Order 20 Division 4 of the National Court Rules 1983 is headed Testator’s Family Maintenance.
Rule 14
“The Act” means the Wills, Probate and Administration Act 1966, and, without prejudice to Order 1 Rule 6, expressions used in this Division have the same meaning as in the Act.
The claim itself arises under section 124 of the Act — a claim by a person for provision out of the estate of a deceased person.
A testator may leave a will that makes no, or inadequate, provision for someone the law considers should have been provided for. Testator’s family maintenance allows the Court to alter the distribution of the estate to remedy that.
The entitlement, the class of eligible applicants and any time limit come from the Act, not from the Rules. Read section 124 before advising.
Rule 15
(1) The person applying shall be the plaintiff and the administrator of the estate of the deceased person shall be the defendant.
(2) In the event of the plaintiff being the sole administrator the defendant shall be some person having a substantial interest in opposing the application.
(3) Where the plaintiff is one of the administrators … it shall be sufficient to name the other administrator or administrators as defendants.
(4) No other person shall be made a party to the application in the first instance.
(5) No steps shall be taken on the application after notice of intention to defend has been given until directions have been obtained under Rule 17.
Beneficiaries and other claimants are not joined at the outset, however obvious their interest. They come in, if at all, on directions under Rule 17.
And once notice of intention to defend has been given, no steps shall be taken until directions are obtained. Filing evidence or issuing a motion before that is a step the Rule forbids.
Where the applicant is the sole administrator, there would otherwise be no defendant. The Rule requires some person having a substantial interest in opposing the application to be named — typically the beneficiary whose share would be reduced.
Rule 16
(1) Two copies of every summons issued in respect of an application under Section 124 of the Act shall be lodged by the plaintiff with the Registrar when the summons is issued.
(2) Such summons shall be an originating summons under Order 4 Rule 25.
Rule 17
(1) The plaintiff shall within seven days after the time limited for giving notice of intention to defend take out a summons for directions and if the plaintiff fails to take out a summons within that time the defendant shall take out a summons for directions within a further seven days.
Seven days for the plaintiff. If they do not, a further seven days for the defendant. So an administrator faced with an inactive claimant is not entitled simply to wait — the Rule places the duty on them.
And Rule 18: if the plaintiff does not duly comply with any directions given under Rule 17 the Court may dismiss the application.
(a) ascertain the nature of the relief which the plaintiff seeks and the persons or classes of persons who will be affected by such relief if granted — and for that purpose may require the plaintiff and defendant to supply such information as may be deemed necessary;
(b) direct that a copy of the summons … be served on any person;
(c) direct what persons shall be added as defendants as being interested in the relief claimed or to represent classes of persons so interested;
(d) order that any defendant be authorized to defend on behalf of or for the benefit of all persons having the same or a similar interest and that all persons so interested shall be bound by any order made in the proceedings; and
(e) give such other directions as it sees fit relating to the evidence to be filed, the persons to be served and the hearing of the application.
Paragraph (d), and Rule 19 to the same effect, allow one defendant to be authorised to defend on behalf of or for the benefit of all persons having the same or a similar interest, with all of them bound by any order made.
That is how an estate with many beneficiaries is litigated without joining every one of them. Compare representative proceedings under Order 5.
Rules 20 to 22
The administrator who is a party to proceedings under the Act shall produce the grant of administration to the Court on the hearing of the summons.
Rule 21 — where an order is made in favour of a plaintiff the plaintiff shall prepare a formal order in triplicate and lodge it with the Registrar.
Rule 22 — the Registrar shall cause a certified copy of the order to be endorsed on the grant of administration, and as soon as that endorsement has been made shall deliver (a) the grant of administration to the administrator or his solicitor; and (b) a copy of the order to the plaintiff or his solicitor — retaining on the probate file the other copy of the order.
Anyone who later inspects the grant sees on its face that the distribution has been altered. That is why the order must be in triplicate: one for the grant, one for the plaintiff, one for the probate file.
A plaintiff who obtains an order and does not lodge it in triplicate has not completed the process.
On obtaining the grant in the first place, see probate and letters of administration. On supervising the administrator, see Order 15. On challenging the will itself — a different claim — see challenging a will.
Sources
- National Court Rules 1983 — O 1 r 6; O 4 r 25; O 5; O 15; O 19; O 20 Div 4, rr 14–22
The Wills, Probate and Administration Act 1966, including section 124, is not available on PacLII.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.