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 23 June 2017 at 20:34)
Part 78 Division 9
Division 9 Notices
Subdivision 1 Notice to apply for administration
53   Notice to apply for administration
(cf former Part 78, rule 51)
(1)  For the purposes of section 63 of the Probate and Administration Act 1898, any person may require a person referred to in paragraph (a), (b) or (c) of that section to apply for administration of an intestate person’s estate, as referred to in that section.
(2)  Such a requirement must be made by filing and serving on the person concerned a notice to apply for administration.
Note.
 This notice, a “notice to apply for administration”, was formerly referred to as a “citation to pray for administration”.
54   Time for answer to notice
(cf former Part 78, rule 54)
The time limited for answer to a notice to apply for administration 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.
Subdivision 2 Notice to apply for probate
55   Notice to apply for probate
(cf former Part 78, rule 52)
(1)  For the purposes of section 69 of the Probate and Administration Act 1898, any person may require a named executor to take probate, as referred to in that section.
(2)  Such a requirement must be made by filing and serving on the person concerned a notice to apply for probate.
Note.
 This notice, a “notice to apply for probate”, was formerly referred to as a “citation to take probate”.
56   Time for answer to notice
(cf former Part 78, rule 54)
The time limited for answer to a notice to apply for probate 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.
Subdivision 3 Notice of proceedings
57   Notice of proceedings
(cf former Part 78, rules 53 and 56)
(1)  Subject to subrule (2), any party to proceedings for the grant of probate or administration may file and serve on any person having an interest adverse to the party a notice of proceedings.
Note.
 This notice, a “notice of proceedings”, was formerly referred to as a “citation to see proceedings”.
(2)  Such a notice must be filed and served on each person on whom such a notice is required to be served pursuant to any other provision of this Part or any direction of the Court.
(3)  The notice must state that, if the person to whom it is addressed does not enter an appearance in the proceedings, the proceedings may be heard and determined in the person’s absence.
(4)  Division 3 of Part 6 of the Uniform Civil Procedure Rules 2005 (rule 6.10 excepted) applies to appearance by a person on whom a notice of proceedings has been served in the same way as if the person were a defendant in the proceedings.
(5)  If the person on whom the notice is served enters an appearance in the proceedings, he or she is entitled to the same notice of the hearing or trial of the proceedings as a defendant.
58   Election to be a defendant
(cf former Part 78, rule 57)
(1)  A person on whom a notice of proceedings has been served may include in his or her notice of appearance a statement that he or she elects to be a defendant in the proceedings.
(2)  If the person makes such an election:
(a)  he or she becomes a defendant in the proceedings, and
(b)  the proceedings are to continue as if the person:
(i)  had been joined as a defendant by the application for the grant of probate or administration, and
(ii)  had been served with the application for the grant of probate or administration on the day on which he or she was served with the notice of proceedings.
59   Proof of service of notice of proceedings
(cf former Part 78, rule 60)
A party who has issued a notice of proceedings (the issuing party) is not entitled to be heard, except by leave of the Court, unless:
(a)  the person to whom the notice is addressed (the addressee) has entered an appearance in the proceedings, or
(b)  the issuing party has filed:
(i)  an affidavit of service of the notice on the addressee, or
(ii)  an affidavit stating that the notice has not been served on the addressee and explaining why it has not been served.
60   Persons served bound by certain orders and decisions
Subject to any order of the Court, any person on whom a notice of proceedings has been served is bound by all orders and decisions made in the proceedings concerned, including orders and decisions made by consent or otherwise without a contested hearing, and is so bound whether or not the person has elected to be a defendant in the proceedings or has entered an appearance in the proceedings.
Note.
 This is a substantive change to the former law. See note to rule 45.
Subdivision 4 Notices served on persons under legal incapacity
61   Service on persons under legal incapacity
(cf former Part 78, rule 58)
(1)  Service on a person under legal incapacity of a notice under this Division is to be effected in accordance with this rule.
(2)  The notice may be served:
(a)  if the person has a tutor, on the tutor, or
(b)  if the person has no tutor, on someone with whom the person resides or in whose care the person is.
(3)  If the person to be served is a minor, the notice may also be served:
(a)  on the minor, but only if he or she is aged 16 years or more and is under legal incapacity by reason only of minority, or
(b)  on a parent of the minor, or
(c)  on a guardian of the minor’s person or estate.
(4)  The notice may also be served on any person (including the person under legal incapacity) whom the Court may, before or after the service, approve.
(5)  Service of the notice on a person under legal incapacity who has no tutor does not take effect until a tutor is appointed.
62   Notice to be answered by tutor
(cf former Part 78, rule 58)
(1)  A person under legal incapacity may not answer a notice under this Division otherwise than by his or her tutor.
(2)  If a person under legal incapacity has a tutor who has or may be given authority, under the NSW Trustee and Guardian Act 2009, to answer the notice on that person’s behalf, then, unless the Court otherwise orders, no person other than the tutor may answer the notice.
(3)  If a notice of proceedings is served on a person under legal incapacity and that person’s tutor is appointed to answer the notice, the appointment extends to the tutor electing on that person’s behalf to become a defendant in the proceedings.
(4)  If a person under legal incapacity elects by tutor to become a defendant in the proceedings, Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 applies as if the tutor had been appointed as provided by that Division.
63   Appointment of tutor
(cf former Part 78, rule 59)
(1)  Any person may apply for an order appointing the person as tutor for a person under legal incapacity.
(2)  The application may be made:
(a)  except as provided by paragraph (b), by summons, or
(b)  if proceedings on an application for the grant of probate or administration have already been commenced, by notice of motion in the proceedings,
and may be dealt with by the registrar in the absence of the public and without any attendance by or on behalf of any person.
(3)  There is to be no defendant in proceedings on a summons referred to in subrule (2) (a).
(4)  A tutor must not be appointed unless:
(a)  he or she is the person applying for appointment, or
(b)  evidence of his or her consent to act as tutor has been filed.
(5)  Subject to rule 62 (4), Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 does not apply to the appointment of a tutor under this rule.
Subdivision 5 General
64   Service generally
(cf former Part 78, rule 55)
(1)  A notice under this Division must be served personally.
(2)  Part 11 of the Uniform Civil Procedure Rules 2005 does not apply to service of such a notice.
Note.
 See also rule 61 in relation to service on persons under legal incapacity.
65   Assignment of case number
(1)  A case number or unique identifier is to be assigned to a notice under this Division when it is accepted for filing.
(2)  In the case of a notice for an estate in respect of which:
(a)  proceedings for the grant of probate or administration have been commenced, or
(b)  some other notice has been filed under this Division, or
(c)  a caveat has been filed under Division 10,
the case number or other unique identifier is to be the same as that previously assigned to the proceedings, notice or caveat.