Supreme Court (Chapter II Amendment No. 16) Rules 1998 (Vic)

Supreme Court (Chapter II Amendment No. 16)

Rules 1998

S.R. No. 71/1998

TABLE OF PROVISIONS

Rule Page

1.	Object	1
2.	Authorising provisions	1
3.	Commencement	1
4.	Principal Rules	1
5.	Application for family provision	1
6.	Reference to Master's Associate	2
7.	Court authorised wills	2
ORDER 22—COURT AUTHORISED WILLS	2
22.01 Application	2
22.02 Interpretation	2
22.03 Minors	2
22.04 Jurisdiction of Master under section 20	3
22.05 Want of testamentary capacity	3
22.06 If leave granted	5
22.07 Jurisdiction of Master under section 21	5

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NOTES 7

i

STATUTORY RULES 1998

S.R. No. 71/1998

Supreme Court Act 1986

Supreme Court (Chapter II Amendment No. 16)

Rules 1998

The Judges of the Supreme Court make the following Rules:

1. Object

The object of these Rules is to make
miscellaneous amendments to Order 16 of the
Principal Rules and to provide for certain
applications to the Court under the Wills Act

1997.

2. Authorising provisions

These Rules are made under section 25 of the powers.

3. Commencement

These Rules come into operation on 20 July 1998.

4. Principal Rules

In these Rules, the Rules of Procedure in the Principal Rules.

5. Application for family provision

At the end of Rule 16.03 of the Principal Rules
insert—

"(2) Where the application is in respect of the

estate of a person who died after the
commencement of Part 7 of the Wills Act

Supreme Court (Chapter II Amendment No. 16) Rules 1998

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1997 the affidavit in support of the
application shall amongst other things state
the acts, facts, matters and circumstances
upon which the plaintiff relies to establish
that the person on whose behalf the
application is made is a person for whom the
deceased had responsibility to make

provision.".

6. Reference to Master's Associate

In Rule 16.10(1) of the Principal Rules for "the Associate or the Master's Secretary" substitute "the Judge's or Master's Associate".

7. Court authorised wills

After Order 21 of the Principal Rules insert—

'ORDER 22—COURT AUTHORISED WILLS

22.01 Application

This Order applies to applications under sections 20 and 21 of the Wills Act 1997.

22.02 Interpretation

(1) In this Order, "the Act" means the Wills

Act 1997.

(2) This Order applies to a codicil in the same

manner as it applies to a will.

22.03 Minors

(1) An application under section 20 of the Act

shall be made by originating motion
supported by an affidavit.

(2) The affidavit shall exhibit a draft of the will for which authorisation is sought and, if the affidavit is being made by a person other

than the minor, shall account for the absence
of an affidavit from the minor.

Supreme Court (Chapter II Amendment No. 16) Rules 1998

S.R. No. 71/1998 r. 7

(3) The affidavit shall state whether the

application is made upon notice and, if so, to
whom notice has been given or is proposed

to be given.

(4) The affidavit shall also state the acts, facts,

matters and circumstances relied upon to
satisfy the Court under section 20(5) of the

Act.

22.04 Jurisdiction of Master under section 20

If there are funds in Court for the minor, the application under section 20 of the Act may be heard and determined by a Master.

22.05 Want of testamentary capacity

(1) An application under section 21(2) of the

Act for leave to make application for an order under section 21(1) shall be made by originating motion supported by an affidavit.

(2) The affidavit shall state the acts, facts,

matters and circumstances relied upon to

satisfy the Court that—

(a)	the person on whose behalf the will is to be made or revoked does not have testamentary capacity;
(b)	the proposed will or revocation accurately reflects the likely intentions of the person, if he or she had testamentary capacity;
(c)	it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will, or the revocation of the will, for the person.

(3) Without limiting paragraph (2), the affidavit

shall—

Supreme Court (Chapter II Amendment No. 16) Rules 1998

r. 7 S.R. No. 71/1998

(a)	describe the general nature of the application to be made for an order under section 21(1) and give the reasons for making that application;
(b)	give a reasonable estimate, formed from any evidence available to the plaintiff (the nature of which shall be
stated), of the size and character of the estate of the person on whose behalf the will is to be made or revoked;
(c)	exhibit the proposed will for which the plaintiff is seeking the Court's approval or a copy of the will which the plaintiff is seeking to have revoked, as the case may be;
(d)	set out any evidence available to the plaintiff of each of the matters referred to in paragraphs (d), (e), (f), (g), (h), (i) and (j) of section 28 of the Act if such matter is relevant to the application for an order under section 21(1) or, if not relevant, state why such matter is not relevant; and
(e)	set out any other evidence relevant to the application.

(4) The affidavit shall state whether the

application for leave is made upon notice
and, if so, to whom notice has been given or

is proposed to be given.

(5) On the hearing of the application for leave,

where revocation is sought, the original will shall be produced to the Court or its absence shall be explained by affidavit.

Supreme Court (Chapter II Amendment No. 16) Rules 1998

S.R. No. 71/1998 r. 7

22.06 If leave granted

If the Court grants leave under section 21(2) to make an application for an order under section 21(1), the Court may—

(a)	proceed forthwith to hear and determined the application; or
(b)	give directions in relation to the application.

22.07 Jurisdiction of Master under section 21 If there are funds in Court for the person who does not have testamentary capacity, an

application under section 21, including an
application for leave, may be heard and

determined by a Master.'.

Dated: 25 June 1998

J. H. PHILLIPS, C.J.
ROBERT BROOKING, J.A.
R. C. TADGELL, J.A.
STEPHEN CHARLES, J.A.
J. M. BATT, J.A.
PETER BUCHANAN, J.A.
BERNARD G. TEAGUE, J.
DAVID ASHLEY, J.
J. A. COLDREY, J.
DAVID BYRNE, J.
D. L. HARPER, J.
G. M. EAMES, J.
H. R. HANSEN, J.
PHILIP MANDIE, J.

Supreme Court (Chapter II Amendment No. 16) Rules 1998

r. 7 S.R. No. 71/1998

ROSEMARY BALMFORD, J.
ALEX CHERNOV, J.

MURRAY B. KELLAM, J.

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Supreme Court (Chapter II Amendment No. 16) Rules 1998

S.R. No. 71/1998 Notes

NOTES

1 Rule 4: S.R. No. 334/1988. Reprinted to S.R. No. 70/1993 and

subsequently amended by S.R. Nos 41/1995, 71/1995, 156/1995, 136/1996,
17/1997 and 60/1998.