SUCCESSION AMENDMENT (INTESTACY) ACT 2009 - SCHEDULE 2

This legislation has been repealed.

SUCCESSION AMENDMENT (INTESTACY) ACT 2009 - SCHEDULE 2

SCHEDULE 2 – Amendment of other Acts

2.1 - Adoption Act 2000 No 75

[1] Section 95 General effect of adoption orders

Insert at the end of section 95 (2):

Note: For example, for the purposes of a distribution on intestacy, an adopted child is regarded as a child of the adoptive parent or parents and the child's family relationships are determined accordingly. See section 109 of the Succession Act 2006 .

[2] Section 97 Effect of orders as regards property

Omit section 97 (2) and the note to the subsection.

[3] Section 99 Relationship of adopted child to other children of the adopter

Omit " Probate and Administration Act 1898 " from section 99 (1) (a).

Insert instead " Succession Act 2006 ".

[4] Schedule 3 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

Succession Amendment (Intestacy) Act 2009 , to the extent that it amends this Act

[5] Schedule 3, Part 5

Insert after Part 4:

Part 5 - Provision consequent on enactment of Succession Amendment (Intestacy) Act 2009

23 Persons dying wholly or partially intestate before commencement of Succession Amendment (Intestacy) Act 2009 The repeal of section 97 (2) by the Succession Amendment (Intestacy) Act 2009 does not apply to or in respect of the estate of a person who died wholly or partially intestate before that repeal, and any such estate is to be distributed in accordance with the enactments and rules of law in force at the date of death of that person.

2.2 - Conveyancing Act 1919 No 6

[1] Section 33 Meaning of heir, next of kin, or statutory next of kin of any person

Omit "Division 2A of Part 2 of the Probate and Administration Act 1898 (as in force after that commencement)" from section 33 (1).

Insert instead "the applicable intestacy rules".

[2] Section 33 (4)

Insert after section 33 (3):

(4) In subsection (1):

"applicable intestacy rules" means:

(a) for a will coming into operation, or an instrument made, before the repeal of Division 2A of Part 2 of the Probate and Administration Act 1898 --that Division as in force immediately before its repeal, and

(b) for a will coming into operation, or an instrument made, after the repeal of that Division--Chapter 4 (Intestacy) of the Succession Act 2006 .

2.3 - District Court Act 1973 No 9

Section 134 Jurisdiction in equity proceedings

Insert "(as in force immediately before that Act was amended by the Succession Amendment (Intestacy) Act 2009 )" after " 1916 " wherever occurring.

2.4 - Powers of Attorney Act 2003 No 53

[1] Section 24 Effect of disposal of home shared by spouses under enduring power of attorney in cases of intestacy

Omit the section.

[2] Schedule 5 Savings, transitional and other provisions

Insert after Part 2:

Part 3 - Provision consequent on Succession Amendment (Intestacy) Act 2009

4 Effect of disposal of home shared by spouses under enduring power of attorney Section 24, as in force immediately before its repeal by the Succession Amendment (Intestacy) Act 2009 , continues to apply to a spouse of a principal under an enduring power of attorney who dies intestate before the repeal and to whom it would have applied before the repeal as if it had not been repealed.

2.5 - Probate and Administration Act 1898 No 13

[1] Section 32G Interpretation

Omit the definition of "de facto spouse" from section 32G (1). Insert instead:

"de facto spouse", in relation to a person dying wholly or partly intestate, means someone who was a partner in a de facto relationship with the person.

[2] Section 40A Evidence or presumption of death

Omit " Testator's Family Maintenance and " from section 40A (2).

[3] Section 40A

Omit "Chapter 3 of" from section 40A (2).

[4] Section 53 Value to be accepted instead of partition

Omit "in a dwelling-house in respect of which the spouse has exercised the right conferred by section 61D".

Insert instead "in real estate the spouse has elected to acquire under section 115 (Spouse's right of election) of the Succession Act 2006 ".

[5] Part 2, Division 2A Distribution of intestate estates

Omit the Division.

[6] Section 62 Practice as to granting administration of real and personal estate of intestate

Insert "or Chapter 4 of the Succession Act 2006 " after "rules".

[7] Section 62 (2)

Insert at the end of section 62:

(2) Without limiting subsection (1), if a person dies wholly intestate the real and personal estate of the person is to be distributed or held in trust in accordance with Chapter 4 of the Succession Act 2006 , and the real estate of that person is to be held as if it were devised to the persons for whom it is held in trust.

[8] Section 84A Interest on legacies and annuities

Omit "6 per cent per year" from section 84A (1). Insert instead "the relevant rate".

[9] Section 84A (3)

Insert after section 84A (2):

(3) In this section, "relevant rate" of interest means the rate that lies 2% above the cash rate last published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue.

[10] Section 92 Distribution of assets after notice given by executor or administrator

Insert "or section 125 (Sharing between spouses) or 126 (Distribution orders) or Part 4.4 (Indigenous persons' estates)" after "rectified)" in section 92 (2).

[11] Fourth Schedule Rights of surviving spouse of intestate with respect to acquisition of the shared home

Omit the Schedule.

[12] Fifth Schedule Savings and transitional provisions arising from amendments to this Act

Insert after Part 2:

Part 3 - Provision consequent on enactment of Succession Amendment (Intestacy) Act 2009

9 Persons dying wholly or partially intestate before commencement of Succession Amendment (Intestacy) Act 2009 The amendments made to this Act by the Succession Amendment (Intestacy) Act 2009 do not apply to or in respect of the estate of a person who died wholly or partially intestate before the commencement of those amendments, and any such estate is to be distributed in accordance with the enactments and rules of law in force at the date of death of that person.

2.6 - Testator's Family Maintenance and Guardianship of Infants Act 1916 No 41

[1] Section 1 Name of Act

Omit " Testator's Family Maintenance and ".

[2] Part 2 Testator's family maintenance

Omit the Part.