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Succession Amendment (Intestacy) Bill 2009 No , 2009 A Bill for An Act to amend the Succession Act 2006 and the Probate and Administration Act 1898 to revise and re-state the rules for distribution on intestacy; and for other purposes.
Clause 1 Succession Amendment (Intestacy) Bill 2009 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Succession Amendment (Intestacy) Act 2009. 3 2 Commencement 4 This Act commences on a day or days to be appointed by proclamation. 5 3 Repeal of Inheritance Act of 1901 No 19 6 The Inheritance Act of 1901 is repealed. 7 Page 2
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 Schedule 1 Amendment of Succession Act 2006 1 No 80 2 [1] Long title 3 Insert "to make provision for the distribution of intestate estates;" after 4 "deceased person;". 5 [2] Section 3 Definitions 6 Insert in alphabetical order in section 3 (1): 7 intestate is defined in section 102. 8 [3] Section 3 (2) 9 Omit "en ventre sa mere at the death of the person, provided such child or issue 10 is born alive and remains alive for a period of 30 days". 11 Insert instead "who is born after the person's death after a period of gestation 12 in the uterus that commenced before the person's death and survives the 13 person for at least 30 days after birth". 14 [4] Chapter 4 15 Insert after section 100 and renumber existing Chapter 4 as Chapter 5 and 16 sections 101106 as appropriate: 17 Chapter 4 Intestacy 18 Part 4.1 Preliminary 19 101 Definitions 20 In this Chapter: 21 brother or sister--a person is the brother or sister of another if 22 they have one or both parents in common. 23 deceased person--a deceased person is one who did not survive 24 the intestate. 25 domestic partnership--see section 105. 26 eligible relative means a relative of the intestate who is entitled 27 to share in the distribution of the intestate estate under Part 4.3. 28 entitlement to the whole of the intestate estate--see section 103. 29 Indigenous person is a person who: 30 (a) is of Aboriginal or Torres Strait Islander descent, and 31 Page 3
Succession Amendment (Intestacy) Bill 2009 Schedule 1 Amendment of Succession Act 2006 No 80 (b) identifies as an Aboriginal person or Torres Strait Islander, 1 and 2 (c) is accepted as an Aboriginal person by an Aboriginal 3 community or as a Torres Strait Islander by a Torres Strait 4 Islander community. 5 intestate estate means: 6 (a) in the case of an intestate who leaves a will--property that 7 is not effectively disposed of by will, and 8 (b) in any other case--all the property left by the intestate. 9 leave--a person leaves another if the person dies and is survived 10 by the other. 11 personal effects of an intestate means the intestate's tangible 12 personal property except the following: 13 (a) property used exclusively for business purposes, 14 (b) banknotes or coins (unless forming a collection made in 15 pursuit of a hobby or for some other non-commercial 16 purpose), 17 (c) property held as a pledge or other form of security, 18 (d) property (such as gold bullion or uncut diamonds): 19 (i) in which the intestate has invested as a hedge against 20 inflation or adverse currency movements, and 21 (ii) which is not an object of household, or personal, 22 use, decoration or adornment, 23 (e) an interest in land (whether freehold or leasehold). 24 predecease--a person is taken to predecease the intestate if the 25 person does not survive the intestate. 26 presumptive share of an intestate estate of a deceased eligible 27 relative of the intestate means the entitlement the relative would 28 have had if he or she had survived the intestate. 29 registered valuer has the same meaning as it has in the Valuers 30 Act 2003. 31 spouse--see section 104. 32 statutory legacy for a spouse--see section 106. 33 survive--see section 107. 34 102 Intestate 35 An intestate is a person who dies and either does not leave a will 36 or leaves a will but does not dispose effectively by will of all or 37 part of his or her property. 38 Page 4
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 103 Entitlement to the whole of the intestate estate 1 A reference in this Chapter to an entitlement to the whole of the 2 intestate estate is a reference to so much of the estate as remains 3 after payment of all such funeral and administration expenses, 4 debts and other liabilities as are properly payable out of the 5 estate. 6 104 Spouse 7 A spouse of an intestate is a person: 8 (a) who was married to the intestate immediately before the 9 intestate's death, or 10 (b) who was a party to a domestic partnership with the 11 intestate immediately before the intestate's death. 12 105 Domestic partnership 13 A domestic partnership is a relationship (other than marriage) 14 between the intestate and another person: 15 (a) that is a de facto relationship, and 16 (b) that: 17 (i) has been in existence for a continuous period of at 18 least 2 years, or 19 (ii) has resulted in the birth of a child. 20 106 Spouse's statutory legacy 21 (1) The statutory legacy for a spouse consists of: 22 (a) the CPI adjusted legacy, and 23 (b) if the statutory legacy is not paid, or not paid in full, within 24 1 year after the intestate's death--interest at the relevant 25 rate on the amount outstanding from time to time 26 (excluding interest) from the first anniversary of the 27 intestate's death to the date of payment of the legacy in 28 full. 29 (2) The CPI adjusted legacy is to be determined in accordance with 30 the following formula: 31 C R = A × --- - D where: 32 R represents the CPI adjusted legacy. 33 A is $350,000. 34 Page 5
Succession Amendment (Intestacy) Bill 2009 Schedule 1 Amendment of Succession Act 2006 No 80 C represents the Consumer Price Index number for the last 1 quarter for which such a number was published before the date on 2 which the intestate died. 3 D represents the Consumer Price Index number for the December 4 2005 quarter. 5 (3) If, however, a spouse is entitled to a statutory legacy under this 6 Act and under the law of another Australian jurisdiction or 7 jurisdictions: 8 (a) the spouse's statutory legacy is an amount equivalent to 9 the highest amount fixed by way of statutory legacy under 10 any of the relevant laws (including this Act), but 11 (b) the following qualifications apply: 12 (i) amounts received by the spouse, by way of statutory 13 legacy, under any of the other relevant laws are 14 taken to have been paid towards satisfaction of the 15 spouse's statutory legacy under this Act, 16 (ii) if any of the relevant laws contain no provision 17 corresponding to subparagraph (i), no amount is 18 payable by way of statutory legacy under this Act 19 until the spouse's entitlement under that law is 20 satisfied, or the spouse renounces the spouse's 21 entitlement to payment, or further payment, by way 22 of statutory legacy, under that law. 23 (4) If the value of an intestate estate is insufficient to allow for the 24 payment of a statutory legacy (or statutory legacies) in full, the 25 statutory legacy abates to the necessary extent and, if 2 or more 26 statutory legacies are payable, they abate ratably. 27 (5) The relevant rate of interest is the rate that lies 2% above the cash 28 rate last published by the Reserve Bank of Australia before 29 1 January in the calendar year in which interest begins to accrue. 30 (6) If the Australian Statistician publishes a Consumer Price Index 31 number in respect of a particular quarter in substitution for a 32 Consumer Price Index number previously published in respect of 33 that quarter: 34 (a) except as provided by paragraph (b)--the publication of 35 the later Index number is to be disregarded, or 36 (b) if the Minister so directs--regard is to be had to the later 37 and not to the earlier Index number. 38 (7) If the reference base for the Consumer Price Index is changed, 39 regard is to be had only to Index numbers published in terms of 40 the new reference base or to Index numbers converted to the new 41 Page 6
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 reference base in accordance with an arithmetical conversion 1 factor specified by the Australian Statistician. 2 (8) An adjustment under subsection (3) is to be made to the nearest 3 whole dollar. 4 (9) In this section: 5 Consumer Price Index number, for a quarter, means the All 6 Groups Consumer Price index number, being the weighted 7 average of the 8 capital cities, published by the Australian 8 Statistician in respect of that quarter. 9 107 Survivorship 10 (1) A person will not be regarded as having survived an intestate 11 unless: 12 (a) the person is born before the intestate's death and survives 13 the intestate by at least 30 days, or 14 (b) the person is born after the intestate's death after a period 15 of gestation in the uterus that commenced before the 16 intestate's death and survives the intestate for at least 30 17 days after birth. 18 (2) The rules stated in subsection (1) are not to be applied if, as a 19 result of their application, the intestate estate would pass to the 20 State. 21 108 General limitation of non-spousal entitlements 22 (1) A person is not entitled to participate in the distribution of an 23 intestate estate unless the person survives the intestate. 24 (2) A reference in this Act to a child, issue, relative, or issue of a 25 relative, of an intestate is limited to a person of the relevant 26 description whose entitlement to share in the distribution of the 27 intestate estate is not excluded under subsection (1). 28 109 Adoption 29 An adopted child is to be regarded, for the purposes of 30 distribution on an intestacy, as a child of the adoptive parent or 31 parents and: 32 (a) the child's family relationships are to be determined 33 accordingly, and 34 (b) family relationships that exist as a matter of biological fact, 35 and are not consistent with the relationship created by 36 adoption, are to be ignored. 37 Page 7
Succession Amendment (Intestacy) Bill 2009 Schedule 1 Amendment of Succession Act 2006 No 80 Part 4.2 Spouse's entitlements 1 Note. In the case of an Indigenous person's estate, this Part is subject to exclusion or 2 modification by a distribution order under Part 4.4. 3 Division 1 Entitlement of surviving spouse 4 110 Application of this Division 5 This Division applies where the intestate leaves a spouse (but not 6 more than one spouse). 7 111 Spouse's entitlement where no issue 8 If an intestate leaves a spouse but no issue, the spouse is entitled 9 to the whole of the intestate estate. 10 112 Spouse's entitlement where issue are also issue of the spouse 11 If an intestate leaves a spouse and issue and the issue are all also 12 issue of the spouse, the spouse is entitled to the whole of the 13 intestate estate. 14 113 Spouse's entitlement where any issue are not issue of the spouse 15 If an intestate leaves a spouse and any issue who are not issue of 16 the spouse, the spouse is entitled to: 17 (a) the intestate's personal effects, and 18 (b) a statutory legacy, and 19 (c) one-half of the remainder (if any) of the intestate estate. 20 Division 2 Spouse's preferential right to acquire 21 property from the estate 22 114 Application of this Division 23 This Division applies where the intestate leaves a spouse (but not 24 more than one spouse). 25 115 Spouse's right of election 26 (1) A spouse is entitled to elect to acquire property from an intestate 27 estate. 28 (2) A spouse's election to acquire property from an intestate estate 29 requires the Court's authorisation if: 30 (a) the property forms part of a larger aggregate, and 31 Page 8
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 (b) the acquisition could substantially diminish the value of 1 the remainder of the property or make the administration 2 of the estate substantially more difficult. 3 Note. For example: 4 (a) The acquisition of a single item from a group of items 5 might substantially diminish the value of the remainder of 6 the group or make it substantially more difficult to dispose 7 of the remainder of the group. 8 (b) The acquisition of the farmhouse from a farming property 9 might substantially diminish the value of the remainder of 10 the farming property or make it substantially more difficult 11 to dispose of it. 12 (3) The Court may grant an authorisation under subsection (2) and 13 may impose such conditions as it considers just and equitable to 14 address the matters referred to in that subsection, including a 15 condition that the spouse pay compensation to the estate in 16 addition to consideration to be given for the property under this 17 Division and a condition as to costs. 18 (4) The Court must refuse authorisation if it considers that the 19 matters referred to in subsection (2) cannot be adequately 20 addressed by granting an authorisation subject to such 21 conditions. 22 (5) A spouse is not entitled to elect to acquire property from an 23 intestate estate if the transfer or conveyance by the personal 24 representative to the spouse of the interest of the intestate in the 25 property would require compliance with the mandatory 26 provisions unless those provisions would be complied with and 27 the costs of complying with the provisions are paid by the spouse. 28 (6) A spouse who is a personal representative of the intestate is not 29 prevented from making an election to acquire property from the 30 intestate estate by the fact that the spouse is a trustee of the 31 intestate estate. 32 (7) Nothing in this section confers on a spouse any right against a 33 person who in good faith purchased for value from the personal 34 representative of the intestate any property of the intestate. 35 (8) In this section: 36 mandatory provisions means the following: 37 (a) the Environmental Planning and Assessment Act 1979, the 38 Conveyancing Act 1919 and any other Act with respect to 39 the manner of dividing land into parts, and with respect to 40 any requirement incidental to the manner of dividing land 41 into parts, 42 Page 9
Succession Amendment (Intestacy) Bill 2009 Schedule 1 Amendment of Succession Act 2006 No 80 (b) the Strata Schemes (Freehold Development) Act 1973 with 1 respect to the manner of subdividing land within the 2 meaning of section 7 (1) of that Act or of any lot within the 3 meaning of section 5 (1) of that Act, and with respect to 4 any requirement incidental to the manner of subdividing 5 any such land or lot, 6 (c) the Strata Schemes (Leasehold Development) Act 1986, 7 with respect to the manner of subdividing land within the 8 meaning of section 6 (1) of that Act or of any lot within the 9 meaning of section 4 (1) of that Act, and with respect to 10 any requirement incidental to the manner of subdividing 11 any such land or lot. 12 116 Notice to be given to spouse of right of election 13 (1) An intestate's personal representative must, within one month of 14 the grant of administration of the intestate estate, give notice to 15 the intestate's spouse of the spouse's right of election stating: 16 (a) how the right is to be exercised, and 17 (b) the fact that the election may be subject to the Court's 18 authorisation and the circumstances in which such an 19 authorisation is required, and 20 (c) that the right must be exercised within 3 months (or a 21 longer period allowed by the Court) after the date of the 22 notice. 23 (2) Notice is not required under this section if the spouse is the 24 personal representative, or one of the personal representatives, of 25 the intestate. 26 117 Time for making election 27 (1) The election must be made: 28 (a) if the spouse is entitled to notice of the right of election-- 29 within 3 months after the date of the notice, or 30 (b) if the spouse is the intestate's personal representative (or 31 one of the personal representatives)--within 3 months 32 after the grant of administration of the intestate estate. 33 (2) The Court may, however, if it considers there is sufficient cause 34 for doing so, extend the time for making the election. 35 Note. The Court might, for example, extend the period for making an 36 election if the Court's authorisation for making the election is required or 37 if a question remains unresolved regarding the existence, or the nature, 38 of a person's interest in the intestate estate. 39 Page 10
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 (3) The Court may extend the time for making the election whether 1 or not the time for making the election has passed, but not after 2 the administration of the estate has been completed. 3 118 How election to be made 4 (1) A spouse's election is made by written notice identifying, with 5 reasonable particularity, the property the spouse elects to acquire. 6 (2) Except as provided by subsection (3), the notice of election must 7 be given: 8 (a) to each person, apart from the spouse, who is a personal 9 representative of the intestate, and 10 (b) to each person, apart from the spouse, who is entitled to 11 share in the intestate estate. 12 (3) The Court may direct that any of the persons referred to in 13 subsection (2) need not be given the notice of election if it 14 considers that giving the notice is unnecessary, unreasonable or 15 impracticable in the circumstances of the case. 16 (4) A spouse who has not reached the age of majority may make an 17 election as validly and effectively as an adult. 18 (5) A spouse may revoke his or her election at any time before the 19 transfer of the property to the spouse. 20 (6) A revocation is made by written notice of revocation given to the 21 same persons as the notice of election. 22 119 Basis of the election 23 (1) The price for which a spouse may elect to acquire property from 24 the intestate estate (the exercise price) is the market value of the 25 property as at the date of the intestate's death. 26 (2) If, however, the spouse and the holder of a mortgage, charge or 27 encumbrance over property that the spouse has elected to acquire 28 agree to the assumption by the spouse of the liability secured by 29 the mortgage, charge or encumbrance the exercise price is to be 30 reduced by the amount of the liability (as at the date of transfer) 31 secured by the mortgage, charge or encumbrance, but: 32 (a) the spouse takes the property subject to the mortgage, 33 charge or encumbrance, and 34 (b) on the transfer of the property, the liability passes to the 35 spouse and the estate is exonerated from it. 36 Page 11
Succession Amendment (Intestacy) Bill 2009 Schedule 1 Amendment of Succession Act 2006 No 80 (3) The personal representative of an intestate must obtain a 1 valuation from a registered valuer of property forming part of the 2 intestate estate if: 3 (a) a spouse elects to acquire the property, or 4 (b) a spouse asks the personal representative to obtain a 5 valuation to enable the spouse to decide whether to elect to 6 acquire it. 7 (4) The personal representative must give a copy of the valuation to 8 the spouse and to the other beneficiaries entitled to share in the 9 intestate estate. 10 (5) The requirement for a personal representative to obtain a 11 valuation under subsection (3) may be waived with the consent of 12 all the beneficiaries entitled to share in the intestate estate. 13 120 Exercise price--how satisfied 14 If a spouse elects to acquire property from the intestate estate, the 15 exercise price is to be satisfied: 16 (a) first from money to which the spouse is entitled from the 17 intestate estate, and 18 (b) if that is insufficient, from money paid by the spouse to the 19 estate on or before the date of transfer. 20 121 Restriction on disposal of property from intestate estate 21 (1) The personal representative of an intestate must not dispose of 22 property from the intestate estate (except to a spouse who has 23 elected to acquire it) unless: 24 (a) the personal representative is the spouse entitled to make 25 the election, or 26 (b) the time for exercising the election has elapsed and no 27 election has been made, or 28 (c) the election requires the Court's authorisation but: 29 (i) the necessary authorisation has been refused, or 30 (ii) the application for authorisation has been 31 withdrawn, or 32 (d) the spouse has notified the personal representative, in 33 writing, that he or she does not propose to exercise the 34 right to acquire property from the estate, or 35 (e) sale of the property is required to meet funeral and 36 administration expenses, debts and other liabilities of the 37 estate, or 38 Page 12
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 (f) the property is perishable or likely to decrease rapidly in 1 value. 2 (2) A transaction entered into contrary to this section is not invalid. 3 Division 3 Multiple spouses 4 122 Spouses' entitlement where there are more than one spouse but 5 no issue 6 If an intestate leaves more than one spouse, but no issue, the 7 spouses are entitled to the whole of the intestate estate in shares 8 determined in accordance with this Division. 9 123 Spouses' entitlement where issue are also issue of one or more of 10 the spouses 11 If an intestate leaves more than one spouse and issue who are all 12 issue of one or more of the surviving spouses, the spouses are 13 entitled to the whole of the intestate estate in shares determined 14 in accordance with this Division. 15 124 Spouses' entitlement where any issue are not issue of a surviving 16 spouse 17 If an intestate leaves more than one spouse and any issue who are 18 not issue of a surviving spouse: 19 (a) the spouses are entitled to share the intestate's personal 20 effects in accordance with this Division, and 21 (b) each spouse is entitled to share the statutory legacy that 22 would be payable if the intestate had left only one 23 surviving spouse, and 24 (c) the spouses are entitled to share one-half of the remainder 25 (if any) of the intestate estate in accordance with this 26 Division. 27 125 Sharing between spouses 28 (1) If property is to be shared between spouses under this Division, 29 the property is to be shared: 30 (a) in accordance with a written agreement between the 31 spouses (a distribution agreement), or 32 (b) in accordance with an order of the Court (a distribution 33 order), or 34 (c) if the conditions prescribed by subsection (2) are 35 satisfied--in equal shares. 36 Page 13
Succession Amendment (Intestacy) Bill 2009 Schedule 1 Amendment of Succession Act 2006 No 80 (2) The following conditions must be satisfied if the personal 1 representative is to make an equal division of property between 2 spouses under subsection (1) (c): 3 (a) the personal representative has given each spouse a notice 4 in writing stating that the personal representative may 5 distribute the property equally between the spouses unless, 6 within 3 months after the date of the notice: 7 (i) they enter into a distribution agreement and submit 8 the agreement to the personal representative, or 9 (ii) at least one of the spouses applies to the Court for a 10 distribution order, 11 (b) at least 3 months have elapsed since the giving of the 12 notices and: 13 (i) the personal representative has not received a 14 distribution agreement or notice of an application 15 for a distribution order, or 16 (ii) an application for a distribution order has been made 17 but the application has been dismissed or 18 discontinued. 19 (3) If a spouse asks the personal representative to initiate the process 20 for making an equal division of property under subsection (1) (c), 21 the personal representative must, as soon as practicable: 22 (a) give the notices required under subsection (2) (a), or 23 (b) make an application to the Court for a distribution order. 24 126 Distribution orders 25 (1) An intestate's spouse or personal representative may apply to the 26 Court for a distribution order. 27 (2) If, however, the personal representative has given written notice 28 under section 125 (3), the application cannot (unless the Court 29 otherwise allows) be made more than 3 months after the date of 30 the notice. 31 (3) On an application under this section, the Court may order that the 32 property be distributed between the spouses in any way it 33 considers just and equitable. 34 (4) If the Court considers it just and equitable to do so, it may allocate 35 the whole of the property to one of the spouses to the exclusion 36 of the other or others. 37 (5) A distribution order may include conditions. 38 Page 14
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 Part 4.3 Distribution among relatives 1 Note. In the case of an Indigenous person's estate, this Part is subject to exclusion or 2 modification by a distribution order under Part 4.4. 3 127 Entitlement of children 4 (1) If an intestate leaves no spouse but leaves issue, the intestate's 5 children are entitled to the whole of the intestate estate. 6 (2) If: 7 (a) an intestate leaves: 8 (i) a spouse or spouses, and 9 (ii) any issue who are not also issue of a surviving 10 spouse, and 11 (b) a part of the estate remains after satisfying the spouse's 12 entitlement, or the spouses' entitlements, 13 the intestate's children are entitled to the remaining part of the 14 intestate estate. 15 (3) If no child predeceased the intestate leaving issue who survived 16 the intestate, then: 17 (a) if there is only one surviving child--the entitlement vests 18 in the child, or 19 (b) if there are 2 or more surviving children--the entitlement 20 vests in them in equal shares. 21 (4) If one or more of the intestate's children predeceased the intestate 22 leaving issue who survived the intestate: 23 (a) allowance must be made in the division of the entitlement 24 between children for the presumptive share of any such 25 deceased child, and 26 (b) the presumptive share of any such deceased child is to be 27 divided between that child's children and, if any of these 28 grandchildren (of the intestate) predeceased the intestate 29 leaving issue who survived the intestate, the deceased 30 grandchild's presumptive share is to be divided between 31 the grandchild's children (again allowing for the 32 presumptive share of a great grandchild who predeceased 33 the intestate leaving issue who survived the intestate), and 34 so on until the entitlement is exhausted. 35 Page 15
Succession Amendment (Intestacy) Bill 2009 Schedule 1 Amendment of Succession Act 2006 No 80 128 Parents 1 (1) The parents of an intestate are entitled to the whole of the 2 intestate estate if the intestate leaves: 3 (a) no spouse, and 4 (b) no issue. 5 (2) If there is only one surviving parent, the entitlement vests in the 6 parent and, if both survive, it vests in equal shares. 7 129 Brothers and sisters 8 (1) The brothers and sisters of an intestate are entitled to the whole 9 of the intestate estate if the intestate leaves: 10 (a) no spouse, and 11 (b) no issue, and 12 (c) no parent. 13 (2) If no brother or sister predeceased the intestate leaving issue who 14 survived the intestate, then: 15 (a) if only one survives--the entitlement vests in the surviving 16 brother or sister, or 17 (b) if 2 or more survive--the entitlement vests in them in 18 equal shares. 19 (3) If a brother or sister predeceased the intestate leaving issue who 20 survived the intestate: 21 (a) allowance must be made in the division of the estate 22 between brothers and sisters for the presumptive share of 23 any such deceased brother or sister, and 24 (b) the presumptive share of any such deceased brother or 25 sister is to be divided between the brother's or sister's 26 children and, if any of these children predeceased the 27 intestate leaving issue who survived the intestate, the 28 deceased child's presumptive share is to be divided 29 between the child's children (again allowing for the 30 presumptive share of a grandchild who predeceased the 31 intestate leaving issue who survived the intestate), and so 32 on until the entitlement is exhausted. 33 130 Grandparents 34 (1) The grandparents of an intestate are entitled to the whole of an 35 intestate estate if the intestate leaves: 36 (a) no spouse, and 37 Page 16
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 (b) no issue, and 1 (c) no parent, and 2 (d) no brother or sister, or issue of a deceased brother or sister. 3 (2) If there is only one surviving grandparent, the entitlement vests 4 in the grandparent and, if 2 or more survive, it vests in them in 5 equal shares. 6 131 Aunts and uncles 7 (1) The brothers and sisters of each of an intestate's parents are 8 entitled to the whole of the intestate estate if the intestate leaves: 9 (a) no spouse, and 10 (b) no issue, and 11 (c) no parent, and 12 (d) no brother or sister, or issue of a deceased brother or sister, 13 and 14 (e) no grandparent. 15 (2) If no brother or sister of a parent of the intestate predeceased the 16 intestate leaving a child who survived the intestate, then: 17 (a) if only one survives--the entitlement vests in the surviving 18 brother or sister, or 19 (b) if 2 or more survive--the entitlement vests in them in 20 equal shares. 21 (3) If a brother or sister of a parent of the intestate predeceased the 22 intestate leaving a child who survived the intestate, the child is 23 entitled to the deceased parent's presumptive share and, if there 24 are 2 or more children, they share equally. 25 132 Entitlement to take in separate capacities 26 A relative may be entitled to participate in the distribution of an 27 intestate estate in separate capacities. 28 Note. For example, suppose that an intestate dies leaving no spouse 29 and no surviving relatives except children of a deceased maternal aunt 30 and paternal uncle who had a child in common as well as children of 31 other unions. In this case, the child of the union between the maternal 32 aunt and the paternal uncle would be entitled to participate in the estate 33 both as representative of the maternal aunt and as representative of the 34 paternal uncle. 35 Page 17
Succession Amendment (Intestacy) Bill 2009 Schedule 1 Amendment of Succession Act 2006 No 80 Part 4.4 Indigenous persons' estates 1 133 Application for distribution order 2 (1) The personal representative of an Indigenous intestate, or a 3 person claiming to be entitled to share in an intestate estate under 4 the laws, customs, traditions and practices of the Indigenous 5 community or group to which an Indigenous intestate belonged, 6 may apply to the Court for an order for distribution of the 7 intestate estate under this Part. 8 (2) An application under this section must be accompanied by a 9 scheme for distribution of the estate in accordance with the laws, 10 customs, traditions and practices of the community or group to 11 which the intestate belonged. 12 (3) An application under this section must be made within 12 months 13 of the grant of administration or a longer period allowed by the 14 Court but no application may be made after the intestate estate 15 has been fully distributed. 16 (4) After a personal representative makes, or receives notice of, an 17 application under this section, the personal representative must 18 not distribute (or continue with the distribution of) property 19 comprised in the estate until: 20 (a) the application has been determined, or 21 (b) the Court authorises the distribution. 22 134 Distribution orders 23 (1) The Court may, on an application under this Part, order that the 24 intestate estate, or part of the intestate estate, be distributed in 25 accordance with the terms of the order. 26 (2) An order under this Part may require a person to whom property 27 was distributed before the date of the application to return the 28 property to the personal representative for distribution in 29 accordance with the terms of the order (but no distribution that 30 has been, or is to be, used for the maintenance, education or 31 advancement in life of a person who was totally or partially 32 dependent on the intestate immediately before the intestate's 33 death can be disturbed). 34 Note. For example, a distribution may have been made under section 35 92A of the Probate and Administration Act 1898 or section 94 of this Act. 36 (3) In formulating an order under this Part, the Court must have 37 regard to: 38 (a) the scheme for distribution submitted by the applicant, and 39 Page 18
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 (b) the laws, customs, traditions and practices of the 1 Indigenous community or group to which the intestate 2 belonged. 3 (4) The Court may not, however, make an order under this Part 4 unless satisfied that the terms of the order are, in all the 5 circumstances, just and equitable. 6 135 Effect of distribution order under this Part 7 A distribution order under this Part operates (subject to its terms) 8 to the exclusion of all other provisions of this Act governing the 9 distribution of the intestate estate. 10 Part 4.5 Absence of persons entitled 11 136 Intestate leaving no persons entitled 12 If an intestate dies leaving no person who is entitled to the 13 intestate estate, the State is entitled to the whole of the intestate 14 estate. 15 137 State has discretion to make provision out of property to which it 16 becomes entitled 17 (1) If the State is entitled to an intestate estate under this Part, the 18 Minister may, on application in accordance with subsection (3) 19 for a waiver of the State's rights, waive the State's rights in whole 20 or part in favour of: 21 (a) dependants of the intestate, or 22 (b) any persons who have, in the Minister's opinion, a just or 23 moral claim on the intestate, or 24 (c) any organisation or person for whom the intestate might 25 reasonably be expected to have made provision, or 26 (d) the trustees for any person or organisation mentioned in 27 paragraph (a), (b) or (c). 28 (2) The Minister may grant a waiver under this section on conditions 29 the Minister considers appropriate. 30 (3) Application for a waiver of the State's rights to an intestate estate 31 under this Part is to be made in writing to the Crown Solicitor. 32 Page 19
Succession Amendment (Intestacy) Bill 2009 Schedule 1 Amendment of Succession Act 2006 No 80 Part 4.6 Miscellaneous 1 138 Non-deferral of the interest of a minor 2 The entitlement of a minor to an interest in an intestate estate 3 vests immediately (that is, it is not deferred until the minor 4 reaches majority or marries). 5 139 Effect of disclaimer etc 6 For the purposes of the distribution of an intestate estate, a person 7 will be treated as having predeceased the intestate if the person: 8 (a) disclaims an interest, to which he or she would otherwise 9 be entitled, in the intestate estate, or 10 (b) is disqualified from taking an interest in the intestate estate 11 for any reason. 12 Note. It follows that, if the person has issue, they may be entitled to take 13 the person's presumptive share of the intestate estate by representation. 14 140 Effect of testamentary and other gifts 15 The distribution of an intestate estate is not affected by gifts made 16 by the intestate to persons entitled: 17 (a) during the intestate's lifetime, or 18 (b) in the case of a partial intestacy--by will. 19 [5] Existing section 102 Rules of Court 20 Insert at the end of section 102 (2): 21 (h) the making of elections by the spouses of intestates under 22 Chapter 4. 23 [6] Schedule 1 Savings, transitional and other provisions 24 Insert at the end of clause 1 (1): 25 Succession Amendment (Intestacy) Act 2009 26 [7] Schedule 1, clause 2, definition of "repealed provisions" 27 Insert "to this Act (as in force immediately before Schedule 2 was repealed by 28 the Statute Law (Miscellaneous Provisions) Act (No 2) 2008)" after 29 "Schedule 2". 30 Page 20
Succession Amendment (Intestacy) Bill 2009 Amendment of Succession Act 2006 No 80 Schedule 1 [8] Schedule 1, Part 3 1 Insert in appropriate order at the end of clause 9: 2 the 1916 provisions means Part 2 of the Testator's Family 3 Maintenance and Guardianship of Infants Act 1916 as in force 4 before its repeal by the Succession Amendment (Intestacy) 5 Act 2009. 6 [9] Schedule 1, Part 3 7 Insert after clause 11 (4): 8 (5) The 1916 provisions continue to apply in relation to any estate of 9 a person who died before the repeal of the provisions to which 10 those provisions would have applied but for the repeal. 11 [10] Schedule 1, Part 4 12 Insert after clause 11: 13 Part 4 Provisions consequent on enactment of 14 Succession Amendment (Intestacy) 15 Act 2009 16 12 Definition 17 In this Part: 18 amending Act means the Succession Amendment (Intestacy) 19 Act 2009. 20 13 Transitional provision--intestacy 21 (1) Chapter 4 (Intestacy) applies to the distribution of the intestate 22 estate of a person who dies intestate on or after the 23 commencement of this clause. 24 (2) The distribution of the intestate estate of a person who died 25 intestate before the commencement of this clause is governed by 26 the law of this State as in force at the date of death. 27 Page 21
Succession Amendment (Intestacy) Bill 2009 Schedule 2 Amendment of other Acts Schedule 2 Amendment of other Acts 1 2.1 Adoption Act 2000 No 75 2 [1] Section 95 General effect of adoption orders 3 Insert at the end of section 95 (2): 4 Note. For example, for the purposes of a distribution on intestacy, an 5 adopted child is regarded as a child of the adoptive parent or parents and 6 the child's family relationships are determined accordingly. See section 7 109 of the Succession Act 2006. 8 [2] Section 97 Effect of orders as regards property 9 Omit section 97 (2) and the note to the subsection. 10 [3] Section 99 Relationship of adopted child to other children of the adopter 11 Omit "Probate and Administration Act 1898" from section 99 (1) (a). 12 Insert instead "Succession Act 2006". 13 [4] Schedule 3 Savings, transitional and other provisions 14 Insert at the end of clause 1 (1): 15 Succession Amendment (Intestacy) Act 2009, to the extent that it 16 amends this Act 17 [5] Schedule 3, Part 5 18 Insert after Part 4: 19 Part 5 Provision consequent on enactment of 20 Succession Amendment (Intestacy) 21 Act 2009 22 23 Persons dying wholly or partially intestate before commencement 23 of Succession Amendment (Intestacy) Act 2009 24 The repeal of section 97 (2) by the Succession Amendment 25 (Intestacy) Act 2009 does not apply to or in respect of the estate 26 of a person who died wholly or partially intestate before that 27 repeal, and any such estate is to be distributed in accordance with 28 the enactments and rules of law in force at the date of death of that 29 person. 30 Page 22
Succession Amendment (Intestacy) Bill 2009 Amendment of other Acts Schedule 2 2.2 Conveyancing Act 1919 No 6 1 [1] Section 33 Meaning of heir, next of kin, or statutory next of kin of any 2 person 3 Omit "Division 2A of Part 2 of the Probate and Administration Act 1898 (as 4 in force after that commencement)" from section 33 (1). 5 Insert instead "the applicable intestacy rules". 6 [2] Section 33 (4) 7 Insert after section 33 (3): 8 (4) In subsection (1): 9 applicable intestacy rules means: 10 (a) for a will coming into operation, or an instrument made, 11 before the repeal of Division 2A of Part 2 of the Probate 12 and Administration Act 1898--that Division as in force 13 immediately before its repeal, and 14 (b) for a will coming into operation, or an instrument made, 15 after the repeal of that Division--Chapter 4 (Intestacy) of 16 the Succession Act 2006. 17 2.3 District Court Act 1973 No 9 18 Section 134 Jurisdiction in equity proceedings 19 Insert "(as in force immediately before that Act was amended by the 20 Succession Amendment (Intestacy) Act 2009)" after "1916" wherever 21 occurring. 22 2.4 Powers of Attorney Act 2003 No 53 23 [1] Section 24 Effect of disposal of home shared by spouses under enduring 24 power of attorney in cases of intestacy 25 Omit the section. 26 Page 23
Succession Amendment (Intestacy) Bill 2009 Schedule 2 Amendment of other Acts [2] Schedule 5 Savings, transitional and other provisions 1 Insert after Part 2: 2 Part 3 Provision consequent on Succession 3 Amendment (Intestacy) Act 2009 4 4 Effect of disposal of home shared by spouses under enduring 5 power of attorney 6 Section 24, as in force immediately before its repeal by the 7 Succession Amendment (Intestacy) Act 2009, continues to apply 8 to a spouse of a principal under an enduring power of attorney 9 who dies intestate before the repeal and to whom it would have 10 applied before the repeal as if it had not been repealed. 11 2.5 Probate and Administration Act 1898 No 13 12 [1] Section 32G Interpretation 13 Omit the definition of de facto spouse from section 32G (1). Insert instead: 14 de facto spouse, in relation to a person dying wholly or partly 15 intestate, means someone who was a partner in a de facto 16 relationship with the person. 17 [2] Section 40A Evidence or presumption of death 18 Omit "Testator's Family Maintenance and" from section 40A (2). 19 [3] Section 40A 20 Omit "Chapter 3 of" from section 40A (2). 21 [4] Section 53 Value to be accepted instead of partition 22 Omit "in a dwelling-house in respect of which the spouse has exercised the 23 right conferred by section 61D". 24 Insert instead "in real estate the spouse has elected to acquire under section 25 115 (Spouse's right of election) of the Succession Act 2006". 26 [5] Part 2, Division 2A Distribution of intestate estates 27 Omit the Division. 28 [6] Section 62 Practice as to granting administration of real and personal 29 estate of intestate 30 Insert "or Chapter 4 of the Succession Act 2006" after "rules". 31 Page 24
Succession Amendment (Intestacy) Bill 2009 Amendment of other Acts Schedule 2 [7] Section 62 (2) 1 Insert at the end of section 62: 2 (2) Without limiting subsection (1), if a person dies wholly intestate 3 the real and personal estate of the person is to be distributed or 4 held in trust in accordance with Chapter 4 of the Succession Act 5 2006, and the real estate of that person is to be held as if it were 6 devised to the persons for whom it is held in trust. 7 [8] Section 84A Interest on legacies and annuities 8 Omit "6 per cent per year" from section 84A (1). Insert instead "the relevant 9 rate". 10 [9] Section 84A (3) 11 Insert after section 84A (2): 12 (3) In this section, relevant rate of interest means the rate that lies 13 2% above the cash rate last published by the Reserve Bank of 14 Australia before 1 January in the calendar year in which interest 15 begins to accrue. 16 [10] Section 92 Distribution of assets after notice given by executor or 17 administrator 18 Insert "or section 125 (Sharing between spouses) or 126 (Distribution orders) 19 or Part 4.4 (Indigenous persons' estates)" after "rectified)" in section 92 (2). 20 [11] Fourth Schedule Rights of surviving spouse of intestate with respect to 21 acquisition of the shared home 22 Omit the Schedule. 23 [12] Fifth Schedule Savings and transitional provisions arising from 24 amendments to this Act 25 Insert after Part 2: 26 Part 3 Provision consequent on enactment of 27 Succession Amendment (Intestacy) 28 Act 2009 29 9 Persons dying wholly or partially intestate before commencement 30 of Succession Amendment (Intestacy) Act 2009 31 The amendments made to this Act by the Succession Amendment 32 (Intestacy) Act 2009 do not apply to or in respect of the estate of 33 a person who died wholly or partially intestate before the 34 Page 25
Succession Amendment (Intestacy) Bill 2009 Schedule 2 Amendment of other Acts commencement of those amendments, and any such estate is to 1 be distributed in accordance with the enactments and rules of law 2 in force at the date of death of that person. 3 2.6 Testator's Family Maintenance and Guardianship of Infants 4 Act 1916 No 41 5 [1] Section 1 Name of Act 6 Omit "Testator's Family Maintenance and". 7 [2] Part 2 Testator's family maintenance 8 Omit the Part. 9 Page 26
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