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RULES OF CIVIL PROCEDURE.
Form 72, 73.
Will of blind or illiterate
of the deceased and of the subscribing witnesses, and also of any circumstances raising a presumption in favour of the due execution of the will.
25. Where the testator was blind or illiterate, the Court shall not grant probate of the will, or administration with the will annexed, unless the Court is first satisfied, by proof or by what appears on the face of the will, that the will was read over to the deceased before its execution, or that he had at that time knowledge of its contents.
26. The Court, on being satisfied that the will was duly executed, shall carefully inspect it to see whether there are any interlineations, or alterations, or erasures, or obliterations appearing in it, and requirobliterations. ing to be accounted for.
Documents referred to in a will,
or annexed or attached.
Executor dying without proving,
will or copy
Interlineations, alterations, erasures, and obliterations are invalid unless they existed in the will at the time of its execution, or unless, if made afterwards, they have been executed and attested in the mode required by the said enactments, or unless they have been made valid by the re-execution of the will, or by the subsequent execution of some codicil thereto.
Where interlineations, alterations, erasures, or obliterations appear in the will (unless duly executed or recited in or otherwise identified by the attestation clause), an affidavit, in proof of their having existed in the will before its execution, shall be filed.
If no satisfactory evidence is adduced respecting the time when erasure or obliteration was made, and the words erased or obliterated are not entirely effaced, and can, on inspection of the will, be ascertained, they shall form part of the probate.
Where any words have been erased which might have been of importance, an affidavit shall be required.
27. Where a will contains a reference to any document of such a nature as to raise a question whether it ought or ought not to form a constituent part of the will the Court shall require the production of the document, with a view to ascertain whether or not it is entitled to probate; and if it is not produced, a satisfactory account of its nonproduction shall be proved.
A document cannot form part of a will unless it was in existence at the time when the will was executed.
If there are vestiges of sealing wax or wafers, or other marks on the will, leading to the inference that some document has been at some time annexed or attached thereto, a satisfactory account of them shall be proved, or the production of the document shall be required, and if it is not produced, a satisfactory account of its non-production shall be proved.
28. Where a person appointed executor in a will survives the testator, but either dies without having taken probate, or having been called on by the Court to take probate, does not appear, his right in respect of the executorship wholly ceases; and, without further renunciation, the representation to the testator and the administration of his property go and may be committed as if that person had not been appointed executor.
29. Every will or copy of a will to which an executor or an administrator with will annexed is sworn, shall be marked by the executor or administrator and by the person before whom he is sworn.
30. The rules respecting wills apply equally to codicils. 31. In every case where evidence is directed or allowed to be given by affidavit, the Court may require the personal attendance of the deponent, if within the jurisdiction, before the Court, or a Commissioner, to be examined viva voce respecting the matter of his affidavit, and where the application for probate or administration is made to a Commissioner, the Court may require the Commissioner to certify the making facts found by him upon such examination according to such form as atidavits. the Court may think necessary. The examination may take place before any affidavit has been sworn or prepared, if the Court thinks fit.
5. Administration (not with Will).
examination of persons
Forms 62, 64.
32. The Court in granting letters of administration shall proceed Administraas far as may be as in cases of probate.
The Court shall ascertain the time and place of the deceased's death and the value of the property to be covered by the administration.
tion not with will annexed.
next of kin.
33. Where administration is applied for by one or some of the Notice to next of kin only, there being another or other next of kin equally entitled thereto, the Court shall require proof that notice of the application has been given to the other next of kin.
34. The person to whom administration is granted shall give Administrabond, with two or more responsible sureties, to the Chief Registrar of tion bond. the Supreme Court, to enure to the Chief Registrar for the time being conditioned, for duly collecting, getting in, and administering the personal property of the deceased.
Where, however, the property is under the value of fifty pounds, Forms 65,
the Court may, if it thinks fit, take one surety only.
The bond shall be in a penalty of double the amount under which the personal estate of the deceased is sworn, unless the Court in any case thinks it expedient to reduce the amount.
The Court may also in any case direct that more bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court thinks reasonable.
35. The Chief Registrar may, on being satisfied that the condition Assignment of the bond has been broken, assign the same to some person, and that of bond. person may thereupon sue on the bond in his own name, as if it had been originally given to him instead of the Chief Registrar, and may recover thereon, as trustee for all persons interested, the full amount recoverable in respect of any breach of the condition of the bond.
Administration of Property.
36. A person claiming to be a creditor or legatee, or the next of Administrakin, or one of the next of kin of a deceased person, may apply for and tion summons. obtain a summons from the Court requiring the executor or adminis
trator (as the case may be) of the deceased to attend before the Court Form 76. and show cause why an order for the administration of the property of
the deceased should not be made.
37. On proof of service of the summons, or on appearance of the Order for executor or administrator, and on proof of all such other things (if any) administra
RULES OF CIVIL PROCEDURE.
relative to property.
Administration may be granted to officer of Court.
The officer shall act under direction of the Court.
as the Court may direct, the Court may, if it think fit, make an order for the administration of the property of the deceased.
The Court shall have full discretionary power to make or refuse any such order, or to give any special directions respecting the carriage or execution of it, and in the case of applications for such an order by two or more different persons, or classes of persons, to grant the same to such one or more of the claimants, or classes of claimants, as the Court thinks fit.
If the Court thinks fit, the carriage of the order may subsequently be given to such person, and on such terms as the Court thinks fit.
38. On making such an order, or at any time afterwards, the Court may, if it thinks fit, make any further or other order which may appear requisite to secure the proper collection, recovery, safe keeping and disposal of the property or any part thereof.
39. In a case of intestacy, where the peculiar circumstances of the case appear to the Court so to require (for reasons recorded in the minutes), the Court may, if it thinks fit, on the application of any person having interest in the estate of the deceased, or of its own motion, grant letters of administration to an officer of the Court.
40. The officer so appointed shall act under the direction of the Court, and shall be indemnified thereby.
The Court shall require and compel him to file in the Court his accounts of his administration at intervals not exceeding three months. Court may 40A. *Where a person has died intestate as to his personal estate, or appoint person to be leaving a will affecting personal estate, but without having appointed administrator. an executor thereof willing and competent to take probate, or where the executor shall, at the time of the death of such person, be resident out of the Colony, and it shall appear to the Court to be necessary or convenient in any such case to appoint some person to be the administrator of the personal estate of the deceased or of any part thereof, the Court may appoint such person as it shall think fit to be such administrator upon his giving such security, if any, as the Court shall direct, and every such administration may be limited as the Court shall
Remuneration of administrators.
41. The Court may direct that any administrator (with or without the will annexed) shall receive out of the personal and real estate of the deceased such reasonable remuneration as the Court shall think fit, not exceeding a fee of three pounds, and in addition thereto a sum not exceeding five per cent. on the amount of the realised property, or when not converted into money, on the value of the property duly administered and accounted for by him: provided that where the Court shall be satisfied that by reason of exceptional circumstances the administration of any property has required an extraordinary amount of labour to be bestowed on it, the Court may allow in respect of such property a higher rate of remuneration.
Approved by Legislative Council March 10, 1885; gazetted March 11, 1885.
REFERENCE TO ARBITRATION.
1. If the parties to a suit are desirous that the matters in differ- Order of ence between them in the suit or any of such matters should be referred reference. to the final decision of one or more arbitrator or arbitrators, they may apply to the Court at any time before final judgment for an order of reference; and the Court may, on such application, make an order of reference accordingly.
2. The arbitrators shall be nominated by the parties in such man- Appointment ner as may be agreed upon between them. If the parties cannot agree with respect to the nomination of the arbitrators, or if the persons nominated by them shall refuse to accept the arbitration, and the parties are desirous that the nomination shall be made by the Court, the Court shall appoint the arbitrators.
3. The Court shall, by an order under its seal, refer to the Form of arbitrators the matters in difference in the suit which they may be order of required to determine, and shall fix such time as it may think reasonable for the delivery of the award, and the time so fixed shall be specified in the order.
4. If the reference be to two or more arbitrators, provision shall Appointment be made in the order for a difference of opinion among the arbitrators, of umpire by the appointment of an umpire, or by declaring that the decision necessary. shall be with the majority, or by empowering the arbitrators to appoint an umpire, or otherwise as may be agreed upon between the parties; or, if they cannot agree, as the Court may determine.
5. When a reference is made to arbitration by an order of Court, Enforcing the same process to the parties and witnesses whom the arbitrators or attendance of umpire may desire to have examined, shall issue as in ordinary suits; witnesses. and persons not attending in compliance with such process, or making any other default, or refusing to give their testimony, or being guilty of any contempt of the arbitrators or umpire during the investigation of the suit, shall be subject to the like disadvantages, penalties, and punishments, by order of the Court on the representation of the arbitrators or umpire, as they would incur for the same offences in suits tried before the Court.
6. When the arbitrators shall not have been able to complete the award within the period specified in the order from want of the necessary evidence or information, or other good and sufficient cause, the Court may from time to time enlarge the period for delivery of the award, if it shall think proper. In any case in which an umpire shall have been appointed, it shall be lawful for him to enter on the reference in lieu of the arbitrators, if they shall have allowed their time, or their extended time, to expire without making an award, or shall have delivered to the Court, or to the umpire, a notice in writing stating that they cannot agree: provided that an award shall not be liable to be set aside only by reason of its not having been completed within
RULES OF CIVIL PROCEDURE.
Court in case of death,
the period allowed by the Court, unless on proof that the delay in completing the award arose from misconduct of the arbitrators or umpire, or unless the award shall have been made after the issue of an order by the Court superseding the arbitration and recalling the suit. 7. If, in any case of reference to arbitration by an order of Court, incapacity or the arbitrators or umpire shall die, or refuse or become incapable to act, it shall be lawful for the Court to appoint a new arbitrator or arbitrators, or umpire, in the place of the person or persons so dying, or refusing or becoming incapable to act. Where the arbitrators are empowered by the terms of the order of reference to appoint an umpire, and do not appoint an umpire, any of the parties may serve the arbitrators with a written notice to appoint an umpire; and if within seven days after such notice shall have been served no umpire be appointed, it shall be lawful for the Court upon the application of the party having served such notice as aforesaid, and upon proof to its satisfaction of such notice having been served, to appoint an umpire. In any case of appointment under this section the arbitrators or umpire so appointed shall have the like power to act in the reference as if their names had been inserted in the original order of reference.
Finding to be positive.
for opinion of the Court.
Court may modify or correct award.
Power as to costs.
Setting aside award.
8. The award shall contain a conclusive finding, and may not find on the contingency of any matter of fact being afterwards substantiated or deposed to. It shall comprehend a finding on each of the several matters referred.
9. It shall be lawful for the arbitrators or umpire upon any reference by an order of Court, if they shall think fit, and if it is not provided to the contrary, to state their award as to the whole or any part thereof in the form of a special case for the opinion of the Court. 10. The Court may, on the application of either party, modify or correct an award where it appears that a part of the award is upon matters not referred to the arbitrators, provided such part can be separated from the other part, and does not affect the decision on the matter referred; or where the award is imperfect in form, or contains any obvious error which can be amended without affecting such decision.
11. The Court may also, on such application, make such order as it thinks just respecting the costs of the arbitration, if any question arise respecting such costs or their amount, and the award contain no sufficient provision concerning them.
12. În any of the following cases the Court shall have power to remit the award, or any of the matters referred to arbitration, for reconsideration by the arbitrators or umpire, upon such terms as it may think proper, that is to say:
(a.) If the award has left undetermined some of the matters referred to arbitration, or if it has determined matters not referred to arbitration;
(b.) If the award is so indefinite as to be incapable of execution; (c.) If an objection to the legality of the award is apparent upon
the face of the award.
13. No award shall be liable to be set aside, except on the ground of perverseness or misconduct of the arbitrator or umpire. Any application to set aside an award shall be made within fifteen days after the publication thereof.