Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered Regulationssubstitute
Division 72.5 Administration bonds
30 Administration bond
(1) As a condition of granting administration of a deceased person's estate to a person, the court or registrar may require 1 or more sureties acceptable to the court or registrar to guarantee by bond (an administration bond ) that they will make good, up to the required amount, any loss that anyone interested in the administration of the estate may have because of a breach by the administrator of the administrator's duties.
(2) However, an administration bond must not be required if administration is granted to—
(a) a person on behalf of the Territory, the Commonwealth or a State; or
(b) the public trustee of the Territory or a State; or
(c) a trustee company.
(3) An administration bond for an estate has effect for the benefit of everyone interested in the administration of the estate as if contained in a deed made by the surety or sureties with each interested person and, if there are 2 or more sureties, as if they had bound themselves jointly and severally.
(4) The court may, on application or of its own initiative, decide that the required amount for an administration bond for an estate is less than the value of the estate.
(5) The application may be made in the application for letters of administration or by motion on notice under order 54 (Motions).
(6) In this rule:
"required amount", for an administration bond for an estate, means—
(a) the value of the estate; or
(b) a lesser amount decided by the court under subrule (4); or
(c) if the value of the estate is less than $10 000—a lesser amount decided by the registrar.
30A Dispensing with administration bond
(1) This rule applies in relation to an estate if—
(a) all or any part of the estate passes to the person to whom administration is granted; or
(b) all or any part of the estate passes to beneficiaries who are of full legal capacity and the beneficiaries consent, in writing, to the administration bond for the estate being dispensed with.
(2) The court or registrar may, on application or of its own initiative, dispense with the administration bond in relation to the estate or part of the estate.
(3) The application may be made in the application for letters of administration or by motion on notice under order 54 (Motions).
31 Form of administration bond
An administration bond must be in accordance with form 2.14.
31A Affidavit of justification
(1) A surety, other than an exempt surety, must justify by affidavit.
(2) An affidavit of justification must be in accordance with form 2.15.
(3) A surety that is a corporation must make an affidavit by a proper officer.
(4) An affidavit by a surety for an administration bond must contain enough information about the surety's financial position to satisfy the registrar that the surety can meet any claim under the bond.
(5) The registrar may accept an affidavit of justification from a corporation at least once every year instead of requiring an affidavit in every case that the corporation is a surety.
(6) The registrar may require a surety for an administration bond who justifies by affidavit to give the registrar further information if there is not enough information in the affidavit for the registrar to be satisfied that the surety can meet any claim under the bond.
(7) The further information must be given in the way the registrar requires, either—
(a) by another affidavit; or
(b) by the oral examination of the person who made the affidavit of justification on oath or affirmation before the registrar.
(8) In this rule:
"exempt surety" means—
(a) an authorised deposit-taking institution; or
(b) an entity declared by the registrar under rule 32 to be an exempt surety.
Note Authorised deposit-taking institution is defined in the Legislation Act, dict, pt 1 as an authorised deposit-taking institution under the Banking Act 1959 (Cwlth).
32 Exempt surety
(1) The registrar may, in writing, declare an entity to be an exempt surety.
(2) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
32A Administration bond—addition or reduction after required but before given
(1) This rule applies if the court or registrar requires an administration bond under rule 30 (Administration bond) for an estate to be given by a surety or sureties for a particular amount.
(2) The court may, at any time before the bond has been given by the surety or sureties, on the application of anyone interested in the estate or of its own initiative on the registrar's report, order that the amount be reduced or increased.
(3) However, application may not be made if the court has made a decision about the amount under rule 30 (4).
(4) The application must be made by motion on notice under order 54 (Motions).
(5) The court may remove the administrator for the estate and appoint someone else in the administrator's place with power to sue or be sued on any contract made by the removed administrator if—
(a) the court makes an order under subrule (2) that the amount be increased; and
(b) the surety or sureties will not guarantee the increased amount; and
(c) the administrator does not produce another surety or other sureties to cover the increased amount.
(6) In this rule:
"required amount"—see rule 30 (6).
32B Administration bond—addition or reduction after given
(1) If an administration bond is given under rule 30 (Administration bond) for an estate, the court may, at any time, on the application of anyone interested in the estate or of its own initiative on the registrar's report—
(a) require the surety or sureties to give an additional administration bond; or
(b) order that the liability of a surety under the bond be reduced by a stated amount.
(2) The application must be made by motion on notice under order 54 (Motions).
(3) The court may remove the administrator for the estate and appoint someone else in the administrator's place with power to sue or be sued on any contract made by the removed administrator if—
(a) the additional administration bond is not given by the surety or sureties; and
(b) the administrator does not produce another surety or other sureties to give the additional bond.
(4) For these rules, an additional administration bond under this rule is taken to be an administration bond under rule 30.
33 Proceeding on an administration bond
(1) A proceeding on an administration bond must not be begun without the court's leave.
(2) An application for leave to sue on an administration bond must be made by motion on notice under order 54 (Motions).
(3) The notice of motion must be served on the administrator and surety.
33A Application by surety
On application made by motion on notice under order 54 (Motions) by a surety to an administration bond, the court may grant the relief it considers appropriate if it appears to the court that the following applies:
(a) the estate is being wasted, or is in danger of being wasted;
(b) the surety is being in any way prejudiced, or in danger of being prejudiced, by the act or omission of the person administering the estate.