New South Wales Consolidated Acts

POWERS OF ATTORNEY ACT 2003 - SECT 24

24 Effect of disposal of home shared by spouses under enduring power of attorney in cases of intestacy

(1) This section applies to a spouse of a principal (the "interested spouse") under an enduring power of attorney who dies intestate (the "deceased principal") leaving the spouse and issue (within the meaning of section 61D of the Probate and Administration Act 1898 ), but only if:

(a) the attorney under the power of attorney sold or otherwise disposed of the principal’s interest in a dwelling house (the "former shared home") that was occupied by the deceased principal and deceased principal’s spouse as their, or the spouse’s, only or principal residence at the time of the sale or disposal, and

(b) the spouse would have had the right to require the administrator of the deceased principal’s estate to hold that interest in the former shared home in trust for the spouse under section 61D of the Probate and Administration Act 1898 if:

(i) the interest had not been sold or otherwise disposed of, and

(ii) the former shared home had continued to be their, or the spouse’s, only or principal residence at the time of the deceased principal’s death, and

(c) the deceased principal did not have an interest in another dwelling house that was occupied by the deceased principal and the spouse as their, or the spouse’s, only or principal residence at the time of the deceased principal’s death in respect of which the spouse has a right under section 61D of the Probate and Administration Act 1898 to require the administrator of the deceased principal’s estate to hold that interest in trust for the spouse.

(2) For the purposes of subsection (3):
"the disposal value" of the interest in a former shared home of an interested spouse is the amount for which the interest in the shared home was sold or otherwise disposed of under the power of attorney.
"the shortfall" is any amount by which the value of the share of the deceased principal’s estate to which an interested spouse would, but for this subsection, have been entitled under section 61B (3) (b) and (c) of the Probate and Administration Act 1898 is less than the disposal value of the spouse’s interest in the former shared home.

(3) If the value of the deceased principal’s estate after excluding the value of household chattels (the "nett value of the estate"):

(a) is greater than the disposal value of the spouse’s interest in the former shared home:

(i) the share of the spouse under section 61B (3) of that Act is taken to be increased by the amount of the shortfall up to a maximum of the nett value of the estate, and

(ii) the share of the issue under section 61B (3) of that Act is taken to be correspondingly reduced, or

(b) is equal to or less than the disposal value of the spouse’s interest in the former shared home:

(i) the share of the spouse under section 61B (3) of that Act is taken to be the value of the whole estate (including household chattels), and

(ii) the issue are taken not to be entitled to a share of the deceased principal’s estate under section 61B (3) of that Act.

(4) Nothing in this section affects the operation of section 61B (3) of the Probate and Administration Act 1898 in relation to an interested spouse if the value of the share of the deceased principal’s estate to which the spouse is entitled under section 61B (3) (b) and (c) of that Act is equal to or greater than the disposal value of the spouse’s interest in the former shared home.

(5) This section applies despite anything to the contrary in the Probate and Administration Act 1898 .