The Administration and Probate Act


1.20    Like the Wills Act, the origins of the Administration and Probate Act can be traced back to colonial times. It sets out the procedures for administering the estate until the assets are distributed to family, friends and other beneficiaries under a will or in accordance with the rules of intestacy. 

1.21    Early versions of this legislation established: the jurisdiction of the Supreme Court in this area; the powers and responsibilities of executors and administrators; rules for distributing the property of people who die intestate; and court procedures, including special arrangements for small estates. Later, it incorporated ‘family provision’ legislation, empowering the Court to alter the distribution of property under a will or the intestacy scheme to provide for the maintenance and support of someone for whom the deceased person had responsibility to provide. 

1.22    Family provision legislation provides a counterpoint to the doctrine of testamentary freedom. It places limits on the freedom of a will-maker to dispose of their property as they wish. Although testamentary freedom was favoured during Victoria’s colonial period, it had previously been restricted in a variety of ways, to greater and lesser degrees, under English law.17 

1.23    With the passage of the Widows and Young Children Maintenance Act 1906 (Vic), the new State ofVictoriawas the first jurisdiction to introduce family provision legislation inAustralia. It was based on the Testator’s Family Maintenance Act 1900 (NZ), the first law of its kind in a common law country.18 Between 1912 and 1929, all Australian states and territories enacted family provision laws,19 followed by England and Wales in 1938.20 

1.24    Unlike the Wills Act, the Administration and Probate Act has never been comprehensively reviewed. While not requiring the whole Act to be examined, the Commission’s terms of reference extend to many of the key provisions, including those that address the following issues:  

  • executors’ commission for their time and trouble  
  • applying assets to the payment of debts  
  • the intestacy scheme for distributing the assets of someone who has died without making a will 
  • special procedures for administering small estates, and  
  • family provision.



 17    See John K de Groot and Bruce W Nickel, Family Provision in Australia(LexisNexis Butterworths, 4th ed, 2012) 2–3.
 18   Myles McGregor-Lowndes and Frances Hannah, ‘Reforming Australian Inheritance Law: Tyrannical Testators vs Greying Heirs?’(2009) Australian Property Law Journal 62, 64; National Committee for Uniform Succession Laws, Uniform Succession Laws: Family Provision, Queensland Law Reform Commission Working Paper 47 (1995) 1. Dainow notes that the successful New Zealand bill followed several unsuccessful attempts at passing family provision legislation: Joseph Dainow, ‘Restricted Testation in New Zealand, Australia and Canada’ (1937) 37 MichiganLaw Review 1107, 1108.
 19   National Committee for Uniform Succession Laws, Uniform Succession Laws: Family Provision,QueenslandLaw Reform Commission Working Paper 47 (1995) 1; Testator’s Family Maintenance Act 1912 (Tas); Testator’s Family Maintenance Act 1914 (Qld); Testator’s Maintenance and Guardianship of Infants Act 1916 (NSW); Testator’s Family Maintenance Act 1918 (SA); Guardianship of Infants Act 1920 (WA) s 11; Administration and Probate Ordinance (ACT) pt VII; Testator’s Family Maintenance Order 1929 (NT).
 20  Inheritance (Family Provision) Act 1938 (UK).

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Tuesday, January 29, 2013 - 13:45

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