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This is a Bill, not an Act. For current law, see the Acts databases.
Succession Amendment (Intestacy)
Bill 2009
No , 2009
A Bill for
An Act to amend the Succession Act 2006 and the Probate and Administration Act
1898 to revise and re-state the rules for distribution on intestacy; and for other
purposes.
Clause 1 Succession Amendment (Intestacy) Bill 2009
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Succession Amendment (Intestacy) Act 2009. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Repeal of Inheritance Act of 1901 No 19 6
The Inheritance Act of 1901 is repealed. 7
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Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
Schedule 1 Amendment of Succession Act 2006 1
No 80 2
[1] Long title 3
Insert "to make provision for the distribution of intestate estates;" after 4
"deceased person;". 5
[2] Section 3 Definitions 6
Insert in alphabetical order in section 3 (1): 7
intestate is defined in section 102. 8
[3] Section 3 (2) 9
Omit "en ventre sa mere at the death of the person, provided such child or issue 10
is born alive and remains alive for a period of 30 days". 11
Insert instead "who is born after the person's death after a period of gestation 12
in the uterus that commenced before the person's death and survives the 13
person for at least 30 days after birth". 14
[4] Chapter 4 15
Insert after section 100 and renumber existing Chapter 4 as Chapter 5 and 16
sections 101-106 as appropriate: 17
Chapter 4 Intestacy 18
Part 4.1 Preliminary 19
101 Definitions 20
In this Chapter: 21
brother or sister--a person is the brother or sister of another if 22
they have one or both parents in common. 23
deceased person--a deceased person is one who did not survive 24
the intestate. 25
domestic partnership--see section 105. 26
eligible relative means a relative of the intestate who is entitled 27
to share in the distribution of the intestate estate under Part 4.3. 28
entitlement to the whole of the intestate estate--see section 103. 29
Indigenous person is a person who: 30
(a) is of Aboriginal or Torres Strait Islander descent, and 31
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Succession Amendment (Intestacy) Bill 2009
Schedule 1 Amendment of Succession Act 2006 No 80
(b) identifies as an Aboriginal person or Torres Strait Islander, 1
and 2
(c) is accepted as an Aboriginal person by an Aboriginal 3
community or as a Torres Strait Islander by a Torres Strait 4
Islander community. 5
intestate estate means: 6
(a) in the case of an intestate who leaves a will--property that 7
is not effectively disposed of by will, and 8
(b) in any other case--all the property left by the intestate. 9
leave--a person leaves another if the person dies and is survived 10
by the other. 11
personal effects of an intestate means the intestate's tangible 12
personal property except the following: 13
(a) property used exclusively for business purposes, 14
(b) banknotes or coins (unless forming a collection made in 15
pursuit of a hobby or for some other non-commercial 16
purpose), 17
(c) property held as a pledge or other form of security, 18
(d) property (such as gold bullion or uncut diamonds): 19
(i) in which the intestate has invested as a hedge against 20
inflation or adverse currency movements, and 21
(ii) which is not an object of household, or personal, 22
use, decoration or adornment, 23
(e) an interest in land (whether freehold or leasehold). 24
predecease--a person is taken to predecease the intestate if the 25
person does not survive the intestate. 26
presumptive share of an intestate estate of a deceased eligible 27
relative of the intestate means the entitlement the relative would 28
have had if he or she had survived the intestate. 29
registered valuer has the same meaning as it has in the Valuers 30
Act 2003. 31
spouse--see section 104. 32
statutory legacy for a spouse--see section 106. 33
survive--see section 107. 34
102 Intestate 35
An intestate is a person who dies and either does not leave a will 36
or leaves a will but does not dispose effectively by will of all or 37
part of his or her property. 38
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Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
103 Entitlement to the whole of the intestate estate 1
A reference in this Chapter to an entitlement to the whole of the 2
intestate estate is a reference to so much of the estate as remains 3
after payment of all such funeral and administration expenses, 4
debts and other liabilities as are properly payable out of the 5
estate. 6
104 Spouse 7
A spouse of an intestate is a person: 8
(a) who was married to the intestate immediately before the 9
intestate's death, or 10
(b) who was a party to a domestic partnership with the 11
intestate immediately before the intestate's death. 12
105 Domestic partnership 13
A domestic partnership is a relationship (other than marriage) 14
between the intestate and another person: 15
(a) that is a de facto relationship, and 16
(b) that: 17
(i) has been in existence for a continuous period of at 18
least 2 years, or 19
(ii) has resulted in the birth of a child. 20
106 Spouse's statutory legacy 21
(1) The statutory legacy for a spouse consists of: 22
(a) the CPI adjusted legacy, and 23
(b) if the statutory legacy is not paid, or not paid in full, within 24
1 year after the intestate's death--interest at the relevant 25
rate on the amount outstanding from time to time 26
(excluding interest) from the first anniversary of the 27
intestate's death to the date of payment of the legacy in 28
full. 29
(2) The CPI adjusted legacy is to be determined in accordance with 30
the following formula: 31
C
R = A × ---
-
D
where: 32
R represents the CPI adjusted legacy. 33
A is $350,000. 34
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Succession Amendment (Intestacy) Bill 2009
Schedule 1 Amendment of Succession Act 2006 No 80
C represents the Consumer Price Index number for the last 1
quarter for which such a number was published before the date on 2
which the intestate died. 3
D represents the Consumer Price Index number for the December 4
2005 quarter. 5
(3) If, however, a spouse is entitled to a statutory legacy under this 6
Act and under the law of another Australian jurisdiction or 7
jurisdictions: 8
(a) the spouse's statutory legacy is an amount equivalent to 9
the highest amount fixed by way of statutory legacy under 10
any of the relevant laws (including this Act), but 11
(b) the following qualifications apply: 12
(i) amounts received by the spouse, by way of statutory 13
legacy, under any of the other relevant laws are 14
taken to have been paid towards satisfaction of the 15
spouse's statutory legacy under this Act, 16
(ii) if any of the relevant laws contain no provision 17
corresponding to subparagraph (i), no amount is 18
payable by way of statutory legacy under this Act 19
until the spouse's entitlement under that law is 20
satisfied, or the spouse renounces the spouse's 21
entitlement to payment, or further payment, by way 22
of statutory legacy, under that law. 23
(4) If the value of an intestate estate is insufficient to allow for the 24
payment of a statutory legacy (or statutory legacies) in full, the 25
statutory legacy abates to the necessary extent and, if 2 or more 26
statutory legacies are payable, they abate ratably. 27
(5) The relevant rate of interest is the rate that lies 2% above the cash 28
rate last published by the Reserve Bank of Australia before 29
1 January in the calendar year in which interest begins to accrue. 30
(6) If the Australian Statistician publishes a Consumer Price Index 31
number in respect of a particular quarter in substitution for a 32
Consumer Price Index number previously published in respect of 33
that quarter: 34
(a) except as provided by paragraph (b)--the publication of 35
the later Index number is to be disregarded, or 36
(b) if the Minister so directs--regard is to be had to the later 37
and not to the earlier Index number. 38
(7) If the reference base for the Consumer Price Index is changed, 39
regard is to be had only to Index numbers published in terms of 40
the new reference base or to Index numbers converted to the new 41
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Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
reference base in accordance with an arithmetical conversion 1
factor specified by the Australian Statistician. 2
(8) An adjustment under subsection (3) is to be made to the nearest 3
whole dollar. 4
(9) In this section: 5
Consumer Price Index number, for a quarter, means the All 6
Groups Consumer Price index number, being the weighted 7
average of the 8 capital cities, published by the Australian 8
Statistician in respect of that quarter. 9
107 Survivorship 10
(1) A person will not be regarded as having survived an intestate 11
unless: 12
(a) the person is born before the intestate's death and survives 13
the intestate by at least 30 days, or 14
(b) the person is born after the intestate's death after a period 15
of gestation in the uterus that commenced before the 16
intestate's death and survives the intestate for at least 30 17
days after birth. 18
(2) The rules stated in subsection (1) are not to be applied if, as a 19
result of their application, the intestate estate would pass to the 20
State. 21
108 General limitation of non-spousal entitlements 22
(1) A person is not entitled to participate in the distribution of an 23
intestate estate unless the person survives the intestate. 24
(2) A reference in this Act to a child, issue, relative, or issue of a 25
relative, of an intestate is limited to a person of the relevant 26
description whose entitlement to share in the distribution of the 27
intestate estate is not excluded under subsection (1). 28
109 Adoption 29
An adopted child is to be regarded, for the purposes of 30
distribution on an intestacy, as a child of the adoptive parent or 31
parents and: 32
(a) the child's family relationships are to be determined 33
accordingly, and 34
(b) family relationships that exist as a matter of biological fact, 35
and are not consistent with the relationship created by 36
adoption, are to be ignored. 37
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Succession Amendment (Intestacy) Bill 2009
Schedule 1 Amendment of Succession Act 2006 No 80
Part 4.2 Spouse's entitlements 1
Note. In the case of an Indigenous person's estate, this Part is subject to exclusion or 2
modification by a distribution order under Part 4.4. 3
Division 1 Entitlement of surviving spouse 4
110 Application of this Division 5
This Division applies where the intestate leaves a spouse (but not 6
more than one spouse). 7
111 Spouse's entitlement where no issue 8
If an intestate leaves a spouse but no issue, the spouse is entitled 9
to the whole of the intestate estate. 10
112 Spouse's entitlement where issue are also issue of the spouse 11
If an intestate leaves a spouse and issue and the issue are all also 12
issue of the spouse, the spouse is entitled to the whole of the 13
intestate estate. 14
113 Spouse's entitlement where any issue are not issue of the spouse 15
If an intestate leaves a spouse and any issue who are not issue of 16
the spouse, the spouse is entitled to: 17
(a) the intestate's personal effects, and 18
(b) a statutory legacy, and 19
(c) one-half of the remainder (if any) of the intestate estate. 20
Division 2 Spouse's preferential right to acquire 21
property from the estate 22
114 Application of this Division 23
This Division applies where the intestate leaves a spouse (but not 24
more than one spouse). 25
115 Spouse's right of election 26
(1) A spouse is entitled to elect to acquire property from an intestate 27
estate. 28
(2) A spouse's election to acquire property from an intestate estate 29
requires the Court's authorisation if: 30
(a) the property forms part of a larger aggregate, and 31
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Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
(b) the acquisition could substantially diminish the value of 1
the remainder of the property or make the administration 2
of the estate substantially more difficult. 3
Note. For example: 4
(a) The acquisition of a single item from a group of items 5
might substantially diminish the value of the remainder of 6
the group or make it substantially more difficult to dispose 7
of the remainder of the group. 8
(b) The acquisition of the farmhouse from a farming property 9
might substantially diminish the value of the remainder of 10
the farming property or make it substantially more difficult 11
to dispose of it. 12
(3) The Court may grant an authorisation under subsection (2) and 13
may impose such conditions as it considers just and equitable to 14
address the matters referred to in that subsection, including a 15
condition that the spouse pay compensation to the estate in 16
addition to consideration to be given for the property under this 17
Division and a condition as to costs. 18
(4) The Court must refuse authorisation if it considers that the 19
matters referred to in subsection (2) cannot be adequately 20
addressed by granting an authorisation subject to such 21
conditions. 22
(5) A spouse is not entitled to elect to acquire property from an 23
intestate estate if the transfer or conveyance by the personal 24
representative to the spouse of the interest of the intestate in the 25
property would require compliance with the mandatory 26
provisions unless those provisions would be complied with and 27
the costs of complying with the provisions are paid by the spouse. 28
(6) A spouse who is a personal representative of the intestate is not 29
prevented from making an election to acquire property from the 30
intestate estate by the fact that the spouse is a trustee of the 31
intestate estate. 32
(7) Nothing in this section confers on a spouse any right against a 33
person who in good faith purchased for value from the personal 34
representative of the intestate any property of the intestate. 35
(8) In this section: 36
mandatory provisions means the following: 37
(a) the Environmental Planning and Assessment Act 1979, the 38
Conveyancing Act 1919 and any other Act with respect to 39
the manner of dividing land into parts, and with respect to 40
any requirement incidental to the manner of dividing land 41
into parts, 42
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Succession Amendment (Intestacy) Bill 2009
Schedule 1 Amendment of Succession Act 2006 No 80
(b) the Strata Schemes (Freehold Development) Act 1973 with 1
respect to the manner of subdividing land within the 2
meaning of section 7 (1) of that Act or of any lot within the 3
meaning of section 5 (1) of that Act, and with respect to 4
any requirement incidental to the manner of subdividing 5
any such land or lot, 6
(c) the Strata Schemes (Leasehold Development) Act 1986, 7
with respect to the manner of subdividing land within the 8
meaning of section 6 (1) of that Act or of any lot within the 9
meaning of section 4 (1) of that Act, and with respect to 10
any requirement incidental to the manner of subdividing 11
any such land or lot. 12
116 Notice to be given to spouse of right of election 13
(1) An intestate's personal representative must, within one month of 14
the grant of administration of the intestate estate, give notice to 15
the intestate's spouse of the spouse's right of election stating: 16
(a) how the right is to be exercised, and 17
(b) the fact that the election may be subject to the Court's 18
authorisation and the circumstances in which such an 19
authorisation is required, and 20
(c) that the right must be exercised within 3 months (or a 21
longer period allowed by the Court) after the date of the 22
notice. 23
(2) Notice is not required under this section if the spouse is the 24
personal representative, or one of the personal representatives, of 25
the intestate. 26
117 Time for making election 27
(1) The election must be made: 28
(a) if the spouse is entitled to notice of the right of election-- 29
within 3 months after the date of the notice, or 30
(b) if the spouse is the intestate's personal representative (or 31
one of the personal representatives)--within 3 months 32
after the grant of administration of the intestate estate. 33
(2) The Court may, however, if it considers there is sufficient cause 34
for doing so, extend the time for making the election. 35
Note. The Court might, for example, extend the period for making an 36
election if the Court's authorisation for making the election is required or 37
if a question remains unresolved regarding the existence, or the nature, 38
of a person's interest in the intestate estate. 39
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Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
(3) The Court may extend the time for making the election whether 1
or not the time for making the election has passed, but not after 2
the administration of the estate has been completed. 3
118 How election to be made 4
(1) A spouse's election is made by written notice identifying, with 5
reasonable particularity, the property the spouse elects to acquire. 6
(2) Except as provided by subsection (3), the notice of election must 7
be given: 8
(a) to each person, apart from the spouse, who is a personal 9
representative of the intestate, and 10
(b) to each person, apart from the spouse, who is entitled to 11
share in the intestate estate. 12
(3) The Court may direct that any of the persons referred to in 13
subsection (2) need not be given the notice of election if it 14
considers that giving the notice is unnecessary, unreasonable or 15
impracticable in the circumstances of the case. 16
(4) A spouse who has not reached the age of majority may make an 17
election as validly and effectively as an adult. 18
(5) A spouse may revoke his or her election at any time before the 19
transfer of the property to the spouse. 20
(6) A revocation is made by written notice of revocation given to the 21
same persons as the notice of election. 22
119 Basis of the election 23
(1) The price for which a spouse may elect to acquire property from 24
the intestate estate (the exercise price) is the market value of the 25
property as at the date of the intestate's death. 26
(2) If, however, the spouse and the holder of a mortgage, charge or 27
encumbrance over property that the spouse has elected to acquire 28
agree to the assumption by the spouse of the liability secured by 29
the mortgage, charge or encumbrance the exercise price is to be 30
reduced by the amount of the liability (as at the date of transfer) 31
secured by the mortgage, charge or encumbrance, but: 32
(a) the spouse takes the property subject to the mortgage, 33
charge or encumbrance, and 34
(b) on the transfer of the property, the liability passes to the 35
spouse and the estate is exonerated from it. 36
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Succession Amendment (Intestacy) Bill 2009
Schedule 1 Amendment of Succession Act 2006 No 80
(3) The personal representative of an intestate must obtain a 1
valuation from a registered valuer of property forming part of the 2
intestate estate if: 3
(a) a spouse elects to acquire the property, or 4
(b) a spouse asks the personal representative to obtain a 5
valuation to enable the spouse to decide whether to elect to 6
acquire it. 7
(4) The personal representative must give a copy of the valuation to 8
the spouse and to the other beneficiaries entitled to share in the 9
intestate estate. 10
(5) The requirement for a personal representative to obtain a 11
valuation under subsection (3) may be waived with the consent of 12
all the beneficiaries entitled to share in the intestate estate. 13
120 Exercise price--how satisfied 14
If a spouse elects to acquire property from the intestate estate, the 15
exercise price is to be satisfied: 16
(a) first from money to which the spouse is entitled from the 17
intestate estate, and 18
(b) if that is insufficient, from money paid by the spouse to the 19
estate on or before the date of transfer. 20
121 Restriction on disposal of property from intestate estate 21
(1) The personal representative of an intestate must not dispose of 22
property from the intestate estate (except to a spouse who has 23
elected to acquire it) unless: 24
(a) the personal representative is the spouse entitled to make 25
the election, or 26
(b) the time for exercising the election has elapsed and no 27
election has been made, or 28
(c) the election requires the Court's authorisation but: 29
(i) the necessary authorisation has been refused, or 30
(ii) the application for authorisation has been 31
withdrawn, or 32
(d) the spouse has notified the personal representative, in 33
writing, that he or she does not propose to exercise the 34
right to acquire property from the estate, or 35
(e) sale of the property is required to meet funeral and 36
administration expenses, debts and other liabilities of the 37
estate, or 38
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Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
(f) the property is perishable or likely to decrease rapidly in 1
value. 2
(2) A transaction entered into contrary to this section is not invalid. 3
Division 3 Multiple spouses 4
122 Spouses' entitlement where there are more than one spouse but 5
no issue 6
If an intestate leaves more than one spouse, but no issue, the 7
spouses are entitled to the whole of the intestate estate in shares 8
determined in accordance with this Division. 9
123 Spouses' entitlement where issue are also issue of one or more of 10
the spouses 11
If an intestate leaves more than one spouse and issue who are all 12
issue of one or more of the surviving spouses, the spouses are 13
entitled to the whole of the intestate estate in shares determined 14
in accordance with this Division. 15
124 Spouses' entitlement where any issue are not issue of a surviving 16
spouse 17
If an intestate leaves more than one spouse and any issue who are 18
not issue of a surviving spouse: 19
(a) the spouses are entitled to share the intestate's personal 20
effects in accordance with this Division, and 21
(b) each spouse is entitled to share the statutory legacy that 22
would be payable if the intestate had left only one 23
surviving spouse, and 24
(c) the spouses are entitled to share one-half of the remainder 25
(if any) of the intestate estate in accordance with this 26
Division. 27
125 Sharing between spouses 28
(1) If property is to be shared between spouses under this Division, 29
the property is to be shared: 30
(a) in accordance with a written agreement between the 31
spouses (a distribution agreement), or 32
(b) in accordance with an order of the Court (a distribution 33
order), or 34
(c) if the conditions prescribed by subsection (2) are 35
satisfied--in equal shares. 36
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Succession Amendment (Intestacy) Bill 2009
Schedule 1 Amendment of Succession Act 2006 No 80
(2) The following conditions must be satisfied if the personal 1
representative is to make an equal division of property between 2
spouses under subsection (1) (c): 3
(a) the personal representative has given each spouse a notice 4
in writing stating that the personal representative may 5
distribute the property equally between the spouses unless, 6
within 3 months after the date of the notice: 7
(i) they enter into a distribution agreement and submit 8
the agreement to the personal representative, or 9
(ii) at least one of the spouses applies to the Court for a 10
distribution order, 11
(b) at least 3 months have elapsed since the giving of the 12
notices and: 13
(i) the personal representative has not received a 14
distribution agreement or notice of an application 15
for a distribution order, or 16
(ii) an application for a distribution order has been made 17
but the application has been dismissed or 18
discontinued. 19
(3) If a spouse asks the personal representative to initiate the process 20
for making an equal division of property under subsection (1) (c), 21
the personal representative must, as soon as practicable: 22
(a) give the notices required under subsection (2) (a), or 23
(b) make an application to the Court for a distribution order. 24
126 Distribution orders 25
(1) An intestate's spouse or personal representative may apply to the 26
Court for a distribution order. 27
(2) If, however, the personal representative has given written notice 28
under section 125 (3), the application cannot (unless the Court 29
otherwise allows) be made more than 3 months after the date of 30
the notice. 31
(3) On an application under this section, the Court may order that the 32
property be distributed between the spouses in any way it 33
considers just and equitable. 34
(4) If the Court considers it just and equitable to do so, it may allocate 35
the whole of the property to one of the spouses to the exclusion 36
of the other or others. 37
(5) A distribution order may include conditions. 38
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Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
Part 4.3 Distribution among relatives 1
Note. In the case of an Indigenous person's estate, this Part is subject to exclusion or 2
modification by a distribution order under Part 4.4. 3
127 Entitlement of children 4
(1) If an intestate leaves no spouse but leaves issue, the intestate's 5
children are entitled to the whole of the intestate estate. 6
(2) If: 7
(a) an intestate leaves: 8
(i) a spouse or spouses, and 9
(ii) any issue who are not also issue of a surviving 10
spouse, and 11
(b) a part of the estate remains after satisfying the spouse's 12
entitlement, or the spouses' entitlements, 13
the intestate's children are entitled to the remaining part of the 14
intestate estate. 15
(3) If no child predeceased the intestate leaving issue who survived 16
the intestate, then: 17
(a) if there is only one surviving child--the entitlement vests 18
in the child, or 19
(b) if there are 2 or more surviving children--the entitlement 20
vests in them in equal shares. 21
(4) If one or more of the intestate's children predeceased the intestate 22
leaving issue who survived the intestate: 23
(a) allowance must be made in the division of the entitlement 24
between children for the presumptive share of any such 25
deceased child, and 26
(b) the presumptive share of any such deceased child is to be 27
divided between that child's children and, if any of these 28
grandchildren (of the intestate) predeceased the intestate 29
leaving issue who survived the intestate, the deceased 30
grandchild's presumptive share is to be divided between 31
the grandchild's children (again allowing for the 32
presumptive share of a great grandchild who predeceased 33
the intestate leaving issue who survived the intestate), and 34
so on until the entitlement is exhausted. 35
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Succession Amendment (Intestacy) Bill 2009
Schedule 1 Amendment of Succession Act 2006 No 80
128 Parents 1
(1) The parents of an intestate are entitled to the whole of the 2
intestate estate if the intestate leaves: 3
(a) no spouse, and 4
(b) no issue. 5
(2) If there is only one surviving parent, the entitlement vests in the 6
parent and, if both survive, it vests in equal shares. 7
129 Brothers and sisters 8
(1) The brothers and sisters of an intestate are entitled to the whole 9
of the intestate estate if the intestate leaves: 10
(a) no spouse, and 11
(b) no issue, and 12
(c) no parent. 13
(2) If no brother or sister predeceased the intestate leaving issue who 14
survived the intestate, then: 15
(a) if only one survives--the entitlement vests in the surviving 16
brother or sister, or 17
(b) if 2 or more survive--the entitlement vests in them in 18
equal shares. 19
(3) If a brother or sister predeceased the intestate leaving issue who 20
survived the intestate: 21
(a) allowance must be made in the division of the estate 22
between brothers and sisters for the presumptive share of 23
any such deceased brother or sister, and 24
(b) the presumptive share of any such deceased brother or 25
sister is to be divided between the brother's or sister's 26
children and, if any of these children predeceased the 27
intestate leaving issue who survived the intestate, the 28
deceased child's presumptive share is to be divided 29
between the child's children (again allowing for the 30
presumptive share of a grandchild who predeceased the 31
intestate leaving issue who survived the intestate), and so 32
on until the entitlement is exhausted. 33
130 Grandparents 34
(1) The grandparents of an intestate are entitled to the whole of an 35
intestate estate if the intestate leaves: 36
(a) no spouse, and 37
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Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
(b) no issue, and 1
(c) no parent, and 2
(d) no brother or sister, or issue of a deceased brother or sister. 3
(2) If there is only one surviving grandparent, the entitlement vests 4
in the grandparent and, if 2 or more survive, it vests in them in 5
equal shares. 6
131 Aunts and uncles 7
(1) The brothers and sisters of each of an intestate's parents are 8
entitled to the whole of the intestate estate if the intestate leaves: 9
(a) no spouse, and 10
(b) no issue, and 11
(c) no parent, and 12
(d) no brother or sister, or issue of a deceased brother or sister, 13
and 14
(e) no grandparent. 15
(2) If no brother or sister of a parent of the intestate predeceased the 16
intestate leaving a child who survived the intestate, then: 17
(a) if only one survives--the entitlement vests in the surviving 18
brother or sister, or 19
(b) if 2 or more survive--the entitlement vests in them in 20
equal shares. 21
(3) If a brother or sister of a parent of the intestate predeceased the 22
intestate leaving a child who survived the intestate, the child is 23
entitled to the deceased parent's presumptive share and, if there 24
are 2 or more children, they share equally. 25
132 Entitlement to take in separate capacities 26
A relative may be entitled to participate in the distribution of an 27
intestate estate in separate capacities. 28
Note. For example, suppose that an intestate dies leaving no spouse 29
and no surviving relatives except children of a deceased maternal aunt 30
and paternal uncle who had a child in common as well as children of 31
other unions. In this case, the child of the union between the maternal 32
aunt and the paternal uncle would be entitled to participate in the estate 33
both as representative of the maternal aunt and as representative of the 34
paternal uncle. 35
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Succession Amendment (Intestacy) Bill 2009
Schedule 1 Amendment of Succession Act 2006 No 80
Part 4.4 Indigenous persons' estates 1
133 Application for distribution order 2
(1) The personal representative of an Indigenous intestate, or a 3
person claiming to be entitled to share in an intestate estate under 4
the laws, customs, traditions and practices of the Indigenous 5
community or group to which an Indigenous intestate belonged, 6
may apply to the Court for an order for distribution of the 7
intestate estate under this Part. 8
(2) An application under this section must be accompanied by a 9
scheme for distribution of the estate in accordance with the laws, 10
customs, traditions and practices of the community or group to 11
which the intestate belonged. 12
(3) An application under this section must be made within 12 months 13
of the grant of administration or a longer period allowed by the 14
Court but no application may be made after the intestate estate 15
has been fully distributed. 16
(4) After a personal representative makes, or receives notice of, an 17
application under this section, the personal representative must 18
not distribute (or continue with the distribution of) property 19
comprised in the estate until: 20
(a) the application has been determined, or 21
(b) the Court authorises the distribution. 22
134 Distribution orders 23
(1) The Court may, on an application under this Part, order that the 24
intestate estate, or part of the intestate estate, be distributed in 25
accordance with the terms of the order. 26
(2) An order under this Part may require a person to whom property 27
was distributed before the date of the application to return the 28
property to the personal representative for distribution in 29
accordance with the terms of the order (but no distribution that 30
has been, or is to be, used for the maintenance, education or 31
advancement in life of a person who was totally or partially 32
dependent on the intestate immediately before the intestate's 33
death can be disturbed). 34
Note. For example, a distribution may have been made under section 35
92A of the Probate and Administration Act 1898 or section 94 of this Act. 36
(3) In formulating an order under this Part, the Court must have 37
regard to: 38
(a) the scheme for distribution submitted by the applicant, and 39
Page 18
Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
(b) the laws, customs, traditions and practices of the 1
Indigenous community or group to which the intestate 2
belonged. 3
(4) The Court may not, however, make an order under this Part 4
unless satisfied that the terms of the order are, in all the 5
circumstances, just and equitable. 6
135 Effect of distribution order under this Part 7
A distribution order under this Part operates (subject to its terms) 8
to the exclusion of all other provisions of this Act governing the 9
distribution of the intestate estate. 10
Part 4.5 Absence of persons entitled 11
136 Intestate leaving no persons entitled 12
If an intestate dies leaving no person who is entitled to the 13
intestate estate, the State is entitled to the whole of the intestate 14
estate. 15
137 State has discretion to make provision out of property to which it 16
becomes entitled 17
(1) If the State is entitled to an intestate estate under this Part, the 18
Minister may, on application in accordance with subsection (3) 19
for a waiver of the State's rights, waive the State's rights in whole 20
or part in favour of: 21
(a) dependants of the intestate, or 22
(b) any persons who have, in the Minister's opinion, a just or 23
moral claim on the intestate, or 24
(c) any organisation or person for whom the intestate might 25
reasonably be expected to have made provision, or 26
(d) the trustees for any person or organisation mentioned in 27
paragraph (a), (b) or (c). 28
(2) The Minister may grant a waiver under this section on conditions 29
the Minister considers appropriate. 30
(3) Application for a waiver of the State's rights to an intestate estate 31
under this Part is to be made in writing to the Crown Solicitor. 32
Page 19
Succession Amendment (Intestacy) Bill 2009
Schedule 1 Amendment of Succession Act 2006 No 80
Part 4.6 Miscellaneous 1
138 Non-deferral of the interest of a minor 2
The entitlement of a minor to an interest in an intestate estate 3
vests immediately (that is, it is not deferred until the minor 4
reaches majority or marries). 5
139 Effect of disclaimer etc 6
For the purposes of the distribution of an intestate estate, a person 7
will be treated as having predeceased the intestate if the person: 8
(a) disclaims an interest, to which he or she would otherwise 9
be entitled, in the intestate estate, or 10
(b) is disqualified from taking an interest in the intestate estate 11
for any reason. 12
Note. It follows that, if the person has issue, they may be entitled to take 13
the person's presumptive share of the intestate estate by representation. 14
140 Effect of testamentary and other gifts 15
The distribution of an intestate estate is not affected by gifts made 16
by the intestate to persons entitled: 17
(a) during the intestate's lifetime, or 18
(b) in the case of a partial intestacy--by will. 19
[5] Existing section 102 Rules of Court 20
Insert at the end of section 102 (2): 21
(h) the making of elections by the spouses of intestates under 22
Chapter 4. 23
[6] Schedule 1 Savings, transitional and other provisions 24
Insert at the end of clause 1 (1): 25
Succession Amendment (Intestacy) Act 2009 26
[7] Schedule 1, clause 2, definition of "repealed provisions" 27
Insert "to this Act (as in force immediately before Schedule 2 was repealed by 28
the Statute Law (Miscellaneous Provisions) Act (No 2) 2008)" after 29
"Schedule 2". 30
Page 20
Succession Amendment (Intestacy) Bill 2009
Amendment of Succession Act 2006 No 80 Schedule 1
[8] Schedule 1, Part 3 1
Insert in appropriate order at the end of clause 9: 2
the 1916 provisions means Part 2 of the Testator's Family 3
Maintenance and Guardianship of Infants Act 1916 as in force 4
before its repeal by the Succession Amendment (Intestacy) 5
Act 2009. 6
[9] Schedule 1, Part 3 7
Insert after clause 11 (4): 8
(5) The 1916 provisions continue to apply in relation to any estate of 9
a person who died before the repeal of the provisions to which 10
those provisions would have applied but for the repeal. 11
[10] Schedule 1, Part 4 12
Insert after clause 11: 13
Part 4 Provisions consequent on enactment of 14
Succession Amendment (Intestacy) 15
Act 2009 16
12 Definition 17
In this Part: 18
amending Act means the Succession Amendment (Intestacy) 19
Act 2009. 20
13 Transitional provision--intestacy 21
(1) Chapter 4 (Intestacy) applies to the distribution of the intestate 22
estate of a person who dies intestate on or after the 23
commencement of this clause. 24
(2) The distribution of the intestate estate of a person who died 25
intestate before the commencement of this clause is governed by 26
the law of this State as in force at the date of death. 27
Page 21
Succession Amendment (Intestacy) Bill 2009
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts 1
2.1 Adoption Act 2000 No 75 2
[1] Section 95 General effect of adoption orders 3
Insert at the end of section 95 (2): 4
Note. For example, for the purposes of a distribution on intestacy, an 5
adopted child is regarded as a child of the adoptive parent or parents and 6
the child's family relationships are determined accordingly. See section 7
109 of the Succession Act 2006. 8
[2] Section 97 Effect of orders as regards property 9
Omit section 97 (2) and the note to the subsection. 10
[3] Section 99 Relationship of adopted child to other children of the adopter 11
Omit "Probate and Administration Act 1898" from section 99 (1) (a). 12
Insert instead "Succession Act 2006". 13
[4] Schedule 3 Savings, transitional and other provisions 14
Insert at the end of clause 1 (1): 15
Succession Amendment (Intestacy) Act 2009, to the extent that it 16
amends this Act 17
[5] Schedule 3, Part 5 18
Insert after Part 4: 19
Part 5 Provision consequent on enactment of 20
Succession Amendment (Intestacy) 21
Act 2009 22
23 Persons dying wholly or partially intestate before commencement 23
of Succession Amendment (Intestacy) Act 2009 24
The repeal of section 97 (2) by the Succession Amendment 25
(Intestacy) Act 2009 does not apply to or in respect of the estate 26
of a person who died wholly or partially intestate before that 27
repeal, and any such estate is to be distributed in accordance with 28
the enactments and rules of law in force at the date of death of that 29
person. 30
Page 22
Succession Amendment (Intestacy) Bill 2009
Amendment of other Acts Schedule 2
2.2 Conveyancing Act 1919 No 6 1
[1] Section 33 Meaning of heir, next of kin, or statutory next of kin of any 2
person 3
Omit "Division 2A of Part 2 of the Probate and Administration Act 1898 (as 4
in force after that commencement)" from section 33 (1). 5
Insert instead "the applicable intestacy rules". 6
[2] Section 33 (4) 7
Insert after section 33 (3): 8
(4) In subsection (1): 9
applicable intestacy rules means: 10
(a) for a will coming into operation, or an instrument made, 11
before the repeal of Division 2A of Part 2 of the Probate 12
and Administration Act 1898--that Division as in force 13
immediately before its repeal, and 14
(b) for a will coming into operation, or an instrument made, 15
after the repeal of that Division--Chapter 4 (Intestacy) of 16
the Succession Act 2006. 17
2.3 District Court Act 1973 No 9 18
Section 134 Jurisdiction in equity proceedings 19
Insert "(as in force immediately before that Act was amended by the 20
Succession Amendment (Intestacy) Act 2009)" after "1916" wherever 21
occurring. 22
2.4 Powers of Attorney Act 2003 No 53 23
[1] Section 24 Effect of disposal of home shared by spouses under enduring 24
power of attorney in cases of intestacy 25
Omit the section. 26
Page 23
Succession Amendment (Intestacy) Bill 2009
Schedule 2 Amendment of other Acts
[2] Schedule 5 Savings, transitional and other provisions 1
Insert after Part 2: 2
Part 3 Provision consequent on Succession 3
Amendment (Intestacy) Act 2009 4
4 Effect of disposal of home shared by spouses under enduring 5
power of attorney 6
Section 24, as in force immediately before its repeal by the 7
Succession Amendment (Intestacy) Act 2009, continues to apply 8
to a spouse of a principal under an enduring power of attorney 9
who dies intestate before the repeal and to whom it would have 10
applied before the repeal as if it had not been repealed. 11
2.5 Probate and Administration Act 1898 No 13 12
[1] Section 32G Interpretation 13
Omit the definition of de facto spouse from section 32G (1). Insert instead: 14
de facto spouse, in relation to a person dying wholly or partly 15
intestate, means someone who was a partner in a de facto 16
relationship with the person. 17
[2] Section 40A Evidence or presumption of death 18
Omit "Testator's Family Maintenance and" from section 40A (2). 19
[3] Section 40A 20
Omit "Chapter 3 of" from section 40A (2). 21
[4] Section 53 Value to be accepted instead of partition 22
Omit "in a dwelling-house in respect of which the spouse has exercised the 23
right conferred by section 61D". 24
Insert instead "in real estate the spouse has elected to acquire under section 25
115 (Spouse's right of election) of the Succession Act 2006". 26
[5] Part 2, Division 2A Distribution of intestate estates 27
Omit the Division. 28
[6] Section 62 Practice as to granting administration of real and personal 29
estate of intestate 30
Insert "or Chapter 4 of the Succession Act 2006" after "rules". 31
Page 24
Succession Amendment (Intestacy) Bill 2009
Amendment of other Acts Schedule 2
[7] Section 62 (2) 1
Insert at the end of section 62: 2
(2) Without limiting subsection (1), if a person dies wholly intestate 3
the real and personal estate of the person is to be distributed or 4
held in trust in accordance with Chapter 4 of the Succession Act 5
2006, and the real estate of that person is to be held as if it were 6
devised to the persons for whom it is held in trust. 7
[8] Section 84A Interest on legacies and annuities 8
Omit "6 per cent per year" from section 84A (1). Insert instead "the relevant 9
rate". 10
[9] Section 84A (3) 11
Insert after section 84A (2): 12
(3) In this section, relevant rate of interest means the rate that lies 13
2% above the cash rate last published by the Reserve Bank of 14
Australia before 1 January in the calendar year in which interest 15
begins to accrue. 16
[10] Section 92 Distribution of assets after notice given by executor or 17
administrator 18
Insert "or section 125 (Sharing between spouses) or 126 (Distribution orders) 19
or Part 4.4 (Indigenous persons' estates)" after "rectified)" in section 92 (2). 20
[11] Fourth Schedule Rights of surviving spouse of intestate with respect to 21
acquisition of the shared home 22
Omit the Schedule. 23
[12] Fifth Schedule Savings and transitional provisions arising from 24
amendments to this Act 25
Insert after Part 2: 26
Part 3 Provision consequent on enactment of 27
Succession Amendment (Intestacy) 28
Act 2009 29
9 Persons dying wholly or partially intestate before commencement 30
of Succession Amendment (Intestacy) Act 2009 31
The amendments made to this Act by the Succession Amendment 32
(Intestacy) Act 2009 do not apply to or in respect of the estate of 33
a person who died wholly or partially intestate before the 34
Page 25
Succession Amendment (Intestacy) Bill 2009
Schedule 2 Amendment of other Acts
commencement of those amendments, and any such estate is to 1
be distributed in accordance with the enactments and rules of law 2
in force at the date of death of that person. 3
2.6 Testator's Family Maintenance and Guardianship of Infants 4
Act 1916 No 41 5
[1] Section 1 Name of Act 6
Omit "Testator's Family Maintenance and". 7
[2] Part 2 Testator's family maintenance 8
Omit the Part. 9
Page 26
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