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The Probate Act, 1890 (54 Victoria No. 25) established the Probate Jurisdiction of the Supreme Court and introduced authority over the succession of real estate as well as personal property into the probate domain. A Probate Judge was appointed who could sit alone or with one or more fellow Supreme Court Judges if required. A Registrar of the Court was also appointed. The Act vested the real estate held by the testator with the executor from the time of death. Real estate and personal estate became the assets of the estate and if necessary could be sold to meet costs or debts due from the estate. The Act allowed for a central place of deposit for wills for which probate is complete. The estate of intestate persons was vested in the Chief Justice of New South Wales. Under the Act solicitors had the right to appear before the Judge in Probate hearings. The Act also covered rules relating to debts of the deceased, the functions of executors, the duties and responsibilities of the Curator of Intestate Estates. The procedures in the Probate Jurisdiction of the Supreme Court, set by the Act brought the Court into conformity with the Equity Jurisdiction. Rules of Court affecting the jurisdiction were made on 17 March 1892 to regulate professional costs.
The Act was amended by the Act to Amend the Probate Act, 1893 (56 Victoria, Act No. 30). The Act addressed the high cost of appearing in the Probate Court, and principally dealt with simplifying the procedures related to the probate on small estates testate or intestate including enabling District Courts to act as agents for the Registrar in Probate.
The Wills, Probate and Administration Act, 1898 (Act No. 13, 1898) amended the Probate Act, 1890 and several other relevant acts and continued in force with little amendment well into the 20th century. The Act dealt with matters arising from intestacies including cases where -
a) the testator has no direct heirs
b) the executors named renounce probate
c) there is no application for probate within three months of death and the estate is likely to waste and executors or next of kin cannot be found
d) is outside the jurisdiction or applies to the curator to manage the estate
e) delay in administering the estate will cause expense
f) the testator has appointed the Curator to act
The Curator in these cases had all the rights of an executor or relative of the deceased appointed in the Will.
The Curator could also be called upon to administer, manage and discharge the debts and liabilities of any person presumed dead and either intestate or whose will could not be located. In this case the Curator was required to await a Court Order prior to distribution of the estate. This followed newspaper advertisements in the vicinity of the person's residence and if relevant, in the country where the person's next of kin lived. Real estate and other property could be sold after a reasonable time to find the beneficiaries had elapsed, and money was invested in the Suitors' Fund or as directed by the Colonial Treasurer. The Curator and his staff were not personally liable for any decisions and actions taken in conjunction with administering estates. The Supreme Court was enabled to rule for the return of money subsequently claimed by rightful beneficiaries.
The Administration Amending Act, 1906 (Act No. 14) 1906 authorised Judges to delegate to the Registrar the granting of all probates and letters of administration in uncontentious cases, the passing of accounts, and some related matters.
The Wills, Probate and Administration (Amendment Act), 1932 (Act No. 49, 1932) amended the Wills, Probate and Administration Act, 1898, subsequent and related acts, although it dealt in some detail with the presumption of death and the situation which arose if a person was found to be living after probate had been processed.
The Supreme Court Act [Act No 52, 1970] altered the name of the Probate Jurisdiction to the Probate Division. The Probate Judge (or another Judge nominated by the Chief Justice) heard cases within the Division. The business of the Probate Division is divided into contentious and non-contentious proceedings: the former conducted by the Probate Judge, other Judges of the Equity Division, Masters and the Registrar; the latter by the Registrar in Probate and four Deputy Registrars. The matters, which are dealt with by the Probate Judge and other Judges, include -
a) applications for grant of probate in solemn form
b) applications for other grants
c) contested caveat proceedings
d) contested revocation proceedings
e) applications for rectification of wills
f) proceedings to remove an executor or administrator
g) applications for judicial advice
h) matters referred to the Court by the Registrar
I) declarations pursuant to s18A of the Act in respect of informal documents
The Masters of the Court are also empowered to deal with certain matters including some proceedings relating to caveats and applications pursuant to sections 13, 15A and 84 of the Act.
The matters that are dealt with by the Registrar in Probate include -
a) making grants in respect of non-contentious proceedings (including on presumption of death and giving leave to distribute the estate)
b) declarations pursuant to s18A of the Act in respect of informal testamentary documents
c) granting of leave to creditors to proceed
d) orders that caveats in respect of informal testamentary documents cease to be in force
e) declarations pursuant to sections 13, 15A and 29A of the Act
f) orders to produce an instrument purporting to be testamentary declarations of paternity pursuant to the Children (Equality of Status) Act, (Act No. 97) 1976
g) passing of accounts
h) allowing of commission or percentage
I) assigning guardians of minors
j) appointing tutors of disable persons
k) barring of any claims against an estate
l) withdrawal of caveats
m) revocation or rescission of grants in uncontested proceedings
n) settling and issuing citations
o) moderating bills of costs
p) exercising the powers of the Court in any matter referred by the Court
These are assigned to the Probate Division proceedings in the Court under specific Acts including - Family Provision Act, (Act No. 160) 1982 and the Trustee Companies Act, 1964 (Act No 6, 1964)
FOOTNOTES
1. In Votes and Proceedings of the NSW Legislative Assembly, 1894, Vol. 2, p. 621.
REFERENCES
J.M. Bennett A History of the Supreme Court of New South Wales. Sydney, The Law Book Company Ltd, 1974 Chapter 8
Robert Geddes, Charles Rowland and Paul Studdert Wills, Probate and Administration Law in NSW. Sydney, Law Book Company Information Services, 1996. Pp 16-19
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