Rules of the Supreme Court of the Australian Capital Territory (Amendment) (Cth)

Statutory Rules 1984 No. 4051

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Rules of the Supreme Court of the

Australian Capital Territory2 (Amendment)

WE, Judges appointed under sub-section 7 (1) of the Australian Capital Territory Supreme Court Act 1933, hereby make the following Rules of Court under section 28 of that Act.

Dated 27 November 1984.

J. J. A. KELLY

Judge

J. F. GALLOP

Judge

B. J. PROCTOR

Registrar

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Application for probate

1. Rule 6 of Order 72 of the Rules of the Supreme Court of the Australian Capital Territory is amended—

(a) by inserting after paragraph (1) (d) the following paragraph:

“(da) the applicant’s means of identifying the will;”;

(b) by omitting paragraph (1) (i); and

(c) by omitting sub-rule (2) and substituting the following sub-rule:

“(2) The will shall be marked by the applicant for probate and by the person before whom the affidavit setting forth the particulars referred to in paragraph (1) (da) was sworn.”.

2. Rules 7, 8 and 9 of Order 72 of the Rules of the Supreme Court of the Australian Capital Territory are repealed and the following rules substituted:

Proof of execution of will and attestation

“7. (1) Where an applicant for probate seeks to prove a will or codicil that does not contain a sufficient attestation clause or contains no attestation clause, then subject to sub-rules (2) and (3), the applicant shall file an affidavit of a subscribing witness to the will or codicil as to the due execution of the will or codicil.

“(2) Where the applicant is unable to comply with sub-rule (1), then, subject to sub-rule (3), the applicant shall file an affidavit explaining the reason for the non-compliance and an affidavit by a person who was present when the will or codicil was executed as to the manner of execution of the will or codicil.

“(3) Where the applicant is unable to comply with sub-rule (2), the applicant shall furnish evidence, by affidavit of the reason for the non-compliance, of the handwriting of the testator and of the suscribing witnesses to the will or codicil or of any other facts from which it may be inferred that the will or codicil was duly executed.

Proof of execution of will and blindness of testator, &c

“8. (1) Where an applicant for probate seeks to prove a will or codicil and—

(a) the will or codicil appears to have been signed by a blind or illiterate testator;

(b) the will or codicil appears to have been signed by another person by direction of the testator; or

(c) there are circumstances which raise doubt whether the testator, at the time of execution of the will or codicil, knew and approved of its contents,

the applicant shall furnish evidence by affidavit that the testator, at the time of execution of the will or codicil, knew and approved of its contents.

“(2) Where any of the evidence referred to in sub-rule (1) is furnished by the affidavit of a suscribing witness to the will or codicil or by the affidavit of another person present when the will or codicil was executed, that affidavit shall contain a statement as to the manner in which the will or codicil was executed.

Further evidence of due execution, &c.

“9. (1) Notwithstanding that an applicant for probate has complied with rule 7 or 8 as the case requires, where the Court considers that there is doubt about the due execution of the will or codicil or that any of the circumstances in connection with the execution of the will or codicil require explanation, the Court may require further evidence.

“(2) Where an applicant for probate seeks to prove a will or codicil and—

(a) the will or codicil is undated; or

(b) there appears to be doubt as to the date on which it was executed, the Court may require evidence of the date of its execution.

 

“(3) Where—

(a) an applicant for probate seeks to prove a will or codicil;

(b) an interlineation, alteration, obliteration or erasure appears in the will or codicil; and

(c) the interlineation, alteration, obliteration or erasure has not been duly authenticated or otherwise validated,

the Court may require evidence of whether the interlineation, alteration, obliteration or erasure was made before the execution of the will or codicil.”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 5 December 1984.

2. Statutory Rules 1973 No. 85 as amended to date. For previous amendments see Note 2 to Statutory Rules 1984 No. 110 and see also