No [30th September, 1958.]

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1 1958. Administration and Probate. No. 6191,.49 No ADMINISTRATION AND PROBATE ACT An Act to consolidate the Law relating to the Administration of the Estates of Deceased Persons. [30th September, 1958.] BE it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say): 1. This Act may be cited as the Administration and Probate short title Act 1958, and shall come into operation on a day to be fixed by m^md 5 " proclamation of the Governor in Council published in the dmsion - Government Gazette, and is divided into Parts Divisions and Subdivisions as follows: Part I. General ss Division 1. Interpretation s. 5. Division 2. Grants of Probate Administration ss and Division 3. Devolution of Real Estate &c. ss Division 4. Executors and Administrators ss Subdivision 1. General Provisions ss Subdivision 2. Duties Rights and Obligations ss Subdivision 3. Discharge and Removal of Executors and Administrators and New Appointments ss

2 Administration and Probate. No Division 5. Administration of Assets ss Division 6. Distribution of Intestate's Residuary Estate ss Division 7. Practice Procedure Offences &c. ss Subdivision 1. Administration Bonds s. 57. Subdivision 2. Caveats ss Part I. Subdivision 3. Commission to Executors continued. Administrators and Trustees of Deceased Persons s. 65. Subdivision 4. Concealment of Wills. Obligation to take out Probate or Administration s. 66. Subdivision 5. General Practice. Rules ss Division 8. General Saving Provisions ss Part II. Small Estates ss Part III. Recognition of Foreign Grants ss Part IV. Testator's Family Maintenance ss Part V. Duties on Deceased Person's Estates ss Repeal. First Schedule. 2. (1) The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly. (2) Except as in this Act expressly or by necessary implication provided (a) all persons things and circumstances appointed or created by or under any of the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed; (b) in particular and without affecting the generality of the foregoing paragraph, such repeal shall not disturb the continuity of status operation or effect of any proclamation regulation by-law order application determination decision recommendation petition direction licence permit certificate exemption approval disapproval objection appointment delegation classification condition notice duty fee liability or right made effected issued

3 1958. Administration and Probate. No granted given presented passed fixed imposed accrued incurred or acquired or existing or continuing by or under any of such Acts before the commencement of this Act. 3. In this Act unless inconsistent with the context or interpretation, subject-matter KSwSti 5 (3), No.5329s.il (2). " Court " means the Supreme Court of Victoria. < conn." " Master " means Master of the Supreme Court of Victoria. " Master " c See No " Part " means Part of this Act.?; l _ " Part. " Public Trustee" means the Public Trustee under the " PnbUc Trustee '' Public Trustee Act " Registrar" means the registrar of probates and " Registrar." administrations of the Supreme Court of Victoria. 4. (1) Save as otherwise expressly provided and subject to ^^f n the operation of the next succeeding sub-section this Act applies persons and to and with respect to persons and the estates of persons dying pe t r a so^s dying before on or after the commencement of this Act. aft f r re co rn- or mencement of this Act Comp. No s. 68. (2) Where an enactment repealed by this Act provides that savinjyrf any statutory provision specified therein or any rule of law enactmenu statutory or otherwise shall, with or without modification, apply to special or with respect to or in respect of or have force and effect with prstetos? respect to persons or the estates of persons dying before or on or after the commencement of any Act or any other date specified in such repealed enactment, that enactment and any provision or rule of law so applied or given force or effect shall notwithstanding the repeal of that enactment continue to have full force and effect according to the tenor thereof. (a) PART I. GENERAL. DIVISION 1. INTERPRETATION. 5. (1) In this Part unless inconsistent with the context or interpretation, subject-matter Novelists'' (3) " Administration " means with reference to the estate of a "Adminisdeceased person letters of administration whether tration -" general special or limited or with the will annexed or otherwise. " Administrator " means a person to whom administration " Admjnis-. i, " trator.", is granted. (a) See No ss. 10, 31, 32 (2), 33 (9), 34 (4), 35 (4), 42 (1), 50, 68, No s. 17, No s. 8.

4 Administration and Probate. No " Conveyance." " Disposition." ' Estate." ' Grant." 1 Income." ' Intestate." ' Lunatic." " Pecuniary legacy." " Personal chattels." " Personal representative." ' Possession.' ' Probate." ' Property." " Conveyance " includes a mortgage lease assent vesting declaration disclaimer release and every other assurance of property or of an interest therein by any instrument except a will and " convey" has a corresponding meaning and " disposition " includes a " conveyance" also a devise bequest and an appointment of property contained in a will and " dispose of " has a corresponding meaning. " Estate " means real and personal estate. " Grant " means a grant of probate or administration. " Income " includes rents and profits. " Intestate " includes a person who leaves a will but dies intestate as to some beneficial interest in his real or personal estate. " Lunatic " includes a lunatic whether so found or not and in relation to a lunatic not so found " committee" includes the Public Trustee and a person on whom the powers of a committee are conferred. " Pecuniary legacy " includes an annuity a general legacy a demonstrative legacy so far as it is not discharged out of the designated property and any other general direction by a testator for the payment of money including all duties relating to the estate or property of a deceased person free from which any devise bequest or payment is made to take effect. " Personal chattels" means carriages horses stable furniture and effects (not used for business purposes) motor cars and accessories (not used for business purposes) garden effects domestic animals plate plated articles linen china glass books pictures prints furniture jewellery articles of household or personal use or ornament musical and scientific instruments and apparatus wines liquors and consumable stores but does not include any chattels used at the death of the intestate for business purposes nor money or securities for money. " Personal representative " means the executor original or by representation or administrator for the time being of a deceased person. " Possession " includes the receipt of rents and profits or the right to receive the same (if any). " Probate " means the probate of a will. " Property " includes a thing in action and any interest in real or personal property.

5 1958. Administration and Probate. No " Purchaser " means a lessee mortgagee or other person ' l'mcnaser.-' who in good faith acquires an interest in property for valuable consideration also an intending purchaser and " valuable consideration " includes marriage but does not include a nominal consideration in money. "Representation" (except in section fifty-two) means the "Represenprobate of a will and administration. " Rent" includes a rent service or a rent charge or other Rem.- rent toll duty or annual or periodical payment in money or money's worth issuing out of or charged upon land but does not include mortgage interest as such; and rent charge includes a fee farm rent. " Securities " includes stocks funds or shares. " securities." "Trustee company" means a trustee company under the Trustee Trustee Companies Act company. " Trust for sale " in relation to land means an immediate ^rnp *<» binding trust for sale whether or not exercisable at the request or with the consent of any person and with or without a power at discretion to postpone the sale; and " power to postpone a sale " means power to postpone in the exercise of a discretion. " Will" includes codicil and every other testamentary wm.» instrument. (2) References to a child or issue living at the death of any person include a child or issue en ventre sa mere at the death. (3) References to the estate of a deceased person include property over which the deceased exercises a general power of appointment (including the statutory power to dispose of entailed interests) by his will. DIVISION 2. GRANTS OF PROBATE AND ADMINISTRATION. 6. The Court shall have jurisdiction to grant probate of the Probate or will or administration of the estate of any deceased person leaving maybe property whether real or personal within Victoria. lny nt i rmn ere leaves property in Victoria. No s (1) Where the Court is satisfied, whether by direct Grant of evidence or on presumption of death, that any person has died adrsn'fstration leaving property whether real or personal in Victoria, the Court preemption 01 shall have and shall at all times be deemed to have had jurisdiction Jf d "^to grant probate of his will or administration of his estate as if he were a deceased person, notwithstanding that it may subsequently to the grant appear that he was living at the date of the grant.

6 Administration and Probate. No (2) Subject to the provisions of this Act, where a grant is or has been made of probate of the will or administration of the estate of any person with respect to whom the Court is satisfied as aforesaid that he is dead, notwithstanding that it may subsequently appear that the person in respect of whose estate the grant was made was living at the date of the grant, the person administering the estate for the time being by virtue of such grant shall have and be deemed to have had the like rights powers privileges duties and liabilities as the personal representative of a deceased person, and in any Act the expression " Personal representative " shall include and be deemed at all times to have included the person administering the estate for the time being by virtue of such grant. (3) Nothing in this section shall affect any action or proceeding decided before or pending at the twenty-first day of November One thousand nine hundred and thirty-three. A* to gtant 8. If a grant is made on presumption of death administration ( fl ) t^c g rant gjjau be expressed to be made on «F1Eatn tion presumption of death only; NO. 4i4i s. 3. ^ ^ estate shau nqt be di str ib ute( i without the leave of the Court, which leave may be given in the grant or by a separate order, and either unconditionally or subject to such conditions as the Court deems reasonable, and, in particular, if the Court thinks fit, subject to an undertaking being entered into or security being given by any person who takes under the distribution that he will restore any money or property received by him or the amount or value thereof in the event of the grant being revoked; (c) the Court may direct the personal representative before distributing the estate to give such notices as the Court deems proper in the circumstances in order that the person whose death has been presumed, if he is still living, or in order that, if he has died since the date of the grant, any person interested in the estate may lodge with the registrar within such time as is specified by the Court a caveat against the distribution; and, if the Court directs any such notice to be given, the personal representative shall not have the benefit of paragraph (a) of section eleven or of sub-section (2) of section thirty-one of this Act unless he complies with the direction; (d) if a caveat is duly lodged within such time as is specified by the Court, the personal representative shall not distribute the estate until the caveat is withdrawn or removed;

7 1958. Administration and Probate. No (e) an application for leave to distribute the estate and for directions may be made and a caveat may be lodged withdrawn or removed in accordance with Rules of Court, and the Court may make such order in respect of costs and otherwise as it deems proper; (/) the provisions of this section, with the exception of paragraph (a), shall extend and apply to the case of a grant made either before or after the twenty-first day of November One thousand nine hundred and thirty-three, but shall not affect any distribution made before that date. 9. (1) Where the Court grants probate of the will or AS to grant administration of the estate of any person, and it subsequently wilfor appears that he was living at the date of the grant, the Court of^ate'oi 0 ' 1 shall revoke the grant on such terms, if any, with respect to any ^"dafe^111 * proceedings commenced by or against the personal grant - representative, and in respect of costs and otherwise, as the No Court thinks proper. (2) Proceedings for the revocation may be taken either by the person himself, or, if he has died since the date of the grant, by any person entitled to apply for probate or administration or by any person interested in the estate of the deceased person. Such proceedings may be by motion or otherwise in accordance with Rules of Court. (3) The provisions of this section shall extend and apply to the case of a grant made either before or after the commencement of this Act. 10. If a grant is revoked under the last preceding section of Effect of this Act v as" n8 (a) the personal representative under the revoked grant No "- 5 * shall be bound duly to account and to pay and transfer all money and property received by or vested in him as such personal representative and then remaining in his hands as the Court directs, but shall not be liable for any money or property paid or transferred by him in good faith under the representation before the revocation. Nothing in this paragraph shall affect any commission protection indemnity reimbursement or right to which the personal representative is entitled under this Act; (b) the revocation shall not invalidate any payment or transfer lawfully made by or to the personal representative in the course of administering the

8 Administration and Probate. No estate before the revocation, but nothing in this paragraph shall prejudice the right of the person himself, or, if he has died since the date of the grant, the personal representative to whom a grant is made consequent on the revocation, or any other person, to follow assets into the hands of the persons or any of them among whom the same have been distributed or who have received the same, other than purchasers for value without notice that the person supposed to be dead was actually alive at the date of the grant; (c) the person himself, or, if he has died since the date of the grant, the personal representative to whom a grant is made consequent on the revocation, shall be entitled to receive from the Consolidated Revenue (which is hereby appropriated for the purpose accordingly) the amount of duty paid thereto in respect of the revoked grant; (d) the Court may make such vesting order as it deems proper; (e) the provisions of this section shall extend and apply to the case of a grant made either before or after the commencement of this Act. Registrar and 11. (1) The Governor in Council may subject to this resltr"!* of section appoint some person to be registrar of probates and N b administrations and some person to be assistant registrar of NO.' 5277 s.' i. probates and administrations and may remove such registrar or assistant registrar. (2) The assistant registrar shall have and may exercise like powers and duties to the registrar and any reference in this Act to the registrar shall (where the case so requires) include a reference to the assistant registrar. (3) Every person appointed as registrar or assistant registrar or to act in the stead of either of them shall be a barrister and solicitor of the Court of five years standing or a clerk who has had ten years experience in the office of the Master. (4) In the case of absence or temporary incapacity of the registrar or assistant registrar the Governor in Council may appoint some fit and proper person to act in his stead and such person when so acting shall have and exercise all the powers and duties of the registrar or assistant registrar (as the case may be). (5) No registrar or assistant registrar shall while holding such office directly or indirectly practise as a barrister proctor solicitor or attorney or receive or participate in the fees of any other person so practising.

9 1958. Administration and Probate. No (6) The registrar and the assistant registrar and any person appointed to act in the stead of either of them shall act in the performance of his duties under the direction of the Master and subject to any such direction the assistant registrar shall act under the direction of the registrar. 12. (1) Subject to the provisions of this section the registrar Grants of may, on application made to him supported by affidavits upon adm^ssa* which in his opinion the Court would grant probate or re'sstw. administration, make a grant of probate or administration by NO s. 7; signing his order for such grant and sealing it with the seal of the N 6089 *" Court. s - 2(1) - (2) The registrar shall not without an order of the Court when referred grant probate or administration un ' (a) in any case where a caveat has been lodged and has not expired or been withdrawn; or (b) in any case in which it appears to him to be doubtful whether such probate or administration ought to be granted. (3) Probate or administration shall be deemed to be granted (a) in the case of a grant by the Court, when the order for the grant has been taken out and filed in the office of the registrar; (b) in the case of a grant by the registrar, when the order for the grant has been signed by him and sealed with the seal of the Court and every grant of probate or administration whether made by the Court or the registrar shall subject to the provisions of section one hundred and twenty-three of this Act be issued by the registrar in the name and under the seal of the Court. DIVISION 3. DEVOLUTION OF REAL ESTATE ETC. 13. (1) Upon the Court granting probate of the will or administration of the estate of any deceased person, then subject to any limitations expressed in the grant all the hereditaments or all the hereditaments then unadministered of such person, whether held by him beneficially or in trust, shall vest as from the death of such person in the executor or administrator to whom such probate or administration is granted (as the case may be) for all the estate therein of such person, and if there is more than one such executor or administrator shall vest in them as joint tenants. (2) In this section the hereditaments of a deceased person shall be deemed to include (a) all the estate of such person passing under any gift contained in his will which operates as an appointment under a general power to appoint by Real estate to vest in executors and administrators. No s. 8; No s. 3 (3).

10 Administration and Probate. No (b) will or operates under the testamentary power conferred by statute to dispose of an entailed interest; and every estate pur autre vie which such person could if of full age and capacity have disposed of by his will. Rights and duties of executor or administrator with respect to real estate. No s Subject to the provisions of this Act or of any other Act the executor or administrator of any deceased person shall have the same rights and be subject to the same duties with respect to the real estate of such person as prior to the first day of January One thousand eight hundred and seventy-three executors or administrators had or were subject to with respect to personal estate. Power of Court where executor or person having possession of will neglects to prove or renounce or to bring in the will. No s. 11; No s. 3 (3). DIVISION 4. EXECUTORS AND ADMINISTRATORS. Subdivision 1. General Provisions. 15, The Court shall continue to have power to summon any person named as executor in any will to prove or renounce probate of the will and to do such other things concerning the will as have heretofore been customary and in particular and without limiting the generality or effect of the foregoing provision in any case where the executor named in a will or any person having possession of any will neglects to bring such will into court within six weeks from the death of the testator or where the executor named in a will neglects to prove the same or renounce probate thereof within six weeks from the death of the testator any party interested under such will or in the estate or the Public Trustee or any creditor of the testator may apply to a judge of the Court in chambers for a summons calling upon the executor or any person having possession of such will to show cause why he should not bring such will into court or why such executor should not prove the same or renounce probate thereof or in the alternative why administration with such will annexed should not be granted to the applicant and upon proof of service of the summons, if the executor or such person does not appear or show sufficient cause as aforesaid, it shall be lawful for any judge of the Court to make an order upon such executor or person to bring such will into court and make such order in the premises and as to costs as appears just and the Court may grant administration of the estate to such applicant. Cesser of right of executor to prove. No s. 12; No s. 2. J 6. (1) Where a person appointed executor by a will (a) survives the testator but dies without having taken out probate of the will; or (b) is cited to take out probate of the will and does not appear to the citation; or

11 1958. Administration and Probate. No (c) renounces probate of the will his rights in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his estate shall devolve and be committed in like manner as if that person had not been appointed executor. (2) An executor who has renounced probate may withdrawal of notwithstanding anything in the last preceding sub-section contained be permitted by the Court to withdraw the renunciation and prove the will and where an executor who has renounced probate has been so permitted, whether before or after the commencement of this Act, the probate shall take effect and be deemed always to have taken effect without prejudice to the previous acts and dealings of and notices to any other personal representative who has previously proved the will or taken out letters of administration, and a memorandum of the subsequent probate shall be indorsed on the original probate or letters of administration. 17. (1) An executor of a sole or last surviving proving Executor of executor of a testator is the executor of that testator, represents This provision shall not apply to an executor who does not testator. prove the will of his testator, and, in the case of an executor who on ^ \ Jijj, ; f s his death leaves surviving him some other executor of his testator who afterwards proves the will of that testator, it shall cease to apply on such probate being granted. (2) So long as the chain of such representation is unbroken, the last executor in the chain is the executor of every preceding testator. (3) The chain of such representation shall be broken by (a) an intestacy; or (b) the failure of a testator to appoint an executor; or (c) the failure to obtain probate of a will; but shall not be broken by a temporary grant of administration if probate is subsequently granted. (4) Every person in the chain of representation to a testator (a) shall have the same rights in respect of the estate of that testator as the original executor would have had if living; and (b) shall be to the extent to which the estate of that testator has come to his hands, answerable as if he were an original executor. 18. Where probate is granted to one or some of two or more Right of persons named as executors, whether or not power is reserved to executors to the others or other to prove, all the powers which are by law p 0 werl! conferred on the personal representative may be exercised by the NO s. 14. proving executor or executors for the time being and shall be as effectual as if all the persons named as executors had concurred therein.

12 Administration and Probate. No Vesting of estate of intestate between death and grant of administration. No s. 15; No s. 9 (1). Power to grant representation of real and personal estate separately or together. No s Where a person dies intestate his estate until administration is granted in respect thereof shall vest in the Public Trustee in the same manner and to the same extent as formerly in the case of personal estate in England if vested in the Ordinary. 20. Representation in respect of the real estate of a deceased person or any part thereof may be granted either separately or together with representation in respect of his personal estate or any part thereof and may also be granted in respect of real estate only where there is no personal estats or in respect of a trust estate only and a grant of administration to real or personal estate or both may be limited in any way the Court thinks proper: Provided that where the estate of the deceased is known to be insolvent the grant of representation to the real and personal estate shall not be severed except as regards a trust estate. Executor not to act while administration is in force. No Where administration has been granted in respect of any real or personal estate or real and personal estate of a deceased person no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked. Administration pending litigation. No s (1) Where any legal proceedings touching the validity of the will of a deceased person or for obtaining recalling or revoking any grant are pending the Court may grant administration of the estate of the deceased to an administrator who shall have all the rights and powers of a general administrator other than the right of distributing the residue of the estate and every such administrator shall be subject to the immediate control of the Court and act under its direction. (2) The Court may out of the estate of the deceased assign to any administrator appointed under this section such reasonable remuneration as the Court thinks fit. Continuance of legal, proceedings after revocation of temporary administration. No s If while any legal proceeding is pending in any court by or against an administrator to whom a temporary administration has been granted that administration is revoked or otherwise terminates that court may order that the proceeding be continued by or against the new personal representative in like manner as if the same had been originally commenced by or against him but subject to such conditions and variations (if any) as that court directs. In this section " court" means any court having jurisdiction in relation to such proceedings.

13 1958. Administration and Probate. No (1) If at the expiration of twelve months from the death Grant of of a person any personal representative of the deceased to whom a administration grant has been made is residing out of the jurisdiction of the Court jssfnai the Court may on the application of any creditor or person representative is abroad. interested in the estate of the deceased grant to him special No s. 20. administration of the estate of the deceased in such form as may be prescribed by Rules of Court or as may be directed by the Court. (2) The Court may for the purpose of any legal proceedings to which the administrtaor under the special administration is a party order the transfer into court of any money or securities belonging to the estate of the deceased person and all persons shall obey any such order. (3) If the personal representative capable of acting as such returns to and resides within the jurisdiction of the Court while any legal proceedings to which a special administrator is a party are pending that personal representative shall be made a party to the legal proceedings and the costs of and incidental to the special administration and the legal proceedings shall be paid by such person and out of such fund as the court in which the proceedings are pending directs. In this sub-section " court" means any court having jurisdiction in relation to such proceedings. 25. Administration with the will annexed shall continue to be granted in every case where such grant has heretofore been customary and in such case the will of the deceased shall be performed and observed in like manner as if probate thereof had been granted to an executor. Administration with will annexed. No s (1) Where an infant is sole executor of a will administration with the will annexed shall be granted to his guardian or to such other person as the Court thinks fit until the infant attains the age of twenty-one years and on his attaining that age and not before probate of the will may be granted to him. Administration during minority of executor. No a. 22. (2) The appointment in a will by a testator of an infant to be Appointment an executor shall not operate to transfer any interest in the property executor of the deceased to the infant or to constitute him a personal unplobatl e representative for any purpose unless and until probate is granted ff d a g e. at to him under this section. 27. Every person to whom administration of the estate of a Rights and deceased person is granted shall subject to the limitations contained administrator. in the grant have the same rights and liabilities and be accountable No s in like manner as if he were the executor of the deceased.

14 Administration and Probate. No Duty of personal representative as to inventory and accounts. No s. 24. Creditor obtaining administration to deposit accounts. Effect of death on certain causes of action. No s. 25; No s. 2, No s. 3 (1). Subdivision 2. Duties Rights and Obligations. 28. (1) The personal representative of a deceased person shall when lawfully required so to do exhibit on oath in the Court, a true and perfect inventory and account of the real and personal estate of the deceased, and the Court shall have power as heretofore to require personal representatives to bring in inventories. (2) Without limiting the generality or effect of the last preceding sub-section every creditor to whom a grant is made in his capacity of creditor shall deposit or cause to be deposited in the office of the Master within fifteen months from the date of the grant a true and just account verified by him by affidavit of the administration of such estate as to receipts and disbursements and as to what portion is retained by him and what portion remains uncollected and whenever on the application of the Master ordered by the Court or judge so to do after the expiration of the said fifteen months deposit in the office of the Master such accounts verified by him by affidavit as the Court or judge thinks fit. 29. (1) Subject to the provisions of this section, on the death of any person after the seventh day of December One thousand nine hundred and forty-two, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate: Provided that this sub-section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under Part IV. of the Marriage Act 1958 for damages on the ground of adultery. (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person the damages recoverable for the benefit of the estate of that person (a) shall not include any exemplary damages; (b) in the case of a breach of promise of marriage shall be limited to such damage (if any) to the estate of that person as flows from the breach of the promise to marry; (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action (i) shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included; (ii) shall not include any damages for his pain or suffering or for any bodily or mental harm suffered by him or for the curtailment of his expectation of life.

15 1958. Administration and Probate. No (3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of sub-section (1) of this section has survived against the estate of a deceased person unless either (a) proceedings against him in respect of that cause of action were pending at the date of his death; or (b) proceedings are taken in respect thereof not later than six months after his personal representative took out representation. (4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage is suffered there shall be deemed for the purposes of this section to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered. (5) The rights conferred by this section for the benefit of the estates of deceased persons shall be in addition to and not in derogation from any rights conferred on the dependants of a deceased person by Part III. of the Wrongs Act 1958, and this section shall apply in relation to causes of action under the said Part III. as it applies in relation to other causes of action not expressly excepted from the operation of sub-section (1) of this section. (6) In any case where the death of a person, against or in saving, whom immediately before his death there was subsisting or vested a cause of action, occurred before the seventh day of December One thousand nine hundred and forty-two the provisions of section twenty-five of the Administration and Probate Act 1928 as in force immediately before that day shall have effect. 30. (1) A personal representative, having notice, whether under ^ggg?^,, the provisions of section thirty-three of the Trustee Act 1958 or may serve otherwise, that any claim has been or may be made against the claimant, estate of which he is the personal representative, may serve upon N s. 26. any person making or possibly entitled to make such claim a notice requiring such person to take within a period of three months from the date of receiving such notice all proceedings proper to enforce or to establish such claim and to duly prosecute the same. (2) After the expiration of the said period of three months such personal representative may by notice of motion or summons served upon such person or upon any person claiming through him apply to the Court or to a judge thereof for an order to some such effect as hereinafter in this section mentioned.

16 Administration and Probate. No (3) Upon the hearing of such application the Court or judge, if not satisfied that such proceedings as aforesaid have been taken and are being duly prosecuted, may (a) order that the said period be extended; or (b) order that the claim of any person so served with notice of the application be for all purposes barred; or (c) make any further or other order enabling the estate to be distributed or dealt with without regard to the claim; and (d) in any case impose such conditions and give such directions including a direction as to the payment of the costs of or incidental to the application as to the Court or judge seems just. Protection of persons acting on probate or administratioa No s (1) Every person making or permitting to be made any payment or disposition in good faith under a representation shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of the representation. (2) Where a representation is revoked, all payments and dispositions made in good faith to a personal representative under the representation before the revocation thereof shall be a valid discharge to the person making the same; and the personal representative who acted under the revoked representation may retain and reimburse himself in respect of any payments or dispositions made by him which the person to whom representation is afterwards granted might have properly made. Provision for payment or transfer, without requiring production of probate or letters of administration, by employer of moneys &c. held on account of deceased employed No s (1) Where (a) an employe has died (whether before or after the commencement of this Act) and his employer holds moneys or other personal property on account of the employe; and (b) the employer is satisfied by statutory declaration that the value of the estate of the employe after payment of debts and testamentary expenses (if any) will not exceed Two hundred pounds the employer may, without requiring the production of probate or letters of administration, pay or transfer, to the widow widower or child of the deceased employe or to any other person appearing to be entitled to the property of the deceased employe, such moneys or personal property to an amount not exceeding in the aggregate One hundred pounds.

17 1958. Administration and Probate. No (2) A receipt signed by any person above the age of sixteen years to whom money or property is paid or transferred by an employer in the bona fide exercise of the powers conferred by this section shall be a complete discharge to the employer of all liability in respect of moneys or property so paid or transferred. (3) Nothing in this section shall prejudice or affect any right or remedy of any person entitled under the will of the deceased employe or under the law relating to the disposition of estates of deceased persons to recover any money or property paid or transferred from the person to whom it was paid or transferred by the employer under the powers conferred by this section. 33. (1) If any person, to the defrauding of creditors or Liability of without full valuable consideration, obtains receives or holds the FSSientiy estate or any part of the estate of a deceased person or effects is^f or the release of any debt or liability due to the estate of the deceased, "ecelsed. he shall be charged as executor in his own wrong to the extent of NO s. 28; the estate received or coming to his hands, or the debt or liability No s " * released, after deducting any payment made by him which might properly be made by a personal representative. (2) Where a person as personal representative of a deceased Liability of person (including an executor in his own wrong) wastes or persona/ converts to his own use any part of the estate of the deceased, and fxwaste a &c? dies, his personal representative shall to the extent of the available assets of the defaulter be liable and chargeable in respect of such waste or conversion in the same manner as the defaulter would have been if living. Subdivision 3. Discharge and Removal of Executors and Administrators and New Appointments. 34. (1) Notwithstanding anything contained in any Act Discharge or where an executor or administrator to whom probate Or executor or administrator. administration has been granted whether before or after the No s. 21. commencement of this Act or where an administrator who has been appointed under this section or any corresponding previous enactment (a) remains out of Victoria for more than two years; (b) desires to be discharged from his office of executor or administrator; or (c) after such grant or appointment refuses or is unfit to act in such office or is incapable of acting therein a judge of the Court upon application in a summary way by summons in chambers may order the discharge or removal of such an executor or administrator and also if the judge thinks fit

18 Administration and Probate. No the appointment of some proper person or trustee company as administrator in place of the executor or administrator so discharged or removed upon such terms and conditions as the judge thinks fit; and may make all necessary orders for vesting the estate in the new administrator and as to accounts and such order as to costs as the judge thinks fit. (2) Notice of such application may be served if the judge thinks it necessary upon such persons as he directs. (3) An executor or administrator so removed or discharged shall from the date of the order cease to be liable as such for acts and things done after that date. (4) Upon such appointment the property and rights vested in and the liabilities properly incurred in the due administration of the estate by the executor or administrator so discharged or removed shall become and be vested in and transferred to the administrator appointed by such order who shall as such have the same privileges rights powers duties discretions and liabilities as if probate or administration had been granted to him originally. Court or judge may in creditors administration order assignment of bond and removal of administrator. No s. 30; No s. 3 (3). 35. (1) On being satisfied that there has been negligence or maladministration of the estate of which a person has obtained administration in the capacity of a creditor or that the condition of any administration bond executed by any person who has obtained administration in such capacity has been broken in any substantial particular the Court or a judge thereof (a) may order the registrar to assign the administration bond to the Public Trustee or to some person named in the order and thereupon the provisions of paragraph (9) of section fifty-seven shall apply; and (b) may if the Court or judge thinks fit remove such creditor from the position of administrator and appoint the Public Trustee or some person or trustee company to be named in the order administrator in place of the administrator so removed upon such terms and conditions as the Court or judge thinks fit and may make all necessary orders for vesting the estate in the new administrator and as to accounts and such order as to costs as the judge thinks fit. (2) Upon an appointment under paragraph (b) of the last preceding sub-section, the provisions of sub-sections (3) and (4) of the last preceding section shall so far as appropriate apply as \t repeated in this section.

19 1958. Administration and Probate. No DIVISION 5. ADMINISTRATION OF ASSETS. 36. (1) In the administration of the estate of any person no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond deed or other instrument under seal or is otherwise made or constituted a specialty debt, but all the creditors of such person as well specialty as simple contract shall be treated as standing in equal degree and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable any statute or law to the contrary notwithstanding: Provided that this Part shall not prejudice or affect any lien charge or other security which any creditor may hold or be entitled to for payment of his debt. (2) In the administration of the estate of any person debts of record whether of record in the lifetime of such person or obtained against his executor or administrator for debts incurred by the deceased shall rank in the same degree as if they were specialty or simple contract debts. (3) Every person who has obtained or obtains probate of the will or administration of the estate of a deceased person shall pay all and singular the just debts of such deceased person in due course of administration rateably and proportionably and according to the priority required by law but without preferring his own debt by reason of his having obtained such probate or administration. All specialty and simple contract debts to stand in equal degree. No s. 31. Debts of record to rank as specialty or simple contract debts. Executor or administrator not to give priority to his own debt. 37. The real and personal estate, whether legal or equitable, ^J,^ of a deceased person, to the extent of his beneficial interest therein, estsfof and the real and personal estate of which a deceased person in asjfalor 8 ent of pursuance of any general power (including the statutory power to debts. dispose of entailed interests) (a) disposes by his will, shall be assets N( 3 J- 6 2 ( J? for payment of the duties and fees payable under Part V. of this Act or any corresponding enactment hereafter in force and of the debts of such deceased person (whether by specialty or simple contract) and of his liabilities, and any disposition by will inconsistent with this enactment is void as against the creditors, and the Court shall, if necessary, administer the property for the purpose of the payment of the debts and liabilities. This section shall take effect without prejudice to the rights of incumbrancers. 38. (1) On the death of a person intestate as to any real or Trust for sale personal estate, such estate shall be held by his personal ^V^TM representatives (a) as to the real estate (including chattels real) upon trust to sell the same; and (a) See Property Law Act 1958, section 251.

20 Administration and Probate. No (b) as to the personal estate upon trust to call in sell and convert into money such part thereof as may not consist of money with power to postpone such sale and conversion for such a period as the personal representatives, without being liable to account, think proper, and so that any reversionary interest shall not be sold until it falls into possession, unless the personal representatives see special reason for sale, and so also that, unless required for purposes of administration owing to want of other assets, personal chattels shall not be sold except for special reason. (2) Out of the net money to arise from the sale and conversion of such real and personal estate (after payment of costs), and out of the ready money of the deceased (so far as not disposed of by his will, if any), the personal representative shall pay all such funeral testamentary and administration expenses debts and other liabilities as are properly payable thereout having regard to the rules of administration contained in this Division and out of the residue of the said money the personal representative shall set aside a fund sufficient to provide for any pecuniary legacies bequeathed by the will (if any) of the deceased. (3) Pending the distribution of the whole or any part of the estate of the deceased, the personal representatives may invest the residue of the said money, or so much thereof as may not have been distributed, in any investments for the time being authorized by statute for the investment of trust money, with power, at the discretion of the personal representatives, to change such investments for others of a like nature. (4) The residue of the said money and any investments for the time being representing the same, including (but without prejudice to the trust for sale) any part of the estate of the deceased which may be retained unsold and is not required for the administration purposes aforesaid, is in Division six of this Part referred to as the " residuary estate " of an intestate. (5) The income, including net rents and profits of real estate (including chattels real) after payment of rates taxes rent costs of insurance repairs and other outgoings properly attributable to income, of so much of the estate of the deceased as is not disposed of by his will (if any) or is not required for the administration purposes aforesaid, may, however such estate is invested, as from the death of the deceased, be treated and applied as income. (6) Nothing in this section shall affect the rights of any creditor of the deceased or the rights of the Crown in respect of duties. (7) Where the deceased leaves a will, this section has effect subject to the provisions contained in the will.

21 1958. Administration and Probate. No (8) In this section "real and personal estate" means every beneficial interest (including rights of entry and reverter) of the intestate in real and personal estate which (otherwise than in right of a power of appointment or of the testamentary power conferred by Statute to dispose of entailed interests) he could if of full age and capacity have disposed of by his will. 39. (1) Where the estate of a deceased person is not solvent, ^uon 1 *" his real and personal estate shall be administered in accordance of assets. with the rules set out in Part I. of the Second Schedule to this Act. No " Second (2) Where the estate of a deceased person is solvent his real fart d i" le and personal estate shall subject to Rules of Court and the provisions hereinafter contained as to charges on property of the deceased and to the provisions (if any) contained in his will be applicable towards the discharge of the funeral testamentary and administration expenses debts and liabilities payable thereout in the order mentioned in Part II. of the Second Schedule to this Act. second (3) Nothing in this Part shall affect or be construed as affecting the provisions of section one hundred and twenty and one hundred and twenty-one relating to the payment of duty under Part V. of this Act. Schedule Part IL 40. (1) Where a person dies possessed of or entitled to or charges on i i r,, i i-. property of under a general power of appointment (including the statutory deceased to power to dispose of entailed interests) by his will disposes of an primarily out interest in property which at the time of his death is charged with property the payment of money whether by way of mortgage charge or ^t'z, J5 otherwise (including a lien for unpaid purchase money) and the deceased has not by will deed or other document signified a contrary or other intention the interest so charged shall as between the different persons claiming through the deceased be primarily liable for the payment of the charge; and every part of the said interest according to its value shall bear a proportionate part of the charge on the whole thereof. (2) Such contrary or other intention shall not be deemed to be signified (a) by a general direction for the payment of debts or of all the debts of the testator out of his personal estate or his residuary real and personal estate or his residuary real estate; or (b) by a charge of debts upon any such estate unless such intention is further signified by words expressly or by necessary implication referring to all or some part of the charge. (3) Nothing in this section shall affect the right of a person entitled to the charge to obtain payment or satisfaction thereof either out of the other assets of the deceased or otherwise.

22 Administration and Probate. No Effect of assent or conveyance by personal representative. No s (1) A personal representative may assent to the vesting in any person who (whether by devise bequest devolution appropriation or otherwise) is entitled thereto either beneficially or as a trustee or personal representative of any estate or interest in real estate (including chattels real) to which the testator or intestate was entitled or over which he exercised a general power of appointment by his will including the statutory power to dispose of entailed interests and which devolved upon the personal representative. (2) The assent shall operate to vest in that person the estate or interest to which the assent relates and unless a contrary intention appears the assent shall relate back to the death of the deceased. (3) The statutory covenants implied by a person being expressed to convey as personal representative, may be implied in an assent in like manner as in a conveyance by deed. (4) An assent to the vesting of a legal estate shall be in writing signed by the personal representative and shall name the person in whose favour it is given and shall operate to vest in that person the legal estate to which it relates; and an assent not in writing or not in favour of a named person shall not be effectual to pass a legal estate. (5) A conveyance of a legal estate by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts liabilities funeral and testamentary or administration expenses duties and legacies of the deceased have been discharged or provided for. (6) An assent or conveyance given or made by a personal representative shall not except in favour of a purchaser of a legal estate prejudice the right of the personal representative or any other person to recover the estate or interest to which the assent or conveyance relates or to be indemnified out of such estate or interest against any duties debt or liability to which such estate or interest would have been subject if there had not been any assent or conveyance. (7) A personal representative may as a condition of giving an assent or making a conveyance require security for the discharge of any such duties debt or liability but shall not be entitled to postpone the giving of an assent merely by reason of the subsistence of any such duties debt or liability if reasonable arrangements have been made for discharging the same; and an assent may be given subject to any estate by way of mortgage. (8) In this section "purchaser" means a purchaser for money or money's worth.

23 1958. Administration and Probate. No (9) This section shall apply to assents and conveyances made after the eighteenth day of December One thousand nine hundred and twenty-nine whether the testator or intestate died before on or after such date. (10) In the case of land under the Transfer of Land Act 1958 an assent may be given or made by the personal representative registered as proprietor by a transfer in the form prescribed under that Act with such necessary modifications as the case requires. 42. (1) All conveyances of any interest in real or personal validity of estate made to a purchaser either before or after the not affected by commencement of this Act by a person to whom probate or letters rep^mauon. of administration have been granted are valid notwithstanding No s. 37. any subsequent revocation or variation either before or after the commencement of this Act of the probate or administration. (2) This section shall take effect without prejudice to any order of the Court made before the eighteenth day of December One thousand nine hundred and twenty-nine. 43. (1) An assent or conveyance by a personal representative Right to to a person other than a purchaser shall not prejudice the rights property and of any person to follow the property to which the assent or ou v rt r in ofthe conveyance relates or any property representing the same into the [hereto! hands of the person in whom it is vested by the assent or No s. 38. conveyance or of any other person (not being a purchaser) who may have received the same or in whom it may be vested. (2) Notwithstanding any such assent or conveyance the Court may on the application of any creditor or other person interested (a) order a sale exchange mortgage charge lease payment transfer or other transaction to be carried out which the court considers requisite for the purpose of giving effect to the rights of the persons interested; (b) declare that the person not being a purchaser in whom the property is vested is a trustee for those purposes; (c) give directions respecting the preparation and execution of any conveyance or other instrument or as to any other matter required for giving effect to the order; (d) make any vesting order or appoint a person to convey in accordance with the provisions of the Trustee Act (3) This section shall not prejudice the rights of a purchaser or a person deriving title under him.

24 Administration and Probate. No Powers of management. No s (1) In dealing with the real and personal estate of the deceased his personal representatives shall for purposes of administration have {a) the same powers and discretions including power to raise money by mortgage with or without a power of sale or charge (whether or not by deposit of documents) as a personal representative had before the first day of January One thousand eight hundred and seventy-three with respect to personal estate vested in him; and (b) all the powers discretions and duties conferred or imposed by law on trustees holding land upon an effectual trust for sale; and (c) all the powers conferred by statute on trustees for sale and so that every contract entered into by a personal representative shall be binding on and be enforceable against and by the personal representative for the time being of the deceased, and may be carried into effect or be varied or rescinded by him and in the case of a contract entered into by a predecessor as if it had been entered into by himself. (2) Nothing in this section shall affect the right of any person to require an assent or conveyance to be made. Powers of personal representative for raising money Ac. No s. 40. Powers of personal representative as to appropriation. No s (1) For giving effect to beneficial interests the personal representative may limit or demise land for a term of years absolute with or without impeachment for waste to trustees on usual trusts for raising or securing any principal sum and the interest thereon for which the land or any part thereof is liable and may limit or grant a rentcharge for giving effect to any annual or periodical sum for which the land or the income thereof or any part thereof is liable. (2) In this section " term of years absolute " has the same meaning as in the Settled Land Act (1) The personal representative may appropriate any part of the estate including things in action of the deceased in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or of any other interest or share in his property whether settled or not as to the personal representative seems just and reasonable according to the respective rights of the persons interested in the property of the deceased: Provided that (a) an appropriation shall not be made under this section so as to affect prejudicially any specific devise or bequest;

25 1958. Administration and Probate. No (b) an appropriation of property whether or not being an investment authorized by law or by the will (if any) of the deceased for the investment of money subject to the trust shall not (save as hereinafter mentioned) be made under this section except with the following consents (i) when made for the benefit of a person absolutely and beneficially entitled in possession the consent of that person; (ii) when made in respect of any settled legacy share or interest the consent of either the trustee thereof if any (not being also the personal representative) or the person who is for the time being entitled to the income. If the person whose consent is so required as aforesaid is an infant or a lunatic the consent shall be given on his behalf by his parents or parent testamentary or other guardian committee or receiver or if in the case of an infant there is no such parent or guardian by the Court on the application of his next friend; (c) no consent (save of such trustee as aforesaid) shall be required on behalf of a person who may come into existence after the time of appropriation or who cannot be found or ascertained at that time; (d) if independently of the personal representative there is no trustee of a settled legacy share or interest and no person of full age and capacity entitled to the income thereof no consent shall be required to an appropriation in respect of such legacy share or interest provided that the appropriation is of an investment authorized as aforesaid. (2) Any property duly appropriated under the powers conferred by this section shall thereafter be treated as an authorized investment and may be retained or dealt with accordingly. (3) For the purposes of such appropriation the personal representative may ascertain and fix the value of the respective parts of the real and personal estate and the liabilities of the deceased as he thinks fit and shall for that purpose employ a duly qualified valuer in any case where such employment may be necessary; and may make any conveyance (including an assent) which may be requisite for giving effect to the appropriation.

26 Administration and Probate. No Power to appoint trustees of infant's property. No s. 42. (4) An appropriation made pursuant to this section shall bind all persons interested in the property of the deceased whose consent is not hereby made requisite. (5) The personal representative shall in making the appropriation have regard to the rights of any person who may thereafter come into existence or who cannot be found or ascertained at the time of appropriation and of any other person whose consent is not required by this section. (6) This section shall not prejudice any other power of appropriation conferred by law or by the will (if any) of the deceased and shall take effect with any extended powers conferred by the will (if any) of the deceased and where an appropriation is made under this section in respect of a settled legacy share or interest the property appropriated shall remain subject to all trusts for sale and powers of leasing disposition and management or varying investments which would have been applicable thereto or to the legacy share or interest in respect of which the appropriation is made if no such appropriation had been made. (7) If after any real estate (including chattels real) has been appropriated in purported exercise of the powers conferred by this section the person to whom it was conveyed disposes of it or any interest therein then in favour of a purchaser the appropriation shall be deemed to have been made in accordance with the requirements of this section and after all requisite consents (if any) had been given. (8) In this section a settled legacy share or interest includes any legacy share or interest to which a person is not absolutely entitled in possession at the date of the appropriation also an annuity, and " purchaser" means a purchaser for money or money's worth. (9) This section shall apply whether the deceased died intestate or not and shall extend to property over which a testator exercises a general power of appointment including the statutory power to dispose of entailed interests and shall authorize the setting apart of a fund to answer an annuity by means of the income of tiiat fund or otherwise. 47. (1) Where an infant is absolutely entitled under the will or on the intestacy of a person (in this sub-section called " the deceased ") to a devise or legacy, or to the residue of the estate of the deceased, or any share therein, and such devise, legacy, residue or share is not under the will (if any) of the deceased, devised or bequeathed to trustees for the infant, the personal representatives of the deceased may appoint a trustee company

27 1958. Administration and Probate. No or two or more individuals not exceeding four (whether or not including the personal representatives or one or more of the personal representatives) to be the trustee or trustees of such devise, legacy, residue or share for the infant, and to be trustees of any land devised or any land being or forming part of such residue or share for the purposes of the Settled Land Act 1958 and of the statutory provisions relating to the management of land during a minority, and may execute or do any assurance or thing requisite for vesting such devise, legacy, residue or share in the trustee or trustees so appointed. On such appointment the personal representatives, as such shall be discharged from all further liability in respect of such devise, legacy, residue or share, and the same may be retained in its existing condition or state of investment, or may be converted into money, and such money may be invested in any authorized investment. (2) Where a personal representative has before the commencement of the Administration and Probate Act 1928 retained or sold any such devise, legacy, residue or share, and invested the same or the proceeds thereof in any investments in which he was authorized to invest money subject to the trust, then, subject to any order of the Court made before such commencement, he shall not be deemed to have incurred any liability on that account, or by reason of not having paid or transferred the money or property into court. 48. (1) A personal representative, before giving an assent or e b r^, onsof making a conveyance in favour of any person entitled, may permit a p to e g"g Uve that person to take possession of the land, and such possession possession of shall not prejudicially affect the right of the personal representative powers of to take or resume possession nor his power to convey the land ^ ^^* s " 43 as if he were in possession thereof, but subject to the interest of any lessee, tenant or occupier in possession or in actual occupation of the land. (2) Any person who as against the personal representative claims possession of real estate (including chattels real) or the appointment of a receiver thereof, or a conveyance thereof, or an assent to the vesting thereof, or to be registered as proprietor thereof under the Transfer of Land Act 1958, may apply to the Court for directions with reference thereto, and the Court may make such vesting or other order as may be deemed proper, and the provisions of the Trustee Act 1958 relating to vesting orders and to the appointment of a person to convey, shall apply. 49. Subject to the foregoing provisions of this Act, a personal p s " e on l representative is not bound to distribute the estate of the deceased distribution, before the expiration of one year from the death. No «'W-

28 Administration and Probate. No DIVISION 6. DISTRIBUTION OF INTESTATE'S RESIDUARY ESTATE. (a) Intestate's estate not exceeding 10,000 to belong to spouse where no issue. No s. 45; No s. 2. Where estate exceeds 10,000 spouse to have a charge for that sum in addition to a share of residue. Bond for administration not required as to certain interests under life insurance policies. Intestate's estate not exceeding 500 when to belong to mother. No s. 46; No s. 2. Provisions for mother in cases where certain estate exceeds Where a person in respect of his residuary estate dies intestate leaving a surviving spouse but no issue the following provisions shall have effect with respect to such estate (a) Where the estate does not exceed in value Ten thousand pounds such spouse shall be entitled to such estate; (b) Where the estate exceeds in value Ten thousand pounds such spouse shall be entitled to Ten thousand pounds thereof and shall have a charge upon the whole estate for such sum with interest thereon at the rate of four per cent, per annum from the date of the death of the intestate until payment and this provision for such spouse shall be in addition and without prejudice to the interest and share of such spouse in the residue of the estate remaining after giving effect to such provision in the same way as if such residue had been the whole of the estate of the intestate; (c) Where by the operation of paragraph (a) of this section a spouse is entitled to Ten thousand pounds or any less sum being the proceeds of any policy or policies of insurance on the life of the intestate it shall not be necessary for such spouse in order to obtain administration of the estate of the intestate to enter into any bond with respect to the said Ten thousand pounds or any less sum the proceeds of the said policy or policies to which such spouse is so entitled. 51. Where a person in respect of his or her residuary estate dies intestate leaving a mother but no widow or widower issue or father the following provisions shall have effect with respect to such estate (a) Where his or her estate does not exceed in value Five hundred pounds the mother shall be entitled to such estate; (b) Where his or her estate exceeeds in value Five hundred pounds the mother shall be entitled to Five hundred pounds thereof and shall have a charge upon the whole estate for such sum with interest thereon at the rate of four per centum per annum from the date of the death of the intestate until (a) For the meaning of the expression " Residuary Estate " in this Division see section 38(4). As to saving as to persons dying before the commencement of the Administration and Probate Act 1928 see section 50 of that Act and section 4 of this Act.

29 1958. Administration and Probate. No payment, and this provision for the mother shall in addition and without prejudice to her interest and share in the residue of the estate remaining after giving effect to such provision in the same way as if such residue had been the whole of the estate of the intestate; (c) Where by the operation of paragraph (a) of this ^^J ation section a mother is entitled to Five hundred pounds not required,,..,, j. r,. as to certain or any less sum bemg the proceeds of any policy interests under or policies of insurance on the life of her deceased ^ofs " 06 son or daughter it shall not be necessary for such mother in order to obtain administration of his or her estate to enter into bond with respect to the said Five hundred pounds or any less sum the proceeds of the said policy or policies to which she is so entitled. 52. (1) Where a person in respect of his or her residuary gj^j^s? 1 estate dies intestate then subject to the provisions of the two last ^.3^2^47; preceding sections the following provisions shall have effect with NO._3822S.6 respect to such estate: NaSStl (a) If the intestate leaves a widow or widower she or he shall be entitled if the intestate leaves any issue to one-third and if the intestate leaves no issue to one-half of such estate; (b) If the intestate leaves a father and a mother but no widow or widower or issue such estate shall be distributed equally between the father and the mother and in the case of the latter for her own use; (c) If the intestate leaves a widow or widower and a father and a mother but no issue one-half of such estate shall be distributed equally between the father and the mother and in the case of the latter for her own use; (d) If the intestate leaves a widow or widower and a father but no issue or mother the father shall be entitled to one-half of such estate; (c) If the intestate leaves a father but no widow or widower or issue or mother the father shall be entitled to such estate; VOL. I. 41

30 Administration and Probate. No (/) Subject to the above-mentioned rights such estate or the portion thereof to which these rights do not extend shall be distributed in equal shares among the children of the intestate living at his or her decease and the representatives then living of any children who predeceased the intestate or if there are no such children or representatives among the next of kin of the intestate who are in equal degree and their representatives: Provided as follows: (i) Where a child has any property real or personal or any estate or interest therein by settlement of the intestate or was advanced by the intestate in his or her lifetime that child or his or her representative shall bring such property estate interest or advance into account in estimating the share (if any) to be taken by him, her or them in the distribution; (ii) Except as hereinafter provided the children of any person who died before the intestate shall take only the share which that person would have taken if living at the death of the intestate and if more than one shall take the same in equal shares. (iii) No representation shall be admitted among collaterals after brothers' and sisters' children; (iv) The interest of the mother of the intestate shall be the same as if she were a sister of the intestate; (v) Brothers or sisters or when they take as representatives brothers' or sisters' children shall take in priority to grandparents; (vi) Where brothers' or sisters' children are entitled and all the brothers or sisters of the intestate have died before him or her such children shall not take as representatives and all such children shall take in equal shares; (vii) There shall be no difference between males and females or between relationship of the whole blood and of the half blood;

31 1958. Administration and Probate. No (viii) A husband and wife shall for all purposes of distribution and division be treated as two persons. (2) (a) Where the mother of an illegitimate child, such child g^,^ not being a legitimated person, dies intestate in respect of her cwid and residuary estate and does not leave any legitimate issue her illegitimate surviving, the widower (if any) of the intestate shall succeed on notwithstanding anything in section fifty of this Act or u e other of anything in sub-section (1) of this section be entitled to one-half of such estate and the illegitimate child, or if he is dead, his issue shall be entitled to take any interest therein to which he or such issue would have been entitled if he had been born legitimate and if for paragraph (a) of the said sub-section (1) there had been substituted the words " if the intestate leaves a widower he shall be entitled to one-half of such estate." (b) Where an illegitimate child not being a legitimated person dies intestate in respect of his or her residuary estate his or her mother if surviving shall be entitled to take any interest therein to which she would have been entitled if the child had been born legitimate and she had been the only surviving parent. Nothing in this paragraph shall be construed as diminishing the rights of the widow (if any) of the intestate under section fifty of this Act or under sub-section (1) of this section. (c) This sub-section does not apply to or affect the right of any person to take by purchase or descent any entailed interest in any real property. (d) In this section " legitimated person" means a person legitimated under the provisions of Part II. of the Registration of Births Deaths and Marriages Act 1958 or any corresponding previous enactment. 53. Where any person dies leaving a will effectively disposing Application es of of part of his property, this Division shall have effect as respects p ai3 the part of his property not so disposed of subject to the provisions ^tes ' contained in the will and subject to the following modifications: (a) In cases under section fifty-two the requirements as to bringing property into account shall apply to any beneficial interests acquired by any issue of the deceased under the will of the deceased; (b) The personal representative shall, subject to his rights and powers for the purposes of administration, be a trustee for the persons entitled under this Division in respect of the part of the estate not expressly disposed of unless it appears by the will that the personal representative is intended to take such part beneficially.

32 Administration and Probate. No Pwment to 54. When the estate of any intestate in respect of which distributive administration has been granted does not exceed Five hundred infant children pounds after payment of debts and such intestate has left any child omnteastels or children under age, the administrator may pay or cause to be i*o*sxn±3 P a^ ^e distributive share or shares to which the said child or d ); "" children is or are entitled in such estate, after payment of the No.s757s.a debts of such intestate, to his widow or to any person having the care or custody of such child or children without seeing to the application thereof and without incurring any liability in respect of such payment. j^no^extof 55. With regard to the estate of any person escheat to the crown to take. Crown for want of heirs shall be abolished and in default of any No s. 49. p ers0 n taking under the foregoing provisions the residuary estate shall belong to the Crown as bona vacantia and in lieu of any right of escheat which might formerly have existed. Reference to Statutes of Distributions bow construed. No s References to the Statutes of Distributions or to the provisions relating to distribution or references to the Imperial Acts Application Act 1922 Part III. Division two or references to the like effect in an instrument inter vivos made or in a will coming into operation after the eighteenth day of December One thousand nine hundred and twenty-nine shall unless the contrary intention appears be construed as references to this Division and references in such an instrument or will to the statutory next of kin or to the like effect shall be construed unless the context otherwise requires as referring to the persons who would take beneficially on an intestacy under the foregoing provisions of this Division. Administration bonds to be executed. No s. 51; No , No s. 2. No. 46S4 s. 3 (3). No s. 2 (2). DIVISION 7. PRACTICE PROCEDURE OFFENCES ETC. Subdivision 1. Administration Bonds. 57. Except where the contrary is expressly enacted (1) Every person who applies for a grant of administration shall file with his application a bond in this section referred to as an " administration bond " to the registrar by the name of the registrar of probates and administrations with two sureties conditioned for duly collecting getting in and administering the real and personal estate of the deceased if such person is granted administration. (2) An administration bond shall be in a penalty equal to the amount at which the property of the deceased is sworn if such amount does not exceed Five thousand pounds, and shall be in a penalty of Five thousand pounds where such amount exceeds that sum.

33 1958. Administration and Probate. No (3) In any case the Court or a judge and in cases where such amount does not exceed Five hundred pounds the registrar may dispense with one or both of the sureties or direct that such penalty shall as regards the sureties be reduced in amount, and also direct that more bonds than one shall be given so as to limit the liability of any surety to such amount as the Court or a judge or the registrar (as the case may be) thinks reasonable. (4) In any case whether such amount exceeds Five hundred pounds or not the registrar may in place of the usual administration bond with two sureties accept the bond (hereinafter in this section also referred to as an administration bond) of a trustee company or of any incorporated company or guarantee society approved of by the Governor in Council. (5) In any case in which the registrar is in doubt respecting the exercise of any powers under either of the last two preceding paragraphs or in which any person interested in the estate or any creditor of the deceased lodges with the registrar a notice in writing objecting to such exercise the registrar shall not without an order of the Court exercise any such powers. (6) An ordinary administration bond and the bond to be given by a trustee company or by any such incorporated company or guarantee society as aforesaid shall be in such form as the judges of the Court by rules direct. (7) The registrar for the time being shall have power to enforce any administration bond or to assign it in accordance with the provisions of this section to some other person. (8) Where it appears to the satisfaction of the Court or a judge that the condition of any administration bond has been broken the Court or a judge may, on an application in that behalf, order that the bond shall be assigned to such person as is named in the order. (9) The person to whom the bond is assigned in pursuance of such order shall be entitled to sue thereon in his own name as if it had been originally given to him instead of to the registrar and to recover thereon as trustee for all persons interested the full amount recoverable in respect of the breach of the condition thereof.

34 Administration and Probate. No (10) Nothing in this section shall require or make it necessary for any person obtaining administration to the use or for the benefit of Her Majesty or for the Public Trustee or for any person or body corporate or officer specially exempted by any Act or by rules made by the judges of the Court from the obligation to give or execute such bond to give or execute any such bond. Caveat may be lodged. No s. 52. Where a caveat lodged Court may grant order nisi. No 3632 s 53. Service of order nisi. No s. 54. Proceeding where caveator does or does not appear. No s. 55. Evidence on hearing of order nisi. No s. 56. Subdivision 2. Caveats. 58. Any person may lodge with the registrar a caveat against any application for probate or administration at any time previous to such probate or administration being granted, and every such caveat shall set forth the name of the person lodging the same, and an address within the city of Melbourne at which notices may be served on him. 59. In every case in which a caveat is lodged the Court may upon motion on behalf of the person applying for probate or administration supported by affidavits upon which if there had been no caveat probate or administration would have been granted, make an order nisi for the grant of probate or administration to the person applying, and every such order shall name a time for showing cause against the same, and the Court may enlarge such order from time to time. 60. Every such order nisi and every order enlarging the same shall be served on the caveator by delivering a copy of the same at the address mentioned in his caveat. 61. If upon the day named in the order nisi or upon the day to which such order has been enlarged the caveator does not appear such order nisi may be made absolute upon an affidavit of service, but if the caveator appears the hearing shall be conducted in the same manner as nearly as may be as upon a trial and the order nisi may be made absolute or discharged with or without costs as may be just, and if the Court so directs such costs may be paid put of the estate. 62. Upon the hearing of any order nisi the parties shall be at liberty, subject to regulations to be made by rules as hereinafter provided, to verify their respective cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall on the application of the opposite party be subject to be cross-examined by or on behalf of such opposite party orally in open court, and after such cross-examination may be re-examined orally in open court by or on behalf of the party by whom such affidavit was filed.

35 1958. Administration and Probate. No If any question of fact arises in any proceeding under this Questions of Part the Court may if it thinks fit cause the same to be tried by a wsi, by y a bc jury before the Court or before any judge thereof, and the y ' S 57 same shall be tried in the same manner as an issue under any rules of the Court for the time being in force relating to the trial of issues. 64. In any case in which a caveat is lodged by the Public Trustee the Court may if it thinks fit order costs to be paid to him out of the estate whether the order nisi is discharged or not. Subdivision 3. Commission to Executors Administrators and Trustees of Deceased Persons. 65. It shall be lawful for the Court or the Master to allow out of the assets of any deceased person to his executor administrator or trustee for the time being such commission or percentage not exceeding Five pounds per centum for his pains and trouble as is just and reasonable. In this section " executor" includes the executor of an executor becoming by representation the executor of the original estate. Order for costs to Public Trustee. No s. 58; No s. 3 (3). Executors' &c. commission. No s. 59; No s. 5, No s. 11 (2). Subdivision 4. Concealment of Wills. Obligation to take out Probate or Administration. 66. (1) Every person who retains or conceals or endeavours to Concealment retain or conceal any will or codicil or aids or abets any person in misdemeanour. such retention or concealment with intent to defraud any person No s. 64. interested under such will or codicil, shall be guilty of a misdemeanour; and shall be liable to a fine or to imprisonment with or without hard labour for a term of not more than two years or to both fine and imprisonment; and shall also be liable to an action for damages at the suit of the persons defrauded or those claiming under them for any loss sustained by them or any of them in consequence of such retention or concealment. (2) No prosecution for any such offence shall be commenced without the sanction of a law officer; and no such sanction shall be given unless such previous notice of the application for leave to prosecute as the law officer directs has been given to the person for whose prosecution such sanction is sought. Subdivision 5. General Practice. Rules. 67. The practice of the Court in its probate jurisdiction shall ^{j^f in except where otherwise expressly provided in this or any other jurisdiction. Act or by Rules of Court for the time being in force be regulated No s so far as the circumstances of the case will admit by the practice of the Court in its ecclesiastical jurisdiction in force previously to the first day of January One thousand eight hundred and seventy-three.

36 Administration and Probate. No Power to make Rules. No s The judges of the Court may in accordance with the Supreme Court Act 1958 make rules (a) for regulating the duties of the registrar; (b) generally for carrying into effect the provisions of this Part. Act not to affect certain cases. No S. 69. Right to take action by purchase. No s. 70. DIVISION 8. GENERAL SAVING PROVISIONS. 69. Nothing in this Part shall (a) derogate from the powers of the Court which exist independently of this Act; (b) affect any enactment in force dispensing with probate or administration; (c) affect any enactment in force expressly regulating the distribution of money or other property of a deceased person. 70. Nothing in this Part shall affect the right of any person to take beneficially by purchase as heir either general or special. County Court registrars to assist applicants for administration in certain cases. No s. 71. PART II. SMALL ESTATES. 71. (1) Save as hereinafter provided, if any person dies leaving property not exceeding Five hundred pounds or (if the only person or persons entitled to take the property of the deceased person under the will or to share in the distribution of the surplus of the estate of such person is or are the children only or the widow only or the widow and children only or the widower only or the widower and children or the widowed mother of such person) not exceeding Twelve hundred pounds in value the person entitled to probate of the will or to letters of administration of the estate of such deceased person may apply to the County Court registrar whose office is the nearest or within ten miles the nearest to the deceased person's fixed place of abode at the time of death, for the aid of such registrar in procuring a grant of such probate or of such letters of administration. (2) Such registrar shall fill up the advertisement affidavits and documents required by the Court in its probate jurisdiction to lead to such grant, and shall prepare any statements or affidavits required before the issue of the grant of probate or administration under Part V., and shall swear the applicant and every other deponent and attest the execution of the administration bond according to the practice of the Court in its probate jurisdiction, and shall transmit to the office of the Master

37 1958. Administration and Probate. No all the said affidavits and documents and the proper fees payable thereon and any further materials or fees which may be required from and furnished by the applicant as hereinafter provided. 72. (1) No affidavit as to caveats or searches in the office of Registrar of the Registrar-General on an application under this Part shall be issue grant to required; and the registrar of probates and administrations if and registrar for when satisfied that the affidavits are sufficient and that no caveat ff"^'". No s. 72. exists against the application and that no will is deposited in the office of the Registrar-General shall issue probate or administration to the applicant pursuant to section twelve of this Act. (2) If and when the Commissioner under Part V. of this Act is satisfied either that no duty is payable or that the proper duty ha6 been paid in respect of such grant and has accordingly certified by indorsement on the probate or letters of administration the same shall then be forwarded to the registrar of the County Court transmitting the application, who shall then on receipt of the fee payable by the applicant deliver such grant to the applicant. 73. The registrar of the County Court may require such County Court proof as he thinks sufficient to establish the identity and right Or require proof relationship of the applicant. NolS^n 74. If the registrar of the County Court has reason to believe County Court that the whole real and personal property of the deceased person b^atse's exceeds in value Five hundred pounds or (if the case so requires) Twelve hundred pounds he shall refuse to proceed with the application until he is satisfied as to the real value thereof. to value. No s (1) All registrars of the County Court may for the county court purposes of this Part administer oaths and take declarations and exercise affirmations and exercise any other powers which can be exercised powers. by commissioners of the Supreme Court for taking affidavits. NO s. is. (2) In the absence of any such registrar of the County Court applicants under this Part may be sworn and execute any necessary documents before any commisioner of the Supreme Court for taking affidavits. 76. In any case where the person so dying had his or her In cases near fixed place of abode at the time of death within twenty miles of a^pstmay direct Melbourne the applicant shall not apply to the registrar of the ^ c^, No s. 76. County Court but may apply direct to the office of the Master, who shall then on payment of the proper fees cause to be prepared all proper materials required before the issue of the grant of probate or administration applied for, and shall for such purpose in addition to any other duties or powers cast upon or vested in him perform the duties and exercise the powers

38 Administration and Probate. No hereinbefore cast upon and vested in registrars of the County Court so far as may be applicable in order to enable the issue of such grant. Master or registrar of probate may require further materials. No s. 77. Master or registrar of probates need not proceed in difficult cases. No s. 78. Judges may make rules for carrying this Part into effect. No s In any case where the Master or the registrar of probates and administrations or the Commissioner under Part V. of this Act is not satisfied with the materials placed before him or the amount of the fee paid, he shall state the matters on which he is not satisfied either to the applicant or to the County Court registrar transmitting the application, who shall then inform the applicant accordingly and shall take such further steps as may be proper to enable the applicant to satisfy the Master or registrar of probates and administrations or Commissioner in respect of such matters. 78. In no case shall the Master or the registrar of probates and administrations be under any obligation by reason of this Part to consider further any application which he may think proper to be considered by the Court or to be placed in the hands of a barrister and solicitor. 79. (1) The judges of the Court may make rules and prescribe forms (a) for regulating the practice and procedure under this Part; (b) for regulating the duties of registrars of the County Court under this Part; and (c) generally for carrying into effect the provisions of this Part. (2) Such rules may direct what fees shall be payable to the registrars of the County Court acting thereunder, but the total amount of the fees to be charged to any applicant under this Part exclusive of any sums payable as duty shall not in any one case exceed where the whole estate does not exceed Fifty pounds the sum of Five shillings and where the whole estate exceeds Fifty pounds the sum of Five shillings and the further sum of Two shillings and sixpence for every Fifty pounds or fraction of Fifty pounds by which the whole estate exceeds Fifty pounds. Interpretation. No s. 80. " Australasian States." PART III. RECOGNITION OF FOREIGN GRANTS. 8. In this Part unless inconsistent with the context or subject-matter "Australasian States" includes all the States of the Commonwealth of Australia other than Victoria, and includes also the Northern Territory, the Dominion of New Zealand, the Colony of Fiji, and any other British colony or possession in Australasia

39 1958. Administration and Probate. No now existing or hereafter to be created which the Governor in Council may declare to be an Australasian State within the meaning of this Part. " Executor or administrator therein named " includes the executor of an executor becoming by representation the executor of the original estate. " Letters of administration " includes " exemplification of letters of administration." " Probate " includes " exemplification of probate." " United Kingdom " includes the Channel Islands. 81. (1) When probate of the will or administration of the estate of any deceased person who has left any property whether real or personal within Victoria has been granted by any court of competent jurisdiction in the United Kingdom or in any of the Australasian States or, subject to the provisions of section eighty-eight of this Act, in any British possession specified in a proclamation in force under that section (a) the executor or administrator therein named whether he is within the jurisdiction of the Supreme Court of Victoria or not may either personally or by some barrister and solicitor on his behalf produce the same (and in the case of an executor of an executor any later probate also) to the registrar and file a verified copy or verified copies thereof in his office; or (b) any person duly authorized by power of attorney under the hand and seal of such executor or administrator may either personally or by some barrister and solicitor on his behalf produce such probate or probates or letters of administration and power of attorney accompanied by an affidavit that such power of attorney has not been revoked to the registrar and may file verified copies thereof in his office. (2) When such documents have been produced and verified copies thereof deposited as aforesaid by or on behalf of such executor or administrator or person so authorized by power of attorney, such probate of the estate of such deceased person or such letters of administration shall be sealed with the seal of the Supreme Court of Victoria, and shall have the like force and effect and the same operation in Victoria as if it or they had been originally granted in Victoria. (3) Every such executor of any such will and administrator of any such estate and person authorized by power of attorney as aforesaid shall perform the same duties and shall have the same rights, and every such executor and administrator and person authorized by power of attorney as aforesaid and the estate of every such deceased person shall be subject to the same " Executor or administrator therein named." " Letters of administration." " Probate." " United Kingdom." Probates and administrations granted in United Kingdom or a British possession to be of like force as if granted in Victoria on copy being filed and sealed. No s. 81.

40 Administration and Probate. No Caveat may be lodged. No s. 82. Intention to apply for seal of Court to be advertised and after fourteen days affidavit to be made. No s. 83. As to sealing of probate or letters of administration. No s. 84. Executor or administrator or attorney to become executor or administrator as to property within jurisdiction. No s. 85. liabilities and obligations as if such probate or letters of administration had been originally granted by the Supreme Court of Victoria. 82. Any person may lodge with the registrar a caveat against the sealing of any such probate or letters of administration, and such caveat shall have the same effect and shall be dealt with in the same manner as if it were a caveat against the granting of probate or of letters of administration. 83. The seal of the Court shall not be affixed to any such probate or letters of administration until after the publication of an advertisement by such executor administrator or person authorized by power of attorney or by some solicitor on his behalf in one of the Melbourne daily newspapers of the intention of such executor administrator or person to apply for the same to be duly affixed, nor until an affidavit has been filed stating that such advertisement was duly published at least fourteen days before the making of such affidavit and that no caveat has been lodged up to the morning of the application. 84. (1) The seal of the Court shall not be affixed to any such probate or letters of administration until the statements of the estate of such deceased person are filed in the office of the Commissioner in accordance with the provisions of Part V. and until all such probate stamp and other duties and fees (if any) have been paid as would have been payable if such probate or letters of administration had been originally granted by the Court. (2) No such letters of administration shall be so sealed until such affidavits have been filed and such bond has been entered into as would have been required if such letters had been originally granted by the Court. (3) Notwithstanding any law or rule to the contrary any such statement may be made and verified by the executor or administrator (as the case may be) or by some person on his behalf, and any such bond may be entered into by such administrator outside Victoria before any commissioner of the Supreme Court for taking affidavits or otherwise in the manner provided by the Evidence Act 1958 for the attestation of documents out of Victoria. 85. Upon the sealing of any such probate or letters of administration to the estate of any deceased person as aforesaid, every such executor or administrator therein named or person by such executor or administrator duly authorized by power of attorney under his hand and seal (as the case may be) shall be and be deemed to be for every purpose the executor or administrator of the estate of such deceased person within the jurisdiction of the Supreme Court of Victoria.

41 1958. Administration and Probate. No Notwithstanding anything contained in this Act a person Administrator under power duly authorized by power of attorney under the provisions of this Part who "» No s. 86. (a) has obtained the seal of the Court to any probate or letters of administration; (b) has realized the real and personal property of the testator or intestate within Victoria; (c) has paid all charges duties arid fees under Part V.; and (d) has satisfied or provided for the debts and claims of all persons resident in Victoria of whose debts or claims he has had notice (whether before or after notice given by him as required by the Trustee Act 1958) may pay over to the executor or administrator of the estate in the country in which the deceased was domiciled at the date of his death or may pay over to the donor of the power of attorney the balance of the estate without seeing to the application thereof and without incurring any liability in regard to such payment and shall duly account to such executor or administrator or donor (as the case may require) for his administration. 87. Any reference in this Part to probate or letters of scotch administration shall be deemed to include a confirmation of the """ "* executor of any person granted in any sheriff court in Scotland. confirmation. No s (1) The Governor in Council on being satisfied that the AppHcaUomoi Legislature of any British possession has made adequate provision certain"* to for the recognition in that possession of probates and letters of ps^ons. administration granted by the Supreme Court of Victoria may by No s. 88. proclamation declare that this Part shall subject to any exceptions and modifications specified in the proclamation apply to that possession, and thereupon while such proclamation is in force this Part shall apply accordingly. (2) The Governor in Council may from time to time by Power to further proclamation revoke or alter any proclamation made p^ssntubn. under this section. (3) Every proclamation made under this section shall be Publication of published in the Government Gazette and a copy thereof shall proclasnatlon - be laid before both Houses of Parliament so soon as may be after it is made. (4) This Part when declared by proclamation to apply to a Application of British possession shall subject to any exceptions and p^obatsf&c. modifications specified in the proclamation apply to probates HSfteS. J and letters of administration granted in that possession whether before or after the commencement of this Act.

42 Administration and Probate. No Judges may make rules for carrying this Part into effect. No s The judges of the Court may in accordance with the Supreme Court Act 1958 make rules (a) for regulating the duties of the registrar and the Prothonotary under this Part; and (b) generally for carrying into effect the provisions of this Part. interpretation. N No. 483 s. 2. ' Court." Will." Power to court to order adequate provision for proper maintenance and support of testator's widow widower or children where no adequate provision made by testator. No s. 139; No s. 3. Application by summons in chambers. No s. 140; No s. 7. Service of notice of application. No s Powers of Court No s. 142; No S. 7. PART IV. TESTATOR'S FAMILY MAINTENANCE. 90. In this Part unless inconsistent with the context or subject-matter Court" means the Supreme Court or a judge thereof. Will" includes codicil and every other testamentary instrument. 91. If any person (hereinafter in this Part called " the testator") dies leaving a will and without making therein adequate provision for the proper maintenance and support of the testator's widow widower or children the Court may in its discretion on application by or on behalf of the said widow widower or children order that such provision as the Court thinks fit shall be made out of the estate of the testator for such widow widower or children. 92. (1) Every such application shall be made by summons in chambers entitled in the matter of the Administration and Probate Act 1958 Part IV., and in the matter of the will and estate of the testator. (2) Such summons shall be taken out by the applicant and served on the executor of the will of the testator or on the administrator with the will annexed of the estate of the testator. (3) The judge may if he thinks fit adjourn such summons into Court. 93. The Court may order such other persons as it thinks fit to be served with notice of such application. 94. At the hearing of such application the Court shall inquire fully into the testator's estate, and for that purpose may (a) summon and examine such witnesses as may be necessary; and (b) require the executor or administrator to furnish full particulars of the testator's estate.

43 1958. Administration and Probate. No In granting or refusing any such application and in fixing court to the amount of the provision to be made under this Part for the estate and widow widower or children or any of them the Court shall have SJudreS's 01 means - regard (inter alia) to v ' No s. 143* (a) the net value only of the estate of the testator as No.4483 s. 7. ascertained by deducting from the gross value thereof all debts testamentary and funeral expenses and all other lawful liabilities and charges to which the said estate is subject; and (b) whether the widow widower or children or any of them are entitled to independent means whether secured by any covenant settlement transfer gift or other provision made by the testator during his or her life or derived from any other source whatsoever. 96. (1) The Court may refuse any such application if the Powers of character or conduct of the applicant is such as in the opinion of refusing the Court to disentitle him or her to the benefit of any provision ES'S&S under this Part. rders ; No s 144* (2) The Court may in making any order under this Part NO s. 4. impose such conditions restrictions and limitations whether to prevent restrict or defeat any alienation or charge of or upon the benefit of any provision made under such order or otherwise as it thinks fit. (3) The Court may in making any order under this Part order that the provision may consist of a lump sum or a periodical or other payment. 97. (1) Every order under this Part making provision for Contents of any widow widower or child shall specify (inter alia) order. No (a) the amount and nature of the provision; NO ss. 5, 7. (b) the manner in which the provision shall be raised or paid out of some and what part or parts of the estate of the testator; and (c) any conditions restrictions or limitations imposed by the Court. (2) Unless the Court otherwise orders the burden of any such Adjustment provision shall as between the persons beneficially entitled to the provlson estate of the testator be borne by those persons in proportion to beneficiaries. the values of their respective estates and interests in such estate: Provided that the estates and interests of persons successively entitled to any property which is settled by such will shall not for the purposes of this sub-section be separately valued but the 11 of

44 Administration and Probate. No proportion of the provision made under this Part to be borne by such property shall be raised out of or charged against the corpus of such property. rfsrtte?to py (**) ^ e Court shall in every case in which provision is made be "made n under this Part direct that a certified copy of such order be made pro te * upon the probate of the will or letters of administration with the will annexed of the estate of the testator and for that purpose shall retain in its custody such probate or letters of administration until such copy is made. Provision to SdSj e "* a (4) Every provision made under this Part shall subject to the provision of this Part operate and take effect as if the same had been made by a codicil to the will of the testator executed immediately before his or her death. o? vo t ke vary order. costs- rotate n d«y of No No! s.7. Tm^ witwn applications may be made. NO No M 4483 S.6. ( *) The Court may at any time and from time to time on the application by motion of the executor or administrator of the testator's estate or of any person beneficially entitled to or interested in any part of the estate of the testator rescind or alter any order making provision for any widow widower or child. Notice of such motion shall be served on all persons taking any benefit under the order sought to be rescinded or altered. (6) The Court may make such order as to the costs of any proceeding under this Part as it deems just. '& For the purpose of apportioning the duty payable on the estate of any testator any provision made under this Part shall be deemed to be a bequest made by such testator by a codicil executed immediately before his or her death, and payable in the manner provided by this Past. 99. No application shall be heard by the Court at the instance 0f a party r J claiming the benefit of this Part unless the application..,,, «. *, is made within six months after the date of the grant of probate of the will or of letters of administration with the will annexed (as the case may be): Provided that the time for making an application may be extended for a further period by the Court or judge after hearing such of the parties affected as the Court or judge thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall be made before the final distribution of the estate and no distribution of any part of the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon.

45 1958. Administration and Probate. No PART V. DUTIES ON DECEASED PERSONS' ESTATES. (Q) 100. In this Part unless inconsistent with the context or interpretation. subject-matter f uf n No s. 3 (3), No NO 3 55y fl) - s. 2 (1). " Administrator " includes any person to whom letters of J',.^^1118 " administration are granted and any person appointed administrator by a judge and also an administrator with the will annexed but does not include the Public Trustee. " Commissioner " means such person as is appointed by ^coni; mlssioner.' the Governor in Council to be the Commissioner of Probate Duties under this Part. " Disposition " in relation to property or " disposition of of 0^03^0. 0 property " means (a) any conveyance, transfer, assignment, delivery, creation of a power of appointment, payment or other alienation of property (whether by way of renunciation, disclaimer, declaration or creation of trust, mortgage, charge, encumbrance, creation of any estate or interest in property, or by any other means) and whether subject to any limitation or not; (b) the exercise (not being in favour of the donee of the power) of a general power of appointment, other than a power exercisable by a deceased person as a trustee under a disposition not made by himself; (c) the release, discharge, surrender, forfeiture or abandonment of any debt, contract, or chose in action, or of any right, power, estate, or interest in or over any property; (d) any agreement, contract, obligation, engagement, transaction entered into or act done by any person whereby the value of his estate may be directly or indirectly diminished and the value of the estate of any other person increased and whether in any of the cases referred to in the foregoing paragraphs the disposition was effected with or without any instrument in writing or by a person alone or jointly with any other person. (a) As to application to estates of persons dying before on or after certain past dates, see Nos s. 17, No s. 8 and section 4 of this Act.

46 Administration and Probate. No "Final balance." "Gift inter vivos.' Final balance" means final balance, as certified by the Commissioner, on which duty is to be calculated, that is to say, the total value of all property which is or is deemed to form part of the estate less the total value of all items which are allowed as deductions. " Gift inter vivos" includes any non-testamentary disposition of property made (whether to a living person or to any company or body corporate or unincorporate) either without consideration or upon any consideration other than full consideration in money or money's worth based on the value of the property at the date of such disposition and not being a settlement; and where any such disposition is made for a consideration in money or money's worth which is less than the value aforesaid of the property the disposition shall be deemed to be a gift inter vivos to the extent only by which such value exceeds such consideration. " Property." Property " includes real property and personal property of any kind whatsoever, and any estate or interest therein, and any debt, and any chose in action and any other right or interest. " Proportional calculation." Third Schedule. ' Rules." ' Prescribed.' Proportional calculation" means proportional calculation in accordance with the Third Schedule to this Act. " Rules " means the rules made by the Governor in Council under this Part; and " prescribed " means prescribed by the rules. " Settlement." " Settlement " includes every non-testamentary disposition of property made by any person to take effect or which may take effect upon or after the death of such person, and made either without consideration or upon any consideration other that full consideration in money or money's worth based on the value of the property at the date of death of such person; and where any such settlement is made for a consideration in money or money's worth which is less than the value aforesaid of the property the settlement shall be deemed to be a settlement to the extent only by which such value exceeds the consideration.

47 1958. Administration and Probate. No (1) Subject to the Public Service Act 1958 there may Appointi_ 2 j ment and be appointed functions of Commis- (a) a Commissioner of Probate Duties who shall have s d put ya^ta - charge of the assessment collection and payment missioned of duty under this Part and generally carry out S0T632 the duties powers and functions imposed or s149- conferred on him under this Part; and (b) such deputy Commissioners of Probate Duties and other officers as are required for the purposes of this Part. (2) All acts and things required or authorized to be done by such Commissioner may, subject to the control and direction of the Commissioner, be done by any deputy Commissioner, and every act and thing so done shall be as valid and effectual as if the same had been done by the Commissioner Except the fees authorized by this Part no fee shall be demanded or taken in the Master's office upon the issue of any probate or letters of administration with or without a will annexed For the purposes of this Part the value of any property or debts of a deceased person and the value of any amount of duty required to be paid or refunded shall be calculated and expressed in Australian currency. No fees except under this Part to be taken in the Master's office. No s. 150; No s. 3 (3). Values to be calculated and expressed in Australian currency. No s (1) The following classes of property shall for the ^ ^ purposes of this Part be and be deemed to form part of the person tor.. j. j j purposes of estate of a deceased person: duty. (a) His real property in Victoria; Nasiwtsl (b) His at personal the time property of his death wherever domiciled situate, in if Victoria; he was property Real property 1. (c) His personal property in Victoria, if he was not at the time of his death domiciled in Victoria; (d) Any property the subject matter of any gift inter Gifts inter vivos. vivos by the deceased whether made before or after the commencement of this Act, if such gift was made (i) within three years immediately before the death of the donor; or (ii) at any time, where in relation to such property bona fide possession and enjoyment was not assumed by the donee more than three years before the death of the deceased and thenceforward

48 Administration and Probate. No retained to the entire exclusion of the donor or of any benefit to the donor by contract or otherwise and whether or not such benefit arose directly out of such property or by reason of the relationship between the donor and the donee or however it arose, and whether or not such benefit was enforceable; or (iii) at any time, where the donor after a date being three years before his death retains or has any interest in the property or any right, whether enforceable or not, to payments or to any beneficial interest or benefit in any way connected with the property or any power which may affect the enjoyment of the gift by the donee wherever the property was situate at the time of the death of the donor and whether or not at the time of the death of the donor it was still the property of the donee or was still in existence and in sub-paragraphs (ii) and (iii) of this paragraph the property the subject-matter of the gift inter vivos shall be deemed to include any beneficial interest in property which ultimately accrues devolves or passes to the donee, including any beneficial interest which ceases on or within three years before the death of the deceased, to the extent to which a corresponding benefit accrues or arises for the donee: Provided that where property referred to in this paragraph (d) is not in existence at the time of the death of the donor such property shall not be deemed to form part of the estate of the donor except where any amount or consideration in money or money's worth has been received or is receivable by the donee as compensation for its extinction or as consideration for its surrender redemption discharge sale or conversion in which case the property no longer in existence shall be deemed to form part of the estate of the donor but the value thereof shall be deemed to be the amount of such money or the value of such money's worth (as the case may be): Provided further that where any land or estate or interest therein is deemed to form part of the estate of a deceased person under sub-paragraph (i) of this paragraph (d) and where such

49 1958. Administration and Probate. No property has been improved by the donee between the date of the gift and the date of the death of the donor the Commissioner shall allow as a deduction the value of such improvements: Provided further that where the value of any property the subject-matter of gifts inter vivos as aforesaid to any individual donee is less than One hundred pounds in the aggregate that property shall not be deemed to form part of the estate of the donor; (e) The beneficial interest held by the deceased person joint interests. immediately prior to his death in any property (other than the house and curtilage of the matrimonial home of the deceased) as a joint tenant or joint owner with any other person or persons: Provided that where the matrimonial home of the deceased person is comprised in any property which is also used for other purposes a separate valuation shall be made of the portion of the property used principally as a matrimonial home and the portion used for such other purposes and only the beneficial interest of the deceased person in that part of the property that was used principally for the purpose of his matrimonial home shall be excluded from the operation of this paragraph (e); (/) Any property over which the deceased had at the General time of his death a general power enabling him S^oYntmem. by will or deed to dispose thereof (other than a power exercisable by him as trustee under a disposition not made by him); (g) Any property the subject matter of a donatio mortis Donatio causa made by the deceased whether before or m " iscausa - after the commencement of this Act; (h) Any property the subject-matter of any settlement Settlements. made by the deceased whether before or after the commencement of this Act; for the purposes of this paragraph (h) the property comprised in any settlement shall be deemed to include the proceeds of the sale or conversion of and all investments for the time being representing any such property and all property which has in any manner been substituted for property originally comprised in such settlement; (/') The beneficial interest in any property which the passing or deceased had at the time of his death which S 8 on beneficial interest, by virtue of any settlement Element.

50 Administration and Probate. No Property at disposal of deceased. Settlements surrendered within three years. Annuity &c. Provision to exclude certain payments under superannuation schemes. made by him whether before or after the commencement of this Act, passed or accrued on or after his death to or devolved on or after his death upon any other person; including the beneficial interest in any property ceasing on the death of the deceased to the extent to which a benefit accrues or arises for any other person by the cesser of such interest; (/') Any property of which at the time of his death the deceased was competent to dispose, otherwise than in a purely fiduciary capacity; (k) Any property the subject-matter of any settlement under which the deceased retained an interest which interest has been surrendered or terminated within three years of the death of the deceased; (/) Any annuity or other interest purchased or provided by the deceased within three years of the death of the deceased, whether before or after the commencement of this Act, either by himself alone or in concert or by arrangement with any other person to the extent of the beneficial interest accruing or arising by survivorship or otherwise on the death of the deceased less any consideration in money or money's worth paid or given for such beneficial interest by the person to whom such beneficial interest accrues or arises. (2) Notwithstanding anything contained in the last preceding sub-section the estate of a deceased person shall not include any amount paid under any bona fide scheme of superannuation or pension to the widow of or to any person wholly dependent upon the deceased. Debts of deceased person when deductible. No s (1) Subject to this section in computing the final balance for the purposes of this Part there shall be allowed as deductions from the estate of a deceased person (a) if he was domiciled in Victoria at the time of his death, all debts at the time of his death due and owing by him except debts charged on real property situate outside Victoria; (b) if he was not domiciled in Victoria at the time of his death, all debts at the time of his death due and owing by him to persons resident in Victoria or contracted to be paid in Victoria or charged on property situate in Victoria.

51 1958. Administration and Probate. No (2) The debts of a deceased person shall be deemed to include (a) the amount incurred for his funeral and burial or cremation expenses but not exceeding the sum of Fifty pounds; (b) the amount of income tax which under the provisions of section 101A of the Commonwealth Act known as the Income Tax and Social Services Contribution Assessment Act or any amendment thereof or enactment substituted therefor is assessed on any property which is included in the estate for the purposes of this Part. (3) Where any debt has been allowed as a deduction and such debt is waived or forgiven either wholly or in part by the creditor notice of such waiver or forgiveness shall be given by the executor or administrator to the Commissioner within fourteen days after such debt is so waived or forgiven and the amount of such debt or the proportion thereof so waived or forgiven (as the case may be) shall not (whether notice is so given or not) be allowed as a deduction. (4) No allowance as a deduction shall be made for (a) any debt the amount of which is incapable of being ascertained; (b) any debt where there is a right of reimbursement except in the case where the Commissioner is satisfied that the exercise of the right would not result in the recovery of the amount of the debt; (c) any debt incurred or created by the deceased unless such debt was incurred or created bona fide for an adequate consideration in money or money's worth; or (d) any debt which is irrecoverable by action through the lapse of time except where such debt is proved to have been paid in due course of administration. (5) If within six years after the date upon which the duty in respect of any estate became due and payable the amount of any debt referred to in paragraph (a) of the last preceding sub-section in respect of which no allowance has been made as aforesaid actually becomes capable of being ascertained and if such debt has been paid the Commissioner shall allow as a deduction the amount of such debt.

52 Administration and Probate. No valuation of 106. For the purposes of this Part shares in * * SmpanS (a) the valuation of No s. 6. (i) stocks or shares in a proprietary company (whether incorporated in or out of Victoria); and (ii) stocks or shares in any other company (whether incorporated in or out of Victoria) the market sale price of which is not quoted on the current official list of the Melbourne Stock Exchange on the date of death of the deceased stockholder or shareholder shall be made upon the basis that the memorandum and articles of association satisfy the requirements prescribed by the committee of the said Exchange to enable that company to be placed on such official list; (b) notwithstanding anything contained in the last preceding paragraph in the valuation of the stocks or shares of a company whose stocks or shares are not quoted on the official list of any stock exchange the Commissioner may, in his discretion, adopt as the value of any such stocks or shares such sum as the holder thereof would receive in the event of the company being voluntarily wound up at the date of death notwithstanding that no such winding up is intended or contemplated; (c) (i) where the Commissioner is satisfied that the rights attaching to any shares in a proprietary company have been varied at a time when such shares were owned or controlled by the deceased; and within a period of three years immediately prior to the death of the deceased, or at any time if such variation takes effect or may take effect upon or after the death of the deceased so as to decrease the value of such shares and so as to increase the value of other shares in such company the Commissioner may value such shares as if such variation had not been made; (ii) the rights attaching to any shares in a proprietary company shall be deemed to be varied whether the variation is made in accordance with the

53 1958. Administration and Probate. No original provisions of the memorandum or articles of association or by means of an alteration thereto; (iii) where any shares are valued pursuant to the provisions of this paragraph (c) the difference between the amount at which they are so valued and the amount at which they would apart from this paragraph (c) have been valued shall be deemed to be notional estate for the purposes of this Part; and (d) no provision in the memorandum or articles of association of any company whereby or whereunder the value of the shares of the deceased or any other member is to be determined shall be applicable in determining the value of the shares for the purposes of this Part (1) Save as otherwise expressly provided the Property to be Commissioner shall fix the value of any property for the purposes date e of death, of this Act at the price which such property would fetch if sold 2;f ; f; in the open market at the date of the death of the deceased: Provided that where it is proved that the value of the property has been depreciated by reason of the death of the deceased the Commissioner in fixing the price shall take such depreciation into account. (2) In the case of any property in which the deceased held v^jl^gf art " a share or a proportionate interest only and to which he was not property. n entitled as sole owner, the value shall be arrived at by estimating the value of the whole property as if he were the sole owner and then calculating the proportionate share or interest of the deceased in the total value (1) Every executor and every administrator shall file Statements tc in the office of the Commissioner a statement in the prescribed NO.^«2 form specifying particulars of NO"«9O (a) all property which is or is deemed to form part of «- 8 'o>the estate of the deceased; (b) the value of such property at the date of the death of the deceased; (c) any debts and liabilities of the deceased; (d) the relationship (if any) to the deceased of the person or persons entitled to such property. (2) In the case of probate or letters of administration j^jjgjjjj limited to any particular property of a testator or intestate, the """""to ' n statement shall be limited to such particular property, property. (3) Every statement shall be verified in the prescribed Verification, manner and shall be filed within the prescribed time or within such further time as the Commissioner may allow.

54 Administration and Probate. No Alteration of statement. Additional duty on failure to file statement. As to executor de son tort. (4) Any statement may be altered or varied with the permission of the Commissioner or as he directs, and when finally approved by him shall be certified by his signature; and the certificate of the Commissioner shall, subject to this Part, be final and conclusive and subject to no appeal. (a) (5) (a) Where a statement is not filed pursuant to the provisions of this section within twelve months of the death of the deceased, the executor or administrator shall be liable to pay an additional duty at the rate of six per centum per annum on the duty assessed on the final balance. (b) Additional duty payable under this sub-section shall be payable as from (i) six months after the date of the death of the deceased; or (ii) the last day allowed for furnishing the statement whichever last happens and until the statement is filed or an assessment is made, whichever first happens. (c) The Commissioner may if he thinks fit remit all or any of the additional duty payable under this sub-section. (6) (a) Whosoever takes possession of and in any manner administers any part of the estate of a deceased person without obtaining probate or letters of administration of his estate within six months after the decease of such person, or two months after the termination of any legal proceedings respecting the will or the right of administration (if there is any such) which is not ended within four months after the decease of such person, shall be liable to a penalty of not more than One hundred pounds: Provided that where (i) the duty assessed in relation to the estate has been paid within the prescribed time; or (ii) the Commissioner has certified that no such duty is payable no person shall be liable to any such penalty. (b) This sub-section shall be read as in aid of and not in derogation from the provisions of the last preceding sub-section. Court may order executor or administrator to file statement required by this Part. No s If any executor or administrator fails to file a statement as required by the last preceding section of this Act, the Court may on the application of the Commissioner order that such executor or administrator shall file such statement within a time to be named in the order, and may enforce the order as orders are now enforced by the Court, and may make such order as to costs as seems just. (a) See section 113(5).

55 1958. Administration and Probate. No Whenever any question arises with regard to the statement or any of the particulars thereof the Commissioner may state a case for the opinion of the Court, and thereupon it shall be lawful for the Court to give its judgment thereon, and such judgment shall be binding upon the Commissioner. Power to state case for the Supreme Court. No s (1) In any case where after the expiry of three months from his death probate of the will or letters of administration of the estate of a deceased person has not or have not been granted or sealed, the Commissioner, if he has reason to believe that duty would be payable in respect of the real or personal estate of such deceased person, may apply to a judge of the Court in chambers for a summons calling upon (a) the executor or any person having possession of a will of such deceased person; or (b) any one of the next of kin who would be entitled to a grant of letters of administration of the estate of such deceased person; or (c) the donee or other person in possession of property conveyed assigned or given by such deceased person to show cause (i) why such executor next of kin donee or other person should not file the statement required by section one hundred and eight of this Act as though probate or letters of administration had been duly granted to him; or, in the alternative; (ii) why the Commissioner should not be authorized forthwith to certify the final balance of the estate in such sum as in his judgment ought to be fixed and why such executor next of kin donee or other person should not pay the duty calculated upon such balance. (2) Upon cause being shown, or, if the person so summoned does not appear, upon proof of service of the summons, it shall be lawful for any judge of the Court to order that the person summoned shall file such statement and to make such other order in the premises and as to costs as appears just. Power of Commissioner as to the filing of statements concerning estates of deceased persons where probate or letters of administration have not been granted or sealed. No s. 155; No s. 3 (1) (6) (1) Any person may on payment of the prescribed fee inspect and take copies of or extracts from any statement filed for the purposes of this Part in the office of the Commissioner by any executor administrator next of kin donee or other person. Inspection &c. of statement filed in the Commissioner's office. No s. 156.

56 Administration and Probate. No Certified copies to be prima fade evidence. Valuation of estates when Commissioner dissatisfied. No s. 157; No s. 13. (2) A copy of or extract from any such statement may upon payment of the prescribed fee be certified by the Commissioner or a deputy Commissioner to be a true copy or extract, and when so certified shall on production alone and without any further evidence be before all courts and persons acting judicially p/i'ma facie evidence of the facts therein stated (1) If the Commissioner is dissatisfied with the value placed upon any property (a) he may value such property and may agree with the executor or administrator upon the value to be adopted; (b) if agreement cannot be reached the Commissioner, if he thinks it necessary or desirable, may appoint a valuer to advise him as to the value of such property but the Commissioner shall not be bound to adopt such valuation. (2) If there is any difference between the value set out in the statement filed in accordance with section one hundred and eight of this Act and the value proposed by the Commissioner (a) the Commissioner may agree with the executor or administrator upon the value to be adopted; (b) if agreement cannot be reached the Commissioner may if he thinks it necessary or desirable summon before him the executor or administrator and his valuer and the valuer appointed by the Commissioner and such other persons as he thinks fit. (3) Every person so summoned shall be bound to attend as required by the summons and give evidence before the Commissioner in like manner as persons summoned before the Master in the equity jurisdiction are bound to attend and give evidence; and the Commissioner may administer oaths and take evidence either viva voce or by affidavit and require the production of books papers accounts and documents. (4) The Commissioner shall upon the evidence taken as aforesaid determine the value of such real or personal property. (5) Any executor or administrator who is dissatisfied with such determination may within twenty-one days after such determination and upon payment of the duty in conformity therewith appeal against such determination and, where no summons has been issued by the Commissioner, any executor or administrator who is dissatisfied with the valuation adopted by the Commissioner may within twenty-one days after the communication of the Commissioner's decision not to issue a summons and upon payment of the duty in conformity with such valuation appeal against such valuation.

57 1958. Administration and Probate. No (6) Where the value according to such determination or valuation exceeds Five hundred pounds such appeal shall be to the Supreme Court, and where such value does not exceed Five hundred pounds such appeal shall be to the County Court. And either party to any such appeal may require the matter in dispute to be tried by a jury. (7) If on such appeal it is decided that the value upon which such duty has been paid as aforesaid is excessive, the court before which such appeal is heard shall direct the repayment of the duty paid in respect of such excess together with such costs (if any) as the court deems just; but if on such appeal the value upon which duty has been paid as aforesaid is confirmed, the court shall order the appellant to pay to the Commissioner the costs incurred by the Commissioner in relation to the appeal (1) Where any shares, stock, debentures, money on ^ d^^ fixed deposit, policy of life insurance, or any other property &c. ofa except money on current account at any bank, stand in the books pereon in Victoria of any person or body corporate or unincorporate inrerd&late of the name of any deceased person, either alone or jointly with any other person (or where a policy of life insurance on the life of the deceased stands in such books in the name of any other person but has not so stood for a period of three years), no dealings with any such shares, stock, debentures, money, policy, or property shall be registered, recorded, or otherwise given effect to, or such policy satisfied by the person or body aforesaid, if he or it has notice (whether pursuant to this section or otherwise) of the death of the deceased, without the production of a certificate of the Commissioner to the effect that the duty in respect of such property has been paid, or that the Commissioner consents to the proposed dealing or satisfaction. (2) In any case where (a) any safe deposit is held in the name of any deceased person, either alone or jointly, at the premises in Victoria of any person or body aforesaid; or (b) any property is deposited for safe custody in the name of any deceased person, either alone or jointly, at the premises in Victoria of any person or body aforesaid the person or body aforesaid if he or it has notice (whether pursuant to this section or otherwise) of the death of the deceased shall not allow or suffer the removal of any property or thing from such safe deposit, or of any property deposited for safe custody as aforesaid unless the Commissioner certifies in writing in the prescribed form that the duty in respect of such property has been paid, or that the Commissioner consents to the proposed removal. Commissioner. No s. 14.

58 Administration and Probate. No Saving. See Slate Savings Bank Act; C'wealth No. 13 of 1945 s. 146; C'wealth No. 28 of 1943 s (3) Any person or body aforesaid who or which acts in contravention of this section shall be liable to a penalty of not more than One hundred pounds, and any person who seeks to have any dealing referred to in sub-section (1) of this section registered recorded or otherwise given effect to or any such policy satisfied in contravention of such sub-section shall be liable to a like penalty. (4) Any executor or administrator who omits to give to any person or body aforesaid notice of the death of the deceased within two months from the date of death shall be liable to a penalty of not more than Twenty pounds: Provided that it shall be a defence to any prosecution under this sub-section if such executor or administrator shows that he gave such notice within two months of the time when he first had knowledge of the interest of the deceased in any asset by reason of which he was required to give such notice. (5) Where any property is vested in a deceased person jointly with another person, and on the death of the deceased the property passes or accrues by survivorship to such other person, no registration of the title of the survivor shall be made in the Office of Titles, or in any other office, without the production of a certificate of the Commissioner to the effect that the duty in respect of such property has been paid or that the Commissioner consents to the proposed registration. (6) Any certificate required by this section may be denoted by writing on the instrument of title (if any) to the shares, stock, debentures, money, policy or property. (7) This section shall be read as subject to the provisions of the State Savings Bank Act 1958 sections thirty-two and fifty-four of this Act and of the Commonwealth Acts known as the Life Insurance Act and the Commonwealth Bank Act (including any amendment of or enactment substituted for either of those Acts). company to 115. (1) In all cases in which it is necessary for the Sums when purposes of this Part to ascertain the value of any shares stock required. or debentures in or any debt due by or to any corporation, No s. 15. company or society, any director or member of the governing body, or the manager secretary or public officer thereof shall, at the request of the Commissioner, deliver to him such balance sheets and accounts thereof, and such other documents and information as the Commissioner may require for the purpose of ascertaining the value of the shares, stock, debentures or debt. (2) If any such director, member, manager, secretary, or public officer fails to comply with any such request or requirement of the Commissioner he shall be liable to a penalty of not more than One hundred pounds.

59 1958. Administration and Probate. No Subject to this Part there shall be paid to the Duty payable Commissioner, to be by him paid into the Consolidated Revenue, by of deceased any person to whom has been granted probate or letters of ^^2 administration of the estate of a deceased person duty calculated ^ i58: 90 on and in relation to the final balance of the estate in accordance s.9(i). with the provisions of the Third Schedule to this Act. schedule 117. (1) Where any part of the estate of a deceased person charitable is devised or bequeathed or passes by gift inter vivos or under a f?ee u from "" settlement i uty ', No s. 160: (a) for religious or public scientific or public educational ^ io 5^)t purposes in Victoria, or to a hospital not N S.3. conducted for profit or the Victorian Bush Nursing Association or any public benevolent institution or public benevolent society in Victoria; or (b) to the Lord Mayor's Fund or to any organization or fund established and maintained for the purposes of providing money for any of the foregoing purposes, or for the use of any such hospital institution or society, or for the relief of persons in necessitous circumstances in Victoria, or for the amelioration of the condition of the dependants of any member or ex-member of Her Majesty's naval military or air forces or the naval military or air forces of the Commonwealth the duty otherwise payable on the final balance shall be reduced (by proportional calculation) by such proportion as such part of the estate bears to the final balance. (2) For the purpose of this section a devise bequest or gift as aforesaid to or for the University of Melbourne or a residential college affiliated under statutory provisions with such University or to any school in Victoria not conducted for profit shall be deemed to be a devise bequest or a gift for public educational purposes in Victoria (1) Where any member of the naval military or air special forces of the Commonwealth or of any part of the Queen's duty in cases Dominions or of any ally of Great Britain in any war or hostilities dying on or to which this section applies dies on active service or as a result wars5i?ce? f of injuries received or disease contracted on active service the No following provisions shall apply as to duty under this Part NO!S : 895S.7. payable in respect of the whole or any part of the estate of the deceased to which the widow or widower or a lineal descendant

60 1958. Administration and Probate. No or lineal ancestor or brother or sister or any one or more of them is or are entitled whether under a will or intestacy (a) the duty otherwise payable on the final balance shall be reduced (by proportional calculation) by such proportion as the total value of the shares therein of all such persons aforesaid or Seven thousand five hundred pounds (whichever is the less) bears to the final balance; (b) (where the total value of the share or shares in the final balance of all such persons aforesaid does not exceed Seven thousand five hundred pounds) no rebate of duty in respect of the widow and children of the deceased shall be allowed; (c) (where the total value of the share or shares in the final balance of all such persons aforesaid exceeds Seven thousand five hundred pounds) rebate of duty in respect of the widow and children of the deceased shall be allowed only on the total value of the share or shares in the final balance of such widow and children or Thirty thousand pounds (whichever is the less) less the following amount namely that proportion of Seven thousand five hundred pounds which the total value of the share or shares in the final balance of such widow and children bears to the total value of the shares therein of all such persons aforesaid. (2) The provisions of this section shall extend and apply with respect to any person who has served in any capacity in any British ship and who during any war or hostilities to which this section applies dies while serving in a theatre of war therein or as the result of injuries received or disease contracted while so serving; and for the purposes of this sub-section " serving in a theatre of war " means serving in a ship at a time when danger from hostile forces of the enemy was incurred on the ship by the person so serving. (3) This section shall apply to (a) the war which commenced in the year One thousand nine hundred and fourteen and the war which commenced in the year One thousand nine hundred and thirty-nine; (b) the hostilities which commenced in Korea in the year One thousand nine hundred and fifty; and

61 1958. Administration and Probate. No (c) any other war or hostilities in which Her Majesty is engaged and which is proclaimed to be a war or hostilities for the purposes of this section by Order of the Governor in Council published in the Government Gazette The rules (a) may prescribe the time and notice after which Rules to the duty payable under this Part shall be paid, and if the same is ^payment" 6 not paid within the time prescribed the Commissioner may apply ^3632 to the Court, which may order that a sufficient part of the testator's or intestate's property may be sold and the proceeds thereof applied in payment of the duty and of the costs of the order and sale and consequent thereon The duty payable under this Part shall be deemed to be Duty payable a debt of the testator or intestate to Her Majesty and shall be and in ty to paid by any executor or administrator out of the estate of the debt testator or intestate after payment of the testamentary and funeral NO expenses and in priority to all debts of the testator or intestate (1) The executor or administrator with the will annexed $$"%* f (unless a contrary intention appears in the will), or the residue. 32 administrator of the estate of any deceased person shall (subject J 10^? to the provisions of this and the last preceding and the next succeeding section) pay any duty payable by him under this Part 8. 4 «>. (not being duty payable in respect of property referred to in section one hundred and thirty-two of this Act) out of the residue of such estate. (2) Where there is no residue or where the residue (after providing for the payment of funeral and testamentary expenses) is insufficient for the payment of such duty the executor or administrator with the will annexed shall in order to provide for the payment of the duty or the balance of the duty (as the case may be) deduct from each and every devise bequest and legacy coming to any person under the will in proportion to the value of such devise bequest or legacy such an amount as may be necessary for that purpose unless the testator has in his will made a different provision as to the payment of the duty. (3) The estates and interests of persons successively entitled to any property which is settled by will shall not for the purposes of this section be separately valued, but the total duty payable in respect of such estates and interests shall be borne by such property and shall be raised out of or charged against the corpus of such property. (4) In this section the word " residue" includes any unbequeathed personalty and any undevised realty. VOL. I. 42 (a) See section 137. NO. M"*-'.

62 Administration and Probate. No Provision for recovery of duty paid by executor or administrator. " Notional estate." No s. 8; No (5). Probates &c. not to issue until indorsed duty paid or not dutiable. No B (1) In this section " notional estate" means any property or interest in property which under this Part is deemed to form part of the estate of a deceased person and is chargeable with duty accordingly. (2) This section shall apply unless there is a will in which a contrary intention appears. (3) Where duty on any notional estate has become payable by the executor or administrator, he may recover the amount of the duty on that notional estate from the person to whom that notional estate passed or may retain or deduct the amount out of or from any moneys in his hands belonging to that person. (4) Upon the application of the executor or administrator, the Court may make an order declaring that he shall have a charge, with a power of sale, over any notional estate for the amount of the duty paid or payable by him on that notional estate, and for the costs and expenses of obtaining the order and of any subsequent proceedings for enforcing the charge and of any subsequent sale. (5) Any such order shall be subject to the rights of any person who in good faith and for valuable consideration has acquired the notional estate or any interest, right, privilege or benefit therein, or charge over it; and any such acquisition by any person shall not be deemed to have been otherwise than in good faith merely because that person did not make any inquiry as to whether the person to whom the notional estate passed was liable under this section to pay any duty to the executor or administrator. (6) Where the executor or administrator, pursuant to sub-section (2) of the last preceding section has made deductions from any devises, bequests or legacies to enable any duty payable on any notional estate to be paid, or has paid any such duty out of the residue, he shall apply the net amount which he recovers or retains in exercise of the powers conferred by this section in or towards making good the amounts of the deductions to the persons entitled to those devises, bequests or legacies; and he shall apply any balance of that net amount in or towards making good the amount which he paid out of the residue No probate or letters of administration shall issue from the Master's office until the duty or fee (if any), as the case may be, payable under this Part has been paid, and the Commissioner shall certify by indorsement on every probate or letters of administration issued either that the duty or fee has been paid and the amount thereof, or that no duty or fee is payable thereon (as the case may be); and no probate or letters of administration shall be receivable in evidence in any court of justice unless it bears the indorsement herein required.

63 1958. Administration and Probate. No If after any duty has been paid under this Part it is utooiittto discovered that too little duty has been paid the person by whom pss. hasbecn such duty might have been paid shall pay the additional duty No i 6 a2 to the Commissioner, and the amount so payable shall be a debt of such person to Her Majesty If after any duty has been paid under this Part it is " too much found that too much duty has been paid in consequence of debts paid. M of the testator or intestate being discovered which were not f {^632 included in the statement the Commissioner shall upon being satisfied of the existence of such debts by examination of the parties or otherwise as he thinks fit order that the amount overpaid shall be returned to the person entitled to receive the same, and upon any such order the Governor in Council shall issue his warrant for the payment of the amount specified in such order to the person named therein, and the Treasurer shall pay the same out of the Consolidated Revenue No order shall be made by the Commissioner under Time within the last preceding section for the return of any amount overpaid for refund of as duty unless application for repayment of the amount so overpaid may^nade. is made to the Commissioner within six years after the date No. 363* when such over-payment was made Every person making or assisting in making any false f^dsfentiy statement or any false alterations in any statement required to misstating be made under this Part or the rules with intent to evade the debts. payment of duties under this Part or to lessen the amount thereof No j shall be deemed guilty of a misdemeanour and shall be liable to imprisonment with or without hard labour for a term of not less than one year nor more than three years and to a fine of not more than One hundred pounds Every administrator or administrator with the will ^tora'durin annexed to whom letters of administration are granted during minority or 8 minority or absence from Victoria shall file the statement required ^y cetopay by section one hundred and eight of this Act and pay the duty ^ mentioned in the Third Schedule, but no further duty shall be No charged upon the issue of letters of administration to the person Third* * W entitled upon his coming of age or return to Victoria, but a fee schedule. of Five pounds shall be paid: Provided that such fee of Five pounds shall not be payable in any case where the value of the estate to which letters of administration were originally granted after all allowable deductions have been made therefrom does not exceed Six hundred pounds.

64 Administration and Probate. No Fees to be paid In certain cases. No s. 170; No s. 9 (2) (c). Fees payable where probate &c. not applied for in open court. No s. 171; No s.3(3). Credit to be given. No s Settlements to be registered. No s. 177; No s. 11, No s «No probate pursuant to leave reserved or letters of administration de bonis non or pendente lite or limited to answer a suit or to substantiate proceedings in the Court or any other limited administration shall be issued from the Master's office unless upon payment of a fee of Two pounds. This section shall not apply in any case where the value of the estate in respect of which probate or letters of administration have been granted after deducting therefrom all debts does not exceed Six hundred pounds. 130c (1) Except on application made in open court no probate or letters of administration (including probate or letters of administration granted issued or sealed to or for the Public Trustee) shall be granted issued or sealed until after payment of a fee of Two pounds in cases where the value of the estate in respect of which such probate or letters of administration have been granted issued or sealed exceeds Five hundred pounds. (2) The fee chargeable under this section shall be collected by means of stamps which shall be affixed to the order directing the issue or sealing of the probate or letters of administration In all cases of payment of further duty credit shall be given for any duty already paid in respect of the same estate (1) Every settlement shall upon the death of the settlor be registered in the office of the Commissioner as provided in the next succeeding sub-section, and except for the purpose of payment of duty no settlement shall have any operation or effect until it is so registered. (2) The trustees of every such settlement or some other person interested thereunder shall within three months after the date of the death of the settlor or such further time as the Commissioner may allow produce every instrument containing such settlement, or if there is no instrument in writing a memorandum of such settlement, in the office of the Commissioner for registration, and furnish the Commissioner with a certified copy, but such settlement shall not be registered until the duty payable in respect of the property comprised therein has been paid. (3) The duty or proportion of duty (as the case may be) payable upon the value of the property comprised in any such settlement shall be borne by and be a charge upon such property, and the Commissioner (whether or not a statement has been filed pursuant to section one hundred and eight of this Act) (a) may assess the duty payable on the final balance (including the property comprised in the settlement);

65 1958. Administration and Probate. No (b) may, and if so required by the executor or administrator or by the trustees or other persons in whom the property the subject of the settlement is vested shall, apportion (by proportional calculation) the total duty payable in respect of the final balance as between the property comprised in the settlement and the remainder of the estate and the amount of the duty payable on the property comprised in the settlement or (as the case may be) the duty apportioned to the property comprised in the settlement shall be payable by the trustees thereof or some person interested thereunder who shall be assessed accordingly and the executor or administrator shall be relieved of liability with respect to such payment. (4) The executor or administrator may recover in any court of competent jurisdiction from the trustees or other persons in whom the property the subject of the settlement is vested the proportion of duty (apportioned as aforesaid by the Commissioner) attributable to such settlement as a debt due and payable by such trustees or persons to the executor or administrator. (5) If any such settlement is not registered within three months of the date of the death of the settlor, or such further time as the Commissioner may allow, the Commissioner may assess the duty payable under this Part in respect of the property comprised in such settlement, and if such duty is not paid within one month or such further time as the Commissioner may allow the Commissioner or any person interested may apply to the Court which may order that a sufficient part of the property included in such settlement be sold or realized and the proceeds of such sale or realization applied in payment of the duty and of the costs and expenses of the order and sale or realization and consequent thereon (1) Where duty has been paid under this Part in respect Refund of of property situate anywhere outside Victoria of any deceased respect of person who was at the time of his death domiciled in Victoria H? and where duty (other than duty under any Commonwealth vfctorfa. Act) has been lawfully paid outside Victoria in respect of such s? i2? 190 property in consequence of the death of such person, the Commissioner shall order that (a) an amount which bears to the total duty paid in such other jurisdiction the same proportion as the gross value of such property bears to the gross value of the total property subject to duty in such other jurisdiction ; or (b) an amount which bears to the total duty paid in Victoria the same proportion as the gross value of the property in such other jurisdiction which

66 Administration and Probate. No is subject to duty under this Part bears to the gross value of the total property subject to duty under this Part (whichever amount is the less) shall be refunded to the person entitled to receive the same. Provisional refund. Deduction of stamp duty on settlements or deed of gift. No s General jurisdiction of Supreme Court under this Part of this Act. No s (2) Where the Commissioner is satisfied that in such a case as is referred to in the last preceding sub-section a refund will become payable he may in lieu of requiring the payment to him of the full amount of the duty make a provisional allowance of the estimated amount of the refund subject to such conditions as he may impose or as are prescribed Any person paying the duty payable under this Act upon property comprised in a settlement or deed of gift may deduct the amount of the ad valorem duty paid in respect of such property by virtue of the Stamps Act 1958 notwithstanding anything to the contrary in section eighty-five of the said Act Upon any application to the Court under this Part all such persons as would be necessary or proper parties if such application were made in an action instituted by a creditor for the administration of a testator's or intestate's property shall be entitled to notice and may be heard thereon; but the Court may order substituted service or dispense with service of any such persons as it may think fit and the Court for the purpose of any such application may appoint guardians or refer any question as it may deem expedient; and the Court shall subject to the provisions of this Part decide any such application upon the same principles as if the order were to be made in an action instituted by creditors to obtain payments of their debts out of the estate of a deceased person; and the Court shall have and may exercise for the purposes of this Part all or any of the powers it possesses at the commencement of this Act including the power to make rules of practice. Court may make vesting orders. No s When any order has been made for the sale of any lands under the provisions of this Part every person seised or possessed of such lands or entitled to a contingent interest therein shall be deemed to be so seised or possessed or entitled (as the case may be) upon a trust within the meaning of the Trustee Act 1958, and the Court may make an order vesting such lands or any part thereof for such estate as the Court thinks fit either in any purchaser or in such other person as the Court directs; and every such order shall have the same effect as if such person so seised or possessed or entitled had been free from all disability and had duly executed all proper conveyances and assignments of such lands for such estate.

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