Chapter 1—Preliminary 1 Citation These Rules may be cited as the “Probate Rules 2015”. 2 Commencement These Rules commence on 1 July 2015. 3 Interpretation (1) In these Rules, unless a contrary intention appears or the context otherwise requires— (a) words and expressions defined in the Administration and Probate Act 1919 and the Wills Act 1936 shall have the same meanings as are assigned to them in those Acts; (b) the Act means the Administration and Probate Act 1919, and any Act amending the same or substituted therefor and where a section is mentioned the reference is to that section of the Administration and Probate Act 1919, or the corresponding provision of any amending or substituted Act; affidavit means an affidavit whether sworn or affirmed; the caveator— see rule 52(2); the citor— see rule 53(2); the Court means the Supreme Court of South Australia; cousin in relation to a person means the child of that person’s uncle or aunt; the Crown means the Crown in right of this State; domestic partner means a domestic partner within the meaning of section 11A of the Family Relationships Act 1975; General Civil Rules (or a reference to a Supreme Court Rule) means the Supreme Court Civil Rules 2006; General Civil Supplementary Rules means the Supreme Court Civil Rules 2014; grant means a grant of probate or administration, an order under section 9 of the Public Trustee Act 1995 authorising Public Trustee to administer the estate of a deceased person or a re-seal of a foreign grant; gross value in relation to any estate means the value of the estate without deduction for debts, encumbrances or funeral expenses; Judge means a Judge of the Court; market value in relation to an estate asset means its gross value in the market under the state of things existing at the relevant time; oath means the oath required by rule 11 to be sworn by every applicant for a grant;
(6) The oath of administrator and of administrator with the will annexed must be so worded as to clear off all persons having a prior entitlement to the grant. (7) Where the deceased died on or after 29 January 1976 wholly intestate— the wording in the following table must be used in the oath to clear off all persons having a prior entitlement to the grant under subrule 34(1): TABLE Applicant for grant of letters of administration Wording In order to clear off the persons having the prior entitlement to the grant it must be sworn in the oath that the deceased died - 1 spouse or domestic partner “intestate” 2 child, or issue of a child Note: where a grandchild or remoter issue apply for administration the beneficial interest of the applicant must be established in the oath. Refer to note under “Issue of a child” in rule 14. “intestate a widower [widow] [divorced person] [single person] without any other person entitled in priority to share in his [or her] estate by virtue of any enactment.” 3 parent “intestate a widower [widow] [divorced person] [single person] without issue or any other person entitled in priority to share in his [or her] estate by virtue of any enactment.” 4 brother or sister, or issue of a brother or sister Note: where a nephew or niece or remoter issue apply for administration the beneficial interest of the applicant must also be established in the oath. Refer to note under “Issue of a brother or sister” in rule 14. “intestate a widower [widow] [divorced person] [single person] without issue or a parent or any other person entitled in priority to share in his [or her] estate by virtue of any enactment.”
(b) letters of administration with the will annexed where the residuary estate has not been disposed of by the will and the applicant is a person entitled to share in the residue of the estate not so disposed of, must be described in the oath in the manner shown in the following table— TABLE 1 A husband “ “the widower” A wife “the widow” A domestic partner Notes: (i) a person may only be described in an oath as a “domestic partner” of the deceased if a declaration to that effect has been made by a Court of competent jurisdiction. A copy of such order must be annexed to the oath. (ii) “Prescribed amount” is defined in section 72G(2) of the Act. “the domestic partner” and the widower, widow or domestic partner shall be further described in the oath as: (i) “and one of the persons entitled to share in the estate”, or (ii) “and the only person now entitled to the estate”, (i.e. where the value of the intestate estate as ascertained in accordance with section 72F of the Act does not exceed the prescribed amount and there is a person who may become entitled to share in the estate in the event of an accretion thereto), or (iii) “and only person entitled to the estate” as the case may be. 2 A child “a son (or daughter) and only person entitled to the estate”, or “a son (or daughter) and one of the persons entitled to share in the estate”. 3 Issue of a child Note: in the case of grandchildren or remoter issue it must be shown in the oath that the applicant has a beneficial interest in the estate, i.e., that the deceased died without child. In such case the following wording is to be used – “intestate a widow without child or any “a grandson (or granddaughter) and only person entitled to the estate”, or “a grandson (or granddaughter) and one of the persons entitled to share in the estate.”