New South Wales Consolidated Acts

PROBATE AND ADMINISTRATION ACT 1898 - SECT 75A

75A Delegation

(1) Any person who has been appointed executor of the will of a deceased person and has not renounced or taken probate thereof may by deed appoint the NSW Trustee or a trustee company to be executor of the will in the person’s place or stead or as a co-executor with the person or with the continuing executors (including the appointor), as the case may be, and upon the registration and filing by subsections (8) and (9) directed such will shall be construed and take effect in all respects as if the name of the appointee had been originally inserted in such will as the executor or one of the executors thereof in lieu of the person in whose stead it has been appointed or as an additional executor thereof, as the case may be.

(2) Any executor who has obtained probate or any administrator who has obtained letters of administration notwithstanding that the executor or administrator has acted in the administration of the deceased’s estate and notwithstanding the existence of any other executor or administrator may by deed appoint the NSW Trustee or a trustee company to be executor or administrator in the executor’s or administrator’s place or stead or as co-executor or co-administrator with the executor or administrator or with the continuing executors or administrators (including the appointor) as the case may be and upon the registration and filing by subsections (8) and (9) directed the estate of the deceased left unadministered and all rights, powers and obligations in respect thereof shall without any conveyance or other assurance except as otherwise provided in this section vest in the appointee as executor or administrator as the case may be, either solely or jointly with the appointor as the case may be, or, when the appointor is one of several executors or administrators then in the appointee and the continuing executors or administrators or in the appointor, the appointee and the continuing executors or administrators as the case may be, as joint tenants:
Provided that where any portion of such estate is:

(a) subject to the provisions of the Real Property Act 1900 such portion shall not vest until either:

(i) the appropriate transfer is executed and registered so that such portion is duly transferred, or

(ii) an entry of the vesting is made by the Registrar-General. Any such entry shall have the same effect as if the portion were duly transferred, or

(b) subject to the provisions of the Closer Settlement Acts, the Crown Lands Act 1989 , the Mining Act 1992 or the Offshore Minerals Act 1999 or any other Act relating to Crown lands such portion shall not vest until either:

(i) the appropriate transfer is executed and registered so that such portion is duly transferred, or

(ii) an entry of the vesting is made in the appropriate register kept under the provisions of the Act to which such portion is subject. Any such entry shall have the same effect as if the portion were duly transferred.

Until such transfer is so executed and registered or such entry of the vesting is made, such executor or administrator shall in any case in which the executor or administrator has appointed the appointee in the executor’s or administrator’s place or stead not be discharged from the trusts in respect of such portion of the estate.
An executor or administrator who has appointed the appointee in the executor’s or administrator’s place or stead shall not (except as mentioned in the foregoing proviso) be in any way liable in respect of any act or default in reference to such estate subsequent to the registration and filing of such deed other than the act or default of the executor or administrator or of persons other than the executor or administrator for whose conduct the executor or administrator is in law responsible.

(3) No such appointment shall be made under subsection (1) or subsection (2) if the testator has by the testator’s will directed or intimated that the office of executor should not be delegated or that the proposed appointee should not act in the trusts of the will.

(4) Prior to making any appointment under subsection (1) or subsection (2) the person proposing to make such appointment shall give twenty-eight days’ notice in writing thereof to:

(a) the co-executor or co-administrator (if any) of such person, and

(b) such of the persons entitled beneficially under the will or in consequence of the intestacy of the deceased person of whose will or estate the person proposing to make the appointment is executor or administrator, as are ordinarily resident in the Commonwealth of Australia and have attained the age of eighteen years:
Provided that the Court may, on the application of the person proposing to make the appointment, direct that service of any notice required by this paragraph be dispensed with.

(5) Any person who is or who ought to be served or who if the person were ordinarily resident in the Commonwealth ought to be served with the notice required by subsection (4) (whether or not the Court has directed that service of notice on that person be dispensed with) may at any time prior to the expiration of the period of 28 days’ notice given to that person under subsection (4), or, where the Court has directed that service of notice on that person be dispensed with, the period of 28 days after the giving of that direction, lodge with the Registrar a notice in the form prescribed by the rules that the person objects to such appointment being made and serve a copy of such notice on the person proposing to make the appointment mentioned in subsection (1) or subsection (2).

(6) In the event of any such notice of objection being filed and a copy thereof served as aforesaid:

(a) the person proposing to make an appointment under subsection (1) shall not make such appointment unless the Court, on application made by the person, directs that the appointment be made; notice of such application shall be served on such persons as the Court may direct or as may be prescribed by the rules,

(b) the person proposing to make an appointment under subsection (2) shall not make such appointment under that subsection.

(7) In the case of the appointment of a trustee company the capital both paid and unpaid and all other assets of the company and the manager, assistant manager and directors and their respective estates shall be liable for the due administration of the estates of which the company shall be so appointed executor or administrator.

(8) Any such deed as is referred to in subsection (1) or in subsection (2) shall be registered in the office of the Registrar-General in the manner and on payment of the fees prescribed by regulation under the Conveyancing Act 1919 .

(9) A duly verified copy of any such deed as is referred to in subsection (1) or in subsection (2) shall be filed in the registry of the Court.