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 27 March 2017 at 05:57)
Part 78 Division 6
Division 6 Proceedings concerning informal testamentary documents
41   Application of Division
This Division applies to proceedings on an application for the grant of probate or administration in relation to a will that comprises or includes an informal testamentary document.
42   Consent of or notice to person affected
(cf former Part 78, rules 34E and 34G)
(1)  The plaintiff must serve notice of the application (a prescribed notice) on each person whose interests may be affected by the Court’s decision as to the deceased’s intentions in relation to the informal testamentary document.
(2)  Subrule (1) does not require a prescribed notice to be served:
(a)  on the caveator under any caveat in force in respect of the informal testamentary document, or
(b)  on any person who has consented to the grant of probate or administration to the plaintiff.
(3)  Any consent referred to in subrule (2) (b) must be filed by the plaintiff.
(4)  If the person whose interests are affected is a person under legal incapacity:
(a)  subrule (2) (b) does not apply, and
(b)  if the person has no tutor, service of a prescribed notice does not take effect until a tutor is appointed.
(5)  The Court may dispense with compliance with subrule (1) on any of the following grounds:
(a)  that the person affected cannot readily be ascertained,
(b)  that the person affected, though ascertained, cannot readily be found,
(c)  that it would be expedient to do so (having regard to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) so as to save expense.
Note.
 Pursuant to rule 72, unless the Court otherwise directs, a caveator under any caveat in force in respect of an informal testamentary document is to be a party to proceedings for the grant of probate or administration that comprises or includes the informal testamentary document.
43   Appearance by person affected by informal testamentary document
(cf former Part 78, rule 34H)
(1)  A person on whom a prescribed notice has been served in relation to any proceedings may enter an appearance in the proceedings.
(2)  Division 3 of Part 6 of the Uniform Civil Procedure Rules 2005 applies to appearance by the person as if the person were a defendant in the proceedings.
(3)  Rule 12.11 of the Uniform Civil Procedure Rules 2005 does not apply to the proceedings.
(4)  The time limited for the person to enter an appearance is:
(a)  in the case of service within New South Wales, 14 days,
(b)  in the case of service outside New South Wales, 28 days.
(5)  An appearance may not be entered after the expiration of the time so limited except by the leave of the Court.
44   Person affected by informal testamentary document becomes party on entering appearance
(cf former Part 78, rule 34I)
(1)  This rule applies to a person on whom a prescribed notice has been served in relation to any proceedings if the person enters an appearance within the time limited for entering an appearance.
(2)  On entering an appearance, the person becomes a defendant in the proceedings.
(3)  The proceedings are to continue as if:
(a)  the person had been joined as a defendant by the application for the grant of probate or administration, and
(b)  the person had been served with that application on the day on which he or she was served with the prescribed notice.
(4)  The person may only take part in:
(a)  such parts of the proceedings as relate to the decision under:
(i)  section 8 of the Succession Act 2006, or
(ii)  section 18A of the Probate and Administration Act 1898, as in force before the repeal of that section,
in relation to the informal testamentary document, and
Note.
 The provisions referred to in subparagraph (ii) were repealed, and replaced by the provisions referred to in subparagraph (i), on 1 March 2008.
(b)  such other parts of the proceedings as the Court directs.
(5)  The person ceases to be a defendant on the conclusion of those parts of the proceedings referred to in subrule (4).
45   Persons who are bound by Court’s decision on informal testamentary document
(cf former Part 78, rule 34F)
(1)  This rule applies if a decision is made under:
(a)  section 8 of the Succession Act 2006, or
(b)  section 18A of the Probate and Administration Act 1898, as in force before the repeal of that section,
in relation to an informal testamentary document.
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)  Subject to any order made by the Court, each of the following persons is bound by the decision made in relation to the informal testamentary document to the same extent as if he or she had been a party to the proceedings concerned when the decision was made:
(a)  any person whose consent to the grant of probate or administration has been filed in relation to the document,
(b)  any person whose interests may be affected by the Court’s decision as to the deceased’s intentions in relation to the document, but only if:
(i)  a prescribed notice has been served on the person, or
(ii)  the Court has, pursuant to rule 42 (5), dispensed with the requirement for service.
Note.
 Pursuant to rule 60, subject to any contrary order, a person on whom a notice of proceedings has been served under rule 57 is also bound by the decision, as he or she is bound by all other orders and decisions made in the proceedings to which the decision relates, including orders and decisions made by consent or otherwise without a contested hearing.