Probate Amendment Rules 2011

Probate Amendment Rules 2011

18 March 2011

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, the Honourable David James Porter and the Honourable Helen Marie Wood, 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 and the Administration and Probate Act 1935 .

1.   Short title

These Rules of Court may be cited as the Probate Amendment Rules 2011 .

2.   Commencement

These Rules of Court take effect on the twenty-first day after the day on which their making is notified in the Gazette.

3.   Principal Rules

In these Rules of Court, the Probate Rules 1936 are referred to as the Principal Rules.

4.   Transitional application of amendments

(1)  The amendments of the Principal Rules effected by rules 13 , 14 , 15 , 16 , 17 , 18 , 19 and 20(b) of these rules do not apply to probate work undertaken in respect of the estate of a person who died before these rules take effect.

(2)  In the case of probate work undertaken in respect of the estate of a person who died before these rules take effect, the former Principal Rules continue to apply to the probate work as if these rules had not been made.

(3)  In this rule –

former Principal Rules means the Probate Rules 1936 as in force immediately before these rules take effect;

probate work means non-contentious business or common form business within the meaning of the Principal Rules.

5.   Rule 3A inserted (Interpretation)

After rule 3 of the Principal Rules, the following rule is inserted:

3A.   Interpretation

In these rules –

practitioner means an Australian legal practitioner.

6.   Rule 5 amended (Manner in which applications made)

Rule 5(1) of the Principal Rules is amended by omitting "a solicitor practising within the jurisdiction" and substituting "a practitioner".

7.   Rule 21 amended (Priority of right to grant, where will)

Rule 21(d) of the Principal Rules is amended by omitting "the legal personal representative of" and substituting "the practitioner representing any".

8.   Rule 27 amended (Requirements in respect of notice under rule 26)

Rule 27 of the Principal Rules is amended by omitting "solicitor" and substituting "practitioner".

9.   Rule 31 amended (Administration bonds)

Rule 31(1) of the Principal Rules is amended by omitting "solicitor" and substituting "practitioner".

10.   Rule 69 amended (Requirements for affidavits)

Rule 69(2) of the Principal Rules is amended by omitting "solicitor", twice occurring, and substituting "practitioner".

11.   Rule 77 amended (Caveats to be entered in Registry)

Rule 77 of the Principal Rules is amended by omitting "solicitor" and substituting "practitioner".

12.   Rule 94 amended (Fees)

Rule 94(1A) of the Principal Rules is amended by omitting "Probate Amendment Rules 1997" and substituting " Probate Amendment Rules 2011 ".

13.   Rule 95 rescinded

Rule 95 of the Principal Rules is rescinded.

14.   Rule 96 rescinded

Rule 96 of the Principal Rules is rescinded.

15.   Rule 97 rescinded

Rule 97 of the Principal Rules is rescinded.

16.   Rule 98 rescinded

Rule 98 of the Principal Rules is rescinded.

17.   Rule 99 rescinded

Rule 99 of the Principal Rules is rescinded.

18.   Rule 100 rescinded

Rule 100 of the Principal Rules is rescinded.

19.   Rule 101 rescinded

Rule 101 of the Principal Rules is rescinded.

20.   Appendix amended

The Appendix to the Principal Rules is amended as follows:

(a) by omitting Part I and substituting the following Part:

PART I - Fees payable to Registrar

Rule 94

	Item	Fee ($)
1.	For granting probate or letters of administration or for resealing a foreign grant –
	(a) if the gross value of the estate in Tasmania as stated in the oath is less than $50 000	110
	(b) if that gross value is equal to or greater than $50 000 but is less than $100 000	270
	(c) if that gross value is equal to or greater than $100 000	430
2.	For filing an election to administer –
	(a) if the gross value of the estate in Tasmania as stated in the oath is less than $50 000	50
	(b) if that gross value is equal to or greater than $50 000	90
3.	Searches, copies or certificates –
	(a) for search	16.50
	(b) for exemplification or a certified copy of a document	55
	(c) for an office copy of a document	1 (each page or part of a page)
	(d) for preparation and sealing of a certified copy, or an exemplification, of any probate or letters of administration, or for resealing a foreign grant	55

(b) by rescinding Part II;

(c) by omitting Form XXII from Part III and substituting the following form:

Form XXII

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

H. M. WOOD

Puisne Judge

Countersigned,

E. A. KNIGHT

Registrar

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 23 March 2011

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 Probate Rules 1936 by –

(a) increasing the fees payable to the Registrar of the Supreme Court in non-contentious proceedings under the Administration and Probate Act 1935 and rescinding the provisions relating to the costs, charges and disbursements allowed to solicitors in those proceedings; and

(b) updating certain references consequent on the enactment of the Legal Profession Act 2007 ; and

(c) amending Form XXII relating to the Administrator's Oath.