The rules governing applications for grants of probate and letters of administration in South Australia are changing from 1 July 2015.
An advance copy of the rules is available from the Courts Administration Authority here.
This post is intended as a quick overview for SA lawyers, in advance of the seminar being held by the Registrar on 23 June and in advance of any information that the Law Society may publish. Both of those will no doubt be more informative than my outsider’s interpretation of the new rules, but hopefully this will be useful in the interim for those practitioners who want to see what is in store for them without reading through all of the rules just yet.
Please bear in mind that there will presumably be a number of changes to the registry’s practice that are not immediately apparent from just reading the rules and that this is itself just an initial look at the rules by me.
The changes aren’t revolutionary, but do simplify a number of areas where the detail required by the rules was not necessary for the court to assess whether applicants were entitled to a grant. (If it’s finicky because it’s important then it’s still there.) The style and language in many areas have been updated and the changes last year to the Administration and Probate Act have also now been incorporated.
What stands out:
- The different types of grant are now consolidated into a single brief form, instead of having a draft probate, draft letters of administration, draft letters of administration ad nauseum.
- Whereas affidavits of assets and liabilities have previously been listed as at the date of death, if more than 12 months have passed since the death then the assets and liabilities (and values) are to be current as at the date of the application (R 8(1), (2)(a)).
- Except for the start of affidavits, occupations do not need to be listed.
- The executor’s technical capacity (surviving/substituted/instituted/therein mentioned) no longer needs to be included in the oath (R 13(1)) and elsewhere.
- Long form dates have been dropped, such that dates should appear in form of 1 July 2015.
- Addresses are now to be in the format of “1 King William Street Adelaide 5000″ instead of the long format of “1 King William Street Adelaide in the State of South Australia” (R 29(4)).
- Only wills and other testamentary documents are to be made exhibits. Other documents are to be annexed (R 30(5)).
- You don’t need to list principal and accrued interest separately for bank accounts.
- There are other general requirements for documents (R 29):
- Documents other than original affidavits, declarations and exhibits are to be double sided.
- As with normal Supreme Court documents, margins are to be 4cm on the left and 2cm on the right.
- Documents are to be at 1.5 line spacing, except for documents to be settled by the Court, which are to be double spaced. There should also be double spacing between paragraphs.
- The rules require the use of “bond” paper. I suspect that this is not intended to be a change but cannot say for certain. Depending on your definition, anything over 50gsm might be considered bond paper, although colloquially bond paper is paper that is thicker than normal, which for most people is at least 80gsm.
- A death certificate or (more realistically) a certified copy of a death certificate must be lodged (R 27(1)), unless it’s impractical (4). The Registrar has previously indicated that if there is a significant error in the certificate then it will need to be fixed up by the applicant.
- If an order has been made restricting the testator’s ability to make a will, then a copy of the order must be annexed to the oath and an affidavit is required to satisfy the Registrar that a grant should be made (R 20). It was already necessary to provide copies of orders by the Guardianship Board (now SACAT) for protected persons. This may be aimed at the situation where a will has been made with the permission of the Public Trustee, but it also seems to require evidence—presumably medical evidence of capacity—if the will was made shortly before the order.
Other notable changes:
- The timeframes for warnings, appearances and citations have been reduced down from 21 days to 14 days.
- You have to lodge a copy of the death certificate with a caveat, unless you can’t get a copy (R 52(2)). This will presumably reduce the number of caveats lodged and I presume requires family members to go to Births, Deaths and Marriages to get a copy of the death certificate before lodging a caveat.
- If you want to warn a caveat, then you must lodge a copy of any will that is referred to in the warning (R 52(6)).
- There is now express provision for Practice Notes to be issued by the Registrar (R 5(12)).
- The copy of a divorce decree/order (when required) no longer needs to be a sealed copy (R 11(5)).
- The terms bachelor/spinster and single man/single woman are now gender neutral: single person and divorced person respectively, with single person being defined as someone who has never married.
- The word “lawful” has been dropped from “lawful son or daughter” etc. for the description of administrators (R 14) and the wording has changed for cousins (including in R 11(8)).
- The format of engrossed copies of wills appears to be less prescribed (R 17(3).
- The procedure for affidavits of due execution has been modified somewhat in R 18, with additional scope for the Registrar to accept an application where the normal evidence of due execution is not available.
- For situations where the date of death is uncertain, the procedure for providing evidence about the date of death is now less codified (R 28(5)) and the rules now provide for “last known alive” in addition to “last seen alive” (6).
- You don’t get wills back from the Court except in special circumstances (R 29(6)). I presume that it would still need to come back out for the correction of oaths and possibly also for affidavits of due execution, plight etc.
- The requirements for joint grants of administration have reduced significantly (R 36).
- The Registrar can amend or revoke a grant with the consent of those potentially affected by it, without needing to look into the reasons for the amendment (R 51(1)).
- If you have an informal will or codicil, you may be able to get it through without a summons (R 64(1)).
- The rule on rectification (R 66) is no longer specified as being just for those applications brought before a grant is made.
- Rule 92.15 has been removed, which allowed for interested persons to inspect the documents of an applicant for trustee’s commission.
- Appeals from the Registrar are now to be made within 14 days instead of 7 days (R 76).
- There are new provisions for representation actions and actions where a person interested in an estate has died (R 87).
- For statutory will applications, the time for filing an appearance is now 14 days and a number of subrules have been removed (R 92).
- Judicial advice applications made on ex parte written statements have a new limit of $500,000 (up from $50,000) and a new form.
There are a number of additional points I wish to note following on from the seminar on 23 June:
- The Registry will be flexible with documents prepared before 1 July.
- An interim death certificate is suitable for the Registrar’s purposes.
- If there is an error in the death certificate then there should be a covering letter containing an undertaking by the applicant(s) to have it fixed up.
- Where an application is made 12 months after the date of death then the date of the valuation should be included in the statement of assets and liabilities. The valuation needs to be relatively current (within a couple of months) but not as at the precise date of the application.
- The effect of the rule changes for inaccurate or incomplete disclosure is such that the procedure will be much faster, but will lead to less information being available due to the lack of statements of additional assets and liabilities.
- It remains to be seen whether declarations about domestic partnerships will be required.
- Statements of assets and liabilities should be single sided.
- Where it is not known whether or not superannuation should be paid to the estate then it should be treated the same as choses in action (see below).
- I don’t know how I missed this: funeral expenses should no longer be disclosed.
The table below sets out the old forms, their new number, and some of the changes to the forms. It’s neither comprehensive nor consistent. Every form has changed to some degree, though mostly for style.
I have not mentioned changes that appear very frequently, such as changes for the new date format, for gender neutrality, the replacement of exhibits with annexures, the removal of occupations or rule number changes.
|Old No.||Description||New No.||Main changes|
|1||Affidavit of due execution||1||New alternate version for non-subscribing witness.|
|2||Affidavit of plight and condition||2||“save and except as aforesaid” added at the end.|
|3||Affidavit as to alias (will)||3||If the reason for using multiple names is that land is registered in another name, you must depose to having checked with the LTO first.|
|4||Affidavit as to alias (intestacy)||4||See above for Form 3.|
|6B||Appointment of agent||–||This has been removed, but is presumably still required under S65(1)(b) of the Act.|
|7||Affidavit to withdraw will deposited with renunciation||8|
|9||Affidavit verifying the translation of a will||9|
|10||Affidavit of warning etc.||10||Changes for sealed copy of warning, style changes.|
|11||Affidavit to lead citation to accept or refuse probate||13|
|12||Affidavit to lead citation to accept or refuse administration||14||Drops the ‘lawful’ description.|
|13||Affidavit to lead citation to accept or refuse double probate||15||Style changes.|
|14||Affidavit to lead citation calling on intermeddling executor to take probate||16|
|15||Affidavit to lead citation to propound a will||17|
|16||Affidavit to lead citation to bring in grant||18||Adopts bachelor/spinster/single person changes.|
|17||Affidavit to lead citation to see proceedings||19||Drops the ‘lawful’ description.|
|18||Affidavit to lead subpoena||20|
|19||Affirmation in lieu of oath||21||Changes from “declare and affirm” to “truly and solemnly affirm”.|
|20||Jurat to affidavit||2222>|
|22||Subpoena||23||Style changes for warnings/endorsements, paragraph advising to file affidavit if will elsewhere.|
|23||Citation to accept or refuse probate||24||14 days to comply instead of 21.|
|24||Citation to accept or refuse administration||25||14 days to comply instead of 21, drops the ‘lawful’ description.|
|25||Citation to accept or refuse double probate||26||14 days to comply instead of 21.|
|26||Citation calling on intermeddling executor to take probate||27||14 days to comply instead of 21, warning to recipient.|
|27||Citation to propound a will||28||14 days to comply instead of 21, style changes.|
|28||Citation to bring in probate (for another will)||29||14 days to comply instead of 21, style changes.|
|29||Citation to bring in probate (for intestacy)||30||14 days to comply instead of 21, style changes.|
|30||Citation to bring in letters of administration (for a will)||31||14 days to comply instead of 21, style changes.|
|31||Citation to bring in letters of administration (administrator not entitled)||32||14 days to comply instead of 21, style changes.|
|32||Citation to see proceedings||33||Style changes.|
|33(1)||Summons without notice||34A||Replacement form – major changes.|
|33(2)||Inter partes summons||34B||Replacement form – major changes.|
|33(3)||Statutory will summons||34C||Replacement form – major changes, but same orders.|
|34||Consent of proposed executor||35|
|39||Probate||36||New grant form replacing both probate and letters of administration. Much simpler.|
|40||Executor’s oath||37||No need to include executor’s full capacity. Some changes to paragraph 4 and various changes for style, court names for the modifications to the oath.|
|41||Double probate||Replaced by new form 36.|
|42||Executor’s oath for double probate||38||Some changes to paragraph 4 and various changes for style and an adjustment for pre-1987 inventories.|
|43||Probate in solemn form||Replaced by new form 36.|
|44||Executor’s oath after judgment for solemn form||39||Details for the action number and title have been removed.|
|45||Certificate of execution to accompany will to be deposited||40|
|46||Executor’s declaration for deposited will||41||Simplified, see changes to other oaths.|
|47||Letters of administration with the will annexed||Replaced by new form 36.|
|48||Oath of administrator with the will annexed||42||The need to specify the value of the property in SA has been removed, together with other court name and style changes.|
|49||Letters of administration with the will annexed de bonis non||Replaced by new form 36.|
|50||Oath of administrator with the will annexed de bonis non||43||The need to specify the value of the property in SA has been removed, together with other style changes.|
|51||Letters of administration||Replaced by new form 36.|
|52||Oath of administrator||44||You now specify the other people who are entitled upon intestacy. The need to specify the value of the property in SA has been removed, together with other court name and style changes.|
|53||Letters of administration de bonis non||Replaced by new form 36.|
|54||Oath of administrator de bonis non||45||The need to specify the value of the property in SA has been removed, together with other style changes.|
|56||Letters of administration pendente lite||Replaced by new form 36.|
|57||Oath of administrator pendente lite||46||Details for the action number and title have been removed. The need to specify the value of the property in SA has been removed, together with other style changes.|
|59||Renunciation of probate||47||Style changes, including dropping the executor’s capacity.|
|60||Renunciation of probate by a trust corporation||48||Style changes.|
|61||Renunciation of letters of administration with the will annexed||49|
|62||Renunciation of probate with the will annexed by syndic||50||Style changes.|
|63||Renunciation of letters of administration||51||Style changes.|
|64||Oath to lead re-seal of grant||52||The need to specify the value of the property in SA has been removed, together with other style changes.|
|65||Advertisement for the re-sealing of grant||53||Simplified.|
|68||Affidavit of assets and liabilities||55||
|69||Affidavit of additional assets and liabilities||56||Now incorporates inaccurately described assets. Instead of a completely separate statement, it appears that the content of the statement is to be included in the body of the affidavit, but in the same format as required for the statement of assets and liabilities.|
|70||(Registrar’s) Certificate of disclosure||57||Style changes.|
|71||Official certificate of grant||58|
|73||Warning to caveat||61||14 days instead of 21, style changes.|
|74(1)||Appearance to warning or citation||62||Adjustments for notice rule change.|
|74(2)||Appearance to warning or citation||63|
|76||Caveat against allowance of commission||64|
|77||Notice of appeal||65||Replacement form – major changes.|
|78||Estate and administration accounts||66|
|80||Notice of change of practitioner||68||Reworked.|
|81||Notice of intention to act in person||69||Style changes.|
|5||Affidavit of identity – Name changed since will|
|6||Affidavit of identity – Name in will incorrect|
|7||Affidavit to withdraw will deposited under s6/7 of the Wills Act|
|11||Affidavit of service of citation etc.|
|12||Affidavit of service of subpoena|
|59||Power of attorney for the purpose of grants to attorneys.|
|81||Judicial advice book application|
- The rule providing that a copy of the statement of assets and liabilities will be provided when a grant has been made has been removed (9.01). Will that practice continue?
- R 8(1) seems to require that personal applicants use a different form for the affidavit of assets and liabilities, but the form reference is for the inventory of assets, and is not an affidavit.