Administration and Probate Act 1958 (Vic)

Version No. 130

Administration and Probate Act 1958

No. 6191 of 1958

Version incorporating amendments as at

22 October 2025

TABLE OF PROVISIONS

Section  Page

1Short title and commencement

3Definitions

4Application of Act

Part I—General

Division 1—Interpretation

5Definitions

Division 1A—Deposit of wills with registrar

5AWill may be deposited with registrar

5BPower to prescribe fees

5CDelivery of wills by registrar

Division 2—Grants of probate and administration

6Jurisdiction of Court to grant probate etc.

7Grant of probate etc. on evidence or presumption of death

8Grant on presumption of death

9Revocation of probate etc. of person living at date of grant

10Effect of revocation

12Grants of probate and administration by registrar

Division 3—Devolution of real estate etc.

13Real estate to vest in executors and administrators

14Rights and duties of executor or administrator with respect to real estate

Division 4—Executors and administrators

Subdivision 1—General provisions

15Executor etc. neglects to prove, renounce or bring in the will

16Cesser of right of executor to prove

17Executor of executor represents original testator

18Right of proving executors to exercise powers

19Estate of intestate to vest in State Trustees between death and grant of administration

20Power to grant representation of estate separately or together

21Executor not to act while administration is in force

22Administration pending litigation

23Continuance of legal proceedings after revocation of temporary administration

24Grant of administration where personal representative is abroad

24AUncared for property

25Administration with will annexed

26Administration during minority of executor

27Rights and liabilities of administrator

Subdivision 2—Duties rights and obligations

28Duty of personal representative as to inventory and accounts

29Effect of death on certain causes of action

30Executors or administrators may serve notice on claimant

30AState Trustees' power to make distribution after notice of refusal

30CState Trustees' power to pay balance if deceased had property in and outside Victoria

30DSupreme Court—limitation of jurisdiction

30ETransitional for certain State Trustees powers

31Protection of persons acting on probate or administration

31AProtection of payments or transfers of property without requiring the production of a grant of representation

31BThreshold amount

31CLiability of person fraudulently obtaining or retaining estate of deceased

31DPersons liable for the waste or conversion of a deceased's estate

Subdivision 3—Discharge and removal of executors and administrators and new appointments

34Discharge or removal of executor or administrator

34AApplication for administration of estate administered by a creditor

35Court may assign bond and remove administrator

Division 5—Administration of assets

36Creditors to stand in equal degree

37Estate of deceased assets for payment of debts

39Insolvent estates—payment of debts

39ASolvent estates—payment of debts

39BSolvent estates—pecuniary legacies

40Charges on property of deceased to be paid primarily out of the property charged

41Effect of assent or conveyance by personal representative

42Validity of conveyance not affected by revocation of representation

43Right to follow property etc.

44Powers of management

45Powers of personal representative for raising money etc.

46Powers of personal representative as to appropriation

47Power to appoint trustees of minor's property

48Obligations of personal representative to give possession

49Power to postpone distribution

50Court powers where exception to ademption causes unjust advantage or unjust disadvantage

51Beneficiary entitled to traceable income from sale of adeemed assets

54Payment of distributive shares of infant children

56Reference to Statutes of Distributions

Division 7—Practice procedure offences etc.

Subdivision 1—Administration bonds

57Administration guarantees

Subdivision 2—Caveats

58Caveat may be lodged

Subdivision 3—Commission to executors administrators and trustees of deceased persons

65Executors' etc. commission

65AReduction of excessive commission or fees

65BBenefits to executor under remuneration clause

65CConsent to executor's remuneration by interested beneficiaries

65DInformation to be provided by an executor to interested beneficiaries

65EExecutor may elect to charge fees instead of commission

Subdivision 4—Concealment of wills

66Concealment of will a misdemeanour

Subdivision 5—General practice rules

67Practice in probate jurisdiction

Division 8—General saving provisions

69Act not to affect certain cases

70Right to take action by purchase

Part IA—Intestacy

Division 1—Application and definitions

70AApplication of this Part

70BDefinitions for this Part

70CSurvivor requirements

70DEntitlement to distribution from estate in more than one capacity

70ERights of creditors not affected

70FDate of valuation

70GInter vivos gifts do not affect entitlements

Division 2—Trust for sale of intestate's  property

70HTrust for sale of intestate's estate

70IInvestment of estate pending distribution

Division 3—Distribution if intestate  leaves a partner

70JDistribution if intestate leaves a partner and no child or other issue

70KDistribution if intestate leaves partner and issue of that partner

70LDistribution if intestate leaves partner and child or issue not the child or issue of that partner

70MAmount of partner's statutory legacy

70NMinister to publish notice of amount of partner's statutory legacy in Government Gazette

Division 4—Partner's rights as to estate  property by election

70OApplication of this Division

70PPartner may make partner's property election to acquire intestate's interest in property of estate

70QPartner to be given right to elect notice

70RTime for making partner's property election

70SHow partner's property election is made

70TRevocation of partner's property election

70UCourt may make acquisition authorisation order if election applies to estate property which is part of larger aggregate

70VValuation of property which is subject of election

70WHow price of property to be satisfied and effect on residuary estate

70XTiming of transfer to partner

70YRestriction on disposal of property from intestate's estate

Division 5—Distribution if intestate  leaves multiple partners

70ZDistribution if intestate leaves more than one partner and no issue

70ZADistribution if intestate leaves more than one partner and child or issue of one or more of those partners

70ZBDistribution if intestate leaves more than one partner and child or issue not the child or issue of one or more of those partners

70ZCDistribution agreement for sharing between more than one partner

70ZDDistribution orders

70ZEDistribution between multiple partners in equal shares

Division 6—Distribution if intestate  leaves no partners

70ZFApplication of Division

70ZGDistribution to children

70ZHDistribution to parents

70ZIDistribution to siblings

70ZJDistribution to grandparents

70ZKDistribution to aunts and uncles or to cousins by representation

70ZLCrown to take estate if no person entitled

Part II—Small estates

71Aid of registrar or clerk in procuring grant of probate etc.

72Registrar of probates may issue probate or administration if satisfied of certain matters

73Registrar may require proof of identity

74Satisfaction as to value

75Registrars may exercise certain powers

76Applicants residing within 32 kilometres of Melbourne

77Registrar of probates may require further materials

78Registrar of probates need not proceed in difficult cases

79Administration of small estates

Part III—Recognition of foreign grants

80Definitions

81Probates and administrations granted in United Kingdom

82Caveat may be lodged

83Intention to apply for seal of Court to be advertised

84Re-sealing of foreign grants

85Executor or administrator of estate of deceased person

86Administrator under power of attorney

87Scots confirmation

88Application of this Part to certain other countries

Part IV—Family provision

90Definitions

90AEligible person may apply for family provision order

91Court may make family provision order

91AFactors to be considered in making family provision order

93Service of notice of application

94Powers of Court

96Powers of Court in making orders

97Contents of family provision order

98Adjustment of probate duty

99Time within which application may be made

99AProtection of personal representative against certain claims

Part IVA—Transitional

99AATransitional provision—Wills Act 1997

99ABFurther transitional provision—Wills Act 1997

99ACTransitional provision—Administration and Probate (Dust Diseases) Act 2000

100Transitional provision—Statute Law Amendment (Relationships) Act 2001

101Transitional provision—family provision—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

102Transitional provision—payment of debts—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

103Transitional provision—small estates—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

104Power to resolve transitional difficulties in proceeding—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

106Transitional provisions—Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017

107Power to resolve transitional difficulties in proceeding—Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017

Schedules

First Schedule—Dust-related conditions

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 130

Administration and Probate Act 1958

No. 6191 of 1958

Version incorporating amendments as at

22 October 2025

An Act to consolidate the Law relating to the Administration of the Estates of Deceased Persons.

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):

1Short title and commencement

This Act may be cited as the Administration and Probate Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

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3Definitions

(1)In this Act unless inconsistent with the context or subject-matter—

aunt or uncle means a sibling of a deceased person's parent;

Court means the Supreme Court of Victoria;

cousin means a child of a deceased person's aunt or uncle;

domestic partner of a person who dies means a registered domestic partner or an unregistered domestic partner of that person;

dust-related condition means—

(a)a disease specified in the First Schedule; or

(b)any other pathological condition of the lungs, pleura, peritoneum or sinus that is attributable to dust;

interested beneficiary means a beneficiary of an estate whose entitlement to part of the residuary estate may be affected by the deduction of executor's remuneration from the estate;

intestate includes a person who leaves a will but dies intestate as to some beneficial interest in that person's real or personal estate;

legacy interest rate means the rate that lies 2 per cent above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue;

legal practitioner means an Australian legal practitioner;

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parent of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident;

Part means Part of this Act;

partner of a person who dies, other than in Part IA, means the person's spouse or domestic partner;

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registered caring partner of a person who dies means a person who, at the time of the person's death, was in a registered caring relationship with the person within the meaning of the Relationships Act 2008;

registered domestic partner of a person who dies means a person who, at the time of the person's death, was in a registered domestic relationship with the person within the meaning of the Relationships Act 2008;

registrar means the registrar of probates appointed pursuant to the Supreme Court Act 1986 and includes an assistant registrar of probates;

remuneration clause means a clause in a will that provides for remuneration of, or a commission or fees to be paid to, an executor for executorial services;

residuary estate of an intestate means the residue of the intestate's real and personal estate, including—

(a)the money and any investments representing the money arising from any sale or conversion of the estate under section 70H; and

(b)any part of the estate of the intestate which—

(i)may be retained unsold; and

(ii)is not required for the administration purposes of the estate, for the payment of any amount specified in section 70H(4)(a) or for the setting aside of any fund under section 70H(4)(b);

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spouse of a person who dies means a person who was married to the person at the time of the person's death;

State Trustees means State Trustees Limited (A.C.N. 064 593 148);

the Rules means the Rules of Court made by the Judges of the Court whether made under powers conferred under this Act or otherwise.

unregistered domestic partner of a person who dies means a person (other than a registered domestic partner of the person) who, although not married to the person—

(a)was living with the person at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and

(b)either—

(i)had lived with the person in that manner continuously for a period of at least 2 years immediately before the person's death; or

(ii)is the parent of a child of the person, being a child who was under 18 years of age at the time of the person's death.

(2)In this Act, if the context requires—

(a)a reference to the granting of probate or administration is to be construed as a reference to the making of an order granting probate or administration; and

(b)a reference to a grant is to be construed as a reference to an order for a grant; and

(c)a reference to probate is to be construed as a reference to an order for a grant of probate; and

(d)a reference to administration is to be construed as a reference to an order granting letters of administration.

(3)For the purposes of the definition of unregistered domestic partner in subsection (1), in determining whether persons were unregistered domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

4Application of Act

(1)Save as otherwise expressly provided and subject to the operation of the next succeeding subsection this Act applies to and with respect to persons and the estates of persons dying before on or after the commencement of this Act.

(2)Where an enactment repealed by this Act provides that any statutory provision specified therein or any rule of law statutory or otherwise shall, with or without modification, apply to or with respect to or in respect of or have force and effect with 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.

PART I—GENERAL

Division 1—Interpretation

5Definitions

(1)In this Part and Part IA unless inconsistent with the context or subject-matter—

administration means with reference to the estate of a deceased person letters of administration whether general special or limited or with the will annexed or otherwise;

administrator means a person to whom administration is granted;

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;

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licensed trustee company has the same meaning as in section 601RAA of the Corporations Act;

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pecuniary legacy means a gift of a sum of money in a will and includes—

(a)an annuity; and

Example

X's will gives $1000 to A every year for the next 10 years.

(b)a general legacy which is a gift by will payable out of the deceased's general estate and not attached to a specific asset or fund belonging to the deceased; and

Example

X's will gives $1000 to A.

(c)a demonstrative legacy which is a gift by will directed to be paid out of a specific fund or a particular part of the deceased's estate, to the extent that it cannot be paid out of the specific property on which it is charged; and

Example

X's will gives $10 000 to A from X's bank account at the Bank of Y and provides that if this bank account is inadequate to satisfy the legacy or does not exist at the time of X's death, then $10 000 may be paid to A out of X's general estate.

(d)any other general direction by a testator for the payment of an amount, including all duties relating to the estate or property;

Example

A general direction includes if a legacy is directed to be paid free of all duties, the payment of any duties to which the legacy is subject.

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;

purchaser means a lessee mortgagee or other person 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 means the probate of a will and administration;

rent includes a rent service or a rent charge or other 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;

State Trustees has the same meaning as in the State Trustees (State Owned Company) Act 1994;

trustee company means—

(a)a licensed trustee company; or

(b)State Trustees;

trust for sale in relation to land means an immediate 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;

willincludes codicil and every other testamentary 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 1A—Deposit of wills with registrar

5AWill may be deposited with registrar

(1)Any person may deposit a will in the office of the registrar.

(2)Any will deposited in the office of the registrar must be in a sealed envelope which has written on it—

(a)the testator's name and address (as they appear in the will); and

(b)the name and address (as they appear in the will) of any executor; and

(c)the date of the will; and

(d)the name of the person depositing the will—

and must be accompanied by the prescribed fee.

(3)No fee is payable in respect of any will deposited with the registrar if the deposit is made because a legal practitioner has died, or has ceased, or is about to cease, practising in Victoria.

5BPower to prescribe fees

(1)The Governor in Council may make regulations for or with respect to prescribing fees for the purposes of this Division.

(2)Regulations made under subsection (1)—

(a)may prescribe fees in respect of a particular class or classes of wills or will makers; and

(b)may prescribe different fees in respect of different classes of wills or will makers; and

(c)may authorise the registrar to waive fees in particular cases or classes of cases.

5CDelivery of wills by registrar

(1)Upon receiving an application in writing and the prescribed fees, the registrar may give any will deposited with the registrar—

(a)to the testator; or

(b)to a legal practitioner or trustee company nominated by the testator; or

(c)upon the death of the testator—

(i)to any executor named in the will or any legal practitioner or trustee company nominated by an executor; or

(ii)to any person entitled to apply for letters of administration with the will annexed or a legal practitioner nominated by that person.

(2)The registrar may examine any will to enable the registrar to comply with this Division.

(3)The registrar must ensure that an accurate copy of every will given to a person under subsection (1) is made and retained.

(4)If there is any doubt as to whom a will should be given, the registrar, or any other person, may apply to the Court for directions as to whom the registrar should give the will.

(5)The registrar may transfer any will that has been held by the registrar for more than 70 years to the Keeper of Public Records for preservation in accordance with section 7 of the Public Records Act 1973 and the provisions of this section continue to apply to the will.

(6)For the purposes of subsection (5), wills held by the Registrar-General are deemed to have been held by the registrar.

Division 2—Grants of probate and administration

6Jurisdiction of Court to grant probate etc.

The Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property whether real or personal within Victoria.

7Grant of probate etc. on evidence or presumption of death

(1)Where the Court is satisfied, whether by direct evidence or on presumption of death, that any person has died leaving property whether real or personal in Victoria, the Court shall have and shall at all times be deemed to have had jurisdiction 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.

(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.

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8Grant on presumption of death

If a grant is made on presumption of death—

(a)the grant shall be expressed to be made on presumption of death only;

(b)the estate shall not be distributed 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 ten or of subsection (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;

(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;

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9Revocation of probate etc. of person living at date of grant

(1)Where the Court grants probate of the will or administration of the estate of any person, and it subsequently appears that he was living at the date of the grant, the Court shall revoke the grant on such terms, if any, with respect to any proceedings commenced by or against the personal representative, and in respect of costs and otherwise, as the 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.

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10Effect of revocation

If a grant is revoked under the last preceding section of this Act—

(a)the personal representative under the revoked grant 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 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 Fund (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;

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12Grants of probate and administration by registrar

(1)Subject to the provisions of this section the registrar may, on application made to him supported by affidavits upon which in his opinion the Court would grant probate or administration, make a grant of probate or administration by signing his order for such grant and sealing it with the seal of the Court.

(1A)The registrar may make a grant of probate or administration, other than in the manner set out in subsection (1), by authenticating the order for the grant in a manner prescribed by the Rules.

(2)The registrar shall not without an order of the Court grant probate or administration—

(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 authenticated 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 or authenticated in a manner prescribed by the Rules—

and every grant of probate or administration, if made by the Court, shall be issued by the registrar in the name and under the seal of the Court and, if made by the registrar, shall be issued by the registrar in the name and under the seal of the Court or authenticated in a manner prescribed by the Rules.

Division 3—Devolution of real estate etc.

13Real estate to vest in executors and administrators

(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 will or operates under the testamentary power conferred by statute to dispose of an entailed interest; and

(b)every estate pur autre vie which such person could if of full age and capacity have disposed of by his will.

14Rights and duties of executor or administrator with respect to real estate

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.

Division 4—Executors and administrators

Subdivision 1—General provisions

15Executor etc. neglects to prove, renounce or bring in the will

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 State Trustees or any creditor of the testator may apply to the Court for an order 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 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.'

16Cesser of right of executor to prove

(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

(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 notwithstanding anything in the last preceding subsection 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 grant.

17Executor of executor represents original testator

(1)An executor of a sole or last surviving proving executor of a testator is the executor of that testator.

This provision shall not apply to an executor who does not prove the will of his testator, and, in the case of an executor who on 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.

18Right of proving executors to exercise powers

Where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the others or other to prove, all the powers which are by law conferred on the personal representative may be exercised by the proving executor or executors for the time being and shall be as effectual as if all the persons named as executors had concurred therein.

19Estate of intestate to vest in State Trustees between death and grant of administration

Where a person dies intestate his estate until administration is granted in respect thereof shall vest in the State Trustees in the same manner and to the same extent as formerly in the case of personal estate in England it vested in the Ordinary.

20Power to grant representation of estate separately or together

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 estate 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.

21Executor not to act while administration is in force

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 proceeding 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.

22Administration pending litigation

(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.

23Continuance of legal proceedings after revocation of temporary administration

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.

24Grant of administration where personal representative is abroad

(1)If at the expiration of twelve months from the death of a person any personal representative of the deceased to whom a grant has been made is residing out of the jurisdiction of the Court the Court may on the application of any creditor or person interested in the estate of the deceased grant to him special 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 administrator 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 subsection court means any court having jurisdiction in relation to such proceedings.

24AUncared for property

(1)This section applies if—

(a)the owner of any property in Victoria is absent from Victoria and has no agent or attorney in Victoria with authority to take possession of and administer the property; or

(b)it is not known who the owner of any property in Victoria is; or

(c)it is not known where the owner of any property in Victoria is; or

(d)it is not known whether the owner of any property in Victoria is alive or dead; or

(e)the owner of any property in Victoria is dead and has left executors or administrators and it is not known where they are.

(2)If a trustee company applies for an order and the Court is satisfied that it is in the interests of the owner of the property or of any other person, the Court may make an order on any terms and conditions it thinks fit authorising the trustee company to do any act, matter or thing in relation to the property or affairs of the owner of the property as is specified in the order.

25Administration with will annexed

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.

26Administration during minority of executor

(1)Where a minor 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 minor attains the age of eighteen years and on his attaining that age and not before probate of the will may be granted to him.

(2)The appointment in a will by a testator of a minor to be an executor shall not operate to transfer any interest in the property of the deceased to the minor or to constitute him a personal representative for any purpose unless and until probate is granted to him under this section.

27Rights and liabilities of administrator

Every person to whom administration of the estate of a deceased person is granted shall subject to the limitations contained in the grant have the same rights and liabilities and be accountable in like manner as if he were the executor of the deceased.

Subdivision 2—Duties rights and obligations

28Duty of personal representative as to inventory and accounts

(1)The personal representative of a deceased person shall when lawfully required so to do exhibit on oath or by affirmation 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 subsection 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 registrar 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 registrar ordered by the Court so to do after the expiration of the said fifteen months deposit in the office of the registrar such accounts verified by him by affidavit as the Court thinks fit.

29Effect of death on certain causes of action

(1)Subject to the provisions of this section, on the death of any person, 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 subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other.

(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, except as provided in subsection (2A), 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;

(iii)shall be calculated without reference to the future probable earnings of the deceased had he survived and without any allowance for the loss of his earning capacity that relates to any period after his death.

(2A)Where—

(a)a cause of action survives under subsection (1) for the benefit of the estate of a deceased person; and

(b)the death of that person is from a dust-related condition which has been caused by the act or omission which gives rise to the cause of action; and

(c)proceedings in respect of that cause of action were commenced by that person before his or her death and were pending at his or her death—

the damages recoverable for the benefit of the estate of that person shall include damages for all or any of the following—

(d)that person's pain or suffering;

(e)any bodily or mental harm suffered by that person;

(f)the curtailment of that person's expectation of life.

(3)Where a cause of action in tort survives against the estate of a deceased person pursuant to the provisions of subsection (1) of this section no proceedings in respect of the cause of action may be maintained against the estate of the deceased person except proceedings—

(a)that were commenced against the deceased before his death and were pending and not barred at the date of his death;

(b)that are commenced against his personal representative after his death—

(i)within the period within which those proceedings might have been commenced against him had he lived; or

(ii)where the proceedings are proceedings for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) and the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person, within such longer period as a court, on application made to it by the claimant and after hearing such of the persons likely to be affected by that application as it sees fit and subject to subsection (3A), decides is just and reasonable;

(c)that were not barred at the date of his death and are commenced against his personal representative within six months after his personal representative takes out representation.

(3A)In exercising the powers conferred on it by subparagraph (b)(ii) of subsection (3) the court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following:

(a)The date when the claimant first knew that the deceased had died;

(b)The date when the claimant first knew he had a cause of action against the deceased;

(c)The date when the claimant first knew that the personal representative of the deceased had taken out representation; and

(d)Any prejudice which may be caused to the personal representative or any other person by extension of the said time.

(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 subsection (1) of this section.

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30Executors or administrators may serve notice on claimant

(1)A personal representative, having notice, whether under the provisions of section thirty-three of the Trustee Act 1958 or otherwise, that any claim has been or may be made against the estate of which he is the personal representative, may serve upon 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 apply to the Court for an order to some such effect as hereinafter in this section mentioned.

(3)Upon the hearing of such application the Court, 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 seems just.

30AState Trustees' power to make distribution after notice of refusal

(1)If State Trustees refuses to recognise in whole or in part the claim of any person against the estate of any deceased person, State Trustees must serve a notice of the refusal specifying that proceedings to enforce the claim must be instituted within 3 months of the notice being served on the person by registered post to the person's last known address.

(2)If the person does not institute proceedings to enforce the claim within 3 months of being served with the notice of refusal State Trustees may distribute the assets of the deceased person without regard to the claim specified in the notice of refusal.

(3)After the distribution is made the right of the person to recover the claim specified in the notice of refusal is absolutely barred.

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30CState Trustees' power to pay balance if deceased had property in and outside Victoria

(1)In this section—

place outside Victoria means—

(a)another State or a Territory; or

(b)New Zealand; or

(c)any other country with which State Trustees has a reciprocity agreement;

proper officer means any officer in a place outside Victoria discharging duties corresponding to those discharged by State Trustees in Victoria.

(2)If State Trustees has been granted probate of the will or administration of the estate in Victoria of any person—

(a)who was at the time of his or her death domiciled in a place outside Victoria; and

(b)whose estate in the place outside Victoria is being administered by a proper officer—

State Trustees may pay or cause to be paid to the proper officer the balance of the estate after the payment of creditors and the fees and charges which State Trustees is entitled or required to deduct without seeing to the application of the balance and without incurring any liability in regard to the payment to the proper officer.

(3)If State Trustees has been granted probate of the will or administration of the estate in Victoria of any person—

(a)who was at the time of his or her death domiciled in Victoria; and

(b)whose estate in a place outside Victoria is being administered by a proper officer—

State Trustees may receive from the proper officer the balance of the estate in the place outside Victoria after the payment of creditors and the fees and charges provided for under the law of that place.

(4)Any balance received under subsection (3) forms part of the estate of the deceased to be dealt with according to the law of Victoria.

30DSupreme Court—limitation of jurisdiction

It is the intention of this section to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court entertaining claims in the circumstances described in section 30A(3) of this Act.

30ETransitional for certain State Trustees powers

Despite the repeal of section 30B, that section as in force immediately before the commencement of section 6 of the State Trustees (Amendment) Act 1998 continues to apply to State Trustees in respect of any action taken by State Trustees in accordance with that section before that commencement.

31Protection of persons acting on probate or administration

(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.

31AProtection of payments or transfers of property without requiring the production of a grant of representation

(1)A person who holds money or personal property for a deceased person of not more than the threshold amount may pay or transfer the money or the personal property without requiring the production of a grant of representation to any of the following persons who have legal capacity and who appear to be entitled to the money or personal property—

(a)the surviving spouse or domestic partner of the deceased;

(b)a child of the deceased;

(c)any other person.

(2)For the purposes of subsection (1), the threshold amount is the greater of—

(a)$25 000; or

(b)if an amount is calculated in accordance with section 31B, that amount.

(3)A payment of money or transfer of personal property which is made under subsection (1) and in good faith is a complete discharge of all liability in relation to the person who is paying or transferring the money or personal property.

(4)A receipt signed by a person aged 16 years and over who receives a payment or transfer of money or property made in good faith under subsection (1) is a complete discharge of all liability in relation to the person who paid or transferred the money or personal property.

(5)Nothing in this section affects or prejudices the rights of any person who has a claim to or against a deceased person's estate to enforce a remedy against a person to whom a payment or transfer has been made under subsection (1).

31BThreshold amount

(1)From 1 July 2015 and for each subsequent financial year, the threshold amount must be calculated in accordance with the following formula—

A ×

where—

Ais—

(a)$25 000; or

(b)if an amount has been calculated in accordance with this formula and that amount is greater than $25 000, the amount as last calculated;

Bis the all groups consumer price index for Melbourne in original terms for the most recent reference period in the preceding calendar year most recently published by the Australian Bureau of Statistics as at 15 June immediately preceding the date on which the variation is made;

Cis the all groups consumer price index for Melbourne in original terms for the corresponding reference period one year earlier than the reference period referred to in B published by the Australian Bureau of Statistics as at 15 June immediately preceding the date on which the variation is made.

(2)If the threshold amount has been calculated under subsection (1) and—

(a)the threshold amount is reduced, the reduced amount does not take effect, except for the purpose of the application of the formula under this section in the following year; or

(b)if, in the next or subsequent financial year the threshold is increased following a reduction referred to in paragraph (a), that amount has effect as an increase only to the extent (if any) that—

(i)the amount of the increase exceeds the amount of the reduction in the previous financial year; or

(ii)part of the reduction has not been set off against a previous increase.

(3)For the purpose of calculating the threshold amount in accordance with the formula under this section—

(a)if the amount of the variation is less than $1000, it must be rounded to the nearest whole $1; and

(b)if the amount of the variation is $1000 or more, it must be rounded to the nearest whole $10.

(4)On or before 1 July 2015 and on or before 1 July in each succeeding financial year, the Minister by order published in the Government Gazette, must declare the threshold amount that applies for the purposes of section 31A(2) as from the date specified in the order.

31CLiability of person fraudulently obtaining or retaining estate of deceased

(1)Subject to subsection (3), this section applies to a person—

(a)who does not hold a grant of representation of a deceased person's estate; and

(b)who fraudulently or without full and valuable consideration—

(i)obtains, receives or holds the estate or any part of the deceased's estate; or

(ii)effects the release of any debt or liability payable to the estate.

(2)A person to whom this section applies is liable to account for the estate's assets to the extent of—

(a)the estate obtained, received or held by the person; or

(b)the debt or liability released.

(3)The liability of a person under this section is reduced to the extent of any payment made by the person which may be made by a personal representative who has a grant of representation of the estate.

31DPersons liable for the waste or conversion of a deceased's estate

(1)If a personal representative wastes or converts any part of a deceased person's estate for private use and then dies, the personal representative of that deceased personal representative is liable and chargeable in respect of the waste or conversion in the same manner as the deceased personal representative would have been if that person had been alive.

(2)The liability of the personal representative of a deceased personal representative under this section is limited to the extent of the available assets of the deceased personal representative.

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Subdivision 3—Discharge and removal of executors and administrators and new appointments

34Discharge or removal of executor or administrator

(1)Notwithstanding anything contained in any Act where an executor or administrator to whom probate or administration has been granted whether before or after the 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—

the Court upon application in accordance with the Rules of Court may order the discharge or removal of such an executor or administrator and also if the Court thinks fit 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 Court 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 Court thinks fit.

(2)Notice of such application may be served if the Court thinks it necessary upon such persons as it 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.

34AApplication for administration of estate administered by a creditor

(1)If a grant of administration of the property or estate of a deceased person has been granted to a creditor, a trustee company or any other person interested in the estate may apply to the Court for the removal of the creditor and the appointment of the trustee company or another person instead.

(2)An application under subsection (1) must be supported by an affidavit stating why it would be beneficial to any person interested in the estate that the creditor be removed and the trustee company or another person be appointed.

(3)If a grant of administration of the property or estate of a deceased person has been granted to a creditor and the creditor has any property in his or her hands for at least 12 months after payment of creditors or for at least 3 years after the grant of administration (whether creditors have been paid or not), a trustee company or any other person interested in the estate may apply to the Court for the removal of the creditor and the appointment of the trustee company or another person instead.

(4)On being satisfied that a creditor should be removed under this section, the Court may order the removal of such creditor from the position of administrator and appoint the trustee company or another person named in the order administrator in place of the creditor so removed on such terms and conditions as the Court thinks fit and may make all necessary orders for vesting the estate in the new administrator and as to accounts and such order for costs as the Court thinks fit.

(5)Upon the appointment of a new administrator under subsection (4), the provisions in section 34(3) and (4) apply so far as appropriate as if repeated in this section.

35Court may assign bond and remove administrator

(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—

(a)may order the registrar to assign the administration bond to a trustee company or any other person named in the order; and

(b)may if the Court thinks fit remove such creditor from the position of administrator and appoint a trustee company or any other person to be named in the order administrator in place of the administrator so removed upon such terms and conditions as the Court 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 Court thinks fit.

(2)Upon an appointment under paragraph (b) of the last preceding subsection, the provisions of section 34(3) and (4) shall so far as appropriate apply as if repeated in this section.

Division 5—Administration of assets

36Creditors to stand in equal degree

(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.

37Estate of deceased assets for payment of debts[2]

The real and personal estate, whether legal or equitable, of a deceased person, to the extent of his beneficial interest therein, and the real and personal estate of which a deceased person in pursuance of any general power (including the statutory power to dispose of entailed interests) disposes by his will, shall be assets for payment 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.

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39Insolvent estates—payment of debts

(1)This section applies to the administration of a deceased person's estate if the estate—

(a)is insufficient to pay its debts and liabilities in full; and

(b)is not being administered under the Bankruptcy Act 1966 of the Commonwealth.

(2)Subject to subsection (4) and anything to the contrary in this Act, the administration of an estate to which this section applies must be conducted in accordance with the bankruptcy rules as in force at the date of death of the deceased.

(3)The bankruptcy rules apply in relation to the following—

(a)the rights of secured and unsecured creditors against the deceased's estate;

(b)the debts and liabilities provable against the deceased's estate;

(c)the valuation of annuities and future and contingent liabilities of the deceased's estate;

(d)the priorities of debts and liabilities of the deceased's estate.

(4)Despite anything to the contrary in the bankruptcy rules, a demand, in relation to which proceedings are maintainable against the deceased's estate, is provable against the estate despite being a demand in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust.

(5)For the purpose of applying the bankruptcy rules, a reference in the Bankruptcy Act 1996 of the Commonwealth or regulations made under that Act—

(a)to the date of an order for administration under Part XI of that Act is taken to be a reference to the date of the deceased's death; and

(b)to the date on which an administration under Part XI of that Act is deemed to have commenced under that Part is taken to be a reference to the date of the deceased's death; and

(c)to the Court is taken to be a reference to the Supreme Court.

(6)In this section—

bankruptcy rules means the provisions of the Bankruptcy Act 1966 of the Commonwealth and regulations made under that Act applying in relation to the administration of estates of deceased persons in bankruptcy.

39ASolvent estates—payment of debts

(1)This section applies if the estate of a deceased person is sufficient to pay its debts and liabilities in full.

(2)Subject to any contrary intention appearing in the deceased's will and in accordance with the Rules, the real and personal estate of the deceased must be applied towards the discharge of the deceased's funeral, testamentary and administration expenses, debts and liabilities in the following order—

(a)from property specifically appropriated, devised, bequeathed, directed to be sold (either by a specific or general description) or subject to a charge for the payment of a debt or liability of the estate;

(b)from property comprising the residuary estate and property in relation to which a disposition in the deceased's will operates as the exercise of a general power of appointment;

(c)from property specifically devised or bequeathed, including property specifically appointed under a general power of appointment and any legacy charged on the property devised, bequeathed or appointed.

(3)For the purpose of subsection (2)—

(a)property must be applied to the discharge of the estate's debts and liabilities rateably according to value; and

(b)if specific property is applied to the payment of a debt or liability of the estate and a legacy is charged on that property—

(i)the legacy and the property must be applied rateably according to the value of the property; and

(ii)the value of that property must be reduced by the amount of the legacy charged on it.

39BSolvent estates—pecuniary legacies

(1)Subject to subsection (2) and any contrary intention in the deceased's will, any pecuniary legacy must be paid out of—

(a)any property comprising the residuary estate; or

(b)any property in relation to which a disposition in the deceased's will operates as the exercise of a general power of appointment.

(2)If the property referred to in subsection (1) is insufficient to pay any pecuniary legacy, the pecuniary legacy must abate proportionately.

Example

X's will gives pecuniary legacies totalling $4000 to A, B and C. A is to receive $500, B is to receive $1500 and C is to receive $2000. X's available property has a value of $2000 and is insufficient to pay the pecuniary legacies.

If the pecuniary legacies must abate proportionally and only 50% of the value of the gifts is available to meet them, each gift must abate by 50%. As a result, A receives $250, B receives $750 and C receives $1000.

(3)A beneficiary entitled to a pecuniary legacy is entitled to interest on that legacy or any part of it that is not paid to the beneficiary within 12 months of the date of the deceased's death for the period that it remains unpaid calculated after that 12 month period at the legacy interest rate.

40Charges on property of deceased to be paid primarily out of the property charged

(1)Where a person dies possessed of or entitled to or under a general power of appointment (including the statutory power to dispose of entailed interests) and the will disposes of an interest in property which, at the time of the deceased's death is charged with the payment of money whether by way of mortgage charge or otherwise (including a lien for unpaid purchase money) and the deceased has not by will 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 out of the testator's personal estate, residuary real and personal estate or 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.

41Effect of assent or conveyance by personal representative

(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.

(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.

42Validity of conveyance not affected by revocation of representation

(1)All conveyances of any interest in real or personal estate made to a purchaser either before or after the commencement of this Act by a person to whom probate or letters of administration have been granted are valid notwithstanding any subsequent revocation or variation either before or after the commencement of this Act of the probate or administration.

(2)The Court must not make a family provision order under subsection (1) unless satisfied—

(a)that the person is an eligible person; and

(b)in the case of a person referred to in paragraphs (h) to (k) of the definition of eligible person, that the person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support; and

(c)that, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and

(d)that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by—

(i)the deceased's will (if any); or

(ii)the operation of Part IA; or

Note

Part IA contains the intestacy provisions.

(iii)both the will and the operation of Part IA.

(3)For the purposes of subsection (2)(b), the Court must disregard any means-tested government benefits that the eligible person has received or is eligible to receive.

(4)In determining the amount of provision to be made by a family provision order, if any, the Court must take into account—

(a)the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and

(b)the degree to which the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person; and

(c)in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support; and

(d)in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, the degree to which the eligible person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support at the time of the deceased's death.

(5)The amount of provision made by a family provision order—

(a)must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support; and

(b)in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, must be proportionate to the eligible person's degree of dependency on the deceased for the person's proper maintenance and support at the time of the deceased's death.

91AFactors to be considered in making family provision order

(1)In making a family provision order, the Court must have regard to—

(a)the deceased's will, if any; and

(b)any evidence of the deceased's reasons for making the dispositions in the deceased's will (if any); and

(c)any other evidence of the deceased's intentions in relation to providing for the eligible person.

(2)In making a family provision order, the Court may have regard to the following criteria—

(a)any family or other relationship between the deceased and the eligible person, including—

(i)the nature of the relationship; and

(ii)if relevant, the length of the relationship;

(b)any obligations or responsibilities of the deceased to—

(i)the eligible person; and

(ii)any other eligible person; and

(iii)the beneficiaries of the estate;

(c)the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;

(d)the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of—

(i)the eligible person; and

(ii)any other eligible person; and

(iii)any beneficiary of the estate;

(e)any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;

(f)the age of the eligible person;

(g)any contribution (not for adequate consideration) of the eligible person to—

(i)building up the estate; or

(ii)the welfare of the deceased or the deceased's family;

(h)any benefits previously given by the deceased to any eligible person or to any beneficiary;

(i)whether the eligible person was being maintained by the deceased before that deceased's death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;

(j)the liability of any other person to maintain the eligible person;

(k)the character and conduct of the eligible person or any other person;

(l)the effects a family provision order would have on the amounts received from the deceased's estate by other beneficiaries;

(m)any other matter the Court considers relevant.

*                *                *                *                *

93Service of notice of application

Notice of an application under section 91 must be served on the personal representative of the deceased and on such other persons as the Court orders.

94Powers of Court

At the hearing of such application the Court shall inquire fully into the estate of the deceased, 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 estate of the deceased; and

(c)accept any evidence of the deceased person's reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing.

*                *                *                *                *

96Powers of Court in making orders

*                *                *                *                *

(2)The Court may in making any order under this Part 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.

97Contents of family provision order

(1)Every family provision order making provision for any person shall specify (inter alia)—

(a)the amount and nature of the provision;

(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 deceased; and

(c)any conditions restrictions or limitations imposed by the Court.

(2)Unless the Court otherwise orders the burden of any such provision shall as between the person beneficially entitled to the estate of the deceased be borne by those persons in proportion to 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 subsection be separately valued but the 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.

(3)The Court shall in every case in which a family provision order is made under this Part direct that a certified copy of such order be attached to the probate of the will or letters of administration and for that purpose shall retain in its custody such probate or letters of administration until such copy is attached.

(4)Subject to this Part, a family provision order operates and takes effect—

(a)if the deceased dies leaving a will disposing of the whole or any part of the deceased's estate, as if the provision made by the family provision order had been made by the deceased by executing a codicil to that will immediately before the deceased's death; or

(b)if the deceased dies without leaving a will—

(i)as a modification of Part IA in respect of so much of the deceased's estate as is affected by the family provision order; and

(ii)as if the provision made by the family provision order had been made by the deceased in the deceased's will.

(5)The Court may at any time and from time to time on the application 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 family provision order.

(5A)Notice of an application under subsection (5) must be served on all persons taking any benefit under the family provision order sought to be rescinded or altered.

*                *                *                *                *

*                *                *                *                *

98Adjustment of probate duty

For the purpose of apportioning the duty payable on the estate of any deceased person any provision made under this Part by a family provision order shall be deemed to have been made—

(a)where the deceased dies leaving a will disposing of the whole or part of the deceased's estate—by a codicil to the will of the testator executed immediately before the deceased's death; or

(b)where the deceased dies without leaving a will—by a will executed immediately before the deceased's death.

99Time within which application may be made

(1)An application to the Court for a family provision order must be made within 6 months after the date of the grant of probate of the will or of letters of administration, as the case may be.

(2)Despite subsection (1), on application, the Court may extend the period for making an application for a family provision order if, after hearing such of the parties affected as the Court thinks necessary, the Court considers it appropriate to extend the period, including in any case where the time for making an application has already expired.

(3)An application for extension under subsection (2) must be made before the final distribution of the estate.

(4)The making of an application for extension under subsection (2) and any order of the Court in relation to the application for extension does not disturb or affect the distribution of any part of the estate made prior to the making of that application.

99AProtection of personal representative against certain claims

(1)No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate, and no application or family provision order shall disturb the distribution, if it was properly made by the personal representative for the purpose of providing for the maintenance support or education of the partner or any child of the deceased totally or partially dependent on the deceased immediately before the death of the deceased, whether or not the personal representative had notice at the time of the distribution of any application or intended application under this Part for a family provision order in respect of the estate.

(2)No person who may have made or may be entitled to make an application under this Part for a family provision order shall be entitled to bring a proceeding against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the person (being of full legal capacity) has notified the personal representative in writing that the person either—

(a)consents to the distribution; or

(b)does not intend to make any application that would affect the proposed distribution.

(3)No action lies against a personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the expiry of 6 months after the grant of probate of the will or of letters of administration (as the case may be) and either—

(a)the personal representative has not had notice of an application for a family provision order in respect of the estate; or

(b)if the personal representative has had a notice of an intention to make an application for a family provision order in respect of the estate in accordance with subsection (4), the personal representative has not received written notice that an application for a family provision order has been made to the Court within 3 months of the receipt of that notice of an intention to make an application for a family provision order.

(4)For the purposes of this section, notice to a personal representative of an intention to make any application for a family provision order referred to in subsection (3)(b)—

(a)must be in writing signed by the eligible person or the eligible person's legal practitioner; and

(b)lapses within 3 months from the receipt of the notice by the personal representative unless an application for a family provision order has been made to the Court; and

(c)is incapable of being renewed.

(5)Nothing in this section—

(a)extends the period within which a person can make an application for a family provision order without a Court order; or

(b)prevents the subsequent making of an application for a family provision order within any other period allowed by this Act.

PART IVA—TRANSITIONAL

99AA   Transitional provision—Wills Act 1997

Despite the amendment of this Act by Part 7 of the Wills Act 1997, Part IV of this Act, as in force immediately before the commencement of Part 7 of the Wills Act 1997, continues to apply to the estate of a person who has died before that commencement.

99ABFurther transitional provision—Wills Act 1997

Despite the amendment of this Act by section 61 of the Wills Act 1997, Part V of this Act, as in force immediately before the commencement of that section, continues to apply to wills made before the commencement of Part 2 of the Wills Act 1997.

99AC   Transitional provision—Administration and Probate (Dust Diseases) Act 2000

Section 29(2A) does not apply to a cause of action, proceedings in respect of which commenced before the commencement of section 4 of the Administration and Probate (Dust Diseases) Act 2000, if the plaintiff has died before the commencement of section 4 of that Act.

100Transitional provision—Statute Law Amendment (Relationships) Act 2001

Despite the amendment of Part 1 by item 1 of Schedule 1 to the Statute Law Amendment (Relationships) Act 2001, Part 1 as in force immediately before that commencement continues to apply with respect to the estate of an intestate who has died before that commencement.

101Transitional provision—family provision—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

The amendments made to Part IV of this Act by Part 2 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 apply in respect of the estate of any person who dies on or after the commencement of Part 2 of that Act.

102Transitional provision—payment of debts—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

(1)Despite the amendment of this Act by Part 3 of the JusticeLegislation Amendment (Succession and Surrogacy) Act 2014, Division 5 of Part I and the Second Schedule, as in force immediately before the commencement of that Part, continue to apply to an application for a grant of probate or letters of administration which was made but not granted before that commencement as if those amendments had not been made.

(2)Despite the amendment of this Act by Part 3 of the JusticeLegislation Amendment (Succession and Surrogacy) Act 2014, Division 5 of Part I and the Second Schedule, as in force immediately before the commencement of that Part, continue to apply to an application for a grant of probate or letters of administration which was granted before that commencement as if those amendments had not been made.

103Transitional provision—small estates—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

(1)Despite the repeal of section 32 by the JusticeLegislation Amendment (Succession and Surrogacy) Act 2014, section 32, as in force immediately before its repeal continues to apply to the estate of a deceased person who died before the repeal.

(2)Despite the repeal of section 33 by the JusticeLegislation Amendment (Succession and Surrogacy) Act 2014, section 33, as in force immediately before its repeal, continues to apply to the estate of a deceased person who died before the repeal.

(3)Despite the amendment of section 71 by the JusticeLegislation Amendment (Succession and Surrogacy) Act 2014, section 71, as in force immediately before its amendment, continues to apply to an application made under that section before that amendment as if the amendment had not been made.

(4)Despite the amendment of section 74 by the JusticeLegislation Amendment (Succession and Surrogacy) Act 2014, section 74, as in force immediately before its amendment, continues to apply to an application made under section 71 before that amendment as if the amendment had not been made.

(5)Despite the amendment of section 79 by the JusticeLegislation Amendment (Succession and Surrogacy) Act 2014, section 79, as in force immediately before its amendment, continues to apply to the administration of an estate commenced under that section before that amendment as if the amendment had not been made.

104Power to resolve transitional difficulties in proceeding—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

(1)If any difficulty arises because of the operation of the JusticeLegislation Amendment (Succession and Surrogacy) Act 2014 in relation to an application or a proceeding under this Act, the Court may make any order it considers appropriate to resolve the difficulty.

(2)An order made under subsection (1)—

(a)may be made on application of a party to the application or proceeding or on the Court's own motion; and

(b)has effect despite any provision to the contrary made by or under any Act (other than the Charter of Human Rights and Responsibilities Act 2006).

*                *                *                *                *

106Transitional provisions—Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017

(1)The amendments made to this Act by the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 apply in respect of the estate of any person who dies on or after the commencement of the applicable amendment to this Act.

(2)Despite subsection (1), sections 65B, 65C and 65D only apply to a will executed on or after the commencement of those sections.

107Power to resolve transitional difficulties in proceeding—Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017

(1)If any difficulty arises because of the operation of the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 in relation to an application or aproceeding under this Act, the Court may make any order it considers appropriate to resolve the difficulty.

(2)An order made under subsection (1)—

(a)may be made on application of a party to the application or proceeding or on the Court's own motion; and

(b)has effect despite any provision to the contrary made by or under any Act (other than the Charter of Human Rights and Responsibilities Act 2006).

*                *                *                *                *

*                *                *                *                *

SCHEDULES

FIRST SCHEDULE—DUST-RELATED CONDITIONS

Aluminosis

Asbestosis

Asbestos induced carcinoma

Asbestos related pleural diseases

Bagossosis

Berylliosis

Byssinosis

Coal dust pneumoconiosis

Farmers' lung

Hard metal pneumoconiosis

Mesothelioma

Silicosis

Silico-tuberculosis

Talcosis

*                *                *                *                *

*                *                *                *                *

═══════════════

ENDNOTES

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Administration and Probate Act 1958 was assented to on 30 September 1958 and came into operation on 1 April 1959: Government Gazette 18 March 1959 page 892.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

•     Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

•     Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

•     Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Administration and Probate Act 1958 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Administration and Probate Act 1958, No. 6191/1958

Assent Date:	30.9.58
Commencement Date:	S. 105(4) inserted on 1.1.15 by No. 80/2014 s. 26: Special Gazette (No. 400) 29.10.14 p. 2; s. 108(4) inserted on 1.11.17 by No. 41/2017 s. 19: s. 2(2)
Note:	S. 105(4) repealed s. 105 on 1.1.17; s. 108(4) repealed s. 108 on 1.11.19
Current State:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Statute Law Revision Act 1959, No. 6505/1959

Assent Date:	5.5.59
Commencement Date:	1.4.59: s. 1(2)
CurrentState:	All of Act in operation

Administration and Probate (Offices) Act 1960, No. 6640/1960

Assent Date:	7.6.60
Commencement Date:	7.6.60
CurrentState:	All of Act in operation

Statute Law Revision Act 1960, No. 6716/1960

Assent Date:	21.12.60
Commencement Date:	21.12.60: subject to ss 3, 4
CurrentState:	All of Act in operation

Administration and Probate (Amendment) Act 1962, No. 6866/1962

Assent Date:	16.4.62
Commencement Date:	16.4.62
CurrentState:	All of Act in operation

Probate Duty Act 1962, No. 6890/1962

Assent Date:	15.5.62
Commencement Date:	1.7.62: Government Gazette 13.6.62 p. 1990
CurrentState:	All of Act in operation

Administration and Probate (Family Provision) Act 1962, No. 6920/1962

Assent Date:	20.11.62
Commencement Date:	20.11.62
CurrentState:	All of Act in operation

Administration and Probate (Small Estates) Act 1964, No. 7168/1964 (as amended by Act No. 7332)

Assent Date:	10.11.64
Commencement Date:	1.6.65: Government Gazette 12.5.65 p. 1555
CurrentState:	All of Act in operation

Administration and Probate (Surviving Actions) Act 1965, No. 7296/1965

Assent Date:	12.10.65
Commencement Date:	12.10.65
CurrentState:	All of Act in operation

Statute Law Revision Act 1965, No. 7332/1965

Assent Date:	14.12.65
Commencement Date:	14.12.65: subject to s. 3
CurrentState:	All of Act in operation

Administration and Probate (Amendment) Act 1967, No. 7597/1967

Assent Date:	5.12.67
Commencement Date:	5.12.67
CurrentState:	All of Act in operation

Administration and Probate (Amendment) Act 1968, No. 7663/1968

Assent Date:	2.4.68
Commencement Date:	1.5.68: Government Gazette 24.4.68 p. 1259
CurrentState:	All of Act in operation

Administration and Probate (Foreign Grants) Act 1969, No. 7874/1969

Assent Date:	18.11.69
Commencement Date:	18.11.69
CurrentState:	All of Act in operation

Statute Law Revision Act 1971, No. 8181/1971

Assent Date:	23.11.71
Commencement Date:	23.11.71
CurrentState:	All of Act in operation

Status of Children Act 1974, No. 8602/1974

Assent Date:	26.11.74
Commencement Date:	1.3.75: Government Gazette 5.2.75 p. 228
CurrentState:	All of Act in operation

Supreme Court Act 1976, No. 8951/1976

Assent Date:	16.12.76
Commencement Date:	1.1.77: Government Gazette 22.12.76 p. 3739
CurrentState:	All of Act in operation

Administration and Probate (Amendment) Act 1977, No. 9041/1977

Assent Date:	22.11.77
Commencement Date:	Ss 4, 7 on 1.12.78: Government Gazette 25.10.78 p. 3344; rest of Act on 22.11.77: s. 1(3)
CurrentState:	All of Act in operation

Wills (Interested Witnesses) Act 1977, No. 9044/1977

Assent Date:	22.11.77
Commencement Date:	22.11.77
CurrentState:	All of Act in operation

Age of Majority Act 1977, No. 9075/1977

Assent Date:	6.12.77
Commencement Date:	1.2.78: Government Gazette 11.1.78 p. 97
CurrentState:	All of Act in operation

Statute Law Revision Act 1980, No. 9427/1980

Assent Date:	27.5.80
Commencement Date:	27.5.80: s. 6(2)
CurrentState:	All of Act in operation

Crimes (Classification of Offences) Act 1981, No. 9576/1981

Assent Date:	26.5.81
Commencement Date:	1.9.81: Government Gazette 26.8.81 p. 2799
CurrentState:	All of Act in operation

Administration and Probate (Survival of Actions) Act 1982, No. 9847/1982

Assent Date:	21.12.82
Commencement Date:	21.12.82
CurrentState:	All of Act in operation

Limitation of Actions (Personal Injury Claims) Act 1983, No. 9884/1983

Assent Date:	10.5.83
Commencement Date:	11.5.83: Government Gazette 11.5.83 p. 1145
CurrentState:	All of Act in operation

Penalties and Sentences (Amendment) Act 1983, No. 9945/1983

Assent Date:	20.9.83
Commencement Date:	S. 2 on 1.9.81: s. 1(4); rest of Act on 20.12.83: Government Gazette 14.12.83 p. 4035; s. 8 repealed by No. 10096 s. 4(4)
CurrentState:	All of Act in operation

Trustee Companies Act 1984, No. 10168/1984

Assent Date:	20.11.84
Commencement Date:	5.12.84: Government Gazette 5.12.84 p. 4329
CurrentState:	All of Act in operation

Courts Amendment Act 1986, No. 16/1986

Assent Date:	22.4.86
Commencement Date:	Ss 1–11, 13–27, 29–34 on 1.7.86: Government Gazette 25.6.86 p. 2180; s. 28 on 1.9.86: Government Gazette 27.8.86 p. 3201; s. 12 on 1.1.88: Government Gazette 7.10.87 p. 2701
CurrentState:	All of Act in operation

Mental Health Act 1986, No. 59/1986

Assent Date:	3.6.86
Commencement Date:	Ss 1–3, 21, 23, Sch 1 on 19.6.87: Government Gazette 17.6.87 p. 1538; rest of Act on 1.10.87: Government Gazette 30.9.87 p. 2585
CurrentState:	All of Act in operation

Supreme Court Act 1986, No. 110/1986

Assent Date:	16.12.86
Commencement Date:	1.1.87: s. 2
CurrentState:	All of Act in operation

State Trust Corporation of Victoria Act 1987, No. 55/1987

Assent Date:	20.10.87
Commencement Date:	2.11.87: Government Gazette 28.10.87 p. 2925
CurrentState:	All of Act in operation

County Court (Amendment) Act 1989, No. 19/1989

Assent Date:	16.5.89
Commencement Date:	1.8.89: Government Gazette 26.7.89 p. 1858
CurrentState:	All of Act in operation

Magistrates’ Court (Consequential Amendments) Act 1989, No. 57/1989 (as amended by No. 34/1990)

Assent Date:	14.6.89
Commencement Date:	S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette 30.8.89 p. 2210; rest of Act on 1.9.90: Government Gazette 25.7.90 p. 2217
CurrentState:	All of Act in operation

Administration and Probate (Amendment) Act 1994, No. 10/1994 (as amended by No. 9/1995)

Assent Date:	3.5.94
Commencement Date:	Ss 1, 2 on 3.5.94: s. 2(1); ss 3, 4, 7–15 on 27.4.95: Government Gazette 27.4.95 p. 973; rest of Act on 1.7.95: s. 2(3)
CurrentState:	All of Act in operation

State Trustees (State Owned Company) Act 1994, No. 45/1994

Assent Date:	7.6.94
Commencement Date:	Pt 1 (ss 1–3), s. 27 on 7.6.94: s. 2(1); rest of Act on 1.7.94: Special Gazette (No. 36) 23.6.94 p. 1
CurrentState:	All of Act in operation

Valuation of Land (Amendment) Act 1994, No. 91/1994

Assent Date:	6.12.94
Commencement Date:	S. 36(1) on 1.1.95: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Legal Practice Act 1996, No. 35/1996

Assent Date:	6.11.96
Commencement Date:	S. 453(Sch. 1 item 3) on 1.1.97: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Wills Act 1997, No. 88/1997 (as amended by No. 43/1998)

Assent Date:	2.12.97
Commencement Date:	Ss 53–61 on 20.7.98: Government Gazette 16.7.98 p. 1924
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

State Trustees (Amendment) Act 1998, No. 15/1998

Assent Date:	28.4.98
Commencement Date:	Ss 5–7 on 1.8.98: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Administration and Probate (Dust Diseases) Act 2000, No. 15/2000

Assent Date:	9.5.00
Commencement Date:	10.5.00: s. 2
CurrentState:	All of Act in operation

Statute Law Revision Act 2000, No. 74/2000

Assent Date:	21.11.00
Commencement Date:	S. 3(Sch. 1 item 3) on 22.11.00: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000, No. 78/2000

Assent Date:	28.11.00
Commencement Date:	Ss 3, 4 on 28.11.00: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Statute Law Amendment (Relationships) Act 2001, No. 27/2001

Assent Date:	12.6.01
Commencement Date:	S. 3(Sch. 1 item 1) on 8.11.01: Government Gazette 8.11.01 p. 2797
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Corporations (Consequential Amendments) Act 2001, No. 44/2001

Assent Date:	27.6.01
Commencement Date:	S. 3(Sch. item 2) on 15.7.01: s. 2
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Statute Law Revision Act 2005, No. 10/2005

Assent Date:	27.4.05
Commencement Date:	S. 3(Sch. 1 item 1) on 28.4.05: s. 2
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Legal Profession (Consequential Amendments) Act 2005, No. 18/2005

Assent Date:	24.5.05
Commencement Date:	S. 18(Sch. 1 item 2) on 12.12.05: Government Gazette 1.12.05 p. 2781
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Relationships Act 2008, No. 12/2008

Assent Date:	15.4.08
Commencement Date:	S. 73(1)(Sch. 1 item 2) on 1.12.08: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Justice Legislation Amendment Act 2008, No. 21/2008

Assent Date:	2.6.08
Commencement Date:	S. 26 on 1.12.08: s. 2(5)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Courts Legislation Amendment (Associate Judges) Act 2008, No. 24/2008

Assent Date:	3.6.08
Commencement Date:	S. 75 on 17.12.08: Special Gazette (No. 377) 16.12.08 p. 1
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Relationships Amendment (Caring Relationships) Act 2009, No. 4/2009

Assent Date:	10.2.09
Commencement Date:	S. 37(Sch. 1 item 2) on 1.12.09: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date:	24.11.09
Commencement Date:	S. 54(Sch. Pt 2 item 2) on 1.1.10: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Trustee Companies Legislation Amendment Act 2010, No. 17/2010

Assent Date:	11.5.10
Commencement Date:	Ss 17, 18 on 11.5.10: Special Gazette (No. 171) 11.5.10 p. 1
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Justice Legislation Amendment Act 2013, No. 31/2013

Assent Date:	4.6.13
Commencement Date:	S. 3 on 26.10.13: Special Gazette (No. 292) 20.8.13 p. 1
Current State:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Legal Profession Uniform Law Application Act 2014, No. 17/2014

Assent Date:	25.3.14
Commencement Date:	S. 160(Sch. 2 item 2) on 1.7.15: Special Gazette (No. 151) 16.6.15 p. 1
Current State:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Justice Legislation Amendment (Succession and Surrogacy) Act 2014, No. 80/2014

Assent Date:	21.10.14
Commencement Date:	Ss 3–26 on 1.1.15: Special Gazette (No. 400) 29.10.14 p. 2
Current State:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Justice Legislation Amendment Act 2015, No. 20/2015

Assent Date:	16.6.15
Commencement Date:	S. 47 on 17.6.15: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017, No. 41/2017

Assent Date:	19.9.17
Commencement Date:	Ss 4–20 on 1.11.17: s. 2(2)
Current State:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Oaths and Affirmations Act 2018, No. 6/2018

Assent Date:	27.2.18
Commencement Date:	S. 68(Sch. 2 item 1) on 1.3.19: s. 2(2)
Current State:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Guardianship and Administration Act 2019, No. 13/2019

Assent Date:	4.6.19
Commencement Date:	S. 221(Sch. 1 item 1) on 1.3.20: s. 2(2)
Current State:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Statute Law Amendment (References to the Sovereign) Act 2023, No. 25/2023

Assent Date:	5.9.23
Commencement Date:	S. 7(Sch. 1 item 2) on 6.9.23: s. 2
Current State:	This information relates only to the provision/s amending the Administration and Probate Act 1958

Statute Law Revision Act 2025, No. 41/2025

Assent Date:	21.10.25
Commencement Date:	S. 3(Sch. 1 item 3) on 22.10.25: s. 2
Current State:	This information relates only to the provision/s amending the Administration and Probate Act 1958

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Metric Conversion (Administration and Probate Act) Regulations 1973, S.R. No. 369/1973

Date of Making:	18.12.73
Date of Commencement:	1.2.74: reg. 1

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3   Explanatory details

[1] S. 35(1)(a): Section 15(1) of the Administration and Probate (Amendment) Act 1994, No. 10/1994 (repealed) read as follows:

15Cases to which certain amendments do not apply

(1)The provisions of the Principal Act as amended by section 7, 8, 9, 10, 13(a) or 13(d) do not apply to a case where a person dies before the commencement of that section.

[2] S. 37: Section 251 of the Property Law Act 1958, No. 6344 reads as follows:

251Power to tenants in tail in possession to dispose of land by specific devise or bequest

(1)A tenant in tail of full age shall have power to dispose by will by means of a devise or bequest referring specifically either to the property or to the instrument under which it was acquired or to entailed property generally—

(a)of lands of which he is tenant in tail in possession at his death; and

(b)of lands to be sold where the money arising from the sale is subject to be invested in the purchase of lands to be settled so that if purchased he would at his death have been tenant in tail in possession thereof; and

(c)of money subject to be invested in the purchase of lands of which if it had been so invested he would have been tenant in tail in possession at his death—

in like manner as if, after barring the entail, he had (either at law or in equity as the case may be) been tenant in fee-simple or absolute owner thereof at his death; but subject to and in default of any such disposition by will such lands or money shall devolve in the same manner as if this section or any corresponding previous enactment had not been passed.

(2)This section shall not extend to a tenant in tail after possibility of issue extinct and shall not render any interest which is not disposed of by the will of the tenant in tail liable for his debts or other liabilities.

(3)This section shall apply only to wills executed after the thirty-first day of December One thousand nine hundred and eighteen, or confirmed or republished after such date.

[3] S. 58: See note 1.