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JUSTICE LEGISLATION AMENDMENT (SUCCESSION AND SURROGACY) ACT 2014 (NO. 80 OF 2014) - SECT 28 New sections 21A to 21D inserted

JUSTICE LEGISLATION AMENDMENT (SUCCESSION AND SURROGACY) ACT 2014 (NO. 80 OF 2014) - SECT 28

New sections 21A to 21D inserted

After section 21 of the Wills Act 1997 insert

        " 21A     Information which the Court may require in support of an application under section 21

In proceedings for the hearing of an application for an order under section 21 , the applicant, if required by the Court, must give the following—

        (a)     a written statement of the general nature of the application and the reasons for making it;

        (b)     a reasonable estimate, formed from any evidence available to the applicant, of the size and character of the estate of the person on whose behalf the will is to be made;

        (c)     a draft of the proposed will for which the applicant is seeking the Court's approval;

        (d)     any evidence available to the applicant of the wishes of the person;

        (e)     any evidence available to the applicant of the ability of the person to participate in the proceedings and express the person's wishes;

        (f)     any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity;

        (g)     any evidence available to the applicant of the terms of any will previously made by the person;

        (h)     any evidence available to the applicant of the likelihood of an application for a family provision order being made under Part IV of the Administration and Probate Act 1958 in respect of the property of the person;

              (i)     any evidence available to the applicant of the circumstances of any person for whom provision might reasonably be expected to be made under the will;

        (j)     any evidence available to the applicant of any persons who might be entitled to claim on intestacy;

        (k)     any evidence available to the applicant of any gift for a charitable or other purpose that the person might reasonably be expected to give or make by will;

        (l)     any other evidence available to the applicant and which is relevant to the application.

        21B     Matters of which the Court must be satisfied before making an order under section 21

Before making an order under section 21, the Court must be satisfied that—

        (a)     the person on whose behalf the will is to be made or revoked does not have testamentary capacity; and

        (b)     the proposed will or revocation reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if the person had testamentary capacity; and

        (c)     it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will for the person.

        21C     Persons entitled to appear

Each of the following persons is entitled to appear and be heard in any proceedings for the hearing of an application for an order under section 21

        (a)     the person on whose behalf the will is to be made;

        (b)     an Australian legal practitioner representing that person;

        (c)     an attorney appointed by that person under an enduring power of attorney;

        (d)     any guardian or administrator of the person within the meaning of the Guardianship and Administration Act 1986 ;

        (e)     any other person who has, in the opinion of the Court, a genuine interest in the matter.

        21D     Court may order separate representation of person lacking testamentary capacity

    (1)     The Court, if it considers it appropriate to do so, may—

        (a)     order that a person on whose behalf a will is proposed to be made or revoked under section 21 be separately represented;

        (b)     make any order it considers necessary to secure that representation.

    (2)     An order under subsection (1) may be made—

        (a)     on the Court's own motion; or

        (b)     on the application of any person entitled to be heard in a proceeding under this Division.".

        29Hearing an application for an order

    (1)     In section 22(1)(a) of the Wills Act 1997 , for "in support of an application for leave under section 28" substitute "under section 21A".

    (2)     After section 22(2) of the Wills Act 1997 insert

    "(3)     In making an order under section 21, the Court may make any necessary related orders or directions.".

        30     Sections 23, 26, 27, 28 and 29 repealed

Sections 23, 26, 27, 28 and 29 of the Wills Act 1997 are repealed .

        31     New sections 53, 54 and 55 inserted

After section 52A of the Wills Act 1997 insert

        "     53     Transitional provision—Court authorised wills—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

Despite the amendment of this Act by Part 5 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 , Division 2 of Part 3 of this Act, as in force immediately before the commencement of Part 5 of that Act, continues to apply to an application or proceeding commenced under Division 2 of Part 3 before the amendment as if those amendments had not been made.

        54     Power to resolve transitional difficulties in proceeding—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

    (1)     If any difficulty arises because of the operation of Part 5 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 in relation to an application or a proceeding under this Act, the Court may make any order it considers appropriate to resolve the difficulty.

    (2)     An order made under subsection (1)—

        (a)     may be made on application of a party to the application or proceeding or on the Court's own motion; and

        (b)     has effect despite any provision to the contrary made by or under any Act (other than the Charter of Human Rights and Responsibilities Act 2006 ).

        55     Regulations dealing with transitional matters—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

    (1)     The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of Part 5 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 , including any repeals and amendments made by that Part of that Act.

    (2)     Regulations made under this section may—

        (a)     have a retrospective effect to a day on or from the date that the Justice Amendment Legislation (Succession and Surrogacy) Act 2014 receives the Royal Assent;

        (b)     be of limited or general application;

        (c)     differ according to differences in time, place or circumstances;

        (d)     leave any matter or thing to be decided by a specified person or specified class of persons;

        (e)     provide for the exemption of persons, applications or proceedings or a class of persons, applications or proceedings from any of the regulations made under this section.

    (3)     Regulations made under this section have effect despite anything to the contrary—

        (a)     in any Act (other than Part 5 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 or the Charter of Human Rights and Responsibilities Act 2006 ); or

        (b)     in any subordinate instrument.

    (4)     This section is repealed on the second anniversary of the day on which it comes into operation.".

__________________

        32     Interpretation

See:

Act No.

8602.

Reprint No. 3

as at

1 May 2013.

LawToday:

www.

legislation.

vic.gov.au

    (1)     In section 17(1) of the Status of Children Act 1974 insert the following definitions—

""corresponding interstate surrogacy law" means a prescribed law of another Australian State or a Territory relating to parentage of a child born under a surrogacy arrangement;

"corresponding surrogacy parentage order" means an order—

        (a)     relating to legal parentage of a child born under a surrogacy arrangement; and

        (b)     that is made under a prescribed provision of a corresponding interstate surrogacy law;

registration order has the meaning given in section 29A;".

    (2)     For section 17(2) of the Status of Children Act 1974 substitute

    "(2)     In this Part, a reference to the surrogate mother's partner means—

        (a)     in relation to a child conceived in Victoria under a surrogacy arrangement, the person who was the surrogate mother's partner at the time the surrogacy arrangement was entered into;

    (b)     in relation to a child conceived in another Australian State or a Territory under a surrogacy arrangement, the person who, under the corresponding interstate surrogacy law of that Australian State or Territory, was the surrogate mother's partner, however described under that law.".

        33     Surrogacy arrangements—presumption as to status of child

For section 19 of the Status of Children Act 1974 substitute

        "     19     Surrogacy arrangements—presumption as to status of child

Subject to Part VII, the presumptions of law that arise under Part II, III or V apply in respect of a child that is born as a result of a surrogacy arrangement but do not prevail over a substitute parentage order or a corresponding parentage order if a registration order has also been made in respect of the same surrogacy arrangement.

Note

Part VII contains transitional provisions that are relevant to the application of the presumptions of law that arise under Parts III and V in certain cases.".

        34     New section 22A inserted    

After section 22 of the Status of Children Act 1974 insert

        " 22A     Registrar of Births, Deaths and Marriages must notify Australian State or Territory registering authority of orders

    (1)     The Registrar of Births, Deaths and Marriages must notify the registering authority of another Australian State or a Territory if the Registrar of Births, Deaths and Marriages is notified—

        (a)     that the birth of a child born under a surrogacy arrangement is registered in that Australian State or Territory; and

        (b)     that a substitute parentage order has been made or discharged by the court under this Act in relation to that child.

    (2)     In this section registering authority has the same meaning as it has in section 4 of the Births, Deaths and Marriages Registration Act 1996 .".

        35     New Division 2A of Part IV inserted

After Division 2 of Part IV of the Status of Children Act 1974 insert

" Division 2A—Registration orders

        29A     What is a registration order?

A registration order directs the Registrar of Births, Deaths and Marriages to register the birth of a child born under a surrogacy arrangement in accordance with section 19B of the Births, Deaths and Marriages Registration Act 1996 .

        29B     Application for a registration order

    (1)     The commissioning parents of a child born under a surrogacy arrangement may apply for a registration order if—

        (a)     the child was conceived under the surrogacy arrangement in another Australian State or a Territory; and

        (b)     the child was born in Victoria; and

        (c)     a corresponding surrogacy parentage order has been made in favour of the commissioning parents.

    (2)     Before the court hears the application, the commissioning parents must file with the court—

        (a)     a certified copy of the child's birth certificate; and

        (b)     a copy of the sealed corresponding surrogacy parentage order.

        29C     Applicant must give notice of hearing

An applicant for a registration order must notify the Secretary of the Department of Justice in writing of an application for a registration order at least 14 days before the hearing of the application.

        29D     Secretary of the Department of Justice has standing to appear at hearing

    (1)     Subject to subsection (2), the Secretary of the Department of Justice is entitled to appear or be represented at the hearing of an application for a registration order.

    (2)     The absence of the Secretary of the Department of Justice or the Secretary's representative does not prevent the court from making any order.

    (3)     Nothing in this section requires the Secretary of the Department of Justice to appear or be represented at the hearing of an application for a registration order.

        29E     Court may make registration order

    (1)     The court may make a registration order if satisfied that—

        (a)     making the order is in the best interests of the child; and

        (b)     the commissioning parents did not enter into the surrogacy arrangement for the purpose of avoiding requirements under this Part or the Assisted Reproductive Treatment Act 2008 that would have applied to the arrangement if the child had been conceived in Victoria; and

        (c)     at the time the surrogacy arrangement was entered into, the commissioning parents had a genuine connection to the Australian State or Territory in which the child was conceived; and

        (d)     the child was living with at least one of the commissioning parents at the time the application for the registration order was made; and

s. 35

        (e)     the surrogate mother and, if her partner is a party to the arrangement, her partner have not received any material benefit or advantage from the surrogacy arrangement; and

        (f)     the surrogate mother freely consents to the making of the order; and

        (g)     the surrogate mother was at least 25 years of age before entering into the surrogacy arrangement.

    (2)     If the surrogate mother's partner is a party to the surrogacy arrangement, before making a registration order the court must also consider whether her partner consents to the making of the order.

    (3)     For the purposes of subsection (1)(e), material benefit or advantage does not include any reimbursement of costs permitted by—

        (a)     the relevant corresponding interstate surrogacy law; or

        (b)     any prescribed law of the other Australian State or Territory in which the corresponding surrogacy parentage order was made.

    (4)     On making a registration order, the court may make any consequential or ancillary order it thinks fit in the interests of justice or in the best interests of the child whose birth registration is affected having regard to—

        (a)     the registration order; and

        (b)     any order made in respect of the child in another Australian State or a Territory, including an order made under the corresponding interstate surrogacy law of that Australian State or Territory.

        29F     Circumstances in which consent to registration order not required

    (1)     Despite section 29E(1)(f), the court may dispense with consent of the surrogate mother if satisfied—

        (a)     that the commissioning parents cannot, after reasonable inquiries, find the surrogate mother; or

        (b)     that the surrogate mother is deceased; or

        (c)     on evidence given in accordance with subsection (4), that the surrogate mother is, and is likely to continue to be, in such a physical or mental condition as to be incapable of properly considering whether to give consent.

    (2)     Despite section 29E(2), the court may dispense with consent of the surrogate mother's partner if satisfied—

        (a)     that the commissioning parents cannot, after reasonable inquiries, find the surrogate mother's partner; or

        (b)     that the surrogate mother's partner is deceased; or

        (c)     on evidence given in accordance with subsection (4), that the surrogate mother's partner is, and is likely to continue to be, in such a physical or mental condition as to be incapable of properly considering whether to give consent.

    (3)     For the purposes of subsections (1)(a) and (2)(a), the commissioning parents have made reasonable inquiries if they have—

        (a)     sent the person a letter, by registered post, to the person's last known place of residence and seeking the person's consent; and

        (b)     sent a letter referred to in paragraph (a) to the address of any other person that the commissioning parents believe may know where the person may be found; and

        (c)     made any other enquiries the court determines.

    (4)     For the purposes of subsections (1)(c) and (2)(c), the evidence required is a certificate signed by at least two persons registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student) certifying as to the matters referred to in that paragraph.

        29G     Application to revoke registration order

    (1)     The following persons may apply for an order revoking a registration order—

        (a)     the Attorney-General;

        (b)     the Secretary of the Department of Justice;

        (c)     a child whose birth registration was affected by the registration order and who has reached the age of 18 years.

    (2)     Any person may apply for leave to intervene in an application under subsection (1) and the court may make an order entitling the person to intervene in the application.

    (3)     A person who is permitted under subsection (2) to intervene in an application under subsection (1) is to be treated as a party to the application with all the rights, duties and liabilities of a party, unless the court orders otherwise.

        29H     Court may revoke registration order

    (1)     The court may revoke a registration order on an application under section 29G if satisfied—

        (a)     as to any of the following grounds—

              (i)     the registration order was obtained by fraud, duress, misleading the court or other improper means;

              (ii)     if a consent was required for the making of the registration order, the consent was not an effective consent because it was obtained by fraud, duress or material inducement;

              (iii)     there is an exceptional reason that the registration order should be revoked; and

        (b)     that the revocation of the registration order is in the best interests of the child whose birth registration would be affected.

    (2)     If the corresponding surrogacy parentage order is discharged by the court that made it, the court must revoke a registration order on an application under section 29G without being satisfied as to any matter in subsection (1).

    (3)     The court must not make an order under subsection (1) or (2) revoking a registration order unless the court is satisfied that reasonable efforts have been made to give notice of the application to—

        (a)     the surrogate mother of the child whose birth registration would be affected; and

        (b)     if the surrogate mother had a partner who was also a party to the surrogacy arrangement, that partner; and

        (c)     each of the commissioning parents; and

        (d)     if the court considers it appropriate having regard to the child's age, the child whose birth registration would be affected.

    (4)     On making an order revoking a registration order, the court may make any consequential or ancillary order it thinks fit in the interests of justice or in the best interests of the child whose birth registration is affected having regard to any order made in respect of the child in another Australian State or a Territory, including an order made under the corresponding interstate surrogacy law of that Australian State or Territory.

    (5)     For the purposes of subsection (1)(a)(ii), material inducement does not include any reimbursement of costs permitted by—

        (a)     the relevant corresponding interstate surrogacy law; or

        (b)     any prescribed law of the other Australian State or Territory in which the corresponding surrogacy parentage order was made.

        29I     Notification of discharged corresponding surrogacy parentage order

    (1)     If the Registrar of Births, Deaths and Marriages is notified that a corresponding surrogacy parentage order has been discharged, the Registrar, as soon as practicable, must notify the Attorney-General and the Secretary of the Department of Justice in writing of that fact.

    (2)     A failure of the Registrar of Births, Deaths and Marriages to notify a person under subsection (1) does not prevent an application being made under section 29G.".

        36     Heading to Subdivision 3 of Division 2 substituted

For the heading to Subdivision 3 of Division 2 of Part IV of the Status of Children Act 1974 substitute

" Division 2B—Appeals ".

        37     Appeals

In section 30(2) of the Status of Children Act 1974 , after " section 27" insert "or 29G".

        38     Section 31 substituted

For section 31 of the Status of Children Act 1974 substitute

        "     31     Registrar of Births, Deaths and Marriages to receive copy of orders

    (1)     The court must give a sealed copy of the order to the Registrar of Births, Deaths and Marriages if the court makes—

        (a)     a substitute parentage order; or

        (b)     an order discharging a substitute parentage order; or

        (c)     a registration order; or

        (d)     an order revoking a registration order.

    (2)     If the court makes a registration order, the court must also give to the Registrar of Births, Deaths and Marriages a copy of the sealed copy of the corresponding surrogacy parentage order.".

        39     Access to court records

In section 34(2)(e) of the Status of Children Act 1974 , after " section 27" insert "or 29G".

        40     Transitional—application of Part IV

After section 46(3) of the Status of Children Act 1974 insert

    "(4)     On and from the commencement of Part 6 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 , this section applies subject to section 48.".

        41     New Part VIII inserted

After Part VII of the Status of Children Act 1974 insert

" PART VIII—TRANSITIONAL PROVISIONS—JUSTICE LEGISLATION AMENDMENT (SUCCESSION AND SURROGACY) ACT 2014

        48     Registration orders—application to surrogacy arrangements before commencement of Part

    (1)     Subject to this section, Part IV, as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 , applies to an application for a registration order in respect of a surrogacy arrangement entered into before the commencement of Part 6 of that Act.

    (2)     If the surrogacy arrangement was entered into before 1 January 2010—

        (a)     the court may make a registration order under section 29E if satisfied that the making of the order is in the best interests of the child; and

        (b)     the requirements of sections 29C, 29D and 29E do not otherwise apply to the making of the order.

    (3)     If the surrogacy arrangement was entered into on or after 1 January 2010 but before the commencement of Part 6 of the Justice Legislation Amendment (Succession and Surrogacy) Act 2014

        (a)     the court may make an order under section 29E if satisfied as to the matters in section 29E(1)(a) to (c); and

        (b)     the requirements of section 29E do not otherwise apply to the making of the order.

__________________".

        42     Heading to section 19A amended

See:

Act No.

43/1996.

Reprint No. 3

as at

21 July 2011

and

amending

Act Nos

68/2013 and 44/2014.

LawToday:

www.

legislation.

vic.gov.au

In the heading to section 19A of the Births, Deaths and Marriages Registration Act 1996 , for " registration " substitute " registration—substitute parentage orders ".

        43     New section 19B inserted

After section 19A of the Births, Deaths and Marriages Registration Act 1996 insert

        ' 19B     Surrogate birth registration—corresponding surrogacy parentage orders

    (1)     If the court makes a registration order under the Status of Children Act 1974 , on receipt of a sealed copy of the registration order and a copy of the sealed copy of the corresponding surrogacy parentage order the Registrar must—

        (a)     register the surrogacy by entering the prescribed particulars in the Surrogate Birth Register; and

        (b)     mark the words "closed—surrogate" against the original birth entry in the Register.

    (2)     If the court makes an order under the Status of Children Act 1974 revoking a registration order, on receipt of the sealed copy of that order the Registrar must—

        (a)     cancel the relevant entry in the Surrogate Birth Register; and

        (b)     remove the words "closed—surrogate" from the original birth entry in the Register.

    (3)     In this section—

corresponding surrogacy parentage order and registration order have the meanings given in section 17 of the Status of Children Act 1974 .'.

__________________

See:

Act No.

8602.

Reprint No. 3

as at

1 May 2013.

LawToday:

www.

legislation.

vic.gov.au

        44     Protection of executors, administrators and trustees

In section 6(1) of the Status of Children Act 1974 after "any application" insert "for a family provision order".

        45     Recognition of paternity

In section 7(1) of the Status of Children Act 1974 after "claim" insert "for a family provision order".

        46     Election by trustee company to administer estate

See:

Act No.

10168.

Reprint No. 5

as at

20/05/2009

and amending

Act Nos

68/2009 and 17/2010.

LawToday:

www.

legislation.

vic.gov.au

Section 11A of the Trustee Companies Act 1984 is repealed .

        47     Statute law revision

The heading to the Schedules to the Trustee Companies Act 1984 is repealed .

See:

Act No.

88/1997.

Reprint No. 2

as at

19/04/2013.

LawToday:

www.

legislation.

vic.gov.au

        48     Information which the Court may require in support of an application for leave

In section 28(g) of the Wills Act 1997 after "an application" insert "for a family provision order".

        49     Can a will be rectified?

In section 31(4)(b)(i) of the Wills Act 1997 after "or any application" insert "for a family provision order".

        50     Beneficiaries must survive testator by 30 days

In section 39(4) of the Wills Act 1997 after "an application" insert "for a family provision order".

__________________

PART 8—REPEAL

        51     Repeal of amending Act

This Act is repealed on 1 July 2016.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984 ).

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