SUPREME COURT (CHAPTER III AMENDMENT NO. 1) RULES 2009 (SR NO 18 OF 2009) - REG 7 New Order 2A
SUPREME COURT (CHAPTER III AMENDMENT NO. 1) RULES 2009 (SR NO 18 OF 2009) - REG 7
New Order 2AAfter Order 2 of the Principal Rules insert —
' ORDER 2A—APPLICATION FOR PROBATE WITH ADVERTISING ON COURT WEBSITE
2A.01 Application of Order
(1) This Order applies to an application for the grant of probate of a will of a deceased person.
(2) Compliance with a provision of Order 2 during the dual advertising system period is, for the purposes of this Order, sufficient compliance with the corresponding provision of this Order.
2A.02 Process
An application for the grant of probate of a will of a deceased person shall—
(a) be made by filing an originating motion in Form 3–2AA; and
(b) be entitled "In the matter of the Will of [ name of deceased ], deceased".
2A.03 Notice of intention to apply
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(1) An application shall not be made unless, not less than 14 days before it is made, a notice of the applicant's intention to apply for a grant of probate has been duly posted on the Court's website.
(2) The notice shall include—
(a) the name and address of the deceased;
(b) the date of the will of the deceased;
(c) the names of the persons identified in the will as the executors of the will;
(d) the name and address and the e-mail address (if any) of—
(i) the applicant; or
(ii) if the application is to be made by a solicitor on the applicant's behalf or by a trustee company under the Trustee Companies Act 1984 , the solicitor or the trustee company, as the case may be;
(e) a statement that 14 days after posting the notice on the Court's website, the applicant intends to apply for a grant of probate of that will.
(3) If the Registrar is not satisfied that the notice is sufficient advertisement of the applicant's intention, the Registrar may require a further notice to be given, as the Registrar may direct.
2A.04 Application supported by affidavit
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(1) The application shall be supported by an affidavit in accordance with this Rule.
(2) An affidavit under this Rule—
(a) shall be made by the applicant and, if the applicant is a corporation, by its secretary or other proper officer; and
(b) shall state—
(i) that the applicant (if a natural person) is aged 18 years or over;
(ii) that the testator died leaving property in Victoria;
(iii) the date of death of the testator;
(iv) that the testator left a will and that that will is unrevoked;
(v) the date of the will;
(vi) whether at the date of execution of the will the testator was 18 years of age or over;
(vii) if at the date of execution of the will the testator was less than 18 years of age, whether the applicant relies on section 6 or 20 of the Wills Act 1997 and the acts, facts and circumstances to justify such reliance;
(viii) whether the testator married after the date of the will;
(ix) whether after the date of the will any marriage of the testator ended within the meaning of section 16A(2) of the Wills Act 1958 or the testator was divorced within the meaning of section 14(4) of the Wills Act 1997 ;
(x) the name and the place of residence of each executor;
(xi) the name of each subscribing witness to the will and, if known, the place of residence of each witness;
(xii) that no other application has been made by the applicant for a grant of representation in respect of the estate of the testator or details of any such application and its result;
(c) shall contain an undertaking that if the applicant obtains probate—
(i) the applicant will well and truly collect and administer the estate of the testator according to law and, if so required by the Court, deliver up the grant to the Court; and
(ii) if the Court or the Registrar requires, the applicant will make and file, or cause to be made and filed, a true and just account of the administration of the estate; and
(d) shall exhibit—
(i) the will of which probate is sought;
(ii) a certified copy of the death registration of the testator given by the Registrar of Births, Deaths and Marriages or an equivalent certificate, satisfactory to the Registrar, given or issued by a competent authority or person; and
(iii) so far as the Registrar requires, an inventory of assets of the estate of the testator in Victoria and elsewhere setting out the gross value of all known assets distinguishing between real and personal property and a statement of the known liabilities of the testator as at the date of death.
(3) An applicant may comply with paragraph (2)(d)(ii) by exhibiting to the affidavit a photocopy of a certified copy of the death registration or its equivalent.
(4) A photocopy exhibited under paragraph (3) shall be certified as a true copy by the person before whom the affidavit is sworn.
(5) An applicant unable to comply with paragraph (2)(d)(ii) may submit other evidence of the death of the testator to justify an inference or a presumption of death.
(6) All exhibits to the affidavit shall be filed with the affidavit.
2A.05 Affidavit of searches
(1) The application shall also be supported by an affidavit in accordance with this Rule made on the day the application is made—
(a) stating—
(i) that a search for any other will of the testator in the register of deposited wills maintained by the Registrar has been made and the result of that search;
(ii) whether a caveat has been lodged against the making of a grant of representation;
(iii) that a search has been made in the office of the Registrar for any previous application for a grant of representation in respect of the estate of the testator and, if a previous application has been made, the details of the application and of its result;
(b) stating the date on which the notice of intention to apply was posted on the Court's website in accordance with Rule 2A.03(1); and
(c) exhibiting a copy of the notice as it appeared on that date on the Court's website.
(2) An affidavit under this Rule shall be made by—
(a) the applicant; or
(b) a solicitor who has instructions to conduct the searches referred to in paragraph (1); or
(c) a person employed by or engaged and authorised by that solicitor; or
(d) the Melbourne agent of that solicitor who is himself or herself a solicitor; or
(e) a person employed by or engaged and authorised by that Melbourne agent; or
(f) if State Trustees is the applicant, a person employed in the office of State Trustees; or
(g) if a trustee company under the Trustee Companies Act 1984 is the applicant, a person employed by that company; or
(h) a clerk in the office of the Registrar acting under Part II of the Act.
2A.06 Affidavit of due execution
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The application shall also be supported by an affidavit of due execution in the following cases—
(a) where the will was executed by a testator affixing his or her mark to the will;
(b) where the will contains no attestation clause or the attestation clause is insufficient to afford evidence of due execution;
(c) where the will bears no date of execution or there is doubt as to the date of execution;
(d) where the will was or appears to have been executed by a blind or illiterate person or by another person at the direction of the testator;
(e) in any other case in which it is required by the Registrar.
2A.07 Will wholly or partly inoperative
If it appears that the will the subject of the application is wholly or partly inoperative or does not dispose of the whole of the estate of the testator, the Registrar may require the applicant to file an affidavit stating what relatives or next of kin, or domestic partner if any, survived the testator so far as known and so far as material in law to the right to administer or share in the testator's estate.
2A.08 Will not executed according to Wills Act
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(1) This Rule applies to an application that the Court admit to probate as the will of a deceased person—
(a) a document which has not been executed in the manner in which a will is required to be executed by the Wills Act 1997 ; or
(b) a document an alteration to which has not been executed in the manner in which an alteration to a will is required to be executed by the Wills Act 1997 .
(2) Rules 2A.03, 2A.04, 2A.05, 2A.06 and 2A.07 apply to the application with any necessary modification.
(3) In particular, a reference to a "will" in Rule 2A.04(2) shall be taken to be a reference to a "document intended to be a will".
(4) If probate is sought of a document not executed in the manner in which a will is required to be executed by the Wills Act 1997 , the affidavit supporting the application shall also state the acts, facts, matters and circumstances relied upon to satisfy the Court that the deceased intended the document of which probate is being sought to be his or her will.
(5) If probate is sought of a document an alteration to which was not executed in the manner in which an alteration to a will is required to be executed by the Wills Act 1997 , the affidavit supporting the application shall also state the acts, facts, matters and circumstances relied upon to satisfy the Court that the deceased intended the document, so altered, to be his or her will.
2A.09 Registrar's powers
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The Registrar may exercise the powers of the Court under section 9 of the Wills Act 1997 if satisfied by affidavit that—
(a) all persons who would be affected by a decision under section 9 consent to those powers being exercised by the Registrar; or
(b) if consent is not given—the deceased person died leaving property not exceeding $50 000 in value.
2A.10 Transitional
(1) A newspaper advertisement published before 2 September 2009 in accordance with Order 2 as in force at the time of that publication is, subject to Rule 2A.03(3), sufficient notice for the purposes of an application to which that newspaper advertisement relates made under this Order.
(2) In the case of an application under this Order, notice of which was given by newspaper advertisement in accordance with Rule 2.03 as in force at the time of the publication of the advertisement, the affidavit of searches under Rule 2A.05 shall—
(a) state the matters required by Rule 2A.05(1)(a);
(b) state that the application has been fully advertised and the date of publication in the newspaper; and
(c) exhibit the newspaper advertisement advertising the intention to make the application.'.