Elder's Trustee and Executor Company Limited v Registrar of Probates (SA)

Elder's Trustee and Executor Company Limited (the applicant) sought a writ of mandamus against the Registrar of Probates (the respondent) in the Supreme Court of South Australia. The dispute concerned the validity of Rule 5 of the Rules of Court made under the *Administration and Probate Act 1919* (SA), which prescribed fees for the grant of probate and letters of administration. The applicant argued that the rule, which set fees as a percentage of the value of the estate, was *ultra vires* the power conferred by the Act.

The central legal issue before the Court was whether the power granted to the Supreme Court by section 126 of the *Administration and Probate Act 1919* (SA) to make rules regarding fees extended to authorising the imposition of fees calculated as a proportion of the value of the estate. The applicant contended that such fees were not merely fees for services rendered but amounted to a form of taxation, a power exclusively vested in Parliament.

The Court considered the nature of the power to make rules and the distinction between fees for services and taxes. It reasoned that the power to prescribe fees under the Act was intended to cover the costs associated with the administration of the probate jurisdiction. However, the Court found that Rule 5, by levying fees as a percentage of the estate's value, went beyond merely recouping administrative costs and effectively imposed a charge akin to a tax. This, the Court concluded, exceeded the scope of the statutory authority granted to the Court to make rules, rendering Rule 5 *ultra vires*.

Consequently, the Court ordered that a writ of mandamus issue, directing the Registrar of Probates to proceed with the applications for probate and letters of administration without levying fees under the invalid Rule 5.