Probate Act of 1890 Amendment Act (1893 No 28a) (NSW)
No. XXX.
An Act to a m e n d t h e " P roba t e Act of 1890"; and to give g rea te r facilities for t he issue of probate and le t te rs of adminis t ra t ion in small estates . [13th June, 1893.]
th i r ty - two and th i r t y - th ree of t he " P roba te Act of 1890," it is he r eby declared tha t , subjec t to the provisions of this Act , the husband is ent i t led in the in tes ta te es ta te of his wife only to the share or in teres t specified WH E R E A S and to provide grea te r facilities for g r a n t i n g probate and le t ters
it is expedient to a m e n d t h e " P r o b a t e A c t of 1 8 9 0 , "
of adminis t ra t ion in small e s t a t e s : Be i t therefore enacted by the;
Queen ' s Mos t Exce l l en t Majesty, by and wi th t h e advice and consent
of t he Legis la t ive Council a n d Legis la t ive Assembly of N e w South
Wales in Pa r l i amen t assembled, and by t h e au thor i ty of t he same, as follows :— 1. This A c t may be cited as t h e " P roba t e A c t of 1890 Amend
m e n t Ac t . "
P A R T I .
Distribution of Property under an Intestacy.
2. W h e r e a s doubts have arisen as to t he construct ion of sections
specified in section th i r ty - th ree , and the residue of t he estate is divisible anion 0 ; t he n e x t of k in as in the case of t he estate of a husband dying in tes ta te and leaving a widow h im surviving.
3. W h e r e t he ne t value of t he real and personal p roper ty of an in tes ta te dying w i t h o u t issue shall no t exceed t h e s u m of five hundred pounds , the whole of t h e said proper ty shall pass to the husband or wife, if any, of such in tes ta te , as t he case m a y be.
4. W h e r e t h e ne t va lue of t he real and personal proper ty of an
| in tes ta te | dy ing wi thou t issue shall exceed t h e sum of five h u n d r e d |
pounds , t h e h u s b a n d or wife, as t h e case m a y be, of such in tes ta te shall be ent i t led to five hund red pounds par t thereof absolutely and exclusively, and shall have a charge upon the whole of such real and personal proper ty for such five hund red pounds wi th in teres t thereon from the da te of t he death of such in tes ta te a t the ra te of four
| pounds per cen tum per a n n u m | unt i l | payment . |
5. The provision for t he husband or wife in tended to be made by section four of this A c t shall be in addit ion and wi thou t prejudice to his or her in teres t and share in t he residue of the real and personal proper ty of such in tes ta te remain ing after t he p a y m e n t of the sum of five h u n d r e d pounds in the same way as if such residue had been the whole of such in tes ta te ' s real and personal es ta te , and this Ac t h a d no t been passed.
6. The ne t va lue of such real and personal proper ty as afore said, shall be ascertained by deduc t ing from t h e gross va lue thereof all debts , funeral and t e s t amen ta ry expenses of the: in tes ta te , and all other lawful liabilities and charges to which the said real and personal p roper ty shall be subject .
7. W h e r e t he n e t va lue of t he real and personal p roper ty of an in tes ta te leaving infant issue shall no t exceed five hundred pounds , the J u d g e may, on t he pet i t ion of such infants , or any of them, or of any person on their behalf, author ise the adminis t ra tor of t h e estate to expend the whole or a n y por t ion of t h e share of such infants , or any of them, in the i r respective ma in tenance , advancement , or educa tion, and such au tho r i t y may be given in respect of t he infant issue of
| in tes ta tes who died before t he pass ing of th i s | A c t . |
P A R T I I .
Probate and Administration of Small Estates.
8. For t h e purpose of receiving applicat ions f o r proba te or
| adminis t ra t ion | unde r th is Ac t , t h e J u d g e m a y appoin t such person | as |
| he m a y th ink tit in any town beyond t h i r t y miles from Sydney, | w h e r e |
| a | Dis t r ic t | Cour t is held, to ac t as Dis t r ic t | A g e n t | for | t he Reg i s t r a r | of |
Probates .
9. Al l Distr ic t Agen t s m a y for the purposes of this A c t adminis te r oa ths and t ake declarat ions and affirmations, and exercise any o ther powers which can be exercised by Commissioners of t h e Supreme C o u r t ; and appl icants unde r th is A c t m a y be sworn, and may execute all necessary documents before a Commissioner of t he
| Supreme | Court , |
10. The provisions of the " S tamp Dut ies A c t A m e n d m e n t Act
o f 1 8 8 0 " shall no t app ly to estates of deceased persons shown not to
exceed two hundred pounds gross value.
1 1 . I n all cases whore a person shall die leav ing proper ty
not exceeding three hundred pounds in value, appl icat ion for probate or adminis t ra t ion may be made direct to the R e g i s t r a r ; or, if t h e fixed abode of the deceased at the t ime of his death shall have been more t han th i r ty miles from Sydney, t hen to the District Agent for t h e
Reg i s t r a r neares t to such place of abode.
12. The Regis t rar or Dis t r ic t A g e n t shall, upon be ing satisfied
as to the ident i ty and the r i ^h t of the appl icant to adminis te r t he estate of the deceased and the value of the estate , furnish h im wi th al l necessary information for the purpose of enab l ing him to till u p t h e adver t i sements , affidavits, and documents necessary for ob ta in ing probate or le t ters of adminis t ra t ion , as the case may be, and m a y swear the appl icant and every deponent , and attest the execution of t he admins t ra t ion bond, and shall receive p a y m e n t of all proper fees fixed or to he lived by rule of the Sup reme Court in connect ion wi th
t h e appl icat ion. 13. The Distr ict Agent shall forthwith t ransmi t to the Regis t ra r all affidavits, documents , and fees received by him, and upon receipt of the probate or letters of adminis t ra t ion shall deliver the same to the applicant upon demand .
14. The Regis t rar shall , upon being satisfied with the sufficiency of t he evidence in suppor t of the applicat ion, and t h a t the estate does not exceed three, h u n d r e d pounds in value, and tha t no caveat has been entered agains t the applicat ion, and t h a t no will has been deposited wi th t he Reg i s t ra r -Genera l (search for which it shall be his d u t y to m a k e ) , and t h a t t he fees have been duly paid, cause proba te or le t ters of admin is t ra t ion (as t he case may be) to be issued and delivered to t he appl icant on demand, or shall forward the same to t he Distr ic t Agen t , 'for delivery by h im to t he appl icant , and such proba te or le t ters of adminis t ra t ion shall be issued in t h e n a m e and u n d e r t he
seal of t he Cour t . 15. I n any case where the Reg is t ra r is not satisfied as aforesaid,
he shall s ta te the ma t t e r s in respect of which he is not satisfied e i ther to t h e appl icant or to the Distr ict Agen t t r a n s m i t t i n g t he appl icat ion, and such A g e n t shall then inform the appl icant accordingly, and shal l t ake such fu r ther steps as may be proper to enable tin; appl icant to
satisfy t he Reg i s t r a r in respect of such mat te r s . 16. I n no case shall the Regis t rar be under any obligation by
reason of th is Act to deal wi th any applicat ion wh ich he may t h i n kproper to be dealt wi th by the J u d g e , or to be placed in the hands
of an a t to rney , solicitor, or proctor. T A R T I I I .
General Mailers.
17. A caveat m a y be w i t h d r a w n a t a n y t ime with t he leave of
t h e J u d g e , subject to such order as to costs or otherwise as he may direct, and the person app ly ing for probate or adminis t ra t ion may, if he t h i n k fit, s u m m o n the caveator to a t t end before t he J u d g e to show cause why the caveat should not be removed, and it shall be lawful for t he J u d g e on proof that t he caveator has been summoned, to m a k e such order in the premises or otherwise as may seem fit.
18. Tin 1 Cour t may gran t adminis t ra t ion of the estate of an in tes ta te person to the husband or widow or to one or more of t h e next of kin of t he deceased person, or to the husband or widow conjointly with one or more of t he n e x t of k i n : Provided tha t any person to whom adminis t ra t ion shall be granted shall be of t he full
age
age of twenty-one years . A n d in ease there shall he no such person, or no such person wi th in t he jurisdict ion of the Court , who shall be qualified as aforesaid, or who being s o qualified shall be in the opinion of the Cour t fit to be so t rusted, or who shall when duly cited appear and pray for adminis t ra t ion , then adminis t ra t ion may be granted to any person or persons whether creditors or not of the deceased t h a t the Court shall th ink lit.
19. In the adminis t ra t ion of t he estate of every person who shall die after t he passing of this Act , all the creditors of every description of such person shall be t reated as s t and ing in equal degree and be paid accordingly out of the assets o f such deceased person whe ther such assets are legal or equi table , any s ta tu te or law to the cont ra ry n o t w i t h s t a n d i n g : Provided a lways that this Act shall not prejudice or affect any mor tgage , lien, charge, or other securi ty which any creditor may hold or be ent i t led to for payment of his debt : Provided fur ther t ha t no th ing herein contained shall afflect the provisions of any Acts pro tec t ing life assurance or other policies against creditors.
20. W h e n any real estate not under t he provisions of t he " I leal P r o p e r t y A c t " is devised to any person by a will duly proved under t he provisions of the " Proba te Act of 1890," the executor of the will or t he adminis t ra tor wi th t he will annexed may , as such executor or adminis t ra tor , ins tead of execu t ing a conveyance, sign an acknowledg ment in a form to be prescribed by r u b 1 of the Supreme Court hereby authorised to be made in that behalf, that the devisee is ent i t led to such real estate for the estate for which the same is devised to him, which acknowledgment m a y b e registered under the Acts in force regula t ing the regis t ra t ion o f deeds ; and upon regis t ra t ion of such acknowledgment as aforesaid such real estate shall vest in the devisee for such estate as aforesaid in the same way and subject to the same t rus ts and liabilities as if the executor or adminis t ra tor had executed a conveyance o f the same.
2 1 . If t he executor or adminis t ra tor shall, after reques t in
wr i t ing , neglect or refuse to sign such acknowledgment , or to execute a conveyance of land devised to the devisee, or to pay or hand over to the person ent i t led any legacy or residuary bequest , such devisee or person m a y apply by s u m m o n s to t h e J u d g e cal l ing upon such executor or admin is t ra to r to show cause why he should not comply wi th such reques t , and the J u d g e may m a k e such order in the ma t t e r as he may
| t h i n k | r ight , 22. If upon mot ion by a surety to an adminis t ra t ion bond it | |
| appear to t he Proba te J u d g e tha t the estate is being wasted, or is in danger o f be ing wasted, o r t h a t the surety is be ing in any way | prejudiced, or in danger o f be ing prejudiced, by t he act or defaul t o f | |
| the person adminis te r ing the estate, the said J u d g e may grant such relief as he may t h i n k fit, and for t he purpose o f m a k i n g such relief effectual m a y have and exercise ail t he powers and jur isdict ion of ; i | ||
| ||
| 23. F r o m and after t he decease of any person dying tes ta te and u n t i l probate or le t ters of adminis t ra t ion wi th the will annexed shal l be granted i n respect of his estate h i s real and personal estate shal l vest as i s provided by section th i r ty -n ine o f the " Proba te Ac t of 1890 , " i n t h e e a s e of persons dying intestate . |
2 1 . W h e n an executor or adminis t ra tor has given notice in
accordance wi th section twenty-nine of the " Trust Proper ty Act of 1802 ," and a claim agains t the estate i s sent i n to him, be may . if he dispute the claim, s e r v e upon the person by w h o m or on whose behalf t h e c la im was s e n t in a notice cal l ing upon h im to take proceedings to enforce his c laim wi th in a period o f six months , and to duly prosecute t h e same, and if after the said period of six
m o n t h s
months has expired such person as aforesaid does not satisfy the Cour t t h a t he is duly prosecut ing his claim, the Cour t may , on appl ica t ion by the executor or adminis t ra tor , m a k e an order ba r r ing t he claim against t h e executor or adminis t ra tor , subject to such conditions as m a y seem jus t , or m a y make such other order as the Cour t may th ink f i t : Provided tha t no th ing in this section shall prejudice the r i g h t of any creditor or c la imant to follow the es ta te or any par t thereof in to t he hands of any person who may have received the same.
25. This Act shall be read wi th and form par t of the " P roba t e
A c t of 1890 . "
26. Sect ion sixteen of the " P roba te A c t of 1890 " is amended
by subs t i t u t ing the word fifteenth for t h e word t h i r t een th . 27. Sections twenty-s ix and fifty-three of t he " P roba te Ac t of
1890 " are hereby repealed.
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