Victorian Consolidated Legislation

Administration and Probate Act 1958 - SECT 37A

Partner may obtain intestate's interest in shared home4

37A. Partner may obtain intestate's interest in shared home4









(1) In this section-

residuary estate has the same meaning as in section 38(4);

shared home means a residence that was the principal place of residence of an
intestate and the intestate's partner at the time of the intestate's death.



(2) Despite anything to the contrary in this Act, if a person dies intestate
as to an interest in the person's shared home, the person's partner may elect
to acquire the interest at its value at the date of the person's death.

(3) The election must be made-

   (a)  if the partner is a personal representative-within 3 months of the
        grant of administration; or



   (b)  if the partner is not a personal representative-within 3 months of the
        partner being given notice under subsection (4).

(4) If-





   (a)  a person dies intestate as to an interest in his or her shared home;
        and



   (b)  his or her partner is not the person's personal representative-

the personal representative must, within 30 days of the grant of
administration, give the partner a written notice informing the partner of his
or her rights under this section.

(5) An election must be given in writing-

   (a)  if the partner is a personal representative-to the registrar; and



   (b)  if the partner is not a personal representative-to the personal
        representative who sent the partner the notice requiring the election.

(6) If an intestate is also survived by a child or other issue-

   (a)  any notice under subsection (4); and

   (b)  any election under subsection (5)(a)-

must show the sworn value of the intestate's interest in the shared home at
the time of the intestate's death as fixed by a valuer.

(7) If the partner elects to acquire the intestate's interest in the shared
home-

   (a)  his or her share of the residuary estate is to be reduced by the value
        of the interest; and

   (b)  if the value of the interest is more than the amount of his or her
        share of the residuary estate, the partner must pay the difference
        into the intestate's estate-

   (i)  before the distribution of the residuary estate; or

   (ii) within 12 months of the making of the election-

whichever occurs first.

(8) If the partner elects to acquire the intestate's interest in the shared
home, the personal representative-



   (a)  must transfer the interest to the partner within a reasonable time-

   (i)  of receiving notice of the election; or

   (ii) if subsection (7)(b) applies, of the partner paying the amount of the
        difference into the estate; and

   (b)  in any event, must transfer the interest before the distribution of
        the residuary estate.

(9) A partner may acquire an interest under this section even though-

   (a)  he or she is a trustee; or

   (b)  he or she is a minor.

(10) If a shared home is part of a larger property and the intestate's
interest in the shared home cannot be severed from the intestate's interest in
the larger property without subdividing that property, a reference to the
shared home in this section is to be read as a reference to that property.

(11) Despite subsection (10), if a shared home is part of a farm, a reference
to the shared home in this section is to be read as a reference to the entire
farm.