Supreme Court Amendment (Wills) Rules 200926 June 2009
We, the Honourable Ewan Charles Crawford, Chief Justice, and the Honourable Peter Ethrington Evans, the Honourable Alan Michael Blow, OAM, the Honourable Shan Eve Tennent and the Honourable David Porter, Puisne Judges of the Supreme Court of Tasmania, on the recommendation of the Rule Committee, make the following Rules of Court under the Supreme Court Civil Procedure Act 1932 .
These Rules of Court may be cited as the Supreme Court Amendment (Wills) Rules 2009 .
These Rules of Court take effect on the day on which their making is notified in the Gazette.
In these Rules of Court, the Supreme Court Rules 2000 are referred to as the Principal Rules.
4. Rule 88 amended (Actions)
Rule 88 of the Principal Rules is amended as follows:(a) by omitting from paragraph (y) "Crown;" and substituting "Crown.";(b) by omitting paragraphs (z) and (za) .
5. Rule 89 amended (Applications to Court)
Rule 89 of the Principal Rules is amended by omitting paragraph (p) and substituting the following paragraph:(p) application under the Wills Act 1992 or the Wills Act 2008 , other than an application for authorisation to make or alter a will, or revoke the whole or any part of a will;
6. Rule 90 amended (Applications to judge in chambers)
Rule 90(1) of the Principal Rules is amended by omitting paragraph (o) and substituting the following paragraph:(o) authorisation to make or alter a will, or revoke the whole or any part of a will, or leave to apply for such authorisation;
7. Part 32, Division 6 substituted
Division 6 of Part 32 of the Principal Rules is rescinded and the following Division is substituted:Division 6 - Proceedings under the Wills Act 1992 and the Wills Act 2008799. Interpretation of Division 6 of Part 32
In this Division –former Wills Act means the Wills Act 1992 as continued under section 5 of the Wills Act 2008 .800. Application to dispense with requirements for execution of wills
An application under section 26 of the former Wills Act or section 10 of the Wills Act 2008 is to join as a respondent each person whose interests might be affected by the making of the order sought.801. Application to validate dispositions to interested witnesses
(1) An application under section 45 of the former Wills Act or section 13 of the Wills Act 2008 is to join as respondents –(a) the personal representative of the deceased; and(b) each person whose interests might be affected by the making of the order sought.(2) On the hearing of the application, the personal representative of the deceased person is to produce the probate of the will to the Court.(3) If an order is made on the application, the Court is to direct that a certified copy of the order be made on the probate of the will and for that purpose may retain the probate until the copy has been made.802. Application for authorisation, alteration or revocation of wills by minors
(1) An application under section 20 of the Wills Act 2008 –(a) is to be made by an ex-parte application; and(b) may be made without the intervention of a litigation guardian; and(c) is to be supported by an affidavit of the applicant containing or, where appropriate, annexing the following:(i) the full name, address, occupation and date of birth of the minor;(ii) if the application is being made by a person other than the minor, the full name, address, occupation and date of birth of the applicant and an explanation of the facts and circumstances of the making of the application on behalf of the minor;(iii) a draft of the will for which authorisation is sought or a copy of the will for which revocation or part revocation is sought;(iv) details of the assets, liabilities, income and financial obligations of the minor;(v) the name and address of any person who is wholly or partly dependent on the minor and the nature and extent of that dependency;(vi) the name and address of each living child, parent or sibling of the minor;(vii) if the minor has no living child, parent or sibling, the name and address of each person who would be entitled to share in the estate of the minor on intestacy if the minor were to die at the time of the making of the application;(viii) whether the application has been made upon notice to any of the persons indicated in subparagraph (v), (vi) or (vii), or any other person with a legitimate interest in the proceedings, or whether notice is proposed to be given to such persons;(ix) the facts and circumstances relied upon to satisfy the Court under section 20(3) of the Wills Act 2008 .(2) If the Court or a judge is of the opinion that a person who appears to have an interest in proceedings ought to be given notice of those proceedings, the Court or the judge may –(a) direct that the person be served with the application; and(b) give directions as to the future conduct of the proceedings.(3) If revocation of a will or part of a will is sought, the original will is to be produced to the Court, or its absence explained by affidavit, at the hearing of the application.803. Application for leave to apply for certain orders
(1) An application for leave under section 23 of the Wills Act 2008 –(a) may be made without the intervention of a litigation guardian; and(b) is to be supported by an affidavit of the applicant containing the following:(i) the full name, address, occupation and date of birth of the applicant;(ii) the full name, address, occupation and date of birth of the person on whose behalf the application is made;(iii) the full name, address, occupation and date of birth and relationship to the proposed testator of any of the persons described in section 23(2) (h), (j) and (k) of the Wills Act 2008 ; and(c) is to be served personally on each of the persons described in section 23(2) (h), (j) and (k) of the Wills Act 2008 , unless the Court or a judge otherwise orders.(2) If the Court or a judge is of the opinion that a person who appears to have an interest in proceedings ought to be given notice of those proceedings, the Court or the judge may –(a) direct that the person be served with the application; and(b) give directions as to the future conduct of the proceedings.(3) A person who wishes to object to the application for leave –(a) is to file and serve, no later than 28 days after the service of the application, an affidavit setting out the basis of any objection and the facts and circumstances on which it is based; and(b) is not required to enter an appearance.(4) If revocation of a will or part of a will is sought, the original will is to be produced to the Court, or its absence explained by affidavit, at the hearing of the application for leave.803A. Application to rectify a will
(1) An application under section 47 of the former Wills Act, or section 42 of the Wills Act 2008 is to join as respondents –(a) the personal representative of the deceased; and(b) each person whose interests might be affected by the making of the order sought.(2) On the hearing of the application, the personal representative of the deceased person is to produce the probate of the will to the Court.(3) If an order is made on the application, the Court is to direct that a certified copy of the order be made on the probate of the will and for that purpose may retain the probate until the copy has been made.
E. C. CRAWFORD
Chief Justice
P. E. EVANS
Puisne Judge
A. M. BLOW
Puisne Judge
S. E. TENNENT
Puisne Judge
D. J. PORTER
Puisne Judge
Countersigned,
E. A. KNIGHT
Registrar
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 8 July 2009
These Rules of Court are administered in the Department of Justice.
EXPLANATORY NOTE
(This note is not part of the rule)
These Rules of Court amend the Supreme Court Rules 2000 to –(a) provide for certain proceedings in the Supreme Court in respect of wills to be commenced by application rather than by writ; and(b) revise the procedures for such applications consequent on the commencement of the Wills Act 2008 .