South Australian Consolidated Acts South Australian Consolidated Acts (1) A person to whom
administration is granted must provide a surety in accordance with this
section if—
(a) the
person is not resident in this State; or
(b) the
person has any legal or equitable claim against, or interest in, the estate of
the deceased arising from a liability incurred by the deceased before his or
her death; or
(c) any
person who is not sui juris is entitled to participate in the distribution of
the estate; or
(d) the
Court is of the opinion that in the circumstances of the case a surety is
required.
(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 revoke 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 entitled to obtain administration.
(12) Without limiting
the effect of subsection (10), the Court may, if administration is
granted to two or more persons and the Court is satisfied that it is
beneficial or expedient to do so, dispense with the requirement to provide a
surety.
(13) If—
(a) a
surety dies or ceases to be sui juris ; or
(b)
after the grant of administration to two or more persons, an administrator
dies or ceases to be sui juris or refuses or fails to carry out the duties of
an administrator,
the administrator, or the other administrator, as the case may be, must, as
soon as reasonably practicable, apply to the Court for directions.
Maximum penalty: $2 000.
(14) 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.