Supreme Court (Chapters Ii and Iii Family Provision and Other Matters Amendment) Rules 2014 (Vic)

Supreme Court (Chapters II and III Family Provision and Other Matters Amendment) Rules 2014

S.R. No. 208/2014

TABLE OF PROVISIONS

Rule  Page

PART 1—PRELIMINARY

1Object

2Authorising provisions

3Commencement

PART 2—AMENDMENT OF CHAPTER II

4Mode of application

5Want of testamentary capacity

6Rule 17.06 revoked

7Jurisdiction of Associate Judge under section 21

PART 3—AMENDMENT OF CHAPTER III

8New Rule 6.11 inserted

6.11Notice of intention to administer by State Trustees
under section 79 of the Act

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ENDNOTES

STATUTORY RULES 2014

S.R. No. 208/2014

Supreme Court Act 1986
Administration and Probate Act 1958

Supreme Court (Chapters II and III Family Provision and Other Matters Amendment) Rules 2014

The Judges of the Supreme Court make the following Rules:

PART 1—PRELIMINARY

1Object

The object of these Rules is to make amendments arising from the enactment of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014—

(a)to Chapter II of the Rules of the Supreme Court in relation to the requirements for applications for family provision under Part IV of the Administration and Probate Act 1958 and in relation to the requirements for authorised wills under Part 3 of the Wills Act 1997; and

(b)to Chapter III of the Rules of the Supreme Court in relation to the administration of estates under section 79 of the Administration and Probate Act 1958.

2Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986, the Administration and Probate Act 1958 and all other enabling powers.

3Commencement

These Rules come into operation on 1 January 2015.

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PART 2—AMENDMENT OF CHAPTER II

4Mode of application

(1)In Rule 16.03(2) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008[1], after "Wills Act 1997" insert "but before the commencement of Part 2 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014".

(2)After Rule 16.03(2) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 insert—

"(3)If the application is for a family provision order in respect of the estate of a person who died on or after the commencement of Part 2 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014, the affidavit in support of the application shall, amongst other things, state the circumstances relied on to establish—

(a)that the person making the application, or on whose behalf the application is made, is an eligible person within the meaning of the Administration and Probate Act 1958;

(b)in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, that, or the degree to which, the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support;

(c)in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, that the eligible person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support;

(d)that, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and

(e)that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by—

(i)the deceased's will (if any);

(ii)the operation of Division 6 of Part I of the Administration and Probate Act 1958; or

(iii)both the will and the operation of Division 6 of Part I of that Act.".

5Want of testamentary capacity

(1)In Rule 17.05(1) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 omit "for leave to make application".

(2)In Rule 17.05(3)(d) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, for "and (j) of section 28" substitute ", (j) and (k) of section 21A".

(3)In Rule 17.05 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008—

(a)in paragraph (4) omit "for leave";

(b)in paragraph (5) omit "for leave".

6Rule 17.06 revoked

Rule 17.06 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 is revoked.

7Jurisdiction of Associate Judge under section 21

In Rule 17.07 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 omit ", including an application for leave,".

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PART 3—AMENDMENT OF CHAPTER III

8New Rule 6.11 inserted

After Rule 6.10 of the Supreme Court (Administration and Probate) Rules 2014[2] insert—

"6.11   Notice of intention to administer by State Trustees under section 79 of the Act

(1)A notice of intention to administer an estate under section 79 of the Administration and Probate Act 1958 shall be given by State Trustees publishing the notice by posting it on the Court's website in a form approved by the Registrar.

(2)The notice shall include—

(a)the name and address of the deceased;

(b)the address and email address of State Trustees; and

(c)a statement that, 14 days after publication of the notice by posting on the Court's website, State Trustees intends to administer the estate under section 79 of the Administration and Probate Act 1958.".

Dated:    30 October 2014

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

ROBERT REDLICH, J.A.

MARK WEINBERG, J.A.

SIMON P. WHELAN, J.A.

J. G. SANTAMARIA, J.A.

DAVID F. R. BEACH, J.A.

K. WILLIAMS, J.

STEPHEN KAYE, J.

ELIZABETH HOLLINGWORTH, J.

KEVIN H. BELL, J.

BETTY JUNE KING, J.

ANTHONY CAVANOUGH, J.

JACK FORREST, J.

JAMES JUDD, J.

TERRY FORREST, J.

KARIN EMERTON, J.

M. L. SIFRIS, J.

JOHN DIXON, J.

KATE McMILLAN, J.

GREG GARDE, J.

JAMES D. ELLIOTT, J.

T. J. GINNANE, J.

MELANIE SLOSS, J.

M. J. CROUCHER, J.

CHRISTOPHER W. BEALE, J.

MICHAEL McDONALD, J.

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ENDNOTES

[1] Rule 4(1): S.R. No. 94/2008.  Reprint No. 1 as at 1 April 2012. Reprinted to S.R. No. 109/2009. Subsequently amended by S.R. No. 47/2014.

[2] Rule 8: S.R. No. 10/2014.