S. 3(1) def. of intestate inserted by No. 41/2017 s. 4(2)(a). intestate includes a person who leaves a will but dies intestate as to some beneficial interest in that person's real or personal estate; S. 3(1) def. of legacy interest rate inserted by No. 41/2017 s. 4(1). legacy interest rate means the rate that lies 2 per cent above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue; S. 3(1) def. of legal practitioner inserted by No. 18/2005 s. 18(Sch. 1 item 2), amended by No. 17/2014 s. 160(Sch. 2 item 2). legal practitioner means an Australian legal practitioner; S. 3(1) def. of Master repealed by No. 24/2008 s. 75. * * * * * S. 3(1) def. of parent inserted by No. 27/2001 s. 3(Sch. 1 item 1.1). parent of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident; Part means Part of this Act; S. 3(1) def. of partner inserted by No. 27/2001 s. 3(Sch. 1 item 1.1), amended by No. 41/2017 s. 4(2)(b). partner of a person who dies, other than in Part IA, means the person's spouse or domestic partner;
S. 3(1) def. of residuary estate inserted by No. 41/2017 s. 4(2)(a). residuary estate of an intestate means the residue of the intestate's real and personal estate, including— (a) the money and any investments representing the money arising from any sale or conversion of the estate under section 70H; and (b) any part of the estate of the intestate which— (i) may be retained unsold; and (ii) is not required for the administration purposes of the estate, for the payment of any amount specified in section 70H(4)(a) or for the setting aside of any fund under section 70H(4)(b); S. 3(1) def. of small estate inserted by No. 45/1994 s. 38, repealed by No. 80/2014 s. 14. * * * * * S. 3(1) def. of spouse inserted by No. 27/2001 s. 3(Sch. 1 item 1.1). spouse of a person who dies means a person who was married to the person at the time of the person's death; S. 3(1) def. of State Trustees inserted by No. 45/1994 s. 38, substituted by No. 44/2001 s. 3(Sch. item 2). State Trustees means State Trustees Limited (A.C.N. 064 593 148);
(3) Without limiting the powers of the Court, an order under subsection (2) may direct that a conveyance, deed or any other document be executed or any other action be taken. (4) In this section— unjust advantage means an unjust or a disproportionate advantage of a kind not contemplated by the testator in the will; unjust disadvantage means an unjust or a disproportionate disadvantage of a kind not contemplated by the testator in the will. New s. 51 inserted by No. 41/2017 s. 20. 51 Beneficiary entitled to traceable income from sale of adeemed assets A beneficiary under a will to whom section 53 of the Guardianship and Administration Act 1986 or section 83A of the Powers of Attorney Act 2014 applies is entitled to any traceable income or capital gain generated from the proceeds of sale or disposal of the property referred to in those sections to the extent that the income or capital gain has not been applied under the powers referred to in the applicable section. Pt 1 Div. 6 (Heading) repealed by No. 41/2017 s. 8. * * * * * S. 50 substituted by No. 7597 s. 2(1), amended by No. 9041 s. 3, substituted by No. 10/1994 s. 9, repealed by No. 41/2017 s. 9. * * * * *
Subdivision 2—Caveats No. 3632 s. 52. S. 58 amended by No. 9041 s. 5, substituted by No. 10/1994 s. 10. 58 Caveat may be lodged Any person may lodge with the registrar in accordance with the Rules of the Supreme Court a caveat against the making of a grant. Ss 59–63 repealed by No. 10/1994 s. 11. * * * * * S. 64 amended by No. 55/1987 s. 57(3)(Sch. 5 items 7, 8), repealed by No. 10/1994 s. 11. * * * * * Subdivision 3—Commission to executors administrators and trustees of deceased persons Nos 3632 s. 59, 5277 s. 5, 5329 s. 11(2). S. 65 amended by Nos 57/1989 s. 3(Sch. item 4.5), 17/2010 s. 18 (ILA s. 39B(1)). 65 Executors' etc. commission (1) It shall be lawful for the Court to allow out of the assets of any deceased person to his executor administrator or trustee for the time being such commission or percentage not exceeding Five per centum for his pains and trouble as is just and reasonable. In this section executor includes the executor of an executor becoming by representation the executor of the original estate. S. 65(2) inserted by No. 17/2010 s. 18. (2) Despite subsection (1), the commission or percentage allowed by the Court in respect of a licensed trustee company must not exceed the commission or percentage that a licensed trustee company may charge under Chapter 5D of the Corporations Act.
Pt 1 Div. 7 Subdiv. 4 (Heading) amended by No. 6505 s. 2. Subdivision 4—Concealment of wills No. 3632 s. 64. S. 66 amended by No. 9576 s. 11(1). 66 Concealment of will a misdemeanour S. 66(1) amended by Nos 9945 s. 3(1)(Sch. 1 item 1), s. 3(3)(Sch. 2 item 2), 10/1994 s. 13(h), 41/2017 s. 18(1). (1) Every person who retains or conceals or endeavours to retain or conceal any will or codicil or is involved in such retention or concealment with intent to defraud any person interested under such will or codicil, shall be guilty of an indictable offence; and shall be liable to a fine of not more than 100 penalty units or to imprisonment for a term of not more than two years or to both fine and imprisonment; and shall also be liable to a proceeding for damages at the suit of the persons defrauded or those claiming under them for any loss sustained by them or any of them in consequence of such retention or concealment. Note to s. 66(1) inserted by No. 41/2017 s. 18(2). Note See sections 323 to 324C of the Crimes Act 1958 in relation to complicity in the commission of offences. (2) No prosecution for any such offence shall be commenced without the sanction of a law officer; and no such sanction shall be given unless such previous notice of the application for leave to prosecute as the law officer directs has been given to the person for whose prosecution such sanction is sought.
(b) if the partner is not a personal representative of the intestate, within 3 months of the date of the right to elect notice which has been given to the partner; or (c) if the Court extends the time for making the election, by the date to which the period for election is extended. (2) The Court may extend the time for making a partner's property election— (a) if it considers there is sufficient cause for doing so; and (b) whether or not the time for making the partner's property election has passed, but not after the administration of the estate has been completed. S. 70S inserted by No. 41/2017 s. 11. 70S How partner's property election is made (1) An intestate's partner who makes a partner's property election must make it in writing identifying, with reasonable particularity, the property of the intestate which the partner elects to acquire. (2) Subject to subsection (4), the partner must give a copy of the partner's property election— (a) to the personal representative who sent the partner the right to elect notice, if the partner is not a personal representative; and (b) to each other person who is a personal representative, other than the partner if the partner is also a personal representative; and (c) to each beneficiary, other than the partner, who is entitled to a share in the intestate's estate; and
No. 3632 s. 73. S. 73 amended by Nos 7168 s. 4, 8181 s. 2(1)(Sch. item 7), 57/1989 s. 3(Sch. item 4.9), 10/1994 s. 12(b), 10/2005 s. 3(Sch. 1 item 1.5), 80/2014 s. 20. 73 Registrar may require proof of identity The registrar of probates or registrar of the Magistrates' Court may require such proof as the registrar thinks sufficient to establish the identity and right or relationship of the applicant. No. 3632 s. 74. S. 74 amended by Nos 7168 s. 5, 7332 s. 2 (Sch. 1 item 5), 8181 s. 2(1) (Sch. item 7), 57/1989 s. 3(Sch. item 4.10) (as amended by No. 34/1990 s. 5(Sch. 4 item 3)), 10/1994 s. 12(b)(d)(i)(ii), 10/2005 s. 3(Sch. 1 item 1.6), 80/2014 s. 21. 74 Satisfaction as to value If the registrar of probates or registrar of the Magistrates' Court has reason to believe that the whole real and personal property of the deceased person exceeds in value the maximum monetary value specified in section 71(1A), the registrar shall refuse to proceed with the application until the registrar is satisfied as to the real value thereof. No. 3632 s. 75. 75 Registrars may exercise certain powers S. 75(1) amended by Nos 7168 s. 6(a), 8181 s. 2(1)(Sch. item 8), 57/1989 s. 3(Sch. item 4.11(a)(b)). (1) All registrars of the Magistrates' Courts may for the purposes of this Part administer oaths and take declarations and affirmations.
S. 75(2) amended by Nos 7168 s. 6(b), 8181 s. 2(1)(Sch. item 7), 57/1989 s. 3(Sch item 4.12(a)(b)) (as amended by No. 34/1990 s. 5(Sch. 4 item 4)), 10/1994 s. 13(i), 69/2009 s. 54(Sch. Pt 2 item 2). (2) In the absence of a registrar of the Magistrates' Court applicants under this Part may be sworn and execute any necessary documents before any person authorised under the Evidence (Miscellaneous Provisions) Act 1958. S. 76 amended by No. 6640 s. 2(d), substituted by No. 7168 s. 7, amended by No. 8181 s. 2(1)(Sch. item 5), S.R. No. 369/1973 cl. 2, Nos 57/1989 s. 3(Sch. item 4.13), 10/1994 s. 12(b), 10/2005 s. 3(Sch. 1 item 1.6), 80/2014 s. 22. 76 Applicants residing within 32 kilometres of Where at the time of making his application the fixed place of abode of an applicant seeking aid pursuant to section seventy-one of this Act is within a radius of 32 kilometres from the north-east corner of Bourke and Elizabeth streets, Melbourne, such applicant shall not apply to a registrar of the Magistrates' Court but may apply to the registrar of probates.
No. 3632 s. 77. S. 77 amended by Nos 6640 s. 2(e), 7168 s. 8 (as amended by No. 7332 s. 2(Sch 1 item 139)), 8181 s. 2(1)(Sch. item 4), 57/1989 s. 3(Sch. item 4.14), 10/1994 s. 12(b), 10/2005 s. 3(Sch. 1 item 1.7), 80/2014 s. 23. 77 Registrar of probates may require further materials In any case where the registrar of probates is not satisfied with the materials placed before the registrar of probates or the amount of the fee paid, the registrar of probates shall state the matters on which the registrar of probates is not satisfied either to the applicant or to the registrar of the Magistrates' Court transmitting the application, who shall then inform the applicant accordingly and shall take such further steps as may be proper to enable the applicant to satisfy the registrar of probates in respect of such matters. No. 3632 s. 78. S. 78 amended by Nos 6640 s. 2(f), 10/1994 s. 12(b), 35/1996 s. 453(Sch. 1 item 3.3), 10/2005 s. 3(Sch. 1 item 1.8), 80/2014 s. 24. 78 Registrar of probates need not proceed in difficult cases In no case shall the registrar of probates be under any obligation by reason of this Part to consider further any application which the registrar of probates may think proper to be considered by the Court or to be placed in the hands of a legal practitioner.
(l) the effects a family provision order would have on the amounts received from the deceased's estate by other beneficiaries; (m) any other matter the Court considers relevant. S. 92 amended by No. 6920 s. 6(a)(b), repealed by No. 110/1986 s. 140(2). * * * * * No. 3632 s. 141. S. 93 substituted by No. 110/1986 s. 140(2). 93 Service of notice of application Notice of an application under section 91 must be served on the personal representative of the deceased and on such other persons as the Court orders. Nos 3632 s. 142, 4483 s. 7. S. 94 amended by No. 6920 s. 7. 94 Powers of Court At the hearing of such application the Court shall inquire fully into the estate of the deceased, and for that purpose may— (a) summon and examine such witnesses as may be necessary; and S. 94(b) amended by No. 88/1997 s. 56. (b) require the executor or administrator to furnish full particulars of the estate of the deceased; and S. 94(c) inserted by No. 88/1997 s. 56. (c) accept any evidence of the deceased person's reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing. S. 95 amended by No. 6920 s. 8, repealed by No. 88/1997 s. 57. * * * * *
Assent Date: 7.6.60 Commencement Date: 7.6.60 : All of Act in operation Statute Law Revision Act 1960, No. 6716/1960 Assent Date: 21.12.60 Commencement Date: 21.12.60: subject to ss 3, 4 : All of Act in operation Administration and Probate (Amendment) Act 1962, No. 6866/1962 Assent Date: 16.4.62 Commencement Date: 16.4.62 : All of Act in operation Probate Duty Act 1962, No. 6890/1962 Assent Date: 15.5.62 Commencement Date: 1.7.62: Government Gazette 13.6.62 p. 1990 : All of Act in operation Administration and Probate (Family Provision) Act 1962, No. 6920/1962 Assent Date: 20.11.62 Commencement Date: 20.11.62 : All of Act in operation Administration and Probate (Small Estates) Act 1964, No. 7168/1964 (as amended by Act No. 7332) Assent Date: 10.11.64 Commencement Date: 1.6.65: Government Gazette 12.5.65 p. 1555 : All of Act in operation Administration and Probate (Surviving Actions) Act 1965, No. 7296/1965 Assent Date: 12.10.65 Commencement Date: 12.10.65 : All of Act in operation Statute Law Revision Act 1965, No. 7332/1965 Assent Date: 14.12.65 Commencement Date: 14.12.65: subject to s. 3 : All of Act in operation Administration and Probate (Amendment) Act 1967, No. 7597/1967 Assent Date: 5.12.67 Commencement Date: 5.12.67 : All of Act in operation Administration and Probate (Amendment) Act 1968, No. 7663/1968 Assent Date: 2.4.68 Commencement Date: 1.5.68: Government Gazette 24.4.68 p. 1259 : All of Act in operation Administration and Probate (Foreign Grants) Act 1969, No. 7874/1969
Assent Date: 10.5.83 Commencement Date: 11.5.83: Government Gazette 11.5.83 p. 1145 : All of Act in operation Penalties and Sentences (Amendment) Act 1983, No. 9945/1983 Assent Date: 20.9.83 Commencement Date: S. 2 on 1.9.81: s. 1(4); rest of Act on 20.12.83: Government Gazette 14.12.83 p. 4035; s. 8 repealed by No. 10096 s. 4(4) : All of Act in operation Trustee Companies Act 1984, No. 10168/1984 Assent Date: 20.11.84 Commencement Date: 5.12.84: Government Gazette 5.12.84 p. 4329 : All of Act in operation Courts Amendment Act 1986, No. 16/1986 Assent Date: 22.4.86 Commencement Date: Ss 1–11, 13–27, 29–34 on 1.7.86: Government Gazette 25.6.86 p. 2180; s. 28 on 1.9.86: Government Gazette 27.8.86 p. 3201; s. 12 on 1.1.88: Government Gazette 7.10.87 p. 2701 : All of Act in operation Mental Health Act 1986, No. 59/1986 Assent Date: 3.6.86 Commencement Date: Ss 1–3, 21, 23, Sch 1 on 19.6.87: Government Gazette 17.6.87 p. 1538; rest of Act on 1.10.87: Government Gazette 30.9.87 p. 2585 : All of Act in operation Supreme Court Act 1986, No. 110/1986 Assent Date: 16.12.86 Commencement Date: 1.1.87: s. 2 : All of Act in operation State Trust Corporation of Victoria Act 1987, No. 55/1987 Assent Date: 20.10.87 Commencement Date: 2.11.87: Government Gazette 28.10.87 p. 2925 : All of Act in operation County Court (Amendment) Act 1989, No. 19/1989 Assent Date: 16.5.89 Commencement Date: 1.8.89: Government Gazette 26.7.89 p. 1858 : All of Act in operation Magistrates’ Court (Consequential Amendments) Act 1989, No. 57/1989 (as amended by No. 34/1990)