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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Inheritance (Family and Dependants Provision)
Amendment Bill 2007
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 2
Part 2 -- Inheritance (Family and
Dependants Provision) Act 1972
amended
4. Short title amended 3
5. Section 4 amended 3
6. Section 5A inserted 4
5A. Crown bound 4
7. Section 6 amended 4
8. Section 6A inserted 5
6A. Interim order 5
9. Section 7 amended 5
10. Section 11 amended 7
11. Section 12 amended 7
12. Section 19 amended 7
13. Sections 20A and 20B inserted 7
20A. Evidence 7
20B. Regulations 10
Part 3 -- Other Acts amended
14. Administration Act 1903 amended 11
7A. Probate or administration for purpose of
Family Provision Act 1972 11
15. Trustees Act 1962 amended 12
234--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Inheritance (Family and Dependants Provision)
Amendment Bill 2007
A Bill for
An Act to amend the Inheritance (Family and Dependants Provision)
Act 1972 and other Acts, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Inheritance (Family and Dependants Provision)
Amendment Act 2007.
5 2. Commencement
This Act comes into operation as follows:
(a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
3. The Act amended
The amendments in this Act are to the Inheritance (Family and
Dependants Provision) Act 1972, unless otherwise indicated.
page 2
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Inheritance (Family and Dependants Provision) Act 1972 Part 2
amended
s. 4
Part 2 -- Inheritance (Family and Dependants
Provision) Act 1972 amended
4. Short title amended
Section 1 is amended by deleting "Inheritance (Family and
5 Dependants Provision) Act 1972." and inserting instead --
" Family Provision Act 1972. ".
5. Section 4 amended
Section 4(1) is amended by inserting in the appropriate
alphabetical positions --
10 "
"Aboriginal person" means a person who is wholly or
partly descended from the original inhabitants of
Australia;
"stepchild" means a person --
15 (a) who is not a child of the deceased, but who
is a child of --
(i) the deceased's spouse; or
(ii) a de facto partner of the deceased, if
the de facto partner is one in whose
20 favour the Court can make an order
under this Act;
and
(b) who was living at the date on which the
deceased --
25 (i) married that spouse; or
(ii) entered into a de facto relationship
with that de facto partner;
page 3
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Part 2 Inheritance (Family and Dependants Provision) Act 1972
amended
s. 6
"Torres Strait Islander" means person who is wholly
or partly descended from the original inhabitants
of the Torres Strait Islands;
".
5 6. Section 5A inserted
After section 5 the following section is inserted --
"
5A. Crown bound
This Act binds the Crown in right of the State and,
10 subject to the limits of the legislative power of the
State, the Crown in all its other capacities.
".
7. Section 6 amended
After section 6(4) the following subsections are inserted --
15 "
(5) If an order has been made or could have been made
under subsection (1) in favour of a person (the
"eligible person"), the Court may, on application by
an eligible person, make an order under subsection (1)
20 in favour of the eligible person in relation to the estate
only if at the time an order was made or could have
been made in favour of the eligible person --
(a) the evidence about the nature and extent of the
estate did not reveal the existence of certain
25 property (the "undisclosed property"); and
(b) the value of the undisclosed property would
have materially affected the provision that the
Court ordered or could have ordered be made
out of the estate in favour of the eligible person.
30 (6) Despite section 12(1), notice of an application under
subsection (5) in respect of an order that has been made
shall be served on all persons taking any benefit under
page 4
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Inheritance (Family and Dependants Provision) Act 1972 Part 2
amended
s. 8
the order and on such other persons as the Court may
direct.
".
8. Section 6A inserted
5 After section 6 the following section is inserted --
"
6A. Interim order
(1) Before making an order under section 6(1), the Court
may make an interim order if it is of the opinion that
10 such an order is necessary for the purpose of providing
those things immediately necessary for the
maintenance, support or education (including past
maintenance, support or education provided after the
death of the deceased) of any person who was totally or
15 partially dependent on the deceased immediately
before the deceased's death.
(2) If the Court makes an interim order, the Court must
proceed to determine an application under section 6(1)
by confirming, revoking or altering the interim order.
20 ".
9. Section 7 amended
Section 7(1) is amended as follows:
(a) in paragraph (c) by deleting "then en ventre sa mere;"
and inserting instead --
25 "
born within 10 months after the deceased's
death;
";
page 5
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Part 2 Inheritance (Family and Dependants Provision) Act 1972
amended
s. 9
(b) by deleting paragraph (d) and inserting instead --
"
(d) a grandchild of the deceased --
(i) who was being maintained wholly or
5 partly by the deceased immediately
before the deceased's death; or
(ii) who, at the date of the deceased's death,
was living and one of whose parents
was a child of the deceased who had
10 predeceased the deceased; or
(iii) who was born within 10 months after
the deceased's death and one of whose
parents was a child of the deceased who
had predeceased the deceased;
15 (da) a stepchild of the deceased who was being
maintained wholly or partly or was entitled to
be maintained wholly or partly by the deceased
immediately before the deceased's death;
(db) a stepchild of the deceased if the deceased had
20 received or was entitled to receive property
with a value greater than the prescribed amount
from the estate of a natural parent of the
stepchild;
(dc) an Aboriginal person or Torres Strait Islander
25 who, immediately before the deceased's
death --
(i) was in a kinship relationship with the
deceased recognised under the
customary law of the deceased; and
30 (ii) was being maintained wholly or partly
by the deceased;
";
page 6
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Inheritance (Family and Dependants Provision) Act 1972 Part 2
amended
s. 10
(c) in paragraph (e) by deleting "lawful wedlock" and
inserting instead --
" a legal marriage ".
10. Section 11 amended
5 Section 11 is amended by deleting "at the time of " and inserting
instead --
" immediately before ".
11. Section 12 amended
After section 12(2) the following subsection is inserted --
10 "
(3) Proceedings under this Act in relation to a deceased's
estate with a value less than the prescribed amount are
to be conducted speedily and with as little formality
and technicality as is practicable, and so as to minimise
15 the costs to parties.
".
12. Section 19 amended
Section 19 is amended by deleting "; and no such mortgage,
charge, or assignment given after the order of the Court is made
20 shall be of any force, validity, or effect unless it is given with
the permission of the Court or the Court at the time of making
the order otherwise directs".
13. Sections 20A and 20B inserted
After section 20 the following sections are inserted --
25 "
20A. Evidence
(1) In this section --
"document" includes any record of information;
page 7
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Part 2 Inheritance (Family and Dependants Provision) Act 1972
amended
s. 13
"statement" includes any representation of fact
whether or not in writing.
(2) In any proceedings under this Act, evidence of a
statement made by a deceased person shall, subject to
5 this section, be admissible as evidence of any fact
stated therein of which direct oral evidence by the
deceased person would, if the person were able to give
that evidence, be admissible.
(3) Subject to subsection (4) and unless the Court
10 otherwise orders, where a statement was made by a
deceased person during the person's lifetime otherwise
than in a document, no evidence other than direct
testimony (including oral evidence, evidence by
affidavit and evidence taken before a person directed to
15 take an examination or to whom any question or issue
of fact is referred for the purpose of the proceedings)
by a person who heard or otherwise perceived the
statement being made shall be admissible for the
purpose of proving it.
20 (4) Where a statement was made by a deceased person
during the person's lifetime while giving oral evidence
in a legal proceeding (being a civil or criminal
proceeding or inquiry in which evidence is or may be
given, or an arbitration), the statement may be proved
25 in any manner authorised by the Court.
(5) Where a statement made by a deceased person during
the person's lifetime was contained in a document, the
statement may be proved by the production of the
document or, whether or not the document is still in
30 existence, by leave of the Court, by the production of a
copy of the document, or of the material part of the
document, authenticated in such manner as the Court
may approve.
page 8
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Inheritance (Family and Dependants Provision) Act 1972 Part 2
amended
s. 13
(6) Where, under this section, a person proposes to tender,
or tenders, evidence of a statement contained in a
document, the Court may require that any other
document relating to the statement be produced and, in
5 default, may reject the evidence or, if it has been
received, exclude it.
(7) For the purpose of determining questions of
admissibility of a statement under this section, the
Court may draw any reasonable inference from the
10 circumstances in which the statement was made or
from any other circumstances including, in the case of
a statement contained in a document, the form or
content of the document.
(8) In estimating the weight, if any, to be attached to
15 evidence of a statement tendered for admission or
admitted under this section, regard shall be had to all
the circumstances from which any inference can
reasonably be drawn as to the accuracy or otherwise of
the statement, including the recency or otherwise, at
20 the time when the deceased person made the statement,
of any relevant matter dealt with in the statement and
the presence or absence of any incentive for the
deceased person to conceal or misrepresent any
relevant matter in the statement.
25 (9) Subject to subsection (11), where evidence of a
statement of a deceased person is admitted under this
section, evidence is admissible for the purpose of
destroying or supporting the credibility of the deceased
person.
30 (10) Subject to subsection (11), where evidence of a
statement of a deceased person is admitted under this
section, evidence is admissible for the purpose of
showing that the statement is inconsistent with another
statement made at any time by the deceased person.
page 9
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Part 2 Inheritance (Family and Dependants Provision) Act 1972
amended
s. 13
(11) No evidence of a matter is admissible under
subsection (9) or (10) in relation to a statement of a
deceased person where, if the deceased person had
been called as a witness and had denied the matter in
5 cross-examination, evidence would not be admissible if
adduced by the cross-examining party.
(12) This section applies notwithstanding the rules against
hearsay and that a statement is in such a form that it
would not be admissible if given as oral testimony, but
10 does not make admissible a statement of a deceased
person which is otherwise inadmissible.
(13) The exceptions to the rules against hearsay set out in
this section are in addition to the exceptions to the
hearsay rule set out in the Evidence Act 1906.
15 20B. Regulations
The Governor may make regulations prescribing an
amount for the purposes of sections 7(1)(db) and 12(3).
".
page 10
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Other Acts amended Part 3
s. 14
Part 3 -- Other Acts amended
14. Administration Act 1903 amended
(1) The amendments in this section are to the Administration
Act 1903.
5 (2) After section 7 the following section is inserted --
"
7A. Probate or administration for purpose of Family
Provision Act 1972
(1) The Court shall have jurisdiction to grant
10 administration in respect of the estate of a deceased
person in order to permit an application to be made
under the Family Provision Act 1972 if it is satisfied
that it is proper to make the grant, whether or not the
deceased person left property in this State.
15 (2) A grant of administration made under subsection (1)
shall be for the purposes only of making an application
under the Family Provision Act 1972.
(3) The Court may grant administration under
subsection (1) to any person who it is satisfied is an
20 eligible person under the Family Provision Act 1972
section 7(1) or to any person who it is satisfied intends
to make application under that Act on behalf of such an
eligible person.
(4) The granting of administration or probate in respect of
25 the estate of a deceased person under this or any other
provision of this Act shall not prevent the Court from
making a grant of administration under subsection (1)
or, unless expressly provided by the Court, affect any
such grant previously made.
page 11
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Part 3 Other Acts amended
s. 15
(5) Except in so far as the context or subject matter
otherwise indicates or requires --
(a) a reference in this Act to a grant of
administration of the estate of a deceased
5 person shall include a reference to a grant of
administration made under subsection (1); and
(b) a reference in this Act to an Administrator shall
include a reference to a person to whom
administration has been granted under
10 subsection (1).
".
(3) Section 60A is amended by deleting "Inheritance (Family and
Dependants Provision) Act 1972." and inserting instead --
" Family Provision Act 1972. ".
15 15. Trustees Act 1962 amended
(1) The amendments in this section are to the Trustees Act 1962.
(2) Section 65(5) is amended by deleting paragraph (a) and "or"
after it and inserting instead --
"
20 (a) where the claim is an application for an order
under the Family Provision Act 1972, unless --
(i) the application is made within the
period specified in section 7(2)(a) of
that Act; or
25 (ii) leave to file out of time has been given
under section 7(2)(b) of that Act;
or
".
page 12
Inheritance (Family and Dependants Provision) Amendment Bill 2007
Other Acts amended Part 3
s. 15
(3) In each place listed in the Table to this subsection "Inheritance
(Family and Dependants Provision) Act 1972" is deleted and
the following is inserted instead --
" Family Provision Act 1972 ".
5 Table
s. 63(10)(a) s. 65(2)(a)
s. 64(5)
page 13
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