AGY-1061 | Ecclesiastical Jurisdiction [Supreme Court of New South Wales]

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The New South Wales Act, 1823 [4 George IV Act No. 96] established an Ecclesiastical Jurisdiction of the Supreme Court which took over the tasks of granting probate according to the wills of those who died testate, and making arrangements for the dispersal of the personal property of those who died intestate, and those whose executor was not in the colony or could not be located. While the responsibility for dealing with probate matters lay with the Ecclesiastical Court, complicated cases were few and the matters of taking affidavits testifying to the death of the testator, and from witnesses and executors was delegated to clerks. In the case of an intestate person the process of filing an affidavit to indicate that there was no will, and placing a citation prior to the division of the estate was likewise left to clerks. In 1838 Standing Rules developed by Mr Justice Willis were adopted in an attempt to regularise procedure in the Ecclesiastical branch. The Rules required application for probate on motion during the legal term and by petition in the legal vacation. These rules saw that the affidavit covered the time of the testator’s death, the details regarding the will, the executors and the witnesses. When the person had died intestate the next of kin was required to swear to the fact of intestacy, and to list near relatives and property held within the colony. The procedures for creditor’s claims on estates were regularised under these Rules. The major part of the Rules covered disputed applications for probate. The Rules were further amended in 1881 by Sir William Manning who introduced new procedures in which clerks attended to estates valued below £100, solicitors in chambers handled estates valued between £100 and £500 and those valued over £500 required attendance in court. An Act for the Investment of Monies belonging to Intestate Estates by the Supreme Court in the New South Wales Savings' Bank at Sydney, 1838 (1 Victoria Act No. 4) established formal deposit arrangements for the safekeeping of money in the custody of the Registrar of Intestate Estates. An issue in the early period of the Colony was beneficiaries being in the United Kingdom or elsewhere and outside the jurisdiction of the colonial courts. The English Law of Inheritance, passed in 1833 which was adopted in full in New South Wales as The Law of Inheritance, 1837 (7 William IV, Act No. 8), set down principles for the inheritance of real estate for those who died intestate. The Act was amended by the Trust Property Act, 1862 (26 Victoria, Act No. 12). and the Act as amended was re-enacted as the Inheritance Act, 1901 (Act No. 19, 1901). In 1839 the British Wills Act, 1837 (3 Victoria c. 5) was adopted as local legislation. This set down the necessary components of a will and criteria to assist the Court in determining the validity of a will. The Act was amended by the adoption in 1853 of the British Wills Amendment Act, [17 Victoria No. 5]. An Act for the Better Preservation and Management of the Estates of Deceased Persons in Certain Cases, 1847 [11 Victoria Act No. . 24] instituted the office of the Curator of Intestate Estates and enumerated and regulated his duties. Probate continued to be the responsibility of the Ecclesiastical Division of the Court until under the Equity and Banco Business Expediting Act, 1858 [22 Victoria Act No. 14] it became an equity matter. The Act failed to provide a substitute judge during the absence of the primary Judge in Equity and the Act was subsequently amended in 1883 to address this oversight. [46 Victoria c. 21]. The limitations of placing probate within the Ecclesiastical Jurisdiction continued to disadvantage beneficiaries because of its failure to cope with inheritance of real estate. In 1885 Sir William Manning began the long process of agitating for new and more appropriate probate legislation for the colony which was to culminate in the Probate Act, 1890 (54 Vic. No. 25). The Ecclesiastic Division was abolished by the Probate Act, 1890 (54 Victoria c. 25) which established the Probate Division of the Supreme Court of New South Wales.