Supreme Court Rules (Amendment No 400) 2004 (NSW)

2004 No 768

New South Wales

Supreme Court Rules (Amendment

No 400) 2004

under the

Supreme Court Act 1970

The Supreme Court Rule Committee made the following rules of court under the

Supreme Court Act 1970 on 15 November 2004.

Steven Jupp

Secretary of the Rule Committee

Explanatory note

The object of these Rules is to make amendments to Part 78 of, and Schedule F to, the Supreme Court Rules 1970 with respect to applications by creditors for the administration of estates and the withdrawal of caveats with respect to probate matters.

Published in Gazette No 187 of 26 November 2004, page 8625	Page 1
2004 No 768
Rule 1	Supreme Court Rules (Amendment No 400) 2004

Supreme Court Rules (Amendment No 400) 2004

under the

Supreme Court Act 1970

1      Name of Rules

These Rules are the Supreme Court Rules (Amendment No 400) 2004.

2 Amendment of Supreme Court Rules 1970

The Supreme Court Rules 1970 are amended as set out in Schedule 1.

2004 No 768

Supreme Court Rules (Amendment No 400) 2004

Amendments	Schedule 1
Schedule 1	Amendments

(Rule 2)

[1]      Part 78, rule 32

Omit the rule.

[2]      Part 78, rule 33

Omit rule 33 (1). Insert instead:

(1)

A creditor who desires to commence proceedings for a grant of administration in circumstances where the deceased has left a will must:

(a)	file an affidavit in proof of the debt to the creditor, and
(b)	where an executor is appointed by the will and has not renounced probate—serve a citation to take probate on the executor, and
(c)	where the executor fails to comply with the citation to take probate—serve a citation to pray for administration:

(i)      on every beneficiary under the will, and

(ii)      in the case of a partial intestacy, on every person entitled in administration of the estate on intestacy.

[3]      Part 78, rule 33 (4)

Omit “upon the widow or widower of the deceased and”.

[4]      Part 78, rule 33 (5)–(7)

Insert after rule 33 (4):

(5)

In any proceedings commenced by a creditor for a grant of administration, the creditor must file an affidavit of compliance with this rule and that none of the persons cited has complied with the citation.

(6)

In any proceedings commenced by a creditor for a grant of administration, the Court may require any one or more of the following:

(a)	that further evidence be furnished to the Court,
(b)	that further citations be served,
(c)	that further notices be given.

(7)

The Court may, if it thinks fit, refuse or withhold a grant of administration to a creditor even if the creditor has complied with this rule.

2004 No 768

Supreme Court Rules (Amendment No 400) 2004

Schedule 1 Amendments

[5]      Part 78, rule 34

Omit the rule.

[6]      Part 78, rule 64

Omit the rule. Insert instead:

64 Withdrawal of caveat—no proceedings for grant or resealing or caveator sole applicant for grant or resealing

(1)

This rule applies to a caveat if:

(a)	there are no proceedings for a grant or resealing in the estate, or
(b)	the caveator is the sole applicant in proceedings for a grant or resealing in the estate.

(2)

A caveator may withdraw a caveat to which this rule applies by
filing a notice in Form 115.

(3)

The withdrawal of a caveat under this rule has effect on the date
on which the notice referred to in subrule (2) is filed.

[7]      Part 78, rule 65

Omit “This” from rule 65 (1). Insert instead “Subject to rule 64, this”.

[8]      Part 78, rule 65 (4)–(6)

Insert after rule 65 (3):

(4)	A draft minute of the order sought must be lodged with the registrar before any order is made on the motion.
(5)	The order must be entered.
(6)	The order may be entered at any time after the minute of it is signed.

[9]      Part 78, rule 66

Omit the rule. Insert instead:

66 Withdrawal

If leave is granted to withdraw a caveat, the caveat is taken to be withdrawn on the granting of that leave.

2004 No 768

Supreme Court Rules (Amendment No 400) 2004

Amendments Schedule 1

[10]      Schedule F

Insert after Form 114:

Form 115

P 78, r 64.

NOTICE OF WITHDRAWAL OF CAVEAT

I (name) of (address) withdraw the caveat filed by me on (date) and numbered
(number of caveat).

Dated: (date)

(signature)
Caveator or Caveator’s solicitor

[11]      Schedule F, Index of Forms

Insert after the matter relating to Form 114:

Form 115 Notice of withdrawal of caveat (P 78, r 64).

BY AUTHORITY