Commonwealth Numbered Acts

BANKRUPTCY AMENDMENT ACT 1980 No. 12 of 1980 - SECT 141

141. (1) Section 249 of the Principal Act is amended-

(a) by omitting from paragraph (a) of sub-section (1) "The Official Receiver
in Bankruptcy" and substituting " the Official Trustee";

   (b)  by omitting paragraph (b) of sub-section (1) and substituting the
        following paragraph:



"(b) after-acquired property of the estate vests, as soon as it is acquired
by, or devolves on, the estate, in the Official Trustee or, if a registered
trustee is trustee of the estate of the deceased person under this Act, in
that registered trustee,";

   (c)  by omitting from sub-section (2) "The Official Receiver in Bankruptcy
        or the trustee" (first occurring) and substituting "the trustee of the
        estate of a deceased person under this Act";

   (d)  by omitting from sub-section (2) "The Official Receiver in Bankruptcy
        or the trustee, as the case may be," and substituting "the trustee";

   (e)  by inserting after sub-section (4) the following sub-section:



"(4A) Nothing in this section shall be taken to prevent a creditor from
enforcing any remedy against the estate of a deceased person in relation to
which the Court has made an order for administration under this Part, or
against any property of such an estate that is not part of the divisible
property of the estate, in respect of any liability of the estate under a
maintenance agreement or maintenance order (whether entered into or made, as
the case may be, before or after the commencement of this sub- section)."; and

   (f)  by omitting sub-section (6) and substituting the following sub-
        sections:



"(6) For the purposes of this section, where the administration of the estate
of a deceased person under this Part is, by virtue of section 247A, to be
deemed to have commenced before the death of the deceased person, the
divisible property of the estate comprises-

   (a)  property that formed part of the estate upon the death of the deceased
        person other than-

        (i)    property that, if the deceased person had not died and a
               sequestration order had been made against him immediately
               before his death, would not have been divisible amongst his
               creditors under Part VI; or

        (ii)   the proceeds of a policy of life insurance or endowment
               assurance, a policy for pure endowment or a policy for an
               annuity, being a policy that would not have been divisible
               among the creditors of the deceased person under Part VI if he
               had not died and a sequestration order had been made against
               him immediately before his death;

   (b)  property that was or is acquired by, or devolved or devolves on, the
        estate after the death of the deceased person and before an order
        releasing the estate from administration under this Part is made, not
        being property that, if the deceased person had not died and a
        sequestration order had been made against him immediately before his
        death, would not have been divisible amongst his creditors under Part
        VI;

   (c)  the capacity to exercise, and to take proceedings for exercising, all
        such powers in, over or in respect of property as might have been
        exercised by the legal personal representative of the deceased person
        for the benefit of the estate at any time before an order releasing
        the estate from administration under this Part is made;

   (d)  property that forms part of the divisible property of the estate by
        virtue of section 251 and any amount for which a person is liable to
        account to the trustee of the estate under sub-section 251 (2);

   (e)  if, immediately before the death of the deceased person, any property
        was owned by the deceased person and another person or other persons
        as joint tenants-an amount equal to the value of the improvements (if
        any) made to that property wholly or principally by or at the expense
        of the deceased person after, or not earlier than 2 years before, the
        commencement of administration of his estate under this Part;

   (f)  property (other than property that formed part of the estate of the
        deceased person upon his death) that belonged to, or was vested in,
        the deceased person at the commencement of administration of his
        estate under this Part or was acquired by, or devolved on, the
        deceased person after the commencement of administration of his estate
        under this Part and before his death, not being property that, if he
        had not died and a sequestration order had been made against him at
        the commencement of administration of his estate under this Part,
        would not have been divisible amongst his creditors under Part VI; and

   (g)  the capacity to exercise, and take proceedings for exercising, all
        such powers in, over or in respect of property as might have been
        exercised by the deceased person for his own benefit at the
        commencement of administration of his estate under this Part, or at
        any time after commencement of administration of his estate under this
        Part and before his death.



"(7) For the purposes of this section, where the administration of the estate
of a deceased person is under this Part, by virtue of section 247A, to be
deemed to have commenced at the time of his death, the divisible property of
the estate comprises-

   (a)  property that formed part of the estate upon the death of the deceased
        person other than-

        (i)    property that, if the deceased person had not died and a
               sequestration order had been made against him immediately
               before his death, would not have been divisible amongst his
               creditors under Part VI; or

        (ii)   the proceeds of a policy of life insurance or endowment
               assurance, a policy for pure endowment or a policy for an
               annuity, being a policy that would not have been divisible
               among the creditors of the deceased person under Part VI if he
               had not died and a sequestration order had been made against
               him immediately before his death;

   (b)  property that was or is acquired by, or devolved or devolves on, the
        estate after the death of the deceased person and before an order
        releasing the estate from administration under this Part is made, not
        being property that, if the deceased person had not died and a
        sequestration order had been made against him immediately before his
        death, would not have been divisible amongst his creditors under Part
        VI;

   (c)  the capacity to exercise, and to take proceedings for exercising, all
        such powers in, over or in respect of property as might have been
        exercised by the legal personal representative of the deceased person
        for the benefit of the estate at any time before an order releasing
        the estate from administration under this Part is made;

   (d)  property that forms part of the divisible property of the estate by
        virtue of section 251 and any amount for which a person is liable to
        account to the trustee of the estate under sub-section 251 (2); and

   (e)  if, immediately before the death of the deceased person, any property
        was owned by the deceased person and another person or other persons
        as joint tenants-an amount equal to the value of the improvements (if
        any) made to that property wholly or principally by or at the expense
        of the deceased person after, or not earlier than 2 years before, the
        commencement of administration of his estate under this Part.



"(8) For the purposes of this section, where the administration of the estate
of a deceased person under this Part is, by virtue of section 247A, to be
deemed to have commenced after the death of the deceased person, the divisible
property of the estate comprises-

   (a)  property that formed part of the estate at the commencement of
        administration of the estate under this Part other than-

        (i)    property that, if the deceased person had not died and a
               sequestration order had been made against him at that time,
               would not have been divisible amongst his creditors under Part
               VI; or

        (ii)   the proceeds of a policy of life insurance or endowment
               assurance, a policy for pure endowment or a policy for an
               annuity, being a policy that would not have been divisible
               amongst the creditors of the deceased person under Part VI if
               he had not died and a sequestration order had been made against
               him at that time;

   (b)  property that was or is acquired by, or devolved or devolves on, the
        estate after the commencement of administration under this Part and
        before an order releasing the estate from administration under this
        Part is made, not being property that, if the deceased person had not
        died and a sequestration order had been made against him at the
        commencement of administration of his estate under this Part, would
        not have been divisible amongst his creditors under Part VI;

   (c)  the capacity to exercise, and to take proceedings for exercising, all
        such powers in, over or in respect of property as might have been
        exercised by the legal personal representative of the deceased person
        for the benefit of the estate at the commencement of administration
        under this Part or at any time after that time and before an order
        releasing the estate from administration under this Part is made; and

   (d)  property that forms part of the divisible property of the estate by
        virtue of section 251 and any amount for which a person is liable to
        account to the trustee of the estate under sub-section 251 (2).



"(9) The value of any improvements made to property owned by a deceased person
in respect of whose estate an order is made for administration under this Part
and another person or other persons as joint tenants shall, for the purposes
of paragraph (6) (e) or (7) (e), be determined as at the date of the death of
the deceased person.



"(10) In this section-

'after-acquired property', in relation to an estate, means property that is
acquired by, or devolves on, the estate of the deceased person on or after
the day on which the order for the administration of the estate under this
Part is made, being property that is part of the divisible property of the
estate;

'commencement of administration', in relation to the administration of the
estate of a deceased person under this Part, means the time at which the
administration of the estate under this Part is, by virtue of section 247A, to
be deemed to have commenced.".

(2) Notwithstanding the amendments of section 249 of the Principal Act made by
sub-section (1) of this section, where an order has been made by the Court
before the commencement of this section for the administration of the estate
of a deceased person under Part XI of the Principal Act, the provisions of
section 249 of the Principal Act continue to apply, after the commencement of
this section, in relation to the administration of the estate of that deceased
person under that Part.