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The control of the administration of the estates of deceased persons, the authentication of wills and the authorisation of legal personal representatives to act on behalf of either testate or intestate persons, are the functions of the Supreme Court in its probate jurisdiction (1).
Probate is the official sanction of the Court upon a testamentary instrument (e.g. Will) so as to authorise an executor to administer the Estate as personal representative of the deceased. Although a Grant of Probate is a grant by the Court, in ordinary non-contentious matters where no doubt is cast upon the validity of the Will, the matter does not usually come before the Court but is disposed of by the Registrar who merely requires a number of formal affidavits (2).
The Executor derives their authority from the will and, on grant of Probate, the property of the deceased vests in them from the date of death as trustee for the beneficiaries as are set out in the will. An Administrator derives their authority from the Court and the property of the deceased is held by them in trust for those persons entitled to share under the rules of intestacy. Both the Executor and the Administrator are referred to as “the Legal Personal Representative” of the deceased (3).
The Supreme Court of New South Wales and the Legislative Origin of Probate in New South Wales
The ability to grant probate of wills and administration of the estates of persons dying intestate, was first validly conferred upon the Supreme Court of New South Wales by the Charter of Justice of 1823, which was confirmed by 9 Geo. IV, c.83. (4).
Prior to the Charter of Justice the position is not free from doubt. In 1787, by 27 Geo. III., c.2, and Letters Patent, a court of criminal jurisdiction (strictly a Court of Admiralty in criminal jurisdiction) was established. The authority of the statute was used to establish a court of civil jurisdiction composed of the Judge Advocate and one or more civil assessors appointed by the Governor. The powers of this court included the grant of probate and letters of administration. This civil court was, possibly, irregular and its creation unconstitutional. By additional Letters Patent of the 4th February 1814, a Supreme Court was created and the court was invested with jurisdiction in probate and administration. The establishment of this Court has generally been considered as unconstitutional as that of the Court created by the earlier Letters Patent (5).
The Act 4 Geo. IV c.96 (1823) gave power to the King “…by Charters or Letters Patent…[to] establish Courts of Judicature in New South Wales…which shall be styled “The Supreme Court of New South Wales” (6). Such letters patent were issued on 13 October 1823 and constituted the Supreme Court as a Court of Record and also granted the Court an Ecclesiastical Jurisdiction (7).
The Court was empowered to grant probate of the wills of the inhabitants of New South Wales, and of others dying and leaving personal estate in the colony. Letters of administration could be granted of the personal estate of intestates or of testates where no local executor was named or was able to provide his services, or where an executor on citation was unable to prove the will which named him. In such cases the Court was legally entitled to "sequester the goods, chattels credits and other effects whatsoever of such persons so dying in cases allowed by law as the same is and may now be used in the Diocese of London" (8).
The Act 9 Geo. IV c.83 (1828), repealed 4 Geo. IV c.96 which was a temporary Act and continued to empower the Supreme Court as a Court of Ecclesiastical Jurisdiction (9). This Act was originally passed for a period of seven years but was eventually made perpetual by the Acts 5 & 6 Vic. c.76.
During the 1820's and 1830's the system became increasingly the responsibility of the Registrar and the Clerk of the Supreme Court because of a lack of supervision by judges. Due to a misappropriation of the monies in intestate estates by one Registrar (John Edye Manning) and his dismissal, an Act 11 Vic. no.24, was passed in October 1847, which created the position of Curator of Intestate Estates (10).
The Probate Act, 1890, ended the old concept of an ecclesiastical jurisdiction, and established instead the probate jurisdiction of the Supreme Court. This Act was designed to consolidate and amend the law relating to Probate and Letters of Administration, and to the succession to Real Estate in cases of intestacy, and for the preservation and management of the estates of deceased persons (11).
This Act enabled the Governor to appoint a Registrar and also a Deputy Registrar of the Probate Jurisdiction of the Supreme Court to perform the duties of the previous Prothonotary and Ecclesiastical Clerk in reference to Ecclesiastical Jurisdiction of Supreme Court, and for the appointment of a Curator and deputy Curator of Intestate Estates (12).
The Court was given jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property, whether real or personal, within the Colony of New South Wales with the property of Intestates to vest in the Chief Justice (13).
The most important enactment of the nineteenth century in this area of law was the Wills, Probate and Administration Act, 1898, which amalgamated the Probate Act, 1890, and five other statutes (5 Wm. IV No.8; 3 Vic. No.5; 17 Vic. No.5; 26 Vic. No.12; 56 Vic. No.30) (14) and made far-reaching changes to the law of wills in New South Wales. Broadly, the Act made the following amendments to the principal Act: the category of privileged testators was abolished; a minor could make a will; the formalities for the execution of wills were eased; interested witnesses were permitted to inherit under the will they had witnessed; contemplation of marriage in general became sufficient to prevent revocation of a will by marriage; termination of marriage revoked a gift to an ex-spouse; revocation of a will could be by some writing on the will, or some dealing with the will, with the intention of revoking it; informal documents could constitute wills if the court was satisfied on a balance of probability that the testator intended the document to constitute her or his will; and the court was given power to rectify wills (15).
In 1906 (Act No.14, 1906) the 1898 Act was amended to allow the probate judge to delegate the powers of the court to the registrar in order to-
(a) grant probate and administration of estates where no contention has arisen;
(b) the passing of the accounts of executors and administrators, save in respect of the award of commission thereon;
(c) the granting to executors and administrators of further time to file accounts;
(d) the authorising the sale, lease, or mortgage of any of the real estate as to which any person dies intestate where the gross value of such real estate does not exceed two hundred pounds, and no objection is raised to such sale, lease, or mortgage (16).
From 1893 until 1932, the property of the deceased vested, until grant probate or administration, in the Chief Justice, or in the event of there being no Chief Justice, in the senior Pusine Judge. Since 1932 the property has vested in the Public Trustee (17).
On 1 July 1972, by the proclamation of the Supreme Court Act 1970-72 and the Law Reform (Law and Equity) Act 1972, the Court's six civil jurisdictions, namely common law, equity, matrimonial causes, probate, protective, and admiralty, were abolished and its civil jurisdiction organised into the Court of Appeal and six divisions corresponding to the former jurisdictions (18).
The Supreme Court of New South Wales has a statutory obligation to preserve all original wills and any documents required for a grant of probate (19). The Probate packets are evidence of the Crown's responsibility and right (as exercised by the Supreme Court) to ensure the orderly and legitimate transfer of property and assets (wealth) either by will or by other legally based determinations.
The Supreme Court of New South Wales has divided this series of probate records into five groupings, which they have called “series”. After extensive research and discussions with the Supreme Court no definitive answer as to why these records have been divided could be ascertained. Possible reasons for the division include: statutory change, agency or administrative change and sheer size of the “series” (e.g. “series” 4 has over one million packets). The “series” are divided as follows: Series 1- April 1817-May 1873, Series 2- 1873-1876, Series 3- 1876-c.1890, Series 4- c.1890-1985, and Series 5- 1985 onwards. The packets from “series” 4 onwards have been microfilmed.
This series consists of brown envelopes with the name of the individual, probate number and series number on the outside. From about 1978 these envelopes were replaced by plastic packets. Until about 1986, the probate number was given after probate had been granted. From 1986 the number has been given upon lodgement of application for Probate (20).
The following represents some of the documents that can be found in the probate packets: Last Will and Testament; Affidavit of Death; Affidavit of assets and liabilities; Order Dispensing with the filing of Accounts; Affidavit of Publication and Search and Caveat; Oath of Executor; Oath of Administrator; Power of Attorney; Petition for Probate; Affidavit in support of Application for Administration to a widow; Petition for Letters of Administration; Affidavit of Administration; Registrars Certificate; Address for Service; Affidavit for Stamp Office [Affidavit “D”]; Account Summary; and Affidavit of surety.
The number and types of documents varies considerably from packet to packet.
Cull Of Probate Records By The Supreme Court
The Probate packets from the late 1960s to c.1983 were culled by Supreme Court staff a number of years ago. As a result of the culling Probate packets may no longer contain copies of the certificates of valuations of real estate, valuations of furniture and effects, valuation of motor cars, and correspondence from solicitors, banks, share brokers, and insurance companies.
The cull was premised on the removal of the documents which were primarily considered to be Stamp Duties Office documents rather than documents required by the Probate Office (and where the original was held by the Stamp Duties Office in the Deceased estate files). The number of Stamp Duties Office related documents still included in the Probate packet/files varies from file to file (21).
1. AO File 95/D273 Notes on NSW Death Duty.
2. AO File 95/D273 Notes on Probate.
3. AO File 95/D273 Notes on Probate and Letters of Administration.
4. Roland Hastings, George Weir and HW Gulliver, Probate Law and Practice, Sydney, Law Book Co. of Australia, 1948 p.3; and Robert Geddes, Charles J Rowland and Paul Studdert, Wills, Probate and Administration Law in New South Wales, North Ryde, N.S.W., LBC Information Services, 1996, p.1.
5. Roland Hastings, George Weir and HW Gulliver, Probate Law and Practice, 1948, pp.5-6; and Robert Geddes, Charles J Rowland and Paul Studdert, Wills, Probate and Administration Law in New South Wales, 1996, p.4.
6. Act 4 Geo. IV. c.96 (1823) S. I.
7. Act 4 Geo. IV c.96 (1823) S.II and S.X.
8. Concise Guide Supreme Court Ecclesiastical Jurisdiction.
9. Act 9 Geo. IV c.83 (1828)- S.XII.
10. Concise Guide Supreme Court Ecclesiastical Jurisdiction.
11. Act 54 Vic. No.25 Probate Act 1890.
12. Act 54 Vic. No.25 Probate Act 1890 Part I S.7 and Part I S.8.
13. Act 54 Vic. No.25 Probate Act 1890 Part I S.11 and Part IV S.39.
14. Wills, Probate and Administration Act No.13, 1898 First Schedule.
15. Robert Geddes, Charles J Rowland and Paul Studdert, Wills, Probate and Administration Law in New South Wales, 1996, p.19.
16. Administration Amending Act No.14, 1906.
17. Roland Hastings, George Weir and HW Gulliver, Probate Law and Practice, 1948, p.21-22; and Robert Geddes, Charles J Rowland and Paul Studdert, Wills, Probate and Administration Law in New South Wales, 1996, p.16.
18. Concise Guide Supreme Court .
19. Act 54 Vic. No.25 Probate Act 1890 Part II S.22.
20. AO File 84/218D Note re visit to Supreme Court dated 7/11/1988.
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