Preamble. Short title and commencement. Interpretation. W An Act to impose Probate and Succession Duties. [Assented to 20th September, 1876.] HEREAS it is expedient that a portion of the Public Revenue should be raised by means of Probate and Succession Duties— Be it therefore Enacted by the Governor of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows: PRELIMINARY. 1. This Act may be cited for all purposes as "The Probate and Succession Duty Act, 1876," and shall come into force on a day to be fixed by the Governor by Proclamation, not being earlier than twenty-one days after the publication of such Proclamation in the Government Gazette. 2. In the construction and for the purposes of this Act the following terms have the meanings hereby assigned to them, unless it is otherwise provided, or there be something in the context repugnant thereto "Administrator" means any person to whom letters of adminis- "Executor" means any person to whom probate of the will of or The Probate and Succession Duty Act.-1876. or other instrument granted by the Supreme Court in respect "Probate" means any probate or other instrument granted by the estate : "Person" includes body corporate, company, and society: Property," alone, includes real property and personal property : "Real property" includes all freehold, leasehold, and other hereditaments, whether corporeal or incorporeal, in the said Province : "Succession" means any property chargeable with duty under this Act: "Trustee" includes executor and administrator, and any person having or taking on himself the administration of property affected by any express or implied trust. 3. The duties imposed by this Act shall be under the care and management of an officer to be appointed by the Governor, to be styled the Commissioner of Inland Revenue, hereinafter called the Commissioner," who, as well as any other officials who may be appointed under this Act, shall have all necessary powers and authorities for the collection, recovery, and management of the said duties; and the Commissioner shall have all other powers and authorities requisite for carrying this Act into execution: Provided that, until such Commissioner shall be appointed, it shall be lawful for the Registrar of Probates to exercise all powers and authorities vested by this Act in the Commissioner, and until such appointment the seal of the Supreme Court shall be substituted for, and have the same effect as evidence of the payment of duty as, the seal of the Commissioner. Duties to be under Inland Revenue Commissioner, or management of Registrar of Probates. 4. From and after the coming into operation of this Act there Duties to be levied. shall be levied, collected, and paid for the use of Her Majesty, for and in respect of the several matters described and mentioned in this Act and in the several Schedules of duties hereto annexed, the several duties or sums of money and at the several rates set down in figures against the same respectively, as set forth in the said Schedules. PROBATE Probate and administration duties to be levied. Applications to obtain Statement to be filed. paid. The Probate and Succession Duty Act.-1876. PROBATE AND ADMINISTRATION DUTIES. 5. Duties shall be charged, levied, and paid upon probates and letters of administration according to the respective scales set forth in the First Schedule to this Act, and the amount of such duties shall be assessed in manner hereinafter provided, and the payment of such duties shall be denoted by a certificate written or printed upon the paper or parchment upon which the probates or letters of administration shall be written or engrossed, and signed by the Commissioner, and sealed with his seal. 6. Upon application by any person to obtain probate or letters of administration in respect of the estate of any person dying after the coming into operation of this Act, the person so applying shall lodge therewith an affidavit that the real and personal estate of the deceased person within the Province, exclusive of what the said deceased was possessed of or entitled to as a trustee and not beneficially, and exclusive of the amount of the debts and liabilities of the deceased which his estate (if any) out of the said Province shall be insufficient to pay and liquidate, are under the value of a certain sum to be therein specified to the best of the knowledge, information, and belief of the person so applying; and the Registrar of Probates of the Supreme Court shall transmit to the Commissioner every such affidavit, together with a copy of the will or letters of adminis tration to which it relates, and the duty shall be assessed upon the sum specified in such affidavit according to the rates specified in the First Schedule hereto. 7. Every executor and administrator shall, within the period of twelve months from the grant of probate or letters of administration to him, or such further term as the Commissioner may allow, and also whenever thereunto required by an order of a Judge of the Supreme Court, file in the office of the Commissioner a statement specifying particulars of the real and personal estate of or to which the deceased was at his death possessed or entitled within the said Province, and of the administration and value thereof, and also (if any deduction has been made from such value as herein before provided for or in respect of any debts or liabilities of the deceased) particulars of such debts and liabilities, and of the payment and satisfaction thereof, and of the real and personal estate of the deceased out of the said Province, and of the administration and value thereof, and all other particulars necessary to show with certainty the duty payable under this Act in respect of the estate of the deceased. Every such statement shall be in such form and shall be verified by the oaths of such persons or in such other manner as the Commissioner may require, or as may be provided by any regulations made under this Act. Where too little duty 8. Where, on the filing of any statement required by the last preceding section, or in any other manner, it shall appear that too little duty has been paid on any probate or letters of administration, the executor or administrator shall pay the additional duty within six months, or be liable to a penalty of Fifty Pounds, together with the The Probate and Succession Duty Act.-1876. the additional duty payable, and the payment of such additional duty shall be denoted by another certificate as aforesaid on such probate or letters of administration. 9. The Commissioner, on proof being given to his satisfaction Where too much duty that too much duty has been paid under this Act, may, if he shall paid. think fit, cancel or expunge the certificate on the probate or letters of administration, and may substitute another certificate for denoting the duty thereon, and may make a deduction or repayment for the difference between the correct amount of duty and that previously paid. 10. Any duty payable as aforesaid in respect of the property of any Duties, how payable. deceased person by any executor or administrator shall be deemed to be a debt due by the estate of such person to Her Majesty, and shall be payable rateably out of the various portions of such property according to the value of such portions respectively; and if the person entitled to any portion of the real property of any testator or person dying intestate shall not pay to such executor or administrator a sufficient sum to defray the duty payable in respect of such real estate within the time within which such duty is payable, it shall be lawful for such executor or administrator to apply to the Supreme Court, which may order that a sufficient part of such real estate may be sold to pay the said duty, with the cost of such order and sale. 11. Whenever any order shall have been made for the sale of any Vesting orders. lands under the next preceding section of this Act, every person seized or possessed of such lands, or entitled to a contingent interest therein, shall be deemed to be so seized, possessed, or entitled upon a trust within the meaning of "The Trustee Act, 1855": And the Supreme Court may make an order vesting such lands or any part thereof either in any purchaser or in such other person as the Court shall direct; and every such order shall have the same effect as if such person so seized, possessed, or entitled had been free from all disability, and had duly executed all proper conveyances and assignments. 12. No probate or letters of administration shall be issued by the Registrar of Probates until the duty thereon shall have been paid or security given for the same, and the proper certificate made thereon as aforesaid. tered until proved. 13. Section 31 of "The Property Act of 1860" is hereby Wills not to be regisrepealed, and no will or codicil or other instrument in respect of or dealing with the estate of any deceased person, who shall die after the coming into operation of this Act, shall be registered, or capable of being registered, or be admissable or receivable in evidence (except in criminal proceedings), or be available or effectual for any purpose whatsoever at law or in equity, until such will or codicil shall have been proved in the Supreme Court. 14. Upon Property conveyed for purpose of evasion to be part of estate. Penalty on personal representatives not paying full duty. Credit for probate certain cases. The Probate and Succession Duty Act.-1876. 14. Upon the death of any person who shall hereafter make any conveyance or gift of any real or personal property with intent to evade the payment of duty under this Act (and every voluntary conveyance or gift made within one year prior to the death of such person, shall be presumed to be made with such intent, unless the contrary be proved), such property shall, if in the hands of the person to whom the same shall be so conveyed or given, or in the hands of any person to whom he may have voluntarily conveyed or given the same with the like intent to evade the payment of duty, or of his devisee or real or personal representative, be deemed part of the property of such deceased person for the purposes of this Act: And any voluntary conveyance or gift of property which may hereafter be made, to take effect upon the death of the person making the same, shall be deemed to have been made with intent to evade the payment of duty under this Act: And any property being the subject-matter of a donatio mortis causa shall, upon the death of the person making such donatio mortis causa, be deemed part of his property for the purposes of this Act. 15. Where too little duty shall have been paid on any probate or letters of administration in consequence of any mistake or misapprehension, or of its not being known at the time that some particular part of the estate and effects belonged to the deceased, if any executor or administrator acting under such probate or letters of administration shall not, within six months after the discovery of the mistake or misapprehension, or of any estate or effects not known at the time to have belonged to the deceased, apply to the Commissioner, and pay what shall be wanting to make up the duty which ought to have been paid at first on such probate or letters of administration, he shall incur a penalty not exceeding One Hundred Pounds, and also a further penalty at and after the rate of Ten Pounds per centum on the amount of the sum wanting to make up the proper duty. 16. The Commissioner, on satisfactory proof upon oath, may give duty may be given in the necessary certificate in respect of any probate or letters of administration so as to denote the duty which ought to have been paid thereon, and may give credit for the duty, either upon payment of the before-mentioned penalty, or without in cases of probate or letters of administration already obtained and upon which too little duty shall have been paid, and either with or without allowance of the duty already paid thereon, as the case may require under the provisions of this Act: Provided that in all such cases of credit security be first given by the executor or administrator, together with two or more sufficient sureties to be approved of by the Commissioner, by a bond to Her Majesty in double the amount of the duty for the due payment of the sum for which credit shall be given within six months, and of interest for the same at the rate of Ten Pounds per centum per annum from the expiration of such period until payment thereof, in case of any default of payment at the time appointed; and |