Administration and Probate Act (No 2) 1953 (ACT)

AUSTRALIAN CAPITAL TERRITORY.

No. 2 of 1954.

AN ORDINANCE

To amend the Administration and Probate Ordinance 1929-1950, as amended by the Administration and Probate Ordinance 1953.

BE it ordained by the Governor-General in and over the conferred by the Seat of Government Acceptance Act 1909-1938

Commonwealth of Australia, in pursuance of the powers

and the Seat of Government	(Administration)	Act 1910-1947,
as follows:—

1.— (1.) This Ordinance may be cited as the Administration	short title
and Probate Ordinance (No. 2) 1953.*	aml citation-
(2.) The Administration and Probate Ordinance 1929-1950. as amended by the Administration	and Probate Ordinance 1953.

is in this Ordinance referred to as the Principal Ordinance.

(3.) Section one of the Administration and Probate Ordinance

1953 is amended by omitting sub-section (3.).

(4.) The Principal Ordinance, as amended by this Ordinance, may be cited as the Administration	and Probate Ordinance 1929-
1953.

2. Section forty-five of the Principal Ordinance is amended by Husbands

omitting from paragraph (7;) the words "Five hundred pounds" 'vitvsratlltc

(wherever occurring) and inserting in their stead the words " One	and vice versa.
thousand pounds ".
3. Part VII. of the Principal Ordinance is repealed and the following Part inserted in its stead:—
4396.—PRICE 3D.

" PART VII.—TESTATOR'S FAMILY MAINTENANCE.

"110.— (1.) Where a person disposes of his property, either Where no wholly or partly, by will or codicil in such a manner that, upon provision his death, the widow, widower or children of that person, or any deceased	of them, are left without adequate provision for their proper mary0makeUrt
maintenance, education or advancement in life, the Court may, orders' *c-
in its discretion and taking into consideration all the circumstances of the case, on application by or on behalf of the widow, widower or children, or any of them, order that such provision as the Court thinks fit shall be made out of the estate of the deceased person for the proper maintenance, education and advancement in life of the widow, widower or children, or any of them.

* Notified in the Commonwealth Gazette on 7th January, 1954.

" (2.) The applicant shall serve notice of an application made under the last preceding sub-section on the executor of the will or the adminis t ra tor with the will annexed, as the case may be, of the deceased person and on such other persons as the Court directs. " (3.) Where a person dies wholly intestate and, in consequence

of the provisions of sections forty-five and forty-six of this Ordinance, his widow or her widower, as the case may be, is left without adequate provision for his or her proper maintenance, the Court may, in i ts discretion and taking into consideration all the circumstances of the case, on application by or on behalf of the widow or widower, order that such provision as the Court thinks fit shall be made out of the estate of the deceased person for the proper maintenance of the widow or widower, as the case may be.

" (4.) The applicant shall serve notice of an application made under the last preceding sub-section on such persons as the Court directs.

" (5.) The Court may attacli such conditions to an order made under this section as it th inks fit or may refuse to make an order in favour of a person whose character or conduct is such as to disentitle him to the benefit of an order.

" (6.) I n making an order the Court may, if it thinks fit, order that provision for the widow, widower or children of a deceased person, or any of them, made under this section, consist of a lump sum or a periodical or other payment .

Provision to

operate as	" 1 1 1 . — (1.) Except as provided in the next succeeding sub- section, a provision made under this P a r t shall, subject to this Pa r t , operate and take effect as if it had been made as a codicil to the will of the deceased person executed immediately before his or her death.
codicil.
" (2.) An order made under sub-section (3.) of the last preced- ing section shall, subject to this Pa r t , operate and take effect as a modification of the provisions of sections forty-five and forty-six of this Ordinance.

Time within

" 1 1 2 . — (1.) Except as provided in the next succeeding sub-

the application is made within the period of six months after the
date of the grant or resealing—

appncation

section, an application under this P a r t by the widow or widower or

mU9t be made.

a c W l d o f a d e c e a s e d p e r s o n shall not be'heard by the Court unless

(a) of probate of the will or letters of administration with

the will annexed ; or

(b) of letters of administration of the estate of the deceased

person.

" (2.) The widow or widower or a child of a deceased person
may either before or after the expiration of the period specified
in the last preceding sub-section, apply to the Court for an extension

:;

of the time for making the application and the Court may, after

^^li earing such persons a.s it thinks necessary, extend that time for

B:n'h period as it thinks fit.

" (3.) An application under this Part shall be deemed to be made on the day on which the notice of motion or other process originating the application is filed.

l^widow or widower or a child of a deceased person shall, inter alia— or	" 113.— (1.) An order under this Part making provision for the contents o£
W	(a) specify the amount and nature of that provision; (b) specify the part or parts of the estate out of which

the provision shall be raised or paid;

(c) prescribe the manner of raising and paying the pro-

vision ; and

(d) state any conditions, restrictions or limitations imposed

by the Court.

" (2.) Subject to the next succeeding sub-section, unless the Court otherwise orders, the burden of a provision referred to in the last preceding sub-section shall as between the persons bene- ficially entitled to the estate of the deceased person be borne by those persons in proportion to the values of their respective interests in the estate.

" (3.) The estates and interests of persons successively entitled to any property which is settled by a will or codicil shall not for the purposes of the last preceding sub-section be separately valued but the proportion of the provision made by an order under this Part to be borne by that property shall be raised or charged against the corpus of the property.

" (4.) The Court shall, in every case in which provision is made by an order under this Part, direct that a certified copy of the order be made upon the probate of the will or letters of administra- tion with the will annexed or letters of administration of the estate of the deceased person, as the case may be, and for that purpose

the application by motion of the executor or the administrator with	may require the production of the probate or letters. " (5.) The Court may at any time and from time to time on
the will annexed of the testator's estate or of the administrator of the estate of the deceased person or of any person beneficially

^'i>lii!i'(i tn or interested in any pari of the estate of the deceased ^^person rescind or alter an order making provision under this Part.

" (6.) Notice of a motion made in pursuance of the last preced- ing sub-section shall be served on all persons taking any benefit under the order sought to be rescinded or altered.

" (7.) The Court may make such order as to the costs of a n-oceeding under this Part as it deems just. #

»

Court may

fix periodic	" 114. The Court may at any time fix a periodic payment or
lump sum.
payment or	Lump sum to lie paid by a legatee, devisee or beneficiary to represent^fc or in commutation of, such proportion of a sum ordered under thi*M| part to be paid as falls upon the portion of the estate to which
he is entitled under a will or in consequence of an intestacy and may exonerate that portion from further liability and direct—

(a) in what manner the periodic payment shall be secured;
(b) to whom the lump sum shall be paid; and ^»

(c) in what manner it shall be invested for the benefit of the^B

person to whom the commuted payment was payable. ^ ^

t Court may	" 115. Where the Court has ordered periodic payments or has by its order has become possessed of or entitled to provision for his proper maintenance or support and into the adequacy of that provision and may discharge, vary or suspend its order or make such other order as is just in the circumstances.
'make
subsequent	ordered a lump sum to be invested for the benefit of a person,
inquiries and
vary or	it may inquire whether at any subsequent date the party benefited
discharge
order.
Court, &c,
Permission of	" 116. A mortgage, charge or assignment of or over a provision made by an order under this Part, whether before or after the order is made, shall not be of any force, validity or effect unless made with the permission of the Court.
mortgage.
necessary to
Distribution	"117.— (1.) Before proceeding to a distribution of assets in accordance with section 64 of this Ordinance, the executor or administrator shall have regard to any applications under this Part of which the executor or administrator then has notice.
of assets.
" (2.) An executor or administrator shall not be liable for the assets, or any of them, distributed in pursuance of section 64 of this Ordinance to a person of whose application under this Part he has not had notice at the time of the distribution.
" (3.) Nothing in this section prevents the Court from ordering that a provision in an order under this Part shall be made out of any assets so distributed.".
Application to	4. The provisions of Part VII. of the Principal Ordinance, as
estate of a
person dying	amended by this Ordinance, apply to and in relation to the estate
before the
commencement	of a person who died before the date of commencement of this
of this
Ordinance.	Ordinance as if that person had died after that date.

Dated this twenty-second day of December, 1953.

W. J. SLIM

Governor-General. A

By His Excellency's Command,

J. A. SPICER

for and on behalf of the Minister of State

for the Interior.

By Authority: L. F. JOHNSTON, Commonwealth Government Printer, Canberra.