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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 21
As received from the Legislative Council and read a first
time, 24 September 2003
South Australia
Administration
and Probate (Administration Guarantees) Amendment Bill 2003
A Bill For
An Act to amend the Administration and Probate Act 1919.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Administration and Probate Act 1919
4 Substitution of section 18
5 Insertion of section 23
6 Substitution of sections 31 to 33
7 Amendment of section 46—Land to vest
in executor or administrator of owner
8 Repeal of section 57
9 Amendment of section 58—Proceedings
to compel account
10 Substitution of section 66
11 Amendment of section 67—Judge may
dispense wholly or partly with compliance with section 65
12 Transitional provision
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Administration and Probate
(Administration Guarantees) Amendment Act 2003.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Administration and Probate Act 1919
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 leave 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 ex parte 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.
After section 22 insert:
23—Power to
appoint joint administrators
The Court has the power to grant administration to more than one
person.
6—Substitution of sections 31 to 33
Sections 31 to 33 (inclusive)—delete the
sections and substitute:
31—Administration
guarantees
(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 leave 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 ex parte 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.
7—Amendment of section 46—Land to vest in executor or administrator of owner
Section 46(1)—delete subsection (1) and
substitute:
(1) Land will, after the death of the owner,
and subject to any mortgage, trust or equity affecting it—
(a) if
there is only one executor or administrator, pass to the executor or
administrator and become vested in the executor or administrator as if it were
a chattel real; or
(b) if there is more than one executor or administrator, pass to
the executors or administrators and become vested jointly in the executors or
administrators as if it were a chattel real.
Section 57—delete the section
9—Amendment of section 58—Proceedings to compel account
Section 58(4)—delete subsection (4) and
substitute:
(4) The
fact that proceedings have been or are being taken under this section does not
prevent an action from being brought on a guarantee given under section 18 or
31.
Section 66—delete the section and
substitute:
66—Effect of
delivery, etc to Public Trustee
The delivery, conveyance or transfer of property to the Public
Trustee under section 65 has the effect of discharging the administrator and
any surety from further responsibility in respect of the property.
11—Amendment of section 67—Judge may dispense wholly or partly with compliance with section 65
Section 67(5)—delete subsection (5) and
substitute:
(5) If
the Court so directs, an order under this section has the effect of discharging
the administrator and any surety from further responsibility in respect of the
property to which the order relates.
A bond held by the Public Trustee under section 31 of the principal Act, immediately before the commencement of this section, will continue to be held by the Public Trustee, and the principal Act, as in force immediately before that commencement, continues to apply in relation to the bond.