Supreme Court of the Northern

SUPREME COURT OF THE NORTHERN

TERRITORY OF AUSTRALIA

GUIDELINES FOR APPLICATIONS FOR GRANTS OF DECEASED ESTATES UNDER THE ADMINISTRATION & PROBATE ACT (NT)

Last updated 30 September 2011

FOREWORD

It is quite possible that, at some time in your life, you will be appointed as executor by a will or be obliged to take charge of the intestate estate of a deceased relative or friend. This kit is intended to give some guidance in making an application in a straightforward estate in the Northern Territory

The rights, powers, duties and liabilities of executors and administrators are outlined in Division 6 of the Administration and Probate Act (NT)

Where the estate is complicated by family trusts, protected persons and the like, it may be advisable to instruct a firm of solicitors or apply to the court to have the Public Trustee appointed to exercise those powers and duties.

Individual kits are available at the Supreme Court Registry in Darwin in hard copy or, if preferred, may be forwarded by email.

For further information or clarification of any point, please write to the Probate Clerk at the Supreme Court, State Square, Darwin NT 0800, or telephone on (08) 8999 6562 facsimile (08) 8999 5446.

TABLE OF CONTENTS

Page No

1. LEGISLATION

4

2 /

INDEX

5 1. GENERAL INFORMATION AND MISCELLANEOUS FORMS

9

2. THINGS TO WATCH FOR WHEN DRAWING UP THE FORMS /

26

3 APPLICATION FOR PROBATE /

29

4 APPLICATION FOR LETTERS OF ADMINISTRATION /

44

5 APPLICATION FOR LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED /

6. APPLICATION FOR RESEALING /

LEGISLATION

The Administration and Probate Act (NT)1993 and Rule 88 of the Supreme Court Rules empower the Registrar of the Supreme Court to grant Probate of the will or administration of an estate of any deceased person leaving property, whether real or personal, within the Northern Territory.

ASSOCIATED LEGISLATION

Other related legislation includes the Public Trustee Act (NT) 1979, the Wills Act (NT) 2000 and the Family Provision Act (NT) 1980.

INDEX

Page No

1. / GENERAL INFORMATION
. / (a) / Court search and filing fees / 9
(b) / Search of Wills index / 9
(c) / Delay in applying / 9
(d) / Executor neglects to prove will / 10
(e) / Testacy / 10
(f) / Who can make a will? / 10
(g) / Valid will / 11
(h) / Invalid will / 13
(i) / Intestacy / 13
(j) / Consent to Administer / 13
(k) / Distribution of intestate estate / 14
(l) / Unadministered estate / 14
(m) / Property in more than one Territory/State / 14
(n) / Grant on presumption of death / 15
(o) / Caveats / 15
(p) / Citations / 16
(q) / Accounts / 16
(r) / Commission / 16
(s) / Elections to administer estates / 16
(t) / Unknown ownership / 17
(u) / Provision out of an estate / 17
(v) / Deposits of wills / 17
(w) / Exemplification / 18
(x) / Renunciation / 18
(y) / Notice of intended distribution / 18
(z) / Miscellaneous forms
(i) Caveat / 20
(ii) Exemplification / 21
(iii) Renunciation / 22
(iv) Notice of Intended Distribution / 23
(v) Back Sheet
(vi) Annexure Clause document
2. / THINGS TO WATCH FOR WHEN DRAWING UP THE FORMS / 26
(a) / Is it necessary to apply? / 26
(b) / Advertisement/s / 26
(c) / Joint/several applicants / 26
(d) / Will to be filed separately / 6
(e) / Suggestion or sign of revocation / 26
(f) / Original death certificate to be filed / 26
(g) / Where no death certificate available / 27
(h) / Assets and liabilities / 27
(i) / Joint tenancy / 27
(j) / Inventory to be signed in the margin / 27
(k) / Valuations of assets / 27
(l) / Back sheets for documents / 27
(m) / Differences in names. addresses and occupations / 27
(n) / Address for service in the Northern Territory / 28
3. / APPLICATIONS FOR PROBATE / 29
(a) / Who may apply? / 29
(b) / Index to forms / 29
(c) / Forms / 30
4. / APPLICATIONS FOR LETTERS OF ADMINISTRATION / 44
(a) / Who may apply? / 44
(b) / Index to forms / 45
(c) / Forms / 46
5. / APPLICATIONS FOR LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED / 61
(a) / Who may apply? / 61
(b) / Index to forms / 62
(c) / Forms / 63
46 / APPLICATIONS FOR RESEALING OF GRANT / 79
(a) / Who may apply? / 79
(b) / Index to forms / 80
(c) / Forms / 81

1. GENERAL INFORMATION

The Probate Registry in the Northern Territory is situated at the Supreme Court, Darwin where all applications must be lodged.

(a) COURT SEARCH AND FILING FEES

All applications attract a filing fee and a further fee for a search of the database of probate applications which must be made on the date of filing of an application. At the present time these are $1,055.00 and $4.00 respectively. (Supreme Court Regulations)

However, if, in a particular case, a Registrar is of the opinion that the payment of a fee specified would cause financial hardship to the party who must pay the fee, the Registrar may waive payment of the whole or a part of the fee. In order to take advantage of this waiver, the applicant must fill in a Statutory Declaration outlining the extent of the financial hardship. If the Registrar is satisfied, he or she will waive the fee either fully or in part.

(b) SEARCH OF WILLS INDEX

A search of the index of wills held by each prescribed person within the meaning of section 3 of the Wills Act must also be made. At this time, the only prescribed person is the Public Trustee for the Northern Territory. This search must also be made on the date of filing. This may be made by telephone ((08) 8999 7271) or in person at Zone B, Level 1, Nichols Place, Cnr Bennett & Cavenagh Streets, Darwin.

If an application for a grant of administration is not made within 6 months of the date of death of the deceased, an affidavit explaining the delay is required to be filed with the other documents. (Rule 88.10)

(d) EXECUTOR NEGLECTS TO PROVE WILL

(s34 Administration and Probate Act)

(1) In any case where the executor named in a will –

(a) neglects or refuses to prove the will or to renounce probate within 3 months from the death of the testator or from the time of the executor attaining the age of 18 years; or

(b) is unknown or cannot be found,

the Court may, upon the application of –

(d) the Public Trustee; or

(e) a creditor of an estate,

order that probate of the will be granted to the executor or order that administration with the will annexed be granted to the applicant.

(e) TESTACY

If a deceased person leaves a valid will, he or she is said to be testate. The person/s appointed by that will as executor/s, may apply for a grant of Probate. This is called proving a will.

It is important to make a will so that your assets are distributed as you wish. Failure to do so means that your estate will be distributed according to the laws of intestacy. This may be in direct contrast to what you wanted to do.

(f) WHO CAN MAKE A WILL

Section 7 of the Wills Act states the minimum age for making, a

will.

Section 18 of the Act gives the Supreme Court authority to authorise wills by minors.

Generally a will made by a minor is not valid. However, a minor may make, alter or revoke a will -

(1) in contemplation of marriage, but the will has no effect if the marriage does not take place; and

(2) if he or she is married; or

(3) if he or she has been married, while married or in contemplation of marriage; or

(4) if the Supreme Court makes an order authorising the will.

(g) VALID WILL (s8)

A will is not valid unless –

(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator;

(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and

the presence of the testator

It should be noted that-

(i) a person who is not able to see and attest that a testator has signed a document may not be a witness to a will.(s11);

(ii) if a beneficial disposition is given or made by a will to a person who is a witness to the will, the disposition is void to the extent that it concerns that person. (s12) unless;

(a) at least 2 of the witnesses to the will are not persons to whom a beneficial disposition is given or made by the will;

(b) all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition according to the will; or

(i) the testator knew and approved of the disposition; and

(ii) the disposition was given or made freely and voluntarily by the testator.

(iii) a will is revoked by the marriage of the testator unless it is made in contemplation of a marriage, whether or not that contemplation is expressed in the will; (s14)

(iv) unless a contrary intention appears in the will or is otherwise established, the divorce of a testator or annulment of his or her marriage revokes a beneficial disposition, an appointment as executor, trustee, advisory trustee or guardian or a grant made by the will of a power of appointment, in favour of the testator’s spouse (s15) except

(a) as trustee of property left on trust for beneficiaries that include the spouse’s children; or

(b) a power of appointment exclusively in favour of the children of whom both the testator and his or her spouse are the parents.

(h) INVALID WILL

If a will is found not to be valid, an application for Letters of Administration with the will annexed may be made by the spouse or de facto partner or one of the next of kin who is over the age of 18 years, is not an undischarged bankrupt and has not assigned his or her interest in the estate.

(I) INTESTACY

If no will has been made (intestate), the spouse or de facto partner or one of the next of kin who is over the age of 18 years, is not an undischarged bankrupt and has not assigned or encumbered his interest in the estate may apply for Letters of Administration.

(J) CONSENT TO ADMINISTRATION

Where the application for Letters of Administration is applied for by fewer than all the persons who are in the Northern Territory and are entitled to a grant of administration, the application shall be supported by –

(a) the consent of each person entitled but not applying with an affidavit verifying the consent endorsed on the document containing the consent (see forms in kit for application for grant of Letters of Administration); or

(b) an affidavit as to service, not later than 14 days before the proceeding is commenced, on each of those persons whose consent to the grant is not filed, of notice of intention to make the application.

(k) DISTRIBUTION OF INTESTATE ESTATE

An intestate estate is distributed by reference to Schedule 6 to the Administration and Probate Act. For example, if the intestate is not survived by issue, a parent, brother or sister or the issue of a brother or sister, the spouse or de facto partner is entitled to the whole estate.

Where the intestate is not survived by issue, a parent or next of kin, the intestate estate is deemed to be bona vacantia and the Territory is entitled to it.

There are many other variations of circumstances for distribution included in the Schedule to the Act.

(l) UNADMINISTERED ESTATE

Where a grant of administration has been made in the Northern Territory and it is later discovered that part of the original estate is unadministered, a person may make an application for Letters of Administration de bonis non. This may occur if an asset of the estate comes to light some time after the distribution of the estate.

Alternatively, if the gross value of the unadministered property does not exceed the prescribed amount (currently $65,000.00), the Public Trustee may elect to administer that property.

(m) PROPERTY IN MORE THAN ONE TERRITORY/STATE

If the deceased also has property in another State or Territory, a reseal of the Northern Territory grant may be applied for in that other State or Territory.

Similarly, if the grant is made in another State or Territory, and the deceased had an estate in the Northern Territory, an application for reseal of that grant may be made here.

(n) GRANT ON PRESUMPTION OF DEATH

The Court may make a grant of probate of the will, or administration of the estate of a person upon evidence supporting a presumption of the death of the person. In such cases, the grant –

(a) is expressed to be made on the presumption of the death of the person;

(b) the estate may not be distributed without the leave of the court;

(c) in giving leave to distribute, the court may direct that each person who is to take under the distribution gives an undertaking or security that he will, if the grant is revoked, restore the property received under the distribution to the person entitled to it, or pay to that person an amount equal to the value of that property.

If the court is later satisfied that a person was living at the time when probate of his will or administration of his estate was granted, the grant will be revoked on such terms as the court thinks fit.