You are using a version of the website built for webcrawlers and people whose devices cannot use javascript. Some functionality may not be available.
Contents (1970 - 01)
Skip contents
Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 28 May 2017 at 09:05)
Part 78 Division 5
Division 5 Proceedings affecting other persons’ interests
38   Plaintiff sole executor
(cf former Part 78, rule 34B)
(1)  This rule applies to an application for an order under:
(a)  section 10 (3) (c) of the Succession Act 2006, or
(b)  section 13 (2) (c) of the Probate and Administration Act 1898, as in force before the repeal of that paragraph.
Note.
 The provisions referred to in paragraph (b) were repealed, and replaced by the provisions referred to in paragraph (a), on 1 March 2008.
(2)  The originating process for such an application need not join any person as a defendant:
(a)  if the plaintiff is the sole executor or administrator, or
(b)  if there is otherwise sufficient reason for not doing so.
(3)  Despite subrule (2), the Court may, at any stage of the proceedings, direct that:
(a)  any person be added as a party or substituted for another party or a former party, or
(b)  notice of the proceedings be served on any person in addition to, or instead of, the defendant.
(4)  Rule 7.6 of the Uniform Civil Procedure Rules 2005 applies to proceedings for an order referred to in subrule (1) in the same way as it applies to proceedings referred to in rule 7.6 (1) of those Rules.
39   Notice of proceedings to be served on certain persons
(cf former Part 78, rule 34C)
(1)  This rule applies to any proceedings on an application for the grant of probate or administration in which an application is made for an order under:
(a)  section 10 (3) (c) or 27 (1) of the Succession Act 2006, or
(b)  section 13 (2) (c), 15A (2) (a) or 29A (1) of the Probate and Administration Act 1898, as in force before the repeal of those provisions.
Note.
 The provisions referred to in paragraph (b) were repealed, and replaced by the provisions referred to in paragraph (a), on 1 March 2008.
(2)  The applicant for the grant of probate or administration:
(a)  must file an affidavit showing the persons whose interests would be adversely affected if the order were made, and
(b)  must serve a notice of proceedings on each such person within 28 days after the application for the order is made.
Note.
 Division 9 (particularly Subdivisions 3, 4 and 5) apply to a notice of proceedings referred to in paragraph (b).
(3)  Subrule (2) (b) does not require a notice of proceedings to be served on a person who has consented to the making of the order.
(4)  Any document that the applicant intends to rely on as evidence of such consent must be filed.
40   Affidavit verifying consent
(cf former Part 78, rule 34A)
Any document that the applicant intends to rely on as evidence of consent referred to in:
(a)  section 10 (3) (b) of the Succession Act 2006, or
(b)  section 13 (2) (b) of the Probate and Administration Act 1898, as in force before the repeal of that paragraph,
must be filed.
Note.
 The provisions referred to in paragraph (b) were repealed, and replaced by the provisions referred to in paragraph (a), on 1 March 2008.