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Administration Act 1975

CONSOLIDATED ACTS OF SAMOA 2009

ADMINISTRATION ACT 1975

Arrangement of Provisions

1. Short title
2. Interpretation
3. Act to bind Government
4. Application

PART I
ADMINISTRATION BY ADMINISTRATOR

Grant of Administration

5. Probate jurisdiction of Supreme Court
6. Discretion of Court as to person to whom administration is granted
7. Administration with will annexed
8. Cesser of right of executor to prove
9. Executor of executor represents original testator
10. Notice to be sent to Public Trustee of application for administration
11. Proceedings where executor neglects to prove will
12. Discharge or removal of administrator

The Administering of Estates

13. Executor not to act while another administrator is in office
14. Estate to vest in administrator
15. How estate to be held by administrator
16. Estate to be assets for payment of debts, etc.
17. Power of sale on intestacy
18. Debts under deeds and simple contracts to stand in equal degree
19. Charges on property of deceased to be paid primarily out of the property charged
20. Liability of specific devise or bequest where estate primarily liable is insufficient
21. Rights and liabilities of administrator
22. Administrator may be required to exhibit inventory
23. Protection of persons acting on administration
24. Liability of person fraudulently obtaining or retaining estate of deceased

Powers and Procedure of Court

25. Direction to executor to prove or renounce, etc.
26. Production of instruments purporting to be testamentary
27. Practice of Court in its administration jurisdiction
28. Form of order to Public Trustee
29. Power to make rules

Caveat

30. Caveat may be lodged
31. Where a caveat lodged, Court may grant order nisi

Miscellaneous Provisions

32. Administration not to be granted to companies other than authorised companies
33. Devolution of loan stock without administration
34. Payment without administration
35. Saving
36. Other Acts providing for payment without administration not affected

PART II
ADMINISTRATION GRANTED OUT OF SAMOA

37. Interpretation
38. Estate of person dying abroad not to vest without administration obtained in Samoa
39. Resealing of probate, etc.
40. Seal not to be affixed till fees are paid
41. No probate, etc. granted out of Samoa to be evidence unless resealed

PART III
DISTRIBUTION OF INTESTATE ESTATES

42. Application of this Part of this Act
43. Abolition of escheat
44. Succession to real and personal estate on intestacy
45. Statutory trusts in favour of issue and other classes of relatives of intestate
46. Application to cases of partial intestacy

PART IV
FAMILY PROTECTION

47. Court may grant relief
48. Time for making application
49. Orders for relief
50. Following of assets

PART V
MISCELLANEOUS

51. Repeals
52. Regulations
Schedules

________________

THE ADMINISTRATION ACT 1975
1975 No. 23

AN ACT to consolidate the law relating to the administration of the estates of deceased persons.

(23 December 1975)
(Commencement date 23 December 1975)

1. Short title - This Act may be cited as the Administration Act 1975.

2. Interpretation - In this Act, unless the context otherwise requires:

"Administration" includes probate of the will of a deceased person, and letters of administration of the estate of a deceased person, granted with or without a will annexed, and in the case of the Public Trustee, include an order to administer, and an election to administer.

"Administrator" means any person to whom administration is granted.

"Court" means the Supreme Court of Samoa, and includes a Judge of that Court.

"Estate" means real and personal property of every kind.

"Intestate" includes a person who leaves a will but dies intestate as to some beneficial interest in his or her real or personal estate.

"Personal Chattels", in relation to any person who has died, means all articles of household or personal use or ornament which were owned by him, as the legal or beneficial owner, immediately before his or her death, but does not include any chattels used exclusively or principally at the death of the intestate for business purposes, or money, or securities for money.

"Registrar" means the Registrar of the Supreme Court

"Rules" means rules from time to time made under the authority of this Act

"Securities" includes stocks, funds, shares, and convertible notes.

"Will" includes a codicil.

(References to a child or issue living at the death of any person include a child or issue who is conceived but not born at the death but who is subsequently born alive.)

3. Act to bind Government - This Act shall bind the Government.

4 Application - Except as otherwise provided herein, this Act shall apply in every case, whether the death occurred before or after the commencement of this Act.

PART I
ADMINISTRATION BY ADMINISTRATOR

Grant of Administration

5. Probate jurisdiction of Supreme Court - (1) The Supreme Court shall continue to have jurisdiction and authority in relation to the granting and revoking of probate of wills and letters of administration with or without a will annexed of the estates of deceased persons, and in regard to the hearing and determining of proceedings relating to testamentary matters and matters relating to the estates of deceased persons.

(2) Without restricting subsection (1) of this section or any other enactment, the Court shall have jurisdiction to make a grant of probate or letters of administration in respect of a deceased person, whether or not the deceased person left any estate in Samoa or elsewhere, and whether or not the person to whom the grant is made is in Samoa.

6. Discretion of Court as to person to whom administration is granted - In granting letters of administration with or without a will annexed, or an order to administer with or without a will annexed, in respect of the estate of any deceased person or any part thereof, the Court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof, and, in particular, administration with a will annexed may be granted to a devisee or legatee, and any such administration may be limited in any way the Court thinks fit:

PROVIDED THAT where the deceased died wholly intestate as to his or her estate, administration shall be granted to some one or more persons beneficially interested in the estate of the deceased, if they make an application for the purpose.

7. Administration with will annexed - Where the Court grants administration of the estate of a deceased person with the will annexed, the will of the deceased shall be performed and observed in like manner as if probate thereof had been granted to an executor.

8. Cesser of right of executor to prove - (1) Where a person appointed executor by a will:

(a) Survives the testator but dies without having been granted probate of the will; or

(b) Is cited to take out probate of the will and does not appear to the citation; or

(c) Renounces probate of the will,-

the person's rights in respect of the executorship shall wholly cease, and the representation to the testator and the administration of the testator's estate shall devolve and be committed as if that person had not been appointed executor.

(2) Where a person is appointed by a will to be both executor and trustee and his or the person's rights in respect of the executorship wholly cease under subsection (1), his or her rights in respect of the trusteeship shall also wholly cease and the trusteeship shall devolve or be determined as if the person had not been appointed as trustee:

PROVIDED THAT nothing in this subsection shall prevent the person's subsequent appointment as trustee.

9. Executor of executor represents original testator - (1) An executor of a sole or last surviving executor of a testator shall be the executor of that testator:

PROVIDED THAT for the purposes of the forgoing provisions of this subsection a person who does not prove the will of his or her testator shall be deemed not to be an executor notwithstanding the person's appointment as such by the will.

(2) So long as the chain of representation is unbroken, the last executor in the chain is the executor of every preceding testator.

(3) The chain of representation is broken by:

(a) The failure to leave a will; or

(b) The failure of a testator to appoint an executor; or

(c) The failure to obtain probate of a will.

(4) Every person in the chain of representation to a testator:

(a) Has the same rights in respect of the estate of that testator as the original executor would have had if living; and

(b) Is, to the extent to which the estate of that testator has come to the person's hands, answerable as if he or she were an original executor.

10. Notice to be sent to Public Trustee of applications for administration - Forthwith upon the filing in the office of the Supreme Court of an application by any applicant other than the Public Trustee for administration of the estate of a deceased person, it shall be the duty of the Registrar to give to the Public Trustee a notice stating:

(a) The date of the filing, and the date (if any) of the hearing;

(b) The full name of the deceased;

(c) Whether the deceased person died testate of intestate, and, if testate the date of the will.

11. Proceedings where executor neglects to prove will - (1) In any case where any executor named in a will neglects or refuses to prove the will, or to renounce probate thereof, within 3 months from the death of the testator, the Court may, upon the application of any other executor or executors or of any person interested in the estate or of the Public Trustee or of any creditor of the testator, grant an order nisi calling upon the executor who so neglects or refuses to show cause why probate of the will should not be granted to that executor alone or with any other executor or executors or, in the alternative, why administration should not be granted to the applicant or some other person.

(2) Upon proof of service of the order, or upon the Court dispensing with service of the order, if the executor who is so called on does not appear or upon cause being shown, the Court may make such order for the administration of the estate, and as to costs, as it thinks just.

12. Discharge or removal of administrator - (1) Where an administrator is absent from Samoa for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as administrator or unfit to so act, or where it becomes expedient to discharge or remove an administrator, the Court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the Court thinks fit.

(2) The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.

(3) Upon any administrator being discharged or removed as aforesaid (whether or not any other administrator is appointed) all the estate and rights of the previous administrator or administrators which were vested in him or them as such shall become and be vested in the continuing administrator or administrators (including any administrator appointed under subsection (1) who shall have the same powers, authorities, discretion and duties, and may in all respect act, as if he, she or they had been originally appointed as the administrator or administrators.

(4) This section shall, with all necessary modification, extend to the case where an administrator dies, and the powers and authorities hereby conferred may be exercised and shall take effect accordingly.

(5) Nothing in this section shall restrict section 8.

The Administering of Estates

13. Executor not to act while another administrator is in office - Subject to the provisions of this Act and of any other Act, where Administration has been granted in respect of any part of the estate of a deceased person, and is not for the time being suspended, no person other than the administrator of that part of the estate shall have power to bring an action or otherwise act as administrator of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked.

14. Estate to vest in administrator - (1) Immediately upon the grant of administration of the estate of any deceased person, all the estate then unadministered of that person, whether held by the person beneficially or held by the person in trust, shall vest in the administrator to whom the administration is granted for all the estate therein of that person:

PROVIDED THAT nothing in this section shall affect the earlier vesting in an executor by operation of law.

(2) The title of every administrator to any part of the estate of a deceased person, whether he or she has died before or after the commencement of this Act, shall relate back to and be deemed to have arisen immediately upon the death of the deceased person, as if there had been no interval of time between the death and the grant of administration.

(3) If there are concurrently more administrators than one of any part of the estate that part shall vest in them as joint tenants.

15. How estate to be held by administrator - Subject to the provisions of this Act, the administrator shall hold:

(a) The estate of any person who dies or has died either before or after the commencement of this Act leaving a will according to the trusts and dispositions of the will, so far as the will affects that estate;

(b) The estate of any person who dies after the commencement of this Act intestate as to that estate according to the provisions of Part III;

(c) The estate of any person who has died before the commencement of this Act intestate as to that estate according to the provisions of the enactments and law which would have applied thereto if this Act had not been passed.

16. Estate to be assets for payment of debts, etc. - The whole of the estate of every deceased person shall be assets in the hands of his or her administrator for the payment of all duties and fees payable under any Act imposing or charging duties or fees on the estates of deceased persons, and for the payment in the ordinary course of administration of his or her debts and of debts properly incurred by his or her administrator, and for those purposes the administrator may, in as full and effectual a manner in law as the testator or intestate could have done in his or her lifetime, sell, lease (with or without an optional or compulsory purchasing clause), or mortgage (with or without a power of sale), the estate, or any part thereof.

17. Power of sale on intestacy - On the death of a person intestate as to any real or personal estate, his or her administrator shall have power to sell that real estate and to call in, sell, and convert into money such part of that personal estate as may not consist of money, with power to postpone the sale, calling in, and conversion for such a period as the administration, without being liable to account, may think proper, and so that, unless required for purposes of administration owing to want of other assets, personal chattels be not sold under this section except for special reason.

(2) This section shall have effect notwithstanding that the administrator has ceased to hold the real or personal estate as administrator and holds it as trustee.

(3) Where the deceased leaves a will this section shall have effect subject to the provisions contained in the will.

18. Debts under deeds and simple contracts to stand in equal degree - Subject to the provisions of this Act and of any other Act, in the administration of the estate of every person who has died, whether before or after the commencement of this Act, no debt or liability of the person shall be entitled to any priority or preference by reason merely that it arises under a bond, deed, or instrument under seal; but all the creditors of that person shall be treated as standing in equal degree and be paid accordingly out of the assets of the deceased person, whether those assets are legal or equitable:

PROVIDED THAT nothing in this section shall prejudice or affect any lien, charge, mortgage, or other security which any creditor may hold or be entitled to for payment of his or her debt or liability.

19. Charges on property of deceased to be paid primarily out of the property charged - (1) Where a person dies possessed of, or entitled to, or under a general power of appointment by his or her will disposes of, an interest in property, or where an interest in property passes by survivorship on the death of a person, and at the time of his or her death the interest is charged with the payment of money, whether by way of mortgage, charge, or otherwise, and the deceased has not by will, deed, or other document signified a contrary or other intention, the interest so charged shall, as between the different persons claiming through the deceased, be primarily liable for payment of all amounts charged thereon; and every part of the said interest, according to its value, shall bear a proportionate part of the amounts charged on the whole thereof.

(2) Such a contrary or other intention shall not be deemed to be signified:

(a) By a general direction for payment of debts or of all the debts of the testator out of his or her personal estate, or the residuary real and personal estate, or the residuary real estate, or the residuary personal estate; or

(b) By a charge of debts upon any such estate, unless that intention is further signified by words expressly or by necessary implication referring to all or some part of the charge on the interest in property.

(3) Nothing in this section shall affect the right of a person entitled to the payment with which the interest in property is charged to obtain payment or satisfaction thereof out of the other assets of the estate or otherwise.

20. Liability of specific device or bequest where estate primarily liable is insufficient - If any testator's estate primarily liable for the payment of his or her debts is insufficient for that purpose, each of his or her specifically devised or bequeathed estates (if more than one) shall be liable to make good the deficiency, in the proportion that the value of each of those estates bears to the aggregate value of the specifically devised or bequeathed estates of the testator.

21. Rights and liabilities of administrator - Every person to whom administration of the estate of a deceased person is granted, other than an executor, shall, subject to the limitations contained in the grant, have the same rights and liabilities and be accountable in like manner as if he or she were the executor of the deceased.

22. Administrator maybe required to exhibit inventory - Every administrator shall, when required by the Court so to do, exhibit on oath in the Court a true and perfect inventory and account of the estate of the deceased, and the Court shall have power as heretofore to require administrators to bring in inventories.

23. Protection of persons acting on administration - Every administrator or person who makes any payment or disposition or assumes any liability, or who permits any payment or disposition to be made, or who does any act, or who permits any act to be done, in good faith under an administration shall, notwithstanding any defect or circumstances whatsoever affecting the validity of the administration or its subsequent revocation, have the same indemnity and protection in so doing and in respect of all commission and remuneration earned by him or her in so doing, as he or she would if the administration were valid and not revoked.

24. Liability of person fraudulently obtaining or retaining estate of deceased - If any person other than the administrator, to the defrauding of creditors or without full valuable consideration, obtains or receives or holds any part of the estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, the person shall be charged as executor in his or her own wrong to the extent of the estate received or coming into his or her hands, or the debt or liability released, after deducting:

(a) Any debt for valuable consideration and without fraud due to the person from the deceased person at the time of his or her death which might properly be retained by an administrator; and

(b) Any payment made by the person which might properly be made by an administrator.

Powers and Procedure of Court

25. Direction to executor to prove or renounce, etc. - The Court shall have power to direct any person named as executor in a will to prove or renounce probate of the will, and (subject to this Act and any other enactment and the rules) to do such other things as it thinks fit concerning the granting and revocation of administration, and the hearing and determination of proceedings relating to testamentary matters and matters relating to the estates of deceased persons.

26. Production of instruments purporting to be testamentary - The Court may, whether any suit or other proceeding is or is not pending with respect to any administration, order any person to produce any paper or writing, being or purporting to be testamentary, which may be shown to be in the possession or under the control of that person; and if it is not shown that any such paper or writing is in the possession or under the control of any person, but it appears that there are reasonable grounds for believing that he or she has knowledge of any such paper or writing, the Court may direct that person to attend for the purpose of being examined in open Court, respecting the same; and that person shall be bound to answer any such questions and, if so ordered, to produce and bring in any such paper or writing, and shall be subject to the like process of contempt in case of default in not attending or in not answering any such questions, or not bringing in any such paper or writing, as he or she would have been subject to in case he or she had been a party to a suit in the Court, and had made any such default; and the costs of any such suit or proceeding shall be in the discretion of the Court.

27. Practice of Court in its administration jurisdiction - The practice of the Court in regard to administration shall, except where otherwise provided by this Act or by the rules, be regulated, so far as the circumstances of the case will admit, by the practice of the Court heretofore in force.

28. Form of order to Public Trustee - Whenever the Court grants an order to the Public Trustee (either alone or together with any other person or persons) to administer the estate of any deceased person, the order shall be in the form in the First Schedule or in such other form or forms as may be prescribed by regulation.

29. Power to make rules - The power to make rules of Court shall include power to make rules:

(a) Prescribing the forms of administration;

(b) Prescribing the practice in obtaining a grant of administration, and the procedure and practice of the Court and the duties of the Registrar;

(c) Regulating the procedure and practice of the Court with respect to non-contentious or common form probate business;

(d) Regulating the procedure and practice of the Court with respect to contentious probate business;

(e) Regulating the practice and procedure of the Court in relation to the resealing of probates or letters of administration, and in particular for the purpose of imposing upon person applying thereunder for the resealing of probates or letters of administration, or relieving any such persons from, any requirements that may be imposed upon persons applying to the Supreme Court of Samoa for original grants of probate or letters of administration;

(f) Prescribing orders of priority among applicants for administration which shall apply unless the Court in special circumstances otherwise directs; and

(g) Generally for carrying the provisions of this Act into effect.

Caveats

30. Caveat may be lodged - (1) Any person may lodge with the Registrar a caveat against any application for administration at any time previous to the granting of administration, and every such caveat shall set forth the name of the person lodging it, and an address within Samoa at which notices may be served on the person.

(2) Every such caveat shall, unless application for administration is sooner made, lapse upon the expiration of one year from the date of the lodging of the caveat.

(3) Any such caveat may be withdrawn by the caveator at any time by notice in writing lodged with the Registrar. A copy of every such notice shall be served on any person who has applied for administration or to whom an order nisi has been granted.

(4) Nothing in this section shall prevent any person who has lodged a caveat from lodging a subsequent caveat, whether or not any caveat previously lodged has lapsed or been withdrawn.

31. Where a caveat lodged, Court may grant order nisi - In every case where a caveat has been lodged and has neither lapsed nor been withdrawn, the following provisions shall apply:

(a) The Court may, upon application on behalf of the person applying for administration, supported by affidavits upon which, if there had been no caveat, administration would have been granted, make an order nisi for the grant of administration to the person applying, and every such order shall name a time and place for showing cause against the same, and the Court may enlarge any such order from time to time;

(b) Every such order nisi, and every order enlarging the same, shall be served on the caveator by delivering a copy of the same at the address mentioned in his or her caveat;

(c) If before the day named in the order nisi or the day to which the order is enlarged the caveat is withdrawn, the order nisi may be made absolute at any time thereafter;

(d) In any case to which paragraph (c) does not apply, if on the day named in the order nisi, or on the day to which the order is enlarged, the caveator does not appear, the order nisi may be made absolute, upon an affidavit of service; but if the caveator appears, the hearing shall be conducted in the same manner as nearly as may be as in an ordinary action, and the Court may order:

(i) That the order nisi be made absolute or discharged; or

(ii) That the application for administration be made in solemn form,-

and any order made under subparagraph (i) or subparagraph (ii) may be with or without costs, as may be just, and, if the Court so directs, those costs may be paid out of the estate;

(e) Upon the hearing of the order nisi the parties may, subject to the rules, verify their cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, be subject to be cross-examined by or on behalf of the opposite party orally in open Court, and after cross-examination may be re-examined orally in open Court by or on behalf of the party by whom the affidavit was filed;

(f) In any case where a caveat is lodged by the Public Trustee, the Court may, if it thinks fit, order costs to be paid to the Public Trustee out of the estate, whether the order nisi is discharged or not.

Miscellaneous Provisions

32. Administration not to be granted to companies other than authorised companies - No grant of probate of the will of any deceased person or letters of administration of the estate of a deceased person, either with or without a will annexed, shall be made to any company unless the company is expressly authorised by an Act of Parliament to apply for and obtain the grant.

33. Devolution of loan stock without administration – (1) Where any person has died, whether before or after the commencement of this section, and at the time of his or her death the person was the registered holder of Government stock of a nominal value not exceeding $1,000, the Registrar of Stock may register as holder of the stock any person who proves:

(a) That the registered holder has died and administration of his or her estate has not been obtained in Samoa; and

(b) That he or she is either:

(i) Beneficially entitled to the stock under the will or on the intestacy of the deceased stockholder; or

(ii) Entitled to obtain in Samoa administration of the estate of the deceased stockholder.

(2) In this section:

"Government stock" means any stock issued by or under the authority of the Government by virtue of any Act.

34. Payment without administration - (1) In the event of the death of any person to whom any sum of money not exceeding $1,000 is payable by a provident or superannuation fund, a society, a bank, an employer of the deceased person at or within 6 months before the date of his or her death, or the Government respectively, whether the death occurred before or after the commencement of this section, it shall be lawful, without requiring administration of the estate of that deceased person to be obtained in Samoa, and on receiving such evidence as it considers satisfactory that the person has died and that administration of his or her estate has not been obtained in Samoa, to pay the sum or any part thereof to any of the following persons:

(a) The widow, widower, or children of the deceased person;

(b) The persons beneficially entitled to the estate of the deceased person under the will or on the intestacy of that person;

(c) Any person appearing to be entitled to obtain administration of the estate of the deceased person in Samoa;

(d) Any person related by blood or marriage to the deceased person who undertakes to maintain the children of that person who are minors or any of them;

(e) Any person who has the custody and control of any of the children of the deceased person who are minors:

PROVIDED THAT no payment shall be made to any person unless he or she applies for or consents to receive that payment.

(2) It shall be lawful, out of the Government money to which subsection (1) applies, to pay the funeral expenses of a deceased person, or to refund the amount of those expenses to any person who has paid them, in any case where no person has applied for or consented to receive payment of the money under subsection (1).

(3) Where money is payable by a bank in the event of the death of any person and comprises money in a separate investment account and also other money, the provisions of subsections (1) and (2) shall apply separately to the amount of money in the investment account and to the amount of other money as if each such amount was the only amount payable by the bank in the event of the death of that person.

(4) Where, by virtue of a policy or policies of insurance within the meaning of any enactment relating to life insurance, a sum of money not exceeding $1,000 (including profits but not including any money that may be payable to or deductible by the company liable under the policy or policies) has become payable to the administrator of a deceased person, whether before or after the commencement of this section, it shall be lawful for the company, without requiring administration of the estate of the deceased person to be obtained in Samoa, and upon receiving such evidence as it considers satisfactory that the person has died and that administration of his or her estate has not been obtained in Samoa, to make payment of the sum or any part thereof to any of the persons to whom payment may be made under subsection (1)(a) to (e).

(5) Any payment made in good faith pursuant to this section to a person to whom the maker of the payment has reasonable grounds to believe that payment may be made under this section shall be valid against all persons whomsoever, and the maker of the payment shall be absolutely discharged from all liability in respect of money paid by him or her under this section.

(6) Every person to whom money is paid pursuant to this section shall be liable to apply the money in due course of administration, and the maker of the payment may, if he or she thinks fit, without being liable to see to the application of the money, require any such person to give sufficient undertakings, by bond or otherwise, that the money so paid will be so applied.

35. Saving - Nothing in the preceding section shall prevent any person to whom the money to which that section applies or any part thereof ought to have been paid from pursuing and exercising any remedy for recovery thereof against the person or persons to whom the money has been paid.

36. Other Acts providing for payment without administration not affected - Nothing in this Act shall affect the powers of any person or body to make any payment to, or register any person to be, the owner of any property in accordance with any of the provisions of any enactment for the time being in force authorising the payment of money belonging to the estate of a deceased person without requiring administration of the estate to be obtained.

PART II
ADMINISTRATION GRANTED OUT OF SAMOA

37. Interpretation - For the purposes of this Part:

"Probate or letters of administration" includes an exemplification of any probate or letters of administration, or a duplicate thereof sealed with the seal of the Court granting the same, or a copy thereof certified as correct by or under the authority of the Court granting the same, and also includes an exemplification or a copy certified by or under the authority of any Court, or a duplicate sealed under the seal of any Court, of any instrument which is filed in or issued out of that Court and which within the jurisdiction of that Court operates to make any person the administrator of any property of a deceased person as if probate or letters of administration had been granted to him or her by that Court.

The filing in or the issuing out of any Court of any instrument which operates to make any person an administrator as aforesaid shall be deemed to be equivalent to the granting of probate or letters of administration by that Court to that person.

38. Estate of person dying abroad not to vest without administration obtained in Samoa - (1) Estate in Samoa belonging to any person who dies abroad shall not vest in any person under any bequest or devise, or under an intestacy, or by inheritance, until administration of that estate is obtained in Samoa: or, if probate or letters of administration of the estate have been granted in any place out of Samoa, unless the probate or letters of administration are resealed in Samoa as hereinafter provided.

(2) Upon the estate in Samoa becoming legally vested in accordance with the provisions of this section, the legal estate therein shall vest as from the time of the death of the person from whom it is obtained.

(3) This section shall not restrict the provisions of this or any other enactment relating to the payment or devolution of any estate without administration.

39. Resealing of probate, etc. - (1) Where any probate or letters of administration granted by any competent Court in any other country is produced to and a copy thereof deposited with the Registrar of the Supreme Court, the probate or letters of administration may be sealed with the seal of the last-mentioned Court, and shall thereupon have the like force and effect and have the same operation in Samoa, and every executor and administrator thereunder shall perform the same duties and be subject to the same liabilities, as if the probate or letters of administration had been originally granted by the Supreme Court of Samoa.

(2) Nothing in this section shall prevent the Court from making an independent grant of administration in Samoa.

40. Seal not to be affixed till fees are paid - The seal of the Supreme Court of Samoa shall not be affixed to any probate or letters of administration granted in any country so as to give operation thereto as if the grant had been made by the Supreme Court of Samoa, until all such fees have been paid as would have been payable if the probate or letters of administration had been originally granted by the Supreme Court of Samoa.

41. No probate, etc., granted out of Samoa to be evidence unless resealed - (1) Probate or letters of administration granted in any place out of Samoa shall not be received in evidence of the title of any person to any estate in Samoa as hereinbefore provided.

(2) This section shall not affect the provisions of this or any other enactment relating to the payment or devolution of any estate without administration.

PART III
DISTRIBUTION OF INTESTATE ESTATES

42. Application of this Part of this Act - This Part shall not apply in any case where the death occurred before the commencement of this Act, and the estate of any person who died intestate before the commencement of this Act shall be distributed in accordance with the enactments and law in force at the death of that person.

43. Abolition of escheat - There shall be no escheat to the Government for want of heirs or successors.

44. Succession to real and personal estate on intestacy - (1) Where any person dies intestate as to any real or personal estate, that estate shall be distributed in the manner or be held on the trusts mentioned in this section, namely:

(a) If the intestate leaves a husband or wife, the surviving husband or wife shall take the personal chattels absolutely, and, in addition, the residue of the estate shall stand charged with the payment of a sum of $5,000 to the surviving husband or wife with interest thereon from the date of the death until paid or appropriated, at the rate of 5 percent per annum, and, subject to providing for that sum and the interest thereon, the residue of the estate shall be held:

(i) If the intestate leaves issue, in trust as to one-third for the surviving husband or wife absolutely and as to the other two-thirds on the statutory trusts for the issue of the intestate;

(ii) If the intestate leaves no issue, in trust as to two-thirds for the surviving husband or wife absolutely, and as to the other one-third if the intestate leaves both parents, in trust for the father and mother in equal shares absolutely or, the intestate leaves only one parent, in trust for the surviving father or mother absolutely;

(iii) If the intestate leaves no issue or parent, in trust for the surviving husband or wife absolutely;

(b) If the intestate leaves issue but no husband or wife, the estate shall be held on the statutory trusts for the issue of the intestate;

(c) If the intestate leaves no husband or wife or issue but a parent or parents, the estate shall be held in trust or the parents in equal shares if they both survive the intestate but if only one of them survives the intestate for that one;

(d) If the intestate leaves no husband or wife or issue or parent, the estate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner, namely:

Firstly, on the statutory trusts for the brothers and sisters (whether of full or of half blood) of the intestate; but if no person takes an absolutely vested interest under such trusts; then

Secondly, in trust for the grandparents of the intestate and, if more than one survive the intestate, in equal shares; but if there is no member of this class; then

Thirdly, on the statutory trusts for the uncles and aunts of the intestate, being brothers and sisters (whether of full or of half blood) of a parent of the intestate;

(e) In default of any person taking an absolute interest under the foregoing provisions, the estate shall belong to the Government as bona vacantia, and in place of any right to escheat; and the Government may (without prejudice to any other powers), out of the whole or any part of the property devolving on it, provide for dependents, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provisions.

(2) A husband and wife shall for all purpose of distribution or division under the foregoing provisions of this section be treated as 2 persons.

45. Statutory trusts in favour of issue and other classes of relatives of intestate - (1) Where under this Act the estate of an intestate, or any part thereof, is directed to be held on the statutory trusts for the issue of the intestate, the same shall be held upon the following trusts, namely:

(a) In trust, in equal shares if more than one, for all or any of the children or child of the intestate, living at the death of the intestate, who attain full age or marry under that age, and for all or any of the issue living at the death of the intestate who attain full age or marry under that age of any child of the intestate who predeceases the intestate, the said issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, and so that no issue shall take whose parent takes an absolutely vested interest:

PROVIDED THAT if any person capable of taking under this paragraph (including this proviso) dies before taking an absolutely vested interest leaving any child or children who shall be living at the expiration of 21 years from the death of the intestate or who shall sooner attain full age or marry under that age, that child or those children shall take, in equal shares if more than one, the share which his, her or their parent would have taken if he or she had not so died;

(b) The statutory power of advancement, and the statutory provisions which relate to maintenance, education and benefit, and the accumulation of surplus income, shall apply, and when a person becomes entitled to a vested share or interest under the statutory trusts, that person shall be entitled on attaining the age of 18 years or sooner marrying to give a valid receipt for his or her share or interest;

(c) The administrator may permit any minor who has a vested or contingent interest in any personal chattels to have the use and enjoyment of the chattels in such manner and subject to such conditions (if any) as the administrator may consider reasonable, and without being liable to account for any consequential loss.

(2) If the trusts in favour of the issue of the intestate fail by reason of no child or other issue attaining an absolutely vested interest:

(a) The estate of the intestate and the income thereof and all statutory accumulations, if any, of the income thereof, or so much thereof as may not have been paid or applied under any power affecting the same, shall go, devolve, and be held under the provisions of this Act as if the intestate had died without leaving issue living at the death of the intestate;

(b) References in this Act to the intestate "leaving no issue" shall, subject to the provisions of this section, be construed as "leaving no issue who attain any absolutely vested interest";

(c) References in this Act to the intestate "leaving issue" or "leaving a child or other issue" shall, subject to the provisions of this section, be construed as "leaving issue who attain an absolutely vested interest".

(3) Where under this Act the estate of an intestate or any part thereof is directed to be held on the statutory trusts for any class of the relatives of the intestate, other than issue of the intestate, the same shall be held on trusts corresponding to the statutory trusts for the issue of the intestate as if those trusts were repeated with the substitution of references to the members or members of that class for references to the children or child of the intestate.

46. Application to cases of partial intestacy - (1) Where any person dies leaving a will effectively disposing of part of his or her estate, the provisions of this Part of this Act shall have effect in respect of the part of his or her estate not so disposed of, subject to the provisions of the will and of subsection (2).

(2) Where the deceased leaves a husband or wife who acquires a beneficial interest under the will of the deceased, the references in section 44 of this Act to a sum of $5,000 payable to a surviving husband or wife, and to interest on that sum, shall be taken as references to that sum diminished by the value of the said beneficial interest at the date of death, and to interest on that sum as so diminished, and, accordingly, where the said value exceeds that sum, section 44 shall have effect as if references to that sum and to interest thereon were omitted.

(3) For the purposes of the foregoing provisions of this section the administrator may ascertain and fix the value of the said beneficial interest, and no action shall lie against the administrator if he or she distributes the estate in accordance with the value that he or she has honestly and reasonably so fixed.

PART IV
FAMILY PROTECTION

47. Court may grant relief - The Court may grant to any widow, widower, parent, child, or grandchild of a deceased person who has died leaving estate in Samoa, such relief thereout as to it seems just, if the Court is satisfied (having regard to all the circumstances of the case) that such widow, widower, parent, child, or grandchild is insufficiently provided for.

48. Time for making application - Application for relief under this Part of this Act shall be made by way of motion in accordance with the rules of the Court and shall be made within 12 months after the grant of probate in Samoa:

PROVIDED THAT the Court may on special grounds give leave to make an application for relief at any time after the expiration of the said period.

49. Order for relief - The Court may order that any specified part or parts or that the whole estate shall bear the amount or extent of any relief granted under this Part.

50. Following of assets - The Court may, if it thinks it just and equitable, order any person having an interest in any assets which formed part of the estate of the deceased person and which had been distributed at any time prior to the hearing of the application for relief, to transfer or pay such interest to the administrator or trustee of the estate, or to the applicant for relief, upon such terms (if any) as in the circumstances the Court shall think fit.

PART V
MISCELLANEOUS

51. Repeals - (1) The enactments specified in the Second Schedule are hereby repealed as part of the law of Samoa.

(2) (a) and (b) - these paragraphs amended the Schedule to the Reprint of Statutes Act 1972.

52. Regulations - The Head of State, acting on the advice of Cabinet, may from time to time make all such regulations as shall be necessary or expedient for the due administration of this Act.

SCHEDULE

FIRST SCHEDULE

Section 28

Order to Public Trustee to administer

In the Supreme Court of Samoa

The ..................... day of ........................ 20...
Upon reading the affidavits of .................................., it is ordered that the Public Trustee shall be administrator of all the real and personal estate of ............. deceased (with the will of the said .................. annexed).

SECOND SCHEDULE

Section 51(1)

Enactments Repealed

The Administration Act 1952(NZ)
The General Laws (No.2) Ordinance 1932, section 13
The Samoa Reciprocal Administration Order 1930(NZ)
The Samoa Administration Order 1939(NZ)

REVISION NOTES 1997

As to the grant of administration in simple form by a Magistrate during the absence or inability of a Judge of the Supreme Court to act, see section 32 of the Magistrate Court Act 1969.

As to Court Fees, see the Supreme Court (Fees and Costs) Rules 1971 (W.S.R.1971:4).

As to determination of domicile by the Public Trustee, see sections 103 of the Public Trust Office Act 1975.

As to the obligation to notify the Public Trustee of the existence of property belonging to an estate administered by him, see section 104 of the Public Trust Office Act 1975, and as to the handling over of property, see section 105 of this Act.

As to the registration of dealings by the Public Trustee with himself, see section 117 of the Public Trust Office Act 1975.
As to payment of a credit in a Post Office Savings Bank account without Probate or Letters of Administration to a person nominated, see sections 132 and 133 of the Post Office Act 1972.

As to the protection of Life Insurance policies, see section 14 of the General Laws (No.2) Ordinance 1932.

As to claims for damages of compensation against the estate of an insured deceased owner where there is no administrator, see section 6 of the Law Reform Act 1964.

REVISION NOTES 2008

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.

(b) The fines have been amended and are stated as penalty units as provided for by the Fines (Review and Amendment) Act 1998.

(c) All references to the male gender have been made gender neutral.

(d) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(e) Amendments have been made to up-date references to offices, officers and statutes.

(f) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

There were no amendments made to this law since the publication of the Western Samoa Statutes Reprint 1978-1996.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2007. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised and consolidated by Graham Bruce Powell

Under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel).

REVISION NOTES 2008 No. 2

The general powers of the Attorney General under section 4 of the Revision and Publication of Laws Act 2008 is used to insert the commencement date. By virtue of section 8 of the Acts Interpretation Act 1974, in the absence of an expressed commencement date, the date of assent is the commencement date.

There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2008. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel).

REVISION NOTES 2009

There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2009. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised and consolidated by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).

The Administration Act 1975 is administered in the Ministry of Justice and Courts Administration.