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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 2011 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Inheritance (Family and Dependants Provision) Act 1972 amended 3. Act amended 3 4. Section 1 amended 3 5. Section 4 amended 3 6. Section 6A inserted 4 6A. Crown bound 4 7. Section 6 amended 4 8. Section 7A inserted 5 7A. Interim order 5 9. Section 7 amended 6 10. Section 11 amended 7 11. Section 19 amended 7 12. Section 20 amended 7 13. Sections 21A and 21B inserted 8 21A. Evidence 8 21B. Regulations 10 Part 3 -- Other Acts amended 14. Administration Act 1903 amended 11 15. Duties Act 2008 amended 11 16. Trustees Act 1962 amended 11 17. Wills Act 1970 amended 12 221--1 page i Western Australia LEGISLATIVE ASSEMBLY Inheritance (Family and Dependants Provision) Amendment Bill 2011 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 2011 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Inheritance (Family and Dependants Provision) 4 Amendment Act 2011. 5 2. Commencement 6 This Act comes into operation as follows -- 7 (a) sections 1 and 2 -- on the day on which this Act 8 receives the Royal Assent; 9 (b) the rest of the Act -- on a day fixed by proclamation, 10 and different days may be fixed for different provisions. page 2 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Inheritance (Family and Dependants Provision) Act 1972 Part 2 amended s. 3 1 Part 2 -- Inheritance (Family and Dependants 2 Provision) Act 1972 amended 3 3. Act amended 4 This Part amends the Inheritance (Family and Dependants 5 Provision) Act 1972. 6 4. Section 1 amended 7 In section 1 delete "Inheritance (Family and Dependants 8 Provision) Act 1972." and insert: 9 10 Family Provision Act 1972. 11 12 5. Section 4 amended 13 In section 4(1) insert in alphabetical order: 14 15 stepchild means a person -- 16 (a) who is not a child of the deceased, but who is a 17 child of -- 18 (i) the deceased's spouse; or 19 (ii) a de facto partner of the deceased, if the 20 de facto partner is one in whose favour 21 the Court can make an order under this 22 Act; 23 and 24 (b) who was living at the date on which the 25 deceased -- 26 (i) married that spouse; or 27 (ii) entered into a de facto relationship with 28 that de facto partner; 29 page 3 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Part 2 Inheritance (Family and Dependants Provision) Act 1972 amended s. 6 1 6. Section 6A inserted 2 After section 5 insert: 3 4 6A. Crown bound 5 This Act binds the State and, so far as the legislative 6 power of Parliament permits, the Crown in all its other 7 capacities. 8 9 7. Section 6 amended 10 After section 6(4) insert: 11 12 (5) If an order has been made or could have been made 13 under subsection (1) in favour of a person (the eligible 14 person), the Court may, on application by an eligible 15 person, make an order under subsection (1) in favour of 16 the eligible person in relation to the estate only if at the 17 time an order was made or could have been made in 18 favour of the eligible person -- 19 (a) the evidence about the nature and extent of the 20 estate did not reveal the existence of certain 21 property (the undisclosed property); and 22 (b) the value of the undisclosed property would 23 have materially affected the provision that the 24 Court ordered, or could have ordered, be made 25 out of the estate in favour of the eligible person. 26 (6) Despite section 12(1), notice of an application under 27 subsection (5) in respect of an order that has been made 28 must be served on all persons taking any benefit under 29 the order and on such other persons as the Court may 30 direct. page 4 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Inheritance (Family and Dependants Provision) Act 1972 Part 2 amended s. 8 1 (7) The Court cannot hear an application for an order 2 under subsection (5) unless -- 3 (a) the application is made within 6 months from 4 the date on which the applicant became aware 5 of the existence of the undisclosed property; or 6 (b) the Court is satisfied that the justice of the case 7 requires that the applicant be given leave to file 8 out of time. 9 (8) A motion for leave to file out of time may be made at 10 any time notwithstanding that the period specified in 11 subsection (7)(a) has expired. 12 13 8. Section 7A inserted 14 After section 6 insert: 15 16 7A. Interim order 17 (1) Before making an order under section 6(1), the Court 18 may make an interim order if it is of the opinion that 19 such an order is necessary for the purpose of providing 20 those things immediately necessary for the 21 maintenance, support or education (including past 22 maintenance, support or education provided after the 23 death of the deceased) of any person who was totally or 24 partially dependent on the deceased immediately 25 before the deceased's death. 26 (2) If the Court makes an interim order, the Court must 27 proceed to determine an application under section 6(1) 28 by confirming, revoking or altering the interim order. 29 page 5 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Part 2 Inheritance (Family and Dependants Provision) Act 1972 amended s. 9 1 9. Section 7 amended 2 (1) In section 7(1): 3 (a) in paragraph (c) delete "then en ventre sa mere;" and 4 insert: 5 6 born within 10 months after the deceased's 7 death; 8 9 (b) delete paragraph (d) and insert: 10 11 (d) a grandchild of the deceased -- 12 (i) who was being maintained wholly or 13 partly by the deceased immediately 14 before the deceased's death; or 15 (ii) who, at the date of the deceased's death, 16 was living and one of whose parents 17 was a child of the deceased who had 18 predeceased the deceased; or 19 (iii) who was born within 10 months after 20 the deceased's death and one of whose 21 parents was a child of the deceased who 22 had predeceased the deceased; 23 (ea) a stepchild of the deceased who was being 24 maintained wholly or partly or was entitled to 25 be maintained wholly or partly by the deceased 26 immediately before the deceased's death; 27 (eb) a stepchild of the deceased if the deceased had 28 received or was entitled to receive property 29 with a value greater than the prescribed amount 30 from the estate of a parent of the stepchild 31 otherwise than as a creditor of the deceased 32 parent's estate; 33 page 6 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Inheritance (Family and Dependants Provision) Act 1972 Part 2 amended s. 10 1 (c) in paragraph (e) delete "lawful wedlock" and insert: 2 3 a legal marriage 4 5 (2) After section 7(1) insert: 6 7 (2A) An application is not to be made under this Act by or 8 on behalf of a person referred to in subsection (1)(ea) 9 or (eb) unless the deceased person died on or after the 10 day on which the Inheritance (Family and Dependants 11 Provision) Amendment Act 2011 section 9(1)(b) came 12 into operation. 13 14 10. Section 11 amended 15 In section 11 delete "at the time" and insert: 16 17 immediately before 18 19 11. Section 19 amended 20 In section 19 delete the passage that begins with "effect; and no 21 such mortgage," and continues to the end of the section and 22 insert: 23 24 effect. 25 26 12. Section 20 amended 27 (1) In section 20(3) delete "lawful wedlock" and insert: 28 29 a legal marriage 30 page 7 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Part 2 Inheritance (Family and Dependants Provision) Act 1972 amended s. 13 1 (2) In section 20(5) delete "Act" and insert: 2 3 act 4 5 13. Sections 21A and 21B inserted 6 After section 20 insert: 7 8 21A. Evidence 9 (1) In this section -- 10 statement includes any representation of fact whether 11 or not in writing. 12 (2) In any proceedings under this Act, evidence of a 13 statement made by a deceased person is, subject to this 14 section, admissible as evidence of any fact stated in it 15 of which direct oral evidence by the deceased person 16 would, if the person were able to give that evidence, be 17 admissible. 18 (3) Subject to subsection (4) and unless the Court 19 otherwise orders, where a statement was made by a 20 deceased person during the person's lifetime otherwise 21 than in a document, no evidence other than direct 22 testimony (including oral evidence, evidence by 23 affidavit and evidence taken before a commissioner or 24 other person authorised to receive evidence for the 25 purpose of the proceedings) by a person who heard or 26 otherwise perceived the statement being made is 27 admissible for the purpose of proving it. 28 (4) Where a statement was made by a deceased person 29 during the person's lifetime while giving oral evidence 30 in a legal proceeding (being a civil or criminal 31 proceeding or inquiry in which evidence is or may be page 8 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Inheritance (Family and Dependants Provision) Act 1972 Part 2 amended s. 13 1 given, or an arbitration), the statement may be 2 approved in any manner authorised by the Court. 3 (5) Where a statement made by a deceased person during 4 the person's lifetime was contained in a document, the 5 statement may be proved by the production of the 6 document or, whether or not the document is still in 7 existence, by leave of the Court, by the production of a 8 copy of the document, or of the material part of the 9 document, authenticated in such manner as the Court 10 may approve. 11 (6) Where, under this section, a person proposes to tender, 12 or tenders, evidence of a statement contained in a 13 document, the Court may require that any other 14 document relating to the statement be produced and, in 15 default, may reject the evidence or, if it has been 16 received, exclude it. 17 (7) For the purpose of determining questions of 18 admissibility of a statement under this section, the 19 Court may draw any reasonable inference from the 20 circumstances in which the statement was made or 21 from any other circumstances, including, in the case of 22 a statement contained in a document, the form or 23 content of the document. 24 (8) In estimating the weight, if any, to be attached to 25 evidence of a statement tendered for admission or 26 admitted under this section, regard must be had to all 27 the circumstances from which any inference can 28 reasonably be drawn as to the accuracy or otherwise of 29 the statement, including -- 30 (a) the recency or otherwise, at the time when the 31 deceased person made the statement, of any 32 relevant matter dealt with in the statement; and page 9 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Part 2 Inheritance (Family and Dependants Provision) Act 1972 amended s. 13 1 (b) the presence or absence of any incentive for the 2 deceased person to conceal or misrepresent any 3 relevant matter in the statement. 4 (9) Subject to subsection (11), where evidence of a 5 statement of a deceased person is admitted under this 6 section, evidence is admissible for the purpose of 7 destroying or supporting the credibility of the deceased 8 person. 9 (10) Subject to subsection (11), where evidence of a 10 statement of a deceased person is admitted under this 11 section, evidence is admissible for the purpose of 12 showing that the statement is inconsistent with another 13 statement made at any time by the deceased person. 14 (11) No evidence of a matter is admissible under 15 subsection (9) or (10) in relation to a statement of a 16 deceased person where, if the deceased person had 17 been called as a witness and had denied the matter in 18 cross-examination, evidence would not be admissible if 19 adduced by the cross-examining party. 20 (12) This section applies notwithstanding the rules against 21 hearsay and notwithstanding that a statement is in such 22 a form that it would not be admissible if given as oral 23 testimony, but does not make admissible a statement of 24 a deceased person which is otherwise inadmissible. 25 (13) The exceptions to the rules against hearsay set out in 26 this section are in addition to the exceptions to the 27 hearsay rule set out in the Evidence Act 1906. 28 21B. Regulations 29 The Governor may make regulations prescribing an 30 amount for the purposes of section 7(1)(eb). 31 page 10 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Other Acts amended Part 3 s. 14 1 Part 3 -- Other Acts amended 2 14. Administration Act 1903 amended 3 (1) This section amends the Administration Act 1903. 4 (2) In section 60A delete "section 6 of the Inheritance (Family and 5 Dependants Provision) Act 1972." and insert: 6 7 Family Provision Act 1972 section 6. 8 9 Note: The heading to amended section 60A is to read: 10 Application of Family Provision Act 1972 11 15. Duties Act 2008 amended 12 (1) This section amends the Duties Act 2008. 13 (2) Delete section 139(2)(c) and insert: 14 15 (c) a vesting of dutiable property by, or as a 16 consequence of, a court order made -- 17 (i) under the Family Provision Act 1972; or 18 (ii) under the Trustees Act 1962 section 65 19 on an application under the Family 20 Provision Act 1972. 21 22 16. Trustees Act 1962 amended 23 (1) This section amends the Trustees Act 1962. 24 (2) Delete section 63(10)(a) and insert: 25 26 (a) any claim under the Family Provision Act 1972; 27 or 28 page 11 Inheritance (Family and Dependants Provision) Amendment Bill 2011 Part 3 Other Acts amended s. 17 1 (3) In section 64(5) delete "Inheritance (Family and Dependants 2 Provision) Act 1972," and insert: 3 4 Family Provision Act 1972, 5 6 (4) Delete section 65(2)(a) and insert: 7 8 (a) an application under the Family Provision 9 Act 1972; or 10 11 (5) Delete section 65(5)(a) and insert: 12 13 (a) where the claim is an application for an order 14 under the Family Provision Act 1972, unless -- 15 (i) the application is made within the 16 period specified in section 7(2)(a) of 17 that Act; or 18 (ii) leave to file out of time has been given 19 under section 7(2)(b) of that Act; 20 or 21 22 17. Wills Act 1970 amended 23 (1) This section amends the Wills Act 1970. 24 (2) In section 41(1)(h) delete "Inheritance (Family and Dependants 25 Provision) Act 1972," and insert: 26 27 Family Provision Act 1972, 28
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