Western Australian Bills

[Index] [Search] [Download] [Related Items] [Help]


This is a Bill, not an Act. For current law, see the Acts databases.


INHERITANCE (FAMILY AND DEPENDANTS PROVISION) AMENDMENT BILL 2007

                       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

 


[Index] [Search] [Download] [Related Items] [Help]