Administration and Probate (Administration Guarantees) Amendment Act 2003 (SA)

South Australia

Administration and Probate (Administration Guarantees) Amendment Act 2003

An Act to amend the Administration and Probate Act 1919.

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Administration and Probate (Administration Guarantees) Amendment Act 2003.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Administration and Probate Act 1919

4—Substitution of section 18

Section 18—delete the section and substitute:

18—Administration guarantees may be required before administration sealed

1. (1)

   A surety must be provided in accordance with this section before the sealing of administration under section 17 if a surety would be required under section 31 on the granting of such administration.

2. (2)

   The surety must guarantee to make good, subject to this section, any loss that a person interested in the administration of the South Australian estate of the deceased may suffer in consequence of a breach by the administrator of his or her duties in administering the South Australian estate.

3. (3)

   The maximum liability of a surety under a guarantee given for the purposes of this section is—

   1. (a)

      the amount under which the South Australian estate of the deceased is sworn; or

   2. (b)

      if the Court, on application, orders a lesser amount, the lesser amount.

4. (4)

   If a guarantee is given for the purposes of this section, the Court may, at any time, on the application of a person interested in the administration of the South Australian estate—

   1. (a)

      require that there be a further or additional guarantee; or

   2. (b)

      order that the maximum liability of a surety under the guarantee is reduced to an amount that the Court thinks reasonable.

5. (5)

   If a further or additional guarantee is not given as required under subsection (4)(a), the Court may cancel the seal of the administration.

6. (6)

   A guarantee required under this section operates for the benefit of every person interested in the administration of the South Australian estate as if the guarantee were contained in a deed to which the surety and every such person are parties (and, where there are two or more sureties, as if they had bound themselves jointly and severally).

7. (7)

   A proceeding may only be brought on a guarantee with the leave of the Court and on such terms and conditions as the Court thinks fit.

8. (8)

   If, on the application of a surety, it appears to the Court that—

   1. (a)

      the South Australian estate is being wasted, or is in danger of being wasted; or

   2. (b)

      the surety is being in any way prejudiced, or is in danger of being prejudiced, by the act or default of the administrator; or

   3. (c)

      a surety desires to be relieved from further liability,

the Court may grant such relief as it thinks fit.

1. (9)

   This section does not apply…