Administration and Probate Act 1958 - SECT 6
Jurisdiction of Court to grant probate etc.
6. Jurisdiction of Court to grant probate etc.
The Court shall have jurisdiction to grant probate of the will or
administration of the estate of any deceased person leaving property whether
real or personal within Victoria.
Administration and Probate Act 1958 - SECT 7
Grant of probate etc. on evidence or presumption of death
7. Grant of probate etc. on evidence or presumption of death
(1) Where the Court is satisfied, whether by direct evidence or on presumption
of death, that any person has died leaving property whether real or personal
in Victoria, the Court shall have and shall at all times be deemed to have had
jurisdiction to grant probate of his will or administration of his estate as
if he were a deceased person, notwithstanding that it may subsequently to the
grant appear that he was living at the date of the grant.
(2) Subject to the provisions of this Act, where a grant is or has been made
of probate of the will or administration of the estate of any person with
respect to whom the Court is satisfied as aforesaid that he is dead,
notwithstanding that it may subsequently appear that the person in respect of
whose estate the grant was made was living at the date of the grant, the
person administering the estate for the time being by virtue of such grant
shall have and be deemed to have had the like rights powers privileges duties
and liabilities as the personal representative of a deceased person, and in
any Act the expression personal representative shall include and be deemed at
all times to have included the person administering the estate for the time
being by virtue of such grant.
* * * * *
Administration and Probate Act 1958 - SECT 8
Grant on presumption of death
8. Grant on presumption of death
If a grant is made on presumption of death-
(a) the grant shall be expressed to be made on presumption of death only;
(b) the estate shall not be distributed without the leave of the Court,
which leave may be given in the grant or by a separate order, and
either unconditionally or subject to such conditions as the Court
deems reasonable, and, in particular, if the Court thinks fit, subject
to an undertaking being entered into or security being given by any
person who takes under the distribution that he will restore any money
or property received by him or the amount or value thereof in the
event of the grant being revoked;
(c) the Court may direct the personal representative before distributing
the estate to give such notices as the Court deems proper in the
circumstances in order that the person whose death has been presumed,
if he is still living, or in order that, if he has died since the date
of the grant, any person interested in the estate may lodge with the
registrar within such time as is specified by the Court a caveat
against the distribution; and, if the Court directs any such notice to
be given, the personal representative shall not have the benefit of
paragraph (a) of section ten or of subsection (2) of section
thirty-one of this Act unless he complies with the direction;
(d) if a caveat is duly lodged within such time as is specified by the
Court, the personal representative shall not distribute the estate
until the caveat is withdrawn or removed;
(e) an application for leave to distribute the estate and for directions
may be made and a caveat may be lodged withdrawn or removed in
accordance with Rules of Court, and the Court may make such order in
respect of costs and otherwise as it deems proper;
* * * * *
Administration and Probate Act 1958 - SECT 9
Revocation of probate etc. of person living at date of grant
9. Revocation of probate etc. of person living at date of grant
(1) Where the Court grants probate of the will or administration of the estate
of any person, and it subsequently appears that he was living at the date of
the grant, the Court shall revoke the grant on such terms, if any, with
respect to any proceedings commenced by or against the personal
representative, and in respect of costs and otherwise, as the Court thinks
proper.
(2) Proceedings for the revocation may be taken either by the person himself,
or, if he has died since the date of the grant, by any person entitled to
apply for probate or administration or by any person interested in the estate
of the deceased person.
* * * * *
Administration and Probate Act 1958 - SECT 12
Grants of probate and administration by registrar
12. Grants of probate and administration by registrar
(1) Subject to the provisions of this section the registrar may, on
application made to him supported by affidavits upon which in his opinion the
Court would grant probate or administration, make a grant of probate or
administration by signing his order for such grant and sealing it with the
seal of the Court.
(1A) The registrar may make a grant of probate or administration, other than
in the manner set out in subsection (1), by authenticating the order for the
grant in a manner prescribed by the Rules.
(2) The registrar shall not without an order of the Court grant probate or
administration-
(a) in any case where a caveat has been lodged and has not expired or been
withdrawn; or
(b) in any case in which it appears to him to be doubtful whether such
probate or administration ought to be granted.
(3) Probate or administration shall be deemed to be granted-
(a) in the case of a grant by the Court, when the order for the grant has
been authenticated and filed in the office of the registrar;
(b) in the case of a grant by the registrar, when the order for the grant
has been signed by him and sealed with the seal of the Court or
authenticated in a manner prescribed by the Rules-
and every grant of probate or administration, if made by the Court, shall be
issued by the registrar in the name and under the seal of the Court and, if
made by the registrar, shall be issued by the registrar in the name and under
the seal of the Court or authenticated in a manner prescribed by the Rules.
Division 3-Devolution of real estate etc.
Administration and Probate Act 1958 - SECT 21
Executor not to act while administration is in force
21. Executor not to act while administration is in force
Where administration has been granted in respect of any real or personal
estate or real and personal estate of a deceased person no person shall have
power to bring any proceeding or otherwise act as executor of the deceased
person in respect of the estate comprised in or affected by the grant until
the grant has been recalled or revoked.
Administration and Probate Act 1958 - SECT 34
Discharge or removal of executor or administrator
34. Discharge or removal of executor or administrator
(1) Notwithstanding anything contained in any Act where an executor or
administrator to whom probate or administration has been granted whether
before or after the commencement of this Act or where an administrator who has
been appointed under this section or any corresponding previous enactment-
(a) remains out of Victoria for more than two years;
(b) desires to be discharged from his office of executor or administrator;
or
(c) after such grant or appointment refuses or is unfit to act in such
office or is incapable of acting therein-
the Court upon application in accordance with the Rules of Court may order the
discharge or removal of such an executor or administrator and also if the
Court thinks fit the appointment of some proper person or trustee company as
administrator in place of the executor or administrator so discharged or
removed upon such terms and conditions as the Court thinks fit; and may make
all necessary orders for vesting the estate in the new administrator and as to
accounts and such order as to costs as the Court thinks fit.
(2) Notice of such application may be served if the Court thinks it necessary
upon such persons as it directs.
(3) An executor or administrator so removed or discharged shall from the date
of the order cease to be liable as such for acts and things done after that
date.
(4) Upon such appointment the property and rights vested in and the
liabilities properly incurred in the due administration of the estate by the
executor or administrator so discharged or removed shall become and be vested
in and transferred to the administrator appointed by such order who shall as
such have the same privileges rights powers duties discretions and liabilities
as if probate or administration had been granted to him originally.
Administration and Probate Act 1958 - SECT 34A
Application for administration of estate administered by a creditor
34A. Application for administration of estate administered by a creditor
(1) If a grant of administration of the property or estate of a deceased
person has been granted to a creditor, a trustee company or any other person
interested in the estate may apply to the Court for the removal of the
creditor and the appointment of the trustee company or another person instead.
(2) An application under subsection (1) must be supported by an affidavit
stating why it would be beneficial to any person interested in the estate that
the creditor be removed and the trustee company or another person be
appointed.
(3) If a grant of administration of the property or estate of a deceased
person has been granted to a creditor and the creditor has any property in his
or her hands for at least 12 months after payment of creditors or for at least
3 years after the grant of administration (whether creditors have been paid or
not), a trustee company or any other person interested in the estate may apply
to the Court for the removal of the creditor and the appointment of the
trustee company or another person instead.
(4) On being satisfied that a creditor should be removed under this section,
the Court may order the removal of such creditor from the position of
administrator and appoint the trustee company or another person named in the
order administrator in place of the creditor so removed on such terms and
conditions as the Court thinks fit and may make all necessary orders for
vesting the estate in the new administrator and as to accounts and such order
for costs as the Court thinks fit.
(5) Upon the appointment of a new administrator under subsection (4), the
provisions in section 34(3) and (4) apply so far as appropriate as if repeated
in this section.
Administration and Probate Act 1958 - SECT 37
Estate of deceased assets for payment of debts3
37. Estate of deceased assets for payment of debts3
The real and personal estate, whether legal or equitable, of a deceased
person, to the extent of his beneficial interest therein, and the real and
personal estate of which a deceased person in pursuance of any general power
(including the statutory power to dispose of entailed interests) disposes by
his will, shall be assets for payment of the debts of such deceased person
(whether by specialty or simple contract) and of his liabilities, and any
disposition by will inconsistent with this enactment is void as against the
creditors, and the Court shall, if necessary, administer the property for the
purpose of the payment of the debts and liabilities. This section shall take
effect without prejudice to the rights of incumbrancers.
http://www.austlii.edu.au/au/legis/vic/consol_act/aapa1958259/
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