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

i 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 ═══════════════ NOTES 7 -- 1 of 8 -- 1 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 Supreme Court Act 1986 and all other enabling powers. 3. Commencement These Rules come into operation on 20 July 1998. 4. Principal Rules In these Rules, the Rules of Procedure in Miscellaneous Civil Proceedings 19881 are called 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 -- 2 of 8 -- S.R. No. 71/1998 Supreme Court (Chapter II Amendment No. 16) Rules 1998 2 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. r. 6 -- 3 of 8 -- S.R. No. 71/1998 Supreme Court (Chapter II Amendment No. 16) Rules 1998 3 (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— r. 7 -- 4 of 8 -- S.R. No. 71/1998 Supreme Court (Chapter II Amendment No. 16) Rules 1998 4 (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. r. 7 -- 5 of 8 -- S.R. No. 71/1998 Supreme Court (Chapter II Amendment No. 16) Rules 1998 5 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. r. 7 -- 6 of 8 -- S.R. No. 71/1998 Supreme Court (Chapter II Amendment No. 16) Rules 1998 6 ROSEMARY BALMFORD, J. ALEX CHERNOV, J. MURRAY B. KELLAM, J. ═══════════════ r. 7 -- 7 of 8 -- S.R. No. 71/1998 Supreme Court (Chapter II Amendment No. 16) Rules 1998 7 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. Notes -- 8 of 8 --