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Fiji Legislation |
LAWS OF FIJI
CHAPTER 60
Revised Ed. 1985]
SUCCESSION, PROBATE AND ADMINISTRATION
TABLE OF PROVISIONS
PART I - PRELIMINARY
SECTION
1. Short title
2. Interpretation
PART II-JURISDICTION OF THE COURT
3. Jurisdiction of court
4. Duties of Registrar
PART III-DISTRIBUTION ON INTESTACY
5. Distribution of real and personal estate of intestate
6. Succession to property on intestacy
PART IV-GRANTS OF LETTERS OF ADMINISTRATION
7. Persons entitled to grant
PART V-PROBATE AND ADMINISTRATION
8. Pending grant estate to vest in Public Trustee
9. Upon grant of probate or administration property to vest
10. Property to vest subject to trusts
11. Real and personal estate to be assets
12. Real estate to vest according to will
13. Executor to have same rights and duties as heretofore as to personal estate
14. Executor not entitled beneficially unless authorised by will
15. Court may deal with interest of infants in certain cases
16. Power to appoint trustees of infant's property
17. Personal representative may relinquish office
18. Executor or administrator to represent real estate
19. All creditors to stand in equal degree
20. Bond to be executed
21. Penalty of bond
22. Sureties to bond may be dispensed with in certain cases
23. Court may revoke administration or order new or additional bond
24. If condition of bond broken, bond may be assigned
25. Court may grant relief if estate being wasted or in danger
26. In case of renunciation or failure to take probate, right of executor gone
27. Where infant is executor, etc.
28. Where person entitled to probate or administration is out of the jurisdiction
29. Administration pendente lite
30. Administration with the will annexed
31. Probate or administration if executor, etc., absent or neglects to obtain probate, etc.
32. Special letters of administration if executor or administrator not within jurisdiction
33. On return of executor or administrator, special administration may be revoked
34. Absent executor liable to account
35. Court may remove executor
36. Revocation pending litigation not to abate proceedings
37. Power to postpone distribution
38. Devisee or legatee may apply to court in certain cases
39. Inventory and accounts
40. If accounts not filed Registrar to give notice, etc.
41. Court may settle all questions arising in administration
42. Payments made before revocation to be valid
43. Payments, etc., to be valid notwithstanding defect
44. Executor deemed to be resident in Fiji
PART VI-RESEALING PROBATES AND ADMINISTRATION
45. Probates, etc., may be sealed
PART VII-CAVEATS
46. Caveat
47. Court may remove caveat
PART VIII-MISCELLANEOUS
48. Affidavits may be sworn before a justice of the peace under certain circumstances
49. Deposits not exceeding $1,200 in any bank may be paid to widow or next of kin without probate or administration
50. Records of grants, etc.
51. Payment of balance of estate to Curator or Public Trustee of the country or territory where deceased was domiciled
52. Rules of court and fees
-------------------------------------------------
Ordinance
No. 20 of 1970,
Order* 29 September
1970,
Acts Nos. 14 of 1975, 24 of
1976, 12 of 1985†
AN ACT TO CONSOLIDATE AND AMEND THE LAW RELATING TO SUCCESSION, PROBATE AND ADMINISTRATION OF ESTATES OF DECEASED PERSONS
[2 July 1970]
PART I-PRELIMINARY
Short title
1. This Act may
be cited as the Succession, Probate and Administration Act and shall be
construed as one with the Supreme Court
Act.
(Cap. 13)
Interpretation
2.-(1) In this
Act, unless the context otherwise requires-
"administration " includes letters of administration of the estate and effects of deceased persons, whether with or without the will annexed, and whether granted for general, special, or limited purposes; and also exemplification of letters of administration with or without the will annexed and such other evidence of letters of administration purporting to be under the seal of a court of competent jurisdiction as in the opinion of the court is sufficient;
"administrator" includes the Public Trustee and any other person to whom administration is granted;
"court" means the Supreme Court or a judge thereof;
"intestate" includes a person who leaves a will but dies intestate as to some beneficial interest in his real or personal estate;
"personal chattels" means livestock, vehicles and accessories, furniture, furnishings, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, jewellery and other articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors and consumable stores, but does not include any chattels used at the death of the intestate for business purposes nor money or securities for money;
"personal estate" means the personal property of a deceased person and extends to leasehold estates and other chattels real, and also to all other property whatsoever which, prior to the commencement of the Real Property Ordinance, 1876, devolved by law upon an executor or administrator, and to any share or interest therein;
"personal representative" means the executor, original or by representation, of the will, or the administrator of the estate for the time being, of a deceased person;
"prescribed" means prescribed by this Act or by any rules made under the provisions of this Act;
"probate" includes "exemplification of probate" and such other formal evidence of probate purporting to be under the seal of a court of competent jurisdiction, as in the opinion of the court is sufficient;
"property" includes real and personal property, and any estate or interest in any property real or personal, and any debt, and any thing in action and any other right or interest;
"Public Trustee" means the Public Trustee under the Public Trustee Act;
(Cap 64)
"real estate" means the real property of a deceased person, and extends to messuages, lands, rent and hereditaments of freehold or any other tenure, and whether corporeal, incorporeal, or personal, and to any undivided share thereof, and to any estate, right or interest (other than a chattel interest) therein;
"Registrar" means the Chief Registrar of the Supreme Court and includes any Deputy Registrar or District Registrar;
"trustee corporation" has the same meaning as in the Trustee Act;
(Cap 65)
"will" extends to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament, and to any other testamentary disposition.
(2) Except where otherwise
expressly provided, this Act applies only to the wills and estates of persons
dying after the commencement
of this Act.
(3) For the purposes of this
Act the certificate of the Attorney-General shall be sufficient proof that any
country or territory is
or was a country or territory of the Commonwealth at the
date specified in such certificate.
PART II-JURISDICTION OF THE COURT
Jurisdiction of court
3.-(1) Subject to
the provisions of this Act, and to any rules made
hereunder the court shall have
jurisdiction in contentious and non-contentious probate matters and proceedings
and in the granting or revoking
of probate of wills and administration of
estates of persons dying leaving property in Fiji.
(2) The jurisdiction
vested in the court by the provisions of subsection (1) shall, subject to any
modifications effected by any rules
made under the provisions of section
52, be in
conformity with the law and practice in
force in England on the 1st day of January, 1967, or on such later date as the
Chief Justice may from
time to time appoint by notice in the Gazette, so far as
the same can be read as capable of application to local circumstances.
Duties of Registrar
4. The Registrar
shall, subject to the rules, perform such duties in reference to proceedings in
the probate jurisdiction of the court,
and such other duties, as may be
prescribed by the rules.
PART III-DISTRIBUTION ON INTESTACY
Distribution of real and personal estate of intestate
5.
Notwithstanding anything to the contrary contained in any laws in force in Fiji
at the date of commencement of this Act, the property
of an intestate dying on
or after the date of commencement of this Act shall be distributed in accordance
with the provisions of
this Act, and no person shall have any right, title,
share, estate or interest in such property except as provided in this
Act.
Succession to property on intestacy
6.-(1) Subject to
the provisions of Part II, the administrator on intestacy or, in the case of
partial intestacy, the executor or administrator
with the will annexed, shall
hold the property as to which a person dies intestate on or after the date of
commencement of this Act
on trust to distribute the same as follows:
(a) if the intestate leaves a wife, or husband, with or without issue, the surviving wife or husband shall take the personal chattels absolutely, and-
(i) if the net value of the residuary estate of the intestate, other than the personal chattels, does not exceed $2,000, the residuary estate absolutely; or
(ii) if the net value of the residuary estate exceeds $2,000, the sum of $2,000 absolutely;
(b) if the intestate leaves no issue, the surviving wife or husband shall, in addition to the interests taken under paragraph (a), take one-half of the residuary estate absolutely;
(c) if the intestate leaves issue, the surviving wife or husband shall, in addition to the interests taken under paragraph (a), take one-third only of the residuary estate absolutely, and the issue shall take per stirpes and not per capita the remaining two-thirds of the residuary estate absolutely;
(d) if the intestate leaves issue, but no wife or husband, the issue of the intestate shall take per stirpes and not per capita the whole estate of the intestate absolutely;
(e) if the intestate leaves no issue but both parents, then, subject to the interests of a surviving wife or husband, the father and mother of the intestate shall take the residuary estate of the intestate absolutely in equal shares;
(f) if the intestate leaves no issue, but one parent only then, subject to the interests of a surviving wife or husband, the surviving father or mother shall take the residuary estate of the intestate absolutely;
(g) if the intestate leaves no issue or parent, the surviving husband or wife shall take the residuary estate of the intestate absolutely;
(h) if the intestate leaves no husband or wife and no issue or parents, then the brothers and sisters of the whole blood, and the children of deceased brothers and sisters of the whole blood of the intestate shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita;
(i) if the intestate leaves no husband or wife, and no: issue or parents or brothers or sisters of the whole blood or children of deceased brothers or sisters of the whole blood then the brothers and sisters of the half blood and children of deceased brothers and sisters of the half blood shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita;
(j) if the intestate leaves no husband or wife and no issue or parents or brothers or sisters of the whole blood or of the half blood, or children of deceased brothers or sisters of the whole blood or of the half blood, then the grandparents of the intestate shall take the whole estate of the intestate absolutely, and if more than one survives the intestate they shall take absolutely in equal shares, but if there is no grandparent, then the uncles and aunts of the whole blood, and children of deceased uncles and aunts of the whole blood, of the intestate, being brothers and sisters of the whole blood of children of deceased brothers and sisters of the whole blood, of a parent of the intestate, shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita;
(k) if the intestate leaves no husband or wife and no issue or parents or brothers or sisters of the whole blood or of the half blood or children of deceased brothers or sisters of the whole blood or of the half blood and no grandparents or uncles or aunts of the whole blood or children of deceased uncles or aunts of the whole blood of the intestate being brothers and sisters of the whole blood of children of deceased brothers and sisters of the whole blood, of a parent of the intestate, then the uncles and aunts of the half blood and children of deceased uncles and aunts of the half blood of the intestate shall take the whole estate of the intestate absolutely in equal shares, such children taking per stirpes and not per capita;
(l) in default of any person taking an absolute interest under any of the foregoing provisions of this section the residuary estate of the intestate shall belong to the Crown as bona vacantia, and in lieu of any right to escheat, and the Crown may, out of the whole or any part of the property devolving on it, provide for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.
(2) For the purposes of subsection
(1)-
(a) the net value of the property of a deceased person is the net value of that property at the date of the death of that person as finally assessed by the Commissioner of Estate and Gift Duties for the purpose of the Estate and Gift Duties Act;
(Cap. 203.)
(b) any income derived from the property of a deceased person shall be distributed among the persons entitled in distribution to that property in the same respective proportions to which they are entitled to share in the distribution of that property.
(3) In this
section-
"child"-
(a) in relation to an intestate, means any child, whether legitimate or illegitimate of the intestate;
(b) in relation to any person entitled under the provisions of this Act to share in the property of an intestate, means any child legitimate or illegitimate of that person;
"issue" includes a child or any other issue whether legitimate or illegitimate, in any generation, of an intestate.
(4) For
the purposes of this section, an illegitimate relationship between a father and
his child shall not be recognised unless there
is proof that the paternity of
the father has been admitted by or established against the father while both the
father and the child
were living.
PART IV-GRANTS OF LETTERS OF ADMINISTRATION
Persons entitled to grant
7. The court may
grant administration of the estate of a person dying intestate to the following
persons (separately or conjointly)
being not less than 21 years of age-
(a) the husband or wife of the deceased; or
(b) if there is no husband or wife, to one or more of the next of kin in order of priority of entitlement under this Act in the distribution of the estate of the deceased; or
(c) any other person, whether a creditor or not, if there is no person entitled to a grant under paragraphs (a) and (b) resident within the jurisdiction and fit to be so entrusted, or if the person entitled as aforesaid fails, when duly cited, to appear and apply for administration.
PART V-PROBATE AND ADMINISTRATION
Pending grant estate to vest in Public Trustee
8. Pending the
grant of probate of a will or administration of the estate of an intestate, the
real and personal estate of a deceased
person shall, without any charge being
leviable therefore, vest in the Public Trustee for the purpose of accepting
service of notices
and proceedings and acting as nominal defendant.
Upon grant of probate or administration property to vest
9. Upon the grant
of probate or administration, all property of which a deceased person dies
possessed, or entitled to, in Fiji shall,
as from the death of such person, pass
to and become vested in the executor to whom probate has been granted, or
administrator for
all the estate and interest of the deceased therein, in the
manner following, that is to say-
(a) on testacy or on partial intestacy, in the executor or administrator with the will annexed; and
(b) on intestacy, in the administrator.
Property to vest subject to trusts
10. All property
held by any person in trust shall vest as aforesaid, subject to the trusts and
equities affecting the same.
Real and personal estate to be assets
11.-(1) The real
as well as the personal estate of every deceased person shall be assets in the
hands of the executor to whom probate
has been granted, or administrator, for
the payment of all duties and fees and of the debts of the deceased in the
ordinary course
of administration.
(2) No executor or administrator shall
by virtue of such office have or exercise any right of retainer in priority to
the other creditors
of the estate in respect of any debt due to him.
(3)
An executor to whom probate has been granted, or administrator, may, for the
purposes of administration, sell or lease such real
estate, or mortgage the
same, with or without a power of sale, and assure the same to a purchaser or
mortgagee in as full and effectual
a manner as the deceased could have done in
his lifetime.
Real estate to vest according to will
12. Subject as
aforesaid, the real estate of every person who dies testate shall be held by the
executor to whom probate has been granted
or the administrator with the will
annexed according to the trusts and dispositions of the will of such deceased
person.
Executor to have same rights and duties as heretofore as to personal estate
13. The executor
to whom probate has been granted, or administrator, shall have the same rights
and be subject to the same duties with
respect to the real estate of the
deceased that executors or administrators respectively heretofore have had or
been subject to with
reference to personal estate:
Provided that it shall
not be lawful for some or one only of several joint executors or administrators
to sell or transfer any real
estate without an order of the court.
Executor not entitled beneficially unless authorised by will
14. No executor,
as such, shall be entitled to take beneficially any residue not expressly
disposed of by the will of the testator,
unless it appears by such will that he
is intended so to take.
Court may deal with interest of infants in certain cases
15.-(1) Where a
person dies either before or after the commencement of this Act leaving infant
issue and the value of the share of the
real and personal property of the
deceased person to which an infant is entitled in distribution does not exceed
$30,000, or such
larger sum not exceeding $50,000, as may be prescribed the
court may, on the application of any such infant, or of any person on
his
behalf, authorise the executor or administrator to expend the whole or any part
of the share of such infant in his maintenance,
advancement or
education.
(Amended by Act 12 of
1985)
(2) The power or authority that the court may confer under
this section on an executor or administrator is in addition to any other
power
or authority, statutory or otherwise, that the executor or administrator may
have to pay or apply capital money or assets,
or the income thereof, to or on
behalf of an infant.
Power to appoint trustees of infant's property
16.-(1) Subject
to the provisions of subsection (5), where an infant is absolutely entitled
under the will or on the intestacy of a
deceased person who dies before or after
the commencement of this Act to a devise or legacy, or to the residue of the
estate of the
deceased, or any share therein, and that devise, legacy, residue
or share is not, under the will, if any, of the deceased devised
or bequeathed
to trustees for the infant, the personal representative of the deceased may
appoint a trustee corporation or 2 or more
individuals not exceeding 4 (whether
or not including the personal representative or one or more of them) to be the
trustee or trustees
of that devise, legacy, residue or share for the infant, and
may execute or do any assurance, act or thing requisite for vesting
that devise,
legacy, residue or share in the trustee or trustees so appointed.
(2) On
the vesting of the devise, legacy, residue or share, mentioned in subsection (1)
in the trustee or trustees appointed under
the provisions of that subsection,
the personal representatives as such are discharged from all further liability
in respect of that
devise, legacy, residue or share.
(3) Trustees appointed under the provisions of subsection (1) may retain any property, transferred to them pursuant to the provisions of this section, in its existing condition or state of investment, or may convert it into money, and upon conversion shall invest the money in any of the securities or property authorised for the investment of trust funds.
(4) Where a personal representative has, before the
commencement of this Act, retained or sold any such devise, legacy, residue or
share as is mentioned in subsection (1), and has invested it or the proceeds
thereof in any investments in which he was authorised
to invest money subject to
the trust, then, subject to any order of the court made before that date, he
shall be deemed not to have
incurred any
liability on that account or
by reason of not having paid or transferred the money or property into
Court.
(5) The power of appointing trustees conferred upon personal
representatives by this section is subject to any direction or restriction
contained in the will of the deceased.
Personal representative may relinquish office
17.-(1) A
personal representative may at any time, by leave of the court, and on such
conditions as the court may impose, relinquish
his office to such person as the
court may appoint.
(2) Notwithstanding any such order, the personal
representative shall continue liable for all acts and neglect whilst he was
acting
as executor or administrator, but not otherwise or further.
Executor or administrator to represent real estate
18. In all
proceedings concerning the real estate of a deceased person, his personal
representative, so long as such estate remains
vested in him, shall represent
such real estate and the persons interested therein in the same manner and to
the same extent as in
proceedings concerning personal estate.
All creditors to stand in equal degree
19.-(1) In the
administration of the estate of every deceased person, all the creditors of such
person shall be treated as standing
in equal degree, and be paid accordingly out
of the assets, whether legal or equitable.
(2) Nothing herein contained
shall prejudice or affect any mortgage, lien, charge or security which any
person may hold or be entitled
to for payment of his debt.
Bond to be executed
20.-(1) Subject
to the provisions of subsection (2) every person to whom administration is
granted shall, previous to the issue of such
administration, execute in the form
prescribed. by the. rules, a bond, with one or 2 sureties conditioned for duly
collecting, getting
in, administering and distributing the real and personal
estate of the deceased,
(2) No such bond shall, unless specifically
ordered by the court, be required from the Public Trustee of England, a trustee
corporation
or from any person obtaining administration to the use or for the
benefit of the Crown.
(Amended by Act 24
of 1976, s. 16)
Penalty of bond
21. Every bond
shall be in a penalty equal to the gross amount under which the property of the
deceased is sworn but the court may dispense
with one or both sureties to any
bond or reduce the amount of such penalty, or limit the liability of any surety
to such amount as
the court thinks reasonable; or, in place of any such bond,
the court may accept the security of any incorporated company or guarantee
society approved of by the court.
Sureties to bond may be dispensed with in certain cases
22.-(1)
Notwithstanding any other provision of this Act, in any case where a person dies
leaving property not exceeding $4,000 in value,
and administration is granted to
the husband or widow of the deceased, no surety or sureties shall be required to
the administration
bond.
(2) Notwithstanding any other provision of this
Act, in any case where the claim of any creditor of the deceased or any portion
of
such claim is secured by a mortgage of or other charge on real estate of the
deceased, no surety or sureties shall be required to
the administration bond in
an amount exceeding a sum representing the difference between the amount of the
gross value of the property
of the deceased and the amount of the claim which
such mortgage or charge secures.
Court may revoke administration or order new or additional bond
23. The court
may, at any time, upon the application of any person interested in the estate or
of its own motion on the report of the
Registrar-
(a) revoke the administration already granted; or
(b) order the administrator to execute a further or additional bond in such sum, with or without sureties, as the court may direct; and upon default may remove the administrator and appoint another in his place, with power to sue or be sued upon any contract made by the removed administrator; or
(c) order that the liability of any surety to any administration bond be reduced to such amount as the court in the circumstances of the case thinks reasonable.
If condition of bond broken, bond may be assigned
24. The court may
order the Registrar for and on behalf of Her Majesty to assign any bond to some
person to be named in such order,
and such
person, or his personal representative, shall be entitled to sue upon the
bond in his own name, and be entitled to recover thereon,
as trustee, for all
persons interested, the full amount recoverable in respect of any breach of the
condition of the said bond.
Court may grant relief if estate being wasted or in danger
25. If, upon the
application of a surety to any bond, it appears to the court that the estate is
being or is in danger of being wasted,
or that the surety is being or is in
danger of being in any way, prejudiced by the act or default of the person
administering the
estate, or that any surety desires to be relieved from further
liability, the court may grant such relief as it may think fit.
In case of renunciation or failure to take probate, right of executor gone
26. Where an
executor renounces probate of the will, or dies without having taken probate, or
where, being personally cited to take
probate, he does not appear to such
citation, the right of such executor in respect of the executorship shall wholly
cease; and the
representation to the testator and the administration of his
estate shall go, devolve and be committed in like manner as if such
person had
not been appointed executor.
Where infant is executor, etc.
27.-(1) Where an
infant is sole executor, administration with the will annexed may be granted to
the guardian of such infant, or to such
other person as the court thinks fit,
until such infant has attained the age of 21 years, with full or limited powers
to act in the
premises until probate has been granted to the said
executor.
(2) The person to whom such administration is granted shall,
unless otherwise ordered, have the same powers vested in him as any ordinary
administrator with the will annexed.
Where person entitled to probate or administration is out of the jurisdiction
28. Where an
executor or any person entitled to probate or administration is out of the
jurisdiction but has some person within the
jurisdiction appointed under power
of attorney to act for him, administration may be granted to such attorney, but
on behalf of the
person entitled thereto, and on such terms and conditions as
the court thinks fit:
Provided that nothing in this Act shall prevent the
court from granting probate to an executor who is out of the
jurisdiction.
Administration pendente lite
29.-(1) Where any
legal proceedings touching the validity of the
will of a deceased person, or for
obtaining, recalling or revoking any grant, are pending, the court may grant
administration of the estate
of the deceased to an administrator, who shall have
all the rights and powers of a general administrator, other than the right of
distributing the residue of the estate, and every such administrator shall be
subject to the immediate control of the court and act
under its
direction.
(2) The court may, out of the estate of the deceased, assign
to an administrator appointed under this section such reasonable remuneration
as
the court thinks fit.
Administration with the will annexed
30. Where a
person dies leaving a will but without having appointed an executor, or leaving
a will and having appointed an executor
who is not willing and competent to take
probate, the court may appoint an administrator of the estate of the deceased,
or of any
part thereof, upon his giving security as aforesaid, and such
administration may be limited as the court thinks fit.
Probate or administration if executor, etc., absent or neglects to obtain probate, etc.
31. Where an
executor neglects to apply for or to renounce probate within 6 months from the
death of the testator or from the time of
such executor attaining the age of 21
years, or where an executor is unknown or cannot be found, the court may, upon
the application
of any person interested in the estate, or of any creditor of
the testator, grant administration with the will annexed to the applicant,
and
such administration may be limited as the court thinks fit.
Special letters of administration if executor or administrator not within jurisdiction
32.-(1). If, at
the expiration of 3 months from the date of grant of probate or administration
of the will or estate of any deceased
person, the executor to whom probate has been granted, or the administrator, is
residing out of Fiji, the
court may, upon the application of any creditor or
person interested in the estate, grant to the applicant special letters of
administration
of the estate of such deceased person, with limited or unlimited
powers.
(2) The applicant shall satisfy the court that the executor or
administrator is resident out of the jurisdiction, and that the applicant
is
thereby delayed in recovering or obtaining payment of moneys, or the possession
of goods and chattels, or real estate to which
he is by law entitled, or that
the estate is liable to loss or waste.
On return of executor or administrator, special administration may be revoked
33-(1) On the
return within the jurisdiction of the executor to whom probate has originally
been granted, or the administrator, he may
apply to the court to rescind such
special grant; and the court may make such order upon such terms and conditions
as the court may
seem fit, and thereafter the original probate or administration
shall be and remain as valid and effectual as if such special grant
had never
been made.
(2) Upon any order being made for the rescission of any
special grant, the special administrator shall be bound to account to the
original executor or administrator, and to pay over all moneys received by him
and then remaining in his hands.
Absent executor liable to account
34. Should an
executor or administrator neglect to apply for an order for the rescission of
any special grant as aforesaid, he shall,
until such special grant is rescinded,
be liable to make good all claims and demands against the estate of the deceased
to the extent
of the assets which have come to his hands, or which might have
come to his hands but for his wilful neglect or default including
the neglect
herein mentioned.
Court may remove executor
35.
The court may for any reason which appears to it to be sufficient, either
upon the application of any person interested in the estate
of any deceased
person or of its motion on the report
of the Registrar and either before or after a grant of probate has been
made-
(a) make an order removing any executor of the will of such deceased person from office as, such executor and revoking any grant of probate already made to him; and
(b) by the same or any subsequent order appoint an administrator with the will annexed of such estate; and
(c) make such other orders as it thinks fit for vesting the real and personal property of such estate in the administrator and for enabling the administrator to obtain possession or control thereof; and
(d) make such further or consequential orders as it may consider necessary in the circumstances.
Revocation pending litigation not to abate proceedings
36.
Where probate or administration is revoked or rescinded, pending any
proceedings commenced by or against any executor or administrator
lawfully
acting as such, such proceedings shall be continued in the name of the executor
or administrator appointed on such revocation
or rescission as if the same had
been originally commenced by or against such last-mentioned executor or
administrator.
Power to postpone distribution
37. An executor
or administrator shall not be bound to distribute the estate of the deceased
before the expiration of one year from
the date of grant of probate or
administration as the case may be.
Devisee or legatee may apply to court in certain cues
38. Subject to
the provisions of section 37, if an executor who has obtained probate, or an
administrator with the will annexed, after
request in writing neglects or
refuses to-
(a) execute a transfer of land devised to a devisee; or
(b) transfer, pay or deliver to the person entitled any bequest, legacy or residuary bequest,
such devisee or person may
apply for an order upon such executor or administrator to comply with such
request, and the court may make
such order as it thinks fit.
Inventory and accounts
39.-(1)
Every person to whom probate or administration is granted may and shall
if so required by the Registrar file an inventory of the estate
of the deceased,
and pass his accounts relating thereto within such time, and from time to time,
and in such manner as may be prescribed
by the rules or as the court may
order.
(2) The order of the court allowing any account shall be prima
facie evidence of the correctness of the same, and shall, after the
expiration
of 3 years from the date of such order, operate as a release to the person
filing the same, except so far as it is shown
by some person interested therein
that a wilful or fraudulent error, omission or entry has been made in such
account.
If accounts not filed Registrar to give notice, etc.
40.-(1) If an
executor or administrator neglects to file an inventory or to pass accounts
within one month after being required by the
Registrar so to do, the Registrar
may apply for an order upon such executor or administrator to file such
inventory or exhibit such
account forthwith.
(2) No proceedings under
this section shall affect the liability of the executor or administrator to be
proceeded against for an account
and administration, or prevent the court from
ordering the assignment of any bond to any person with a view to enforcing the
penalty
thereof as hereinbefore mentioned.
Court may settle all questions arising in administration
41.-(1) The court
may make such order with reference to any question arising in respect of any
will or administration, or with reference
to the distribution or application of
any real or personal estate which an executor or administrator may have in hand,
or as to the
residue of the estate, as the circumstances of the case may
require.
(2) Such order shall bind all persons whether
sui juris or not.
(3) No final
order for distribution shall be made except upon notice to all
the parties interested, or as the court
may direct.
Payments made before revocation to be valid
42.-(1) Where any
probate or administration is revoked or rescinded, all payments bona fide made
to the executor or administrator before
the revocation or rescission shall be a
legal discharge to the person making the same.
(2) An executor or
administrator who has acted under any revoked or rescinded probate or
administration may retain and reimburse himself,
or shall be entitled to be
reimbursed, in respect of all payments bona fide made by him before revocation
or rescission, in the same
manner as if such revocation or rescission had not
taken place.
Payments, etc., to be valid notwithstanding defect
43. All persons
making or permitting to be made any payment or transfer bona fide upon any
probate or administration granted under the
authority of this Act shall be
indemnified and protected in so doing, notwithstanding any defect or
circumstances whatsoever affecting
the validity of such probate or
administration not then known to such person.
Executor deemed to be resident in Fiji
44.-(1) Every
executor or administrator appointed under this Act, or named in any probate or
letters of administration granted by any
court of competent jurisdiction in any
country or territory of the Commonwealth and making application under this Act
for the resealing
of such probate or administration,
shall be deemed to be resident in
Fiji.
(2). Where not actually so resident he shall, before the issue or
sealing of any probate or administration, file with the Registrar
an address
within the city of Suva at which notices and processes may be served upon him,
and all services at such registered address
shall be deemed personal
service.
PART VI-RESEALING PROBATES AND ADMINISTRATION
Probate, etc., may be sealed
45.-(1) When any
probate or administration heretofore or hereafter granted by any court of
competent jurisdiction, in any country or
territory of the Commonwealth, is
produced to and a copy thereof deposited with the Registrar by any person being
the executor or
administrator, whether original or by representation or by any
person duly authorised by power of attorney in that behalf, duly executed
by
such executor or administrator, such probate or administration may be sealed
with the seal of the court.
(Amended by
Act 14 of 1975, s. 68.)
(2) When so sealed, such probate or
administration shall have the like force, effect and operation in Fiji and every
executor and
administrator thereunder shall perform the same duties and be
subject to the same liabilities, as if such probate or administration
had been
originally granted by the court.
(3) The court may require any such
administrator or attorney of an administrator, to give security for the due
administration of the
estate in respect of matters or claims in Fiji.
PART VII - CAVEATS
Caveat
46.-(1) Any
person may lodge with the Registrar a caveat against any application for probate
or administration, or for the sealing of
any probate or letters of
administration under the provisions of this Act, at any time previous to such
probate or administration
being granted or sealed.
(2) Every such caveat
shall set forth the name of the person lodging the same, and an address within
the city of Suva at which notices
may be served on him.
Court may remove caveat
47.-(1) In every
case in which a caveat is lodged, the court may, upon application by the person
applying for probate or administration,
or for the
sealing of any probate or letters of
administration, as the case may be, remove the same.
(2) Every such
application shall be served on the caveator by delivering a copy of the same at
the address mentioned in his caveat.
(3) Such application may be heard
and order made upon affidavit or oral
evidence, or as the court may direct.
PART VIII-MISCELLANEOUS
Affidavits may be sworn
before a justice of the peace under certain
circumstances
48. Any
affidavit required by this Act to be sworn before a Commissioner for Oaths may
be sworn before a justice of the peace where the
deponent resides more than 10
miles from the place of business of the nearest Commissioner for Oaths.
Deposits
not exceeding $1,200 in any bank may be paid to
widow
or next of kin without
probate or administration
49. On the death
of any person leaving a sum of money not exceeding $1,200 standing to his credit
in any bank, if no probate or administration
is produced to such bank within 4
months of the death of such person, and no notice in writing of any will, or of
an intention to
apply for administration, is given to the bank within the said
period, the bank may, after 14 days notice in writing to the Public
Trustee, pay
such sum of money to any person who appears to the satisfaction of the manager
of the bank to be the person who would
be beneficially entitled to such sum of
money as if a grant of probate or administration had been obtained, and payment
of such sum
of money accordingly shall be a valid discharge to the bank against
the claims of any other person
whomsoever.
(Amended by Order* 29th
September 1970; Act 12 of 1985, s. 9.)
Records of grants, etc.
50.-(1) The
Registrar shall cause entries to be made in a book to be kept for that purpose
of -
(a) all grants of probate and administration, and all orders to collect;
(b) the filing, passing and allowance of the accounts of all executors and administrators; and
(c) any special order extending the time for passing such accounts.
(2) Such book shall set
forth-
(a) the dates of such grants;
(b) the names of the testators or intestates;
(c) the place and time of death;
(d) the names and description of the executors or administrators;
(e) the sworn value of the estates;
(f) the dates of the filing, passing, allowance of, and special orders with reference to the said accounts.
(3) Where a grant of probate or administration is made or
resealed by the court, a copy of that grant may, on payment of the prescribed
fee, be obtained from the court, with or without the annexure thereto of a copy
of the will, if any, to which it relates, and such
copy may be issued under seal
for all purposes as an office copy, and when so sealed and issued shall be
sufficient evidence of that
grant and of the death and date of death of the
deceased without further proof.
* See
Legal Notice No. 108 of 1970.
Payment
of balance of estate to Curator or Public Trustee of the
country
or territory where deceased
was domiciled
51.-(1) Where the
Public Trustee is administering the estate of any person who at the time of his
death was domiciled in any country
or territory of the Commonwealth, and whose
estate is being administered by the Curator or Public Trustee of the place in
which the
deceased was domiciled, the balance of the estate, after payment of
local creditors, commission fees and expenses, may be paid over
to such
last-named Curator or Public Trustee.
(2) Where any part of the estate of
a deceased person, whose estate is being administered by the Public Trustee is
situated outside
Fiji, the Public Trustee may receive any part of such estate so
situated, and, when received, the same shall be dealt with according
to the law
of Fiji.
Rules of Court and fees
52.-(1) The Chief
Justice may make and prescribe all such rules, forms and fees as may be
necessary or convenient to carry out the objects
and purposes of this Act and in
particular, but without prejudice to the generality of the foregoing, prescribe
what part of the
business, and of the jurisdiction exercisable by a Judge in
Chamber may be transacted or exercised by the Registrar or other officer
of the
Court.
(2) Subject to the provisions of this Act and to such rules as are
made from time to time pursuant to subsection (1), all the rules
and forms
prescribed thereunder in force in the Principal Probate Registry in England as
at the date referred to in section 3,
so far as the same can be read as applicable to local circumstances, shall apply
as if made pursuant to subsection (1).
(3) Subject to such fees as are
prescribed from time to time pursuant to subsection (1), the scale of fees in
probate and administration
matters in force in Fiji immediately prior to the
commencement of this Act shall continue to apply.
Controlled by Ministry of Justice
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Subsidiary
Legislation
(Revised Ed.
1985)
CHAPTER 60
SUCCESSION, PROBATE AND ADMINISTRATION
SECTION 52(1)-SUCCESSION, PROBATE AND ADMINISTRATION RULES
TABLE OF PROVISIONS
RULE
1.
Short title
2. Amendment of First
Schedule to the Non-Contentious Probate Rules,
1954
Rules* 21st December
1971,
Order† 24th January
1972
(Made by the Chief
Justice)
Short title
1. These Rules
may be cited as the Succession, Probate and Administration Rules.
Amendment of First Schedule to the Non-Contentious Probate Rules, 1954
2. The First
Schedule to the Rules in force in the Principal Probate Registry in England on
the 1st day of January, 1967, and applied
by virtue of the provisions of
subsection (2) of section 52 of the
Act, is amended, by substituting the following form for Form 1:-
ADMINISTRATION
BOND
FORM 1
In the Supreme Court of Fiji.
Know all Men by these
Presents that We (I) are jointly and severally bound unto the Chief Registrar of
the Supreme Court of Fiji in
the sum of $2, for the payment of which to the said
Chief Registrar we bind ourselves and each of us and our (3).
Sealed with our Seal(s)
Dated the day of 19
*See
Legal Notice No. 154 of
1971.
† See Legal Notice No.
12 of 1972.
The condition of this obligation is such that if the
abovenamed (4) the (5) of (6) deceased, who died on
the day of , and the intended administrator [with the will
(7) annexed] (8) of all the estate which by law
devolves to and vests in the
personal representative of the said deceased (9) do, when
lawfully called on in that
behalf, make or cause to be made a true and perfect
inventory of the said estate which has or shall come to the hands, possession
or
knowledge of the said intended administrator and do exhibit the said inventory
or cause it to be exhibited in the Supreme Court
of Fiji whenever required by
law so to do; and do well and truly administer the said estate according to law
(10); and do make or
cause to be made a true and just account of the
administration of the said estate whenever required by law so to do; and
distribute
all the real and personal estate of the deceased according to law and
further do, if so required, render and deliver up the letters
of administration
in the Supreme Court of Fiji if it shall hereafter appear that any will was made
by the said deceased which is
exhibited in the said Court with a request that it
be allowed and approved accordingly (11); then this obligation shall be void and
of no effect, but shall otherwise remain in full force and effect
Signed,
sealed and delivered by the above-named in my presence after the
contents hereof had been read over and carefully
explained by me to them in the
(12) language and they appeared fully to understand the meaning and effect of
the same.
A Commissioner for Oaths [or other person authorised by law to
administer an oath] (13).
[The Common Seal of was hereunto
affixed in the presence of ].
NOTES:
(1)
Insert full names, addresses and descriptions of principals and
sureties.
(2) Unless otherwise directed, the sum to be inserted should be
equal to the gross value of the estate.
(3) Individuals bind themselves,
their executors and administrators. Trust and other Corporations bind themselves
and their successors.
(4) Insert full name of principal.
(5) Set
out the capacity in which application for the grant is made (which must agree
with that stated in the oath).
(6) Name and address of the
deceased.
(7) "and codicils" if any.
(8) Delete if deceased died
intestate.
(9) Insert any limitation on the estate to be
administered.
On an application for a second or subsequent grant insert
"left unadministered by" [previous grantee]. If the grant is to be a limited
one, give particulars.
(10) On a creditor's application insert
here:-
"paying all and singular the debts owed by the said deceased at his (or her) death in due course of administration, rateably and proportionately and according to the priority required by law, not, however, preferring his own debt by reason of his being administrator nor the debt of any other person".
(11) If the deceased died testate this paragraph should be deleted.
(Amended by Order* 24th January 1972.)
(12) Insert the language in which contents were
explained.
(13) In the case of
the intended administrator, the bond must, unless attested by an authorised
officer, be attested by the person before
whom the oath was
sworn.
* See Legal Notice No. 12 of
1972.
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