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Contents (1970 - 01)
Supreme Court Rules 1970
Current version for 6 January 2017 to date (accessed 24 October 2017 at 14:43)
Part 78 Division 3 Subdivision 2
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 The provisions referred to in paragraph (b) were repealed, and replaced by the provisions referred to in paragraph (a), on 1 March 2008.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.