Supreme Court (Chapter III Amendment No. 1) Rules 2009

i Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 TABLE OF PROVISIONS Rule Page PART 1—PRELIMINARY 1 1 Object 1 2 Authorising provisions 1 3 Commencement 1 4 Principal Rules 2 PART 2—ADVERTISING ON COURT WEBSITE 3 5 Definitions 3 6 Affidavit of searches 3 7 New Order 2A 3 ORDER 2A—APPLICATION FOR PROBATE WITH ADVERTISING ON COURT WEBSITE 3 2A.01 Application of Order 3 2A.02 Process 4 2A.03 Notice of intention to apply 4 2A.04 Application supported by affidavit 5 2A.05 Affidavit of searches 7 2A.06 Affidavit of due execution 9 2A.07 Will wholly or partly inoperative 9 2A.08 Will not executed according to Wills Act 10 2A.09 Registrar's powers 11 2A.10 Transitional 11 8 Application for administration with the will annexed 12 9 Application supported by affidavit 12 10 New Order 4A 13 ORDER 4A—APPLICATION FOR ADMINISTRATION UPON INTESTACY WITH ADVERTISING ON COURT WEBSITE 13 4A.01 Application of Order 13 4A.02 Process 13 4A.03 Notice of intention to apply 14 -- 1 of 26 -- Rule Page ii 4A.04 Application supported by affidavit 15 4A.05 Affidavit of searches 18 4A.06 Application by creditor 18 4A.07 Transitional 18 11 New Form 3–2AA 19 Form 3–2AA—Originating Motion for Grant of Probate 19 12 New Form 3–4AA 20 Form 3–4AA—Originating Motion for Grant of Administration upon Intestacy 20 PART 3—REVOCATION 22 13 Revocation of provisions relating to dual advertising system period 22 ═══════════════ ENDNOTES 24 -- 2 of 26 -- 1 STATUTORY RULES 2009 S.R. No. 18/2009 Supreme Court Act 1986 Administration and Probate Act 1958 Supreme Court (Chapter III Amendment No. 1) Rules 2009 The Judges of the Supreme Court make the following Rules: PART 1—PRELIMINARY 1 Object The object of these Rules is to amend Chapter III of the Rules of the Supreme Court— (a) to provide for the procedure for advertising on the Court's website an application for the grant of representation; and (b) to make consequential amendments arising from the enactment of the Relationships Act 2008. 2 Authorising 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. 3 Commencement (1) These Rules, except Part 3, come into operation on 2 March 2009. (2) Part 3 comes into operation on 2 September 2009. -- 3 of 26 -- Part 1—Preliminary Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 2 4 Principal Rules In these Rules, the Supreme Court (Administration and Probate) Rules 2004 1 are called the Principal Rules. __________________ r. 4 -- 4 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 3 PART 2—ADVERTISING ON COURT WEBSITE 5 Definitions In Rule 1.04(1) of the Principal Rules insert the following definitions— "Court's website means the website whose address is www.supremecourt.vic.gov.au; dual advertising system period means the period of 6 months from 2 March 2009 until 2 September 2009;". 6 Affidavit of searches In Rule 2.05(2)(f) of the Principal Rules, for "the State Trust" (where twice occurring) substitute "State Trustees". 7 New Order 2A After Order 2 of the Principal Rules insert— 'ORDER 2A—APPLICATION FOR PROBATE WITH ADVERTISING ON COURT WEBSITE 2A.01 Application of Order (1) This Order applies to an application for the grant of probate of a will of a deceased person. (2) Compliance with a provision of Order 2 during the dual advertising system period is, for the purposes of this Order, sufficient compliance with the corresponding provision of this Order. r. 5 -- 5 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 4 2A.02 Process An application for the grant of probate of a will of a deceased person shall— (a) be made by filing an originating motion in Form 3–2AA; and (b) be entitled "In the matter of the Will of [name of deceased], deceased". 2A.03 Notice of intention to apply (1) An application shall not be made unless, not less than 14 days before it is made, a notice of the applicant's intention to apply for a grant of probate has been duly posted on the Court's website. (2) The notice shall include— (a) the name and address of the deceased; (b) the date of the will of the deceased; (c) the names of the persons identified in the will as the executors of the will; (d) the name and address and the e-mail address (if any) of— (i) the applicant; or (ii) if the application is to be made by a solicitor on the applicant's behalf or by a trustee company under the Trustee Companies Act 1984, the solicitor or the trustee company, as the case may be; (e) a statement that 14 days after posting the notice on the Court's website, the applicant intends to apply for a grant of probate of that will. r. 7 -- 6 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 5 (3) If the Registrar is not satisfied that the notice is sufficient advertisement of the applicant's intention, the Registrar may require a further notice to be given, as the Registrar may direct. 2A.04 Application supported by affidavit (1) The application shall be supported by an affidavit in accordance with this Rule. (2) An affidavit under this Rule— (a) shall be made by the applicant and, if the applicant is a corporation, by its secretary or other proper officer; and (b) shall state— (i) that the applicant (if a natural person) is aged 18 years or over; (ii) that the testator died leaving property in Victoria; (iii) the date of death of the testator; (iv) that the testator left a will and that that will is unrevoked; (v) the date of the will; (vi) whether at the date of execution of the will the testator was 18 years of age or over; (vii) if at the date of execution of the will the testator was less than 18 years of age, whether the applicant relies on section 6 or 20 of the Wills Act 1997 and the acts, facts and circumstances to justify such reliance; (viii) whether the testator married after the date of the will; r. 7 -- 7 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 6 (ix) whether after the date of the will any marriage of the testator ended within the meaning of section 16A(2) of the Wills Act 1958 or the testator was divorced within the meaning of section 14(4) of the Wills Act 1997; (x) the name and the place of residence of each executor; (xi) the name of each subscribing witness to the will and, if known, the place of residence of each witness; (xii) that no other application has been made by the applicant for a grant of representation in respect of the estate of the testator or details of any such application and its result; (c) shall contain an undertaking that if the applicant obtains probate— (i) the applicant will well and truly collect and administer the estate of the testator according to law and, if so required by the Court, deliver up the grant to the Court; and (ii) if the Court or the Registrar requires, the applicant will make and file, or cause to be made and filed, a true and just account of the administration of the estate; and (d) shall exhibit— (i) the will of which probate is sought; r. 7 -- 8 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 7 (ii) a certified copy of the death registration of the testator given by the Registrar of Births, Deaths and Marriages or an equivalent certificate, satisfactory to the Registrar, given or issued by a competent authority or person; and (iii) so far as the Registrar requires, an inventory of assets of the estate of the testator in Victoria and elsewhere setting out the gross value of all known assets distinguishing between real and personal property and a statement of the known liabilities of the testator as at the date of death. (3) An applicant may comply with paragraph (2)(d)(ii) by exhibiting to the affidavit a photocopy of a certified copy of the death registration or its equivalent. (4) A photocopy exhibited under paragraph (3) shall be certified as a true copy by the person before whom the affidavit is sworn. (5) An applicant unable to comply with paragraph (2)(d)(ii) may submit other evidence of the death of the testator to justify an inference or a presumption of death. (6) All exhibits to the affidavit shall be filed with the affidavit. 2A.05 Affidavit of searches (1) The application shall also be supported by an affidavit in accordance with this Rule made on the day the application is made— r. 7 -- 9 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 8 (a) stating— (i) that a search for any other will of the testator in the register of deposited wills maintained by the Registrar has been made and the result of that search; (ii) whether a caveat has been lodged against the making of a grant of representation; (iii) that a search has been made in the office of the Registrar for any previous application for a grant of representation in respect of the estate of the testator and, if a previous application has been made, the details of the application and of its result; (b) stating the date on which the notice of intention to apply was posted on the Court's website in accordance with Rule 2A.03(1); and (c) exhibiting a copy of the notice as it appeared on that date on the Court's website. (2) An affidavit under this Rule shall be made by— (a) the applicant; or (b) a solicitor who has instructions to conduct the searches referred to in paragraph (1); or (c) a person employed by or engaged and authorised by that solicitor; or (d) the Melbourne agent of that solicitor who is himself or herself a solicitor; or r. 7 -- 10 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 9 (e) a person employed by or engaged and authorised by that Melbourne agent; or (f) if State Trustees is the applicant, a person employed in the office of State Trustees; or (g) if a trustee company under the Trustee Companies Act 1984 is the applicant, a person employed by that company; or (h) a clerk in the office of the Registrar acting under Part II of the Act. 2A.06 Affidavit of due execution The application shall also be supported by an affidavit of due execution in the following cases— (a) where the will was executed by a testator affixing his or her mark to the will; (b) where the will contains no attestation clause or the attestation clause is insufficient to afford evidence of due execution; (c) where the will bears no date of execution or there is doubt as to the date of execution; (d) where the will was or appears to have been executed by a blind or illiterate person or by another person at the direction of the testator; (e) in any other case in which it is required by the Registrar. 2A.07 Will wholly or partly inoperative If it appears that the will the subject of the application is wholly or partly inoperative or does not dispose of the whole of the estate of r. 7 -- 11 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 10 the testator, the Registrar may require the applicant to file an affidavit stating what relatives or next of kin, or domestic partner if any, survived the testator so far as known and so far as material in law to the right to administer or share in the testator's estate. 2A.08 Will not executed according to Wills Act (1) This Rule applies to an application that the Court admit to probate as the will of a deceased person— (a) a document which has not been executed in the manner in which a will is required to be executed by the Wills Act 1997; or (b) a document an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by the Wills Act 1997. (2) Rules 2A.03, 2A.04, 2A.05, 2A.06 and 2A.07 apply to the application with any necessary modification. (3) In particular, a reference to a "will" in Rule 2A.04(2) shall be taken to be a reference to a "document intended to be a will". (4) If probate is sought of a document not executed in the manner in which a will is required to be executed by the Wills Act 1997, the affidavit supporting the application shall also state the acts, facts, matters and circumstances relied upon to satisfy the Court that the deceased intended the document of which probate is being sought to be his or her will. r. 7 -- 12 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 11 (5) If probate is sought of a document an alteration to which was not executed in the manner in which an alteration to a will is required to be executed by the Wills Act 1997, the affidavit supporting the application shall also state the acts, facts, matters and circumstances relied upon to satisfy the Court that the deceased intended the document, so altered, to be his or her will. 2A.09 Registrar's powers The Registrar may exercise the powers of the Court under section 9 of the Wills Act 1997 if satisfied by affidavit that— (a) all persons who would be affected by a decision under section 9 consent to those powers being exercised by the Registrar; or (b) if consent is not given—the deceased person died leaving property not exceeding $50 000 in value. 2A.10 Transitional (1) A newspaper advertisement published before 2 September 2009 in accordance with Order 2 as in force at the time of that publication is, subject to Rule 2A.03(3), sufficient notice for the purposes of an application to which that newspaper advertisement relates made under this Order. (2) In the case of an application under this Order, notice of which was given by newspaper advertisement in accordance with Rule 2.03 as in force at the time of the publication of the advertisement, the affidavit of searches under Rule 2A.05 shall— r. 7 -- 13 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 12 (a) state the matters required by Rule 2A.05(1)(a); (b) state that the application has been fully advertised and the date of publication in the newspaper; and (c) exhibit the newspaper advertisement advertising the intention to make the application.'. 8 Application for administration with the will annexed (1) For the heading to Rule 3.02 of the Principal Rules substitute— "Form of application". (2) In Rule 3.02(1)(c) of the Principal Rules, for "and that Order" substitute "or Order 2A and the relevant Order". (3) In Rule 3.02(2) of the Principal Rules after "his" insert "or her". 9 Application supported by affidavit For Rule 4.04(2)(b)(v) of the Principal Rules substitute— "(v) if the deceased died on or after 8 November 2001 and before 1 December 2008, whether (having regard in particular to the matters referred to in section 275(2) of the Property Law Act 1958 as in force at the date of death) the deceased left a domestic partner and, if so, the facts and circumstances relied upon to establish that; Note Item 1 of Schedule 1 to the Statute Law Amendment (Relationships) Act 2001 commenced on 8 November 2001 and amended the Administration and Probate Act 1958 to include domestic partners. r. 8 -- 14 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 13 (va) if the deceased died on or after 1 December 2008, whether the deceased left a domestic partner within the meaning of the Relationships Act 2008 and, if so, the facts and circumstances relied upon to establish that and whether the domestic partner was a registered domestic partner or an unregistered domestic partner within the meaning of the Administration and Probate Act 1958;". 10 New Order 4A After Order 4 of the Principal Rules insert— 'ORDER 4A—APPLICATION FOR ADMINISTRATION UPON INTESTACY WITH ADVERTISING ON COURT WEBSITE 4A.01 Application of Order (1) This Order applies to an application for a grant of administration of the estate of a deceased person upon intestacy. (2) Compliance with a provision of Order 4 during the dual advertising system period is, for the purposes of this Order, sufficient compliance with the corresponding provision of this Order. 4A.02 Process An application shall— (a) be made by filing an originating motion in Form 3–4AA; (b) be entitled "In the matter of the Estate of [name of deceased] deceased". r. 10 -- 15 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 14 4A.03 Notice of intention to apply (1) An application shall not be made unless, not less than 14 days before it is made, a notice of the applicant's intention to apply for a grant of administration of the estate of a deceased person upon intestacy has been duly posted on the Court's website. (2) The notice shall include— (a) the name and address of the deceased; (b) the name of any person who will apply to the Court for a grant of administration of the estate of the deceased upon intestacy; (c) the relationship of the person referred to in paragraph (b) to the deceased; (d) the name and address and the e-mail address (if any) of— (i) the applicant; or (ii) if the application is to be made by a solicitor on the applicant's behalf or by a trustee company under the Trustee Companies Act 1984, the solicitor or the trustee company, as the case may be; (e) a statement that 14 days after posting the notice on the Court's website, the applicant intends to apply for a grant of administration of that estate. (3) If the Registrar is not satisfied that the notice is sufficient advertisement of the applicant's intention, the Registrar may require a further notice to be given as the Registrar may direct. r. 10 -- 16 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 15 4A.04 Application supported by affidavit (1) The application shall be supported by an affidavit in accordance with this Rule. (2) An affidavit under this Rule— (a) shall be made by the applicant and, if the applicant is a corporation, by its secretary or other proper officer; (b) shall state— (i) that the applicant (if a natural person) is aged 18 years or over; (ii) that the deceased died intestate leaving property in Victoria; (iii) the date of death of the deceased; (iv) the marital status of the deceased; (v) if the deceased died on or after 8 November 2001 and before 1 December 2008, whether (having regard in particular to the matters referred to in section 275(2) of the Property Law Act 1958 as in force at the date of death) the deceased left a domestic partner and, if so, the facts and circumstances relied upon to establish that; Note Item 1 of Schedule 1 to the Statute Law Amendment (Relationships) Act 2001 commenced on 8 November 2001 and amended the Administration and Probate Act 1958 to include domestic partners. r. 10 -- 17 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 16 (vi) if the deceased died on or after 1 December 2008, whether the deceased left a domestic partner within the meaning of the Relationships Act 2008 and, if so, the facts and circumstances relied upon to establish that and whether the domestic partner was a registered domestic partner or an unregistered domestic partner within the meaning of the Administration and Probate Act 1958; (vii) what relatives or next of kin survived the deceased so far as known and so far as material in law to the right to share in his or her property; (viii) the name, address and occupation of every person entitled to administer the estate in priority to the applicant; (ix) such facts as establish the applicant's right to have the administration; (x) that the applicant has carefully enquired as to the existence of a will; (xi) that no other application has been made by the applicant for a grant of probate or administration in respect of the estate of the deceased person or details of each such other application and its result; r. 10 -- 18 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 17 (c) shall contain an undertaking that if the applicant obtains administration— (i) the applicant will well and truly collect and administer the estate of the deceased according to law and, if so required by the Court, deliver up the grant to the Court; and (ii) if the Court or the Registrar requires, the applicant will make and file, or cause to be made and filed, a true and just account of the administration of the estate; and (d) shall exhibit— (i) a certified copy of the death registration of the deceased given by the Registrar of Births, Deaths and Marriages or an equivalent certificate, satisfactory to the Registrar, given or issued by a competent authority or person; and (ii) so far as the Registrar requires, an inventory of assets of the estate of the deceased in Victoria and elsewhere setting out the gross value of all known assets distinguishing between real and personal property and a statement of the known liabilities of the deceased as at the date of death. (3) An applicant may comply with paragraph (2)(d)(i) by exhibiting to the affidavit a photocopy of a certified copy of the death registration or its equivalent. r. 10 -- 19 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 18 (4) A photocopy exhibited under paragraph (3) shall be certified as a true copy by the person before whom the affidavit is sworn. (5) An applicant unable to comply with paragraph (2)(d)(i) may submit other evidence of the death of the deceased to justify an inference or a presumption of death. (6) All exhibits to the affidavit shall be filed with the affidavit. 4A.05 Affidavit of searches Rule 2A.05 applies with any necessary modification to an application for administration of an estate. 4A.06 Application by creditor An application for administration by a creditor shall also be supported by an affidavit in which the applicant shall state— (a) that the applicant is a creditor of the deceased; (b) the amount of the debt due to the applicant from the deceased; (c) the particulars of the debt together with such evidence proving the debt as may be appropriate. 4A.07 Transitional (1) A newspaper advertisement published before 2 September 2009 in accordance with Order 4 as in force at the time of that publication is, subject to Rule 2A.03(3), sufficient notice for the purposes of an application to which that newspaper advertisement relates made under this Order. r. 10 -- 20 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 19 (2) In the case of an application, notice of which was given by newspaper advertisement in accordance with Rule 4.03 as in force at the time of the publication of that advertisement, the affidavit of searches under Rule 4A.05 shall— (a) state the matters required by Rule 2A.05(1)(a) with any necessary modification for an application for administration of an estate; (b) state that the application has been fully advertised and the date of publication in the newspaper; and (c) exhibit the newspaper advertisement advertising the intention to make the application.'. 11 New Form 3–2AA After Form 3–2A of the Principal Rules insert— "RULE 2A.02 FORM 3–2AA ORIGINATING MOTION FOR GRANT OF PROBATE [heading in accordance with Form 3–1A and Rule 2A.02(b)] This is an application by the abovenamed plaintiff for the grant by this Honourable Court of probate of the will dated [and the codicil dated ] of the abovenamed deceased. Particulars of this application are as follows: (1) of the deceased Surname: Given names: In the will [and codicil] called: Last residential address: Last known occupation: r. 11 -- 21 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 20 Date and place of birth: Date and place of death: (2) of the plaintiff Surname: Given names: In the will [and codicil] called: Residential address: Occupation: Relationship to deceased: This application is made by the plaintiff as [executor or as the case may be]. [Further particulars of the application are as follows:] [Signed by plaintiff or Solicitor] __________________". 12 New Form 3–4AA After Form 3–4A of the Principal Rules insert— "RULE 4A.02(a) FORM 3–4AA ORIGINATING MOTION FOR GRANT OF ADMINISTRATION UPON INTESTACY [heading in accordance with Form 3–1A and Rule 4A.02(b)] This is an application by the abovenamed plaintiff for the grant by this Honourable Court of administration of the estate of the abovenamed deceased, who died intestate. Particulars of this application are as follows: (1) of the deceased Surname: Given names: Last residential address: Last known occupation: r. 12 -- 22 of 26 -- Part 2—Advertising on Court Website Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 21 Date and place of birth: Date and place of death: (2) of the plaintiff Surname: Given names: Residential address: Occupation: Relationship to deceased: This application is made by the plaintiff as [*next of kin/*domestic partner/*creditor or as the case may be]. [Further particulars of the application are as follows:] [Signed by plaintiff or Solicitor] *delete if not applicable __________________". __________________ r. 12 -- 23 of 26 -- Part 3—Revocation Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 22 PART 3—REVOCATION 13 Revocation of provisions relating to dual advertising system period In the Principal Rules— (a) Orders 2 and 4 are revoked; (b) In Rule 3.02(1)(c) of the Principal Rules, for "Order 2 or Order 2A and the relevant Order" substitute "Order 2A and that Order"; (c) Forms 3–2A, 3–2B, 3–4A and 3–4B are revoked. Dated: 26 February 2009 M. L. WARREN, C.J. CHRISTOPHER MAXWELL, P. PETER BUCHANAN, J.A. GEOFFREY NETTLE, J.A. DAVID ASHLEY, J.A. MARCIA NEAVE, J.A. JULIE DODDS-STREETON, J.A. MARK WEINBERG, J.A. T. H. SMITH, J. DAVID BYRNE, J. D. L. HARPER, J. H. R. HANSEN, J. PHILIP MANDIE, J. D. J. HABERSBERGER, J. R. S. OSBORN, J. K. WILLIAMS, J. r. 13 -- 24 of 26 -- Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 23 ELIZABETH HOLLINGWORTH, J. KEVIN H. BELL, J. BETTY JUNE KING, J. ANTHONY CAVANOUGH, J. ELIZABETH CURTAIN, J. TONY PAGONE, J. PAUL COGHLAN, J. ROSS ROBSON, J. JAMES JUDD, J. PETER VICKERY, J. EMILIOS KYROU, J. DAVID F. R. BEACH, J. ═══════════════ r. 13 -- 25 of 26 -- Supreme Court (Chapter III Amendment No. 1) Rules 2009 S.R. No. 18/2009 24 ENDNOTES 1 Rule 4: S.R. No. 54/2004 as amended by S.R. No. 100/2008. Endnotes -- 26 of 26 --