South Australian Consolidated Acts

ADMINISTRATION AND PROBATE ACT 1919 - SECT 18

18—Administration guarantees may be required before administration sealed

        (1)         A surety must be provided in accordance with this section before the sealing of administration under section 17 if a surety would be required under section 31 on the granting of such administration.

        (2)         The surety must guarantee to make good, subject to this section, any loss that a person interested in the administration of the South Australian estate of the deceased may suffer in consequence of a breach by the administrator of his or her duties in administering the South Australian estate.

        (3)         The maximum liability of a surety under a guarantee given for the purposes of this section is—

            (a)         the amount under which the South Australian estate of the deceased is sworn; or

            (b)         if the Court, on application, orders a lesser amount, the lesser amount.

        (4)         If a guarantee is given for the purposes of this section, the Court may, at any time, on the application of a person interested in the administration of the South Australian estate—

            (a)         require that there be a further or additional guarantee; or

            (b)         order that the maximum liability of a surety under the guarantee is reduced to an amount that the Court thinks reasonable.

        (5)         If a further or additional guarantee is not given as required under subsection (4)(a), the Court may cancel the seal of the administration.

        (6)         A guarantee required under this section operates for the benefit of every person interested in the administration of the South Australian estate as if the guarantee were contained in a deed to which the surety and every such person are parties (and, where there are two or more sureties, as if they had bound themselves jointly and severally).

        (7)         A proceeding may only be brought on a guarantee with the permission of the Court and on such terms and conditions as the Court thinks fit.

        (8)         If, on the application of a surety, it appears to the Court that—

            (a)         the South Australian estate is being wasted, or is in danger of being wasted; or

            (b)         the surety is being in any way prejudiced, or is in danger of being prejudiced, by the act or default of the administrator; or

            (c)         a surety desires to be relieved from further liability,

the Court may grant such relief as it thinks fit.

        (9)         This section does not apply to—

            (a)         the Public Trustee; or

            (b)         any other agency or instrumentality of the Crown; or

            (c)         a trustee company under the Trustee Companies Act 1988 .

        (10)         The Court may, if satisfied that it is beneficial or expedient to do so, dispense with the requirement to provide a surety.

        (11)         An order under subsection (10) may be obtained without notice to any other interested person on the application of the person who would be the administrator on the sealing of the administration.

        (12)         If a surety dies or ceases to be sui juris , the administrator must, as soon as reasonably practicable, apply to the Court for directions.

Maximum penalty: $2 000.

        (13)         In this section—

"South Australian estate", in relation to the estate of a deceased person, means the property of the person's estate situated in South Australia at the date of the person's death.