the will was executed and as to whether the testator knew and approved its contents.
28   Date of execution
(cf former Part 78, rule 18)
If the will is undated, the affidavit in support must include evidence establishing the date of its execution.
29   Interlineations, obliterations and alterations
(cf former Part 78, rule 19)
If:
(a)  there is any interlineation, obliteration or alteration in the will, and
(b)  the interlineation, obliteration or alteration is not duly authenticated or otherwise validated,
the affidavit in support must include evidence establishing that the interlineation, obliteration or alteration was made before the will was executed.
30   Documents referred to or attached
(cf former Part 78, rule 20)
If:
(a)  the will contains a reference to a document that suggests that the document forms part of the will, or
(b)  there are marks on the will from which it appears that a document has been attached to it,
the affidavit in support must include all available evidence in regard to those circumstances.
31   Part of will paper torn off or cut off
(cf former Part 78, rule 21)
If it appears that any part of the material on which the will was written has been torn or cut off, the affidavit in support must include all available evidence (including the torn or cut-off part) in regard to those circumstances.
32   Burning, tearing or other sign of revocation
(cf former Part 78, rule 22)
If:
(a)  it appears that there may have been an attempt to destroy the will by burning, tearing or otherwise, or
(b)  there are other circumstances that suggest that the testator may have revoked the will,
the affidavit in support must include all available evidence in regard to those circumstances.
33   Inoperative will
(cf former Part 78, rule 23)
If it appears that the will is or may be wholly or partly inoperative, whether by reason of the executors and beneficiaries all predeceasing the testator or otherwise, the affidavit in support must include evidence as to what persons would be entitled to distribution of the estate on intestacy.