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Supreme Court (Administration and Probate) Rules 2004

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Supreme Court (Administration and Probate) Rules 2004

    Version No. 004

    Supreme Court (Administration and

    Probate) Rules 2004

    S.R. No. 54/2004

    Version incorporating amendments as at 2 March 2009

    TABLE OF PROVISIONS Rule Page

    ORDER 1PRELIMINARY 1 1.01 Title and object 1 1.02 Authorising provisions 1 1.03 Commencement, revocation and savings 1 1.04 Definitions 2 1.05 Chapter I of Rules and general practice to apply 2 1.06 Jurisdiction of Associate Judge 3 1.06.1 Reference by Judge of the Court to Associate Judge 3 1.07 Documents 4 ORDER 2APPLICATION FOR PROBATE 4 2.01 Application of Order 4 2.02 Process 4 2.03 Advertisement of application 5 2.04 Application supported by affidavit 5 2.05 Affidavit of searches 8 2.06 Affidavit of due execution 9 2.07 Will wholly or partly inoperative 10 2.08 Will not executed according to Wills Act 10 2.09 Registrar's powers 11 ORDER 2AAPPLICATION FOR PROBATE WITH ADVERTISING ON COURT WEBSITE 11 2A.01 Application of Order 11 2A.02 Process 12 2A.03 Notice of intention to apply 12 2A.04 Application supported by affidavit 13 2A.05 Affidavit of searches 15 2A.06 Affidavit of due execution 17

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    Rule Page 2A.07 Will wholly or partly inoperative 17 2A.08 Will not executed according to Wills Act 17 2A.09 Registrar's powers 18 2A.10 Transitional 19 ORDER 3APPLICATION FOR ADMINISTRATION WITH

    WILL ANNEXED 19 3.01 Application of Order 19 3.02 Form of application 19 ORDER 4APPLICATION FOR ADMINISTRATION UPON

    INTESTACY 20 4.01 Application of Order 20 4.02 Process 20 4.03 Advertisement of application 20 4.04 Application supported by affidavit 21 4.05 Affidavit of searches 23 4.06 Application by creditor 24 ORDER 4AAPPLICATION FOR ADMINISTRATION UPON

    INTESTACY WITH ADVERTISING ON COURT WEBSITE 24 4A.01 Application of Order 24 4A.02 Process 24 4A.03 Notice of intention to apply 25 4A.04 Application supported by affidavit 26 4A.05 Affidavit of searches 28 4A.06 Application by creditor 29 4A.07 Transitional 29 ORDER 5SPECIAL FORMS OF APPLICATION 30 5.01 Grant during minority 30 5.02 Peculiar circumstances 30 5.03 Deceased citizens of U.S.A. 31 ORDER 6RULES FOR ALL APPLICATIONS FOR PROBATE

    OR ADMINISTRATION 31 6.01 Joint representation 31 6.02 Delay 32 6.03 Account 32 6.04 Urgent cases 32 6.05 Beneficial interest of the Crown 32 6.06 Further affidavits 33 6.07 Notice requesting Registrar to notify of making of grant 33

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    Rule Page 6.08 Authentication of orders 33 6.09 Substituted administrator to furnish guarantee 34 6.10 Discontinuance of application 35 ORDER 7SURETIES 35 7.01 When required 35 7.02 Form of guarantee 36 7.03 Affidavit of justification 36 7.04 Leave to sue on guarantee 37

     ORDER 8CAVEATS 37

    8.01 Caveat 37 8.02 Registrar to give notice of caveat 37 8.03 Expiry of caveat 37 8.04 Withdrawal of caveat 38 8.05 Fresh caveat 38 8.06 Grounds of caveator's objection 38 8.07 Summons for directions 40 8.08 Directions 40 ORDER 9COSTS 41 9.01 Basic charges 41 9.02 Agency 41 9.03 Other charges 41 ORDER 10COMMISSION TO EXECUTORS, ADMINISTRATORS AND TRUSTEES 42 10.01 Application of Order 42 10.02 Process 42 10.03 15 months' account to be filed 42 10.04 Consent to acceptance of account 42 10.05 Notice requiring notification of application 42 10.06 Directions 43 10.07 Objection to application 44 10.08 Right to be heard 44 10.09 Fixing of commission or percentage 44 10.10 Costs 44 10.11 Liberty to apply 45 10.12 Form of order 45 ORDER 11REVOCATION 45 11.01 Application of Order 45 11.02 Process 45

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    Rule Page ORDER 12RECTIFICATION 45 12.01 Application of Order 45 12.02 Process 45

    __________________

    FORMS 47 Form 31AGeneral Form of Heading if no Defendant 47 Form 31BGeneral Form of Heading if between Parties 48 Form 32AOriginating Motion for Grant of Probate 49 Form 32AAOriginating Motion for Grant of Probate 50 Form 32BAdvertisement 51 Form 33AOriginating Motion for Grant of Administration with

    Will Annexed 52 Form 34AOriginating Motion for Grant of Administration upon

    Intestacy 53 Form 34AAOriginating Motion for Grant of Administration upon

    Intestacy 54 Form 34BAdvertisement 55 Form 36AAAdministration Account 56 Form 36ARequest for Notice of Making of Grant 58 Form 36BNotice of Making of Grant 60 Form 37ASurety's Guarantee 61 Form 37BAffidavit of Justification 63 Form 38ACaveat 65 Form 38BNotice of Withdrawal of Caveat 66 Form 310ASummons 67 Form 310BAffidavit in support of application for commission 68 Form 310CConsent 71 Form 310DRequest for Notification of Application for Commission 72 Form 310EOrder 73 Appendix 3A 74 SCHEDULERevoked Statutory Rules 75

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    Rule Page ENDNOTES 77 1. General Information 77 2. Table of Amendments 78 3. Explanatory Details 79

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    Version No. 004

    Supreme Court (Administration and

    Probate) Rules 2004

    S.R. No. 54/2004

    Version incorporating amendments as at 2 March 2009

    The Judges of the Supreme Court make the following Rules:

    ORDER 1PRELIMINARY

     1.01 Title and object

     (1) These Rules constitute Chapter III of the Rules of

    the Supreme Court and are entitled the Supreme

    Court (Administration and Probate) Rules 2004.

     (2) The object of these Rules is to re-make the Rules

    that constitute Chapter III of the Rules of the

    Supreme Court, regulating procedures in the Court

    in relation to administration and probate.

     1.02 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.

     1.03 Commencement, revocation and savings

     (1) These Rules come into operation on 15 June 2004.

     (2) The Rules set out in the Schedule are revoked.

     (3) These Rules apply to any application in the Court

    made on or after 15 June 2004.

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    Supreme Court (Administration and Probate) Rules 2004

    S.R. No. 54/2004 Order 1Preliminary r. 1.04

     (4) Chapter III of the Rules of the Supreme Court as

    in force immediately before the commencement

    of these Rules shall continue to apply to an

    application in the Court commenced before

    15 June 2004 as if these Rules had not been made.

     1.04 Definitions

     (1) In these Rules

    Rule 1.04(1) Court's website means the website whose address def. of is www.supremecourt.vic.gov.au; Court's website inserted by S.R. No. 18/2009 rule 5.

    Rule 1.04(1) dual advertising system period means the period def. of of 6 months from 2 March 2009 until dual advertising 2 September 2009; system period inserted by S.R. No. 18/2009 rule 5.

    grant of representation means a grant of probate

    or administration;

    the Act means the Administration and Probate

    Act 1958.

     (2) The words and expressions defined in section 3

    and Part I of the Act have the same meaning in

    these Rules as they have in that section and that

    Part.

     1.05 Chapter I of Rules and general practice to apply

    Chapter I of the Rules of the Supreme Court for

    the time being in force and the general practice of

    the Court apply in relation to a proceeding to

    which these Rules apply so far as practicable

    except so far as is otherwise provided by these

    Rules or any Act.

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    Supreme Court (Administration and Probate) Rules 2004

    S.R. No. 54/2004 Order 1Preliminary r. 1.06

     1.06 Jurisdiction of Associate Judge Rule 1.06 (Heading) amended by S.R. No. 100/2008 rule 17(1).

    Rule 1.06(1) (1) Except where otherwise provided by these Rules, amended by an Associate Judge, in addition to exercising the S.R. No. 100/2008 powers and authorities conferred on an Associate rule 17(2)(a). Judge by any other provision of these Rules or by any Act may, in any proceeding to which these Rules apply, give any judgment or make any order, including any judgment or order in the exercise of the inherent jurisdiction of the Court.

    Rule 1.06(2) (2) Subject to paragraph (3) and these Rules, the trial amended by of a proceeding shall not be held before an S.R. No. 100/2008 Associate Judge and an Associate Judge shall not rule 17(2)(a). give any judgment or make any order at the trial of a proceeding.

    Rule 1.06(3) (3) Except as provided by paragraph (4), an Associate amended by Judge may at the trial of a proceeding give S.R. No. 100/2008 judgment or make an order by consent of all rule 17(2)(a). parties.

    Rule 1.06(4) (4) An Associate Judge shall not have authority to amended by hear and determine any application which by these S.R. No. 100/2008 Rules or any Act is required to be heard only by a rule 17(2)(b). Judge of the Court.

    Rule 1.06(5) (5) This Rule has effect as if it contained, modified as amended by necessary, Rules 77.03, 77.04, 77.05 and 77.08 of S.R. No. 100/2008 Chapter I. rule 17(3).

    Rule 1.06.1 1.06.1 Reference by Judge of the Court to Associate Judge inserted by S.R. No. (1) If a matter before a Judge of the Court, which 100/2008 rule 18. matter would not otherwise be within the authority of an Associate Judge, is a matter to which these Rules apply and it appears to the Judge to be proper for the determination of an Associate

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    Supreme Court (Administration and Probate) Rules 2004

    S.R. No. 54/2004 Order 2Application for Probate r. 1.07

    Judge, the Judge of the Court, by order, may refer

    the matter to an Associate Judge,.

     (2) If a Judge of the Court refers a matter to an

    Associate Judge, the Associate Judge may

     (a) hear and determine the matter, subject to any

    directions in the order referring the matter; or

     (b) refer the matter back to the Judge of the

    Court for hearing and determination.

     1.07 Documents

     (1) All documents to be filed under these Rules shall

    be filed in the office of the Registrar.

     (2) All certified and office copies of grants and of

    documents on the file and all exemplifications

    shall be made in the office of the Registrar.

     (3) A document in a proceeding to which these Rules

    apply shall contain a heading in Form 31A or

    31B, unless circumstances otherwise require.

    ORDER 2APPLICATION FOR PROBATE

     2.01 Application of Order

    This Order applies to an application for the grant

    of probate of a will of a deceased person.

     2.02 Process

    An application shall

     (a) be made by filing an originating motion in

    Form 32A; and

     (b) be entitled "In the matter of the Will of

    [name of deceased], deceased".

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    Supreme Court (Administration and Probate) Rules 2004

    S.R. No. 54/2004 Order 2Application for Probate r. 2.03

     2.03 Advertisement of application

     (1) An application shall not be made unless, not less

    than 14 days before the date of the application, the

    applicant or a solicitor on his behalf has

    advertised in accordance with paragraph (2) of

    this Rule.

     (2) An advertisement under this Rule shall

     (a) be in Form 32B;

     (b) except where paragraph (c) applies, be

    published in a Melbourne daily newspaper;

     (c) where the testator resided in Victoria more

    than 50 kilometres from the south-east

    corner of William Street and Lonsdale Street

    in Melbourne, be published in a newspaper

    published at least weekly and circulating in

    the district in which the testator resided.

     (3) If the Registrar is not satisfied that an

    advertisement in accordance with paragraph (2) is

    sufficient advertisement of the applicant's

    intention, he may require a further advertisement

    or advertisements as he considers necessary.

     2.04 Application supported by affidavit

     (1) The application shall be supported by affidavit in

    accordance with this Rule.

     (2) An affidavit under this Rule

     (a) shall be made by the applicant and, if 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;

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