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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Succession Bill 2006
Contents
Page
Chapter 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
Chapter 2 Wills
Part 2.1 The making, alteration, revocation and revival
of wills
Division 1 Making a will
4 What property may be disposed of by will? 4
5 Minimum age for making a will 4
Succession Bill 2006
Contents
Page
Division 2 Executing a will
6 How should a will be executed? 4
7 Must witnesses know that they are signing a will? 5
Division 3 Dispensing with requirements for execution,
alteration or revocation of a will
8 When may the Court dispense with the requirements for
execution, alteration or revocation of wills? 5
Division 4 Witnessing a will
9 Persons who cannot act as witnesses to wills 6
10 Can an interested witness benefit from a disposition
under a will? 6
Division 5 Revocation, alteration and revival of a will
11 When and how can a will be revoked? 7
12 Effect of marriage on a will 7
13 What is the effect of divorce or an annulment on a will? 8
14 How a will may be altered 9
15 How a revoked will may be revived 10
Part 2.2 Wills made or rectified under Court authorisation
Division 1 Wills by minors
16 Court may authorise minor to make, alter or revoke a will 10
17 Will made by minor under an order of a foreign court 11
Division 2 Court authorised wills for persons who do
not have testamentary capacity
18 Court may authorise a will to be made, altered or
revoked for a person without testamentary capacity 11
19 Information required in support of application for leave 12
20 Hearing of application for leave 13
21 Hearing an application for an order 13
22 Court must be satisfied about certain matters 13
23 Execution of will made under order 14
24 Retention of will 14
25 Separate representation of person lacking
testamentary capacity 14
26 Recognition of statutory wills 15
Division 3 Rectification of wills by Court
27 Court may rectify a will 15
28 Protection of personal representatives who distribute
as if will had not been rectified 15
Contents page 2
Succession Bill 2006
Contents
Page
Part 2.3 Construction of wills
Division 1 General rules about construction of wills
29 What interest in property does a will dispose of? 16
30 When a will takes effect 16
31 Effect of failure of a disposition 16
32 Use of extrinsic evidence to construe wills 17
33 Effect of a change in testator's domicile 17
34 Income on contingent, future or deferred dispositions 17
35 Beneficiaries must survive testator by 30 days 17
Division 2 Construction of particular provisions in wills
36 What a general disposition of land includes 17
37 What a general disposition of property includes 18
38 Effect of devise of real property without words
of limitation 18
39 How dispositions to issue operate 18
40 How are requirements to survive with issue
construed? 18
41 Dispositions not to fail because issue have died
before testator 18
42 Construction of residuary dispositions 19
43 Dispositions to unincorporated associations
of persons 19
44 Can a person, by will, delegate the power to dispose
of property? 20
45 Effect of referring to a valuation in a will 21
46 Operation of wills relating to transgender persons 21
Part 2.4 Wills under foreign law
47 Definition of "internal law" 21
48 General rule as to the validity of a will executed in a
foreign place 21
49 Deciding system of law to apply if more than one
system of law 22
50 Construction of the law applying to wills under
foreign law 23
Part 2.5 Deposit of and access to wills
51 Will may be deposited with Registrar 23
52 Delivery of wills by Registrar 24
53 Failure to retain does not affect validity of will 24
54 Persons entitled to inspect will of deceased person 24
Contents page 3
Succession Bill 2006
Contents
Page
Chapter 3 Miscellaneous
55 Service of documents 26
56 Rules of Court 26
57 Regulations 26
58 Savings, transitional and other provisions 26
59 Amendment of other Acts and regulation 26
60 Review of Act 27
Schedule 1 Savings, transitional and other provisions 28
Schedule 2 Amendment of Wills, Probate and
Administration Act 1898 No 13 31
Schedule 3 Amendment of other Acts and regulation 33
Contents page 4
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Succession Bill 2006
Act No , 2006
An Act to restate, with reforms, the law relating to wills in New South Wales; and
for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Succession Bill 2006
Chapter 1 Preliminary
The Legislature of New South Wales enacts:
Chapter 1 Preliminary
1 Name of Act
This Act is the Succession Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act:
administrator has the same meaning as it has in the Probate and
Administration Act 1898.
Court means the Supreme Court.
disposition includes the following:
(a) any gift, devise or bequest of property under a will,
(b) the creation by will of a power of appointment affecting property,
(c) the exercise by will of a power of appointment affecting property.
document:
(a) except as provided by paragraph (b)--has the same meaning that
it is given by section 21 of the Interpretation Act 1987, and
(b) in Chapter 2 (other than section 8)--means any paper or material
on which there is writing.
personal representative means the executor or administrator of the
estate of a deceased person.
Registrar means a person who is:
(a) appointed in accordance with section 120 of the Supreme Court
Act 1970, and
(b) nominated by the Principal Registrar of the Court for the
purposes of this Act.
will includes a codicil and any other testamentary disposition.
Note. The Interpretation Act 1987 contains definitions of some terms and
expressions used in this Act. See, for example, the definitions of minor,
land and property in section 21 of that Act.
(2) A reference in this Act to a child or issue of any person includes a child
or issue en ventre sa mere at the death of the person, provided such child
or issue is born alive and remains alive for a period of 30 days.
Page 2
Succession Bill 2006 Clause 3
Preliminary Chapter 1
(3) Notes included in this Act do not form part of this Act.
Note. References in headings to sections of this Act to "WPA" are references to
the Wills, Probate and Administration Act 1898 as in force before it was
amended by this Act.
Page 3
Clause 4 Succession Bill 2006
Chapter 2 Wills
Part 2.1 The making, alteration, revocation and revival of wills
Chapter 2 Wills
Part 2.1 The making, alteration, revocation and
revival of wills
Division 1 Making a will
4 What property may be disposed of by will? (cf WPA 5)
(1) A person may dispose by will of property to which the person is entitled
at the time of the person's death.
(2) Subsection (1) applies whether or not the entitlement existed at the date
of the making of the will.
(3) A person may dispose by will of property to which the person's personal
representative becomes entitled, in the capacity of personal
representative, after the person's death.
(4) Subsection (3) applies whether or not the entitlement existed at the time
of the person's death.
(5) A person may not dispose by will of property of which the person is
trustee at the time of the person's death.
5 Minimum age for making a will (cf WPA 6 and 6B)
(1) A will made by a minor is not valid.
(2) Despite subsection (1):
(a) a minor may make a will in contemplation of marriage (and may
alter or revoke such a will) but the will is of no effect if the
marriage contemplated does not take place, and
(b) a minor who is married may make, alter or revoke a will, and
(c) a minor who has been married may revoke the whole or any part
of a will made while the minor was married or in contemplation
of that marriage.
(3) Subsection (1) does not apply to a will made by an order under section
16 (Court may authorise minor to make, alter or revoke a will).
Division 2 Executing a will
6 How should a will be executed? (cf WPA 7 and 9)
(1) A will is not valid unless:
(a) it is in writing and signed by the testator or by some other person
in the presence of and at the direction of the testator, and
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Succession Bill 2006 Clause 7
Wills Chapter 2
The making, alteration, revocation and revival of wills Part 2.1
(b) the signature is made or acknowledged by the testator in the
presence of 2 or more witnesses present at the same time, and
(c) at least 2 of those witnesses attest and sign the will in the presence
of the testator (but not necessarily in the presence of each other).
(2) The signature of the testator must be made with the intention of
executing the will, but it is not essential that the signature be at the foot
of the will.
(3) It is not essential for a will to have an attestation clause.
(4) If a testator purports to make an appointment by his or her will in the
exercise of a power of appointment by will, the appointment is not valid
unless the will is executed in accordance with this section.
(5) If a power is conferred on a person to make an appointment by a will
that is to be executed in some particular way or with some particular
solemnity, the person may exercise the power by a will that is executed
in accordance with this section, but is not executed in the particular way
or with the particular solemnity.
(6) This section does not apply to a will made by an order under section 18
(Court may authorise a will to be made, altered or revoked for a person
without testamentary capacity).
7 Must witnesses know that they are signing a will?
A will that is executed in accordance with this Act is validly executed
even if one or more witnesses to the will did not know that the document
he or she attested and signed was a will.
Division 3 Dispensing with requirements for execution,
alteration or revocation of a will
8 When may the Court dispense with the requirements for execution,
alteration or revocation of wills? (cf WPA 18A)
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person,
and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person's will--if the Court is satisfied that the
person intended it to form his or her will, or
(b) an alteration to the deceased person's will--if the Court is
satisfied that the person intended it to form an alteration to his or
her will, or
Page 5
Clause 9 Succession Bill 2006
Chapter 2 Wills
Part 2.1 The making, alteration, revocation and revival of wills
(c) a full or partial revocation of the deceased person's will--if the
Court is satisfied that the person intended it to be a full or partial
revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to
the document or part, have regard to:
(a) any evidence relating to the manner in which the document or
part was executed, and
(b) any evidence of the testamentary intentions of the deceased
person, including evidence of statements made by the deceased
person.
(4) Subsection (3) does not limit the matters that the Court may have regard
to in making a decision under subsection (2).
(5) This section applies to a document whether it came into existence
within or outside the State.
Division 4 Witnessing a will
9 Persons who cannot act as witnesses to wills (cf WPA 12)
A person who is unable to see and attest that a testator has signed a
document may not act as a witness to a will.
10 Can an interested witness benefit from a disposition under a will?
(cf WPA 13)
(1) This section applies if a beneficial disposition is given or made by will
to a person (the interested witness) who attests the execution of the will.
(2) The beneficial disposition is void to the extent that it concerns the
interested witness or a person claiming under the interested witness.
(3) A beneficial disposition is not void under subsection (2) if:
(a) at least 2 of the people who attested the execution of the will are
not interested witnesses, or
(b) all the persons who would benefit directly from the avoidance of
the disposition consent in writing to the distribution of the
disposition under the will and have the capacity to give that
consent, or
(c) the Court is satisfied that the testator knew and approved of the
disposition and it was given or made freely and voluntarily by the
testator.
Note. Consent under section 10 (3) (b) is not liable to duty. See section 65 (12A)
of the Duties Act 1997.
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Succession Bill 2006 Clause 11
Wills Chapter 2
The making, alteration, revocation and revival of wills Part 2.1
(4) In this section:
beneficial disposition does not include a charge or direction for the
payment of:
(a) a debt, or
(b) reasonable remuneration to an executor, administrator, legal
practitioner or other person acting in relation to the
administration of the testator's estate.
Division 5 Revocation, alteration and revival of a will
11 When and how can a will be revoked? (cf WPA 16 and 17)
(1) The whole or any part of a will may be revoked but only:
(a) by a will revoking the whole or part of the will that is made by the
authority of an order under section 16 or 18, or
(b) by the operation of section 12 or 13, or
(c) by a later will, or
(d) by some writing declaring an intention to revoke it, executed in
the manner in which a will is required to be executed by this Act,
or
(e) by the testator, or by some person in his or her presence and by
his or her direction, burning, tearing or otherwise destroying the
will with the intention of revoking it, or
(f) by the testator, or by some person in his or her presence and at his
or her direction, writing on the will or dealing with the will in
such a manner that the Court is satisfied from the state of the will
that the testator intended to revoke it.
(2) No will or part of a will may be revoked by any presumption of an
intention on the ground of an alteration in circumstances.
12 Effect of marriage on a will (cf WPA 15)
(1) A will is revoked by the marriage of a testator.
(2) Despite subsection (1), the following are not revoked by the marriage of
the testator:
(a) a disposition to the person to whom the testator is married at the
time of his or her death,
(b) an appointment as executor, trustee, advisory trustee or guardian
of the person to whom the testator is married at the time of his or
her death,
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Clause 13 Succession Bill 2006
Chapter 2 Wills
Part 2.1 The making, alteration, revocation and revival of wills
(c) a will made in the exercise of a power of appointment if the
property in relation to which the appointment is exercised would
not pass to the executor, administrator or Public Trustee if the
power of appointment was not exercised.
(3) A will made in contemplation of a particular marriage, whether or not
that contemplation is expressed in the will, is not revoked by the
solemnisation of the marriage concerned.
(4) A will that is expressed to be made in contemplation of marriage
generally is not revoked by the solemnisation of a marriage of the
testator.
13 What is the effect of divorce or an annulment on a will? (cf WPA 15A)
(1) The divorce of a testator or annulment of his or her marriage revokes:
(a) a beneficial disposition to the testator's former spouse made by a
will in existence at the time of the divorce or annulment, and
(b) an appointment of the testator's former spouse as an executor,
trustee, advisory trustee or guardian made by the will, and
(c) a grant made by the will of a power of appointment exercisable
by, or in favour of, the testator's former spouse.
(2) Subsection (1) does not apply if a contrary intention appears in the will.
(3) The divorce of a testator or the annulment of his or her marriage does
not revoke:
(a) the appointment of the testator's former spouse as trustee of
property left by the will on trust for beneficiaries that include the
former spouse's children, or
(b) the grant of a power of appointment exercisable by the testator's
former spouse exclusively in favour of the children of whom both
the testator and the former spouse are the parents.
(4) If a disposition, appointment or grant is revoked by this section, the will
takes effect in respect of the revocation as if the testator's former spouse
had died before the testator.
(5) Nothing in this section affects:
(a) any right of the former spouse of a testator to make any
application under the Family Provision Act 1982, or
(b) any direction, charge, trust or provision in the will of a testator for
the payment of any amount in respect of a debt or liability
(including any liability under a promise) of the testator to the
former spouse of the testator or to the executor or the
administrator of the estate of the former spouse.
Page 8
Succession Bill 2006 Clause 14
Wills Chapter 2
The making, alteration, revocation and revival of wills Part 2.1
(6) In this section:
annulment, in relation to a testator, means:
(a) the annulment of the testator's marriage by the Family Court of
Australia, or
(b) the annulment of the testator's marriage under a law of a place
outside Australia, if the annulment is recognised in Australia
under the Family Law Act 1975 of the Commonwealth.
divorce means the ending of a marriage by:
(a) a divorce order in relation to the marriage taking effect under the
Family Law Act 1975 of the Commonwealth, or
(b) a decree of nullity in respect of the marriage by the Family Court
of Australia, or
(c) the dissolution of the marriage in accordance with the law of a
place outside Australia, if the dissolution is recognised in
Australia under the Family Law Act 1975 of the Commonwealth.
spouse includes a party to a purported or void marriage.
testator's former spouse means the person who was the testator's
spouse immediately before the testator's marriage was ended by divorce
or annulment.
14 How a will may be altered (cf WPA 18)
(1) An alteration to a will after it has been executed is not effective unless
the alteration:
(a) is executed in the manner in which a will is required to be
executed under this Part, or
(b) is made by a minor by the authority of an order of the Court under
section 16 and is executed in accordance with, and satisfies the
requirements for such a will set out in, section 16 (5), or
(c) is made for and on behalf of a person who does not have
testamentary capacity by the authority of an order under
section 18 and satisfies the requirements for such a will set out in
section 23.
(2) Subsection (1) does not apply to an alteration to a will signed by or at
the direction of the testator if the words or effect of the will are no longer
apparent because of the alteration.
(3) If a will is altered, it is sufficient compliance with the requirements for
execution if the signatures of the testator and of the witnesses to the
alteration are made:
Page 9
Clause 15 Succession Bill 2006
Chapter 2 Wills
Part 2.2 Wills made or rectified under Court authorisation
(a) in the margin, or on some other part of the will beside, near or
otherwise relating to the alteration, or
(b) as authentication of a memorandum referring to the alteration and
written on the will.
Note. Section 21 of the Interpretation Act 1987 defines sign to include making
a mark.
15 How a revoked will may be revived (cf WPA 19)
(1) A will or part of a will that has been revoked is revived by re-execution
or by execution of a will showing an intention to revive the will or part.
(2) A revival of a will that was partly revoked and later revoked as to the
balance only revives that part of the will most recently revoked.
(3) Subsection (2) does not apply if a contrary intention appears in the
reviving will.
(4) A will that has been revoked and is later wholly or partly revived is
taken to have been executed on the day on which the will is revived.
Part 2.2 Wills made or rectified under Court
authorisation
Division 1 Wills by minors
16 Court may authorise minor to make, alter or revoke a will (cf WPA 6A)
(1) The Court may make an order authorising a minor:
(a) to make or alter a will in the specific terms approved by the Court,
or
(b) to revoke a will or part of a will.
(2) An order under this section may be made on the application of a minor
or by a person on behalf of the minor.
(3) The Court may impose such conditions on the authorisation as the Court
thinks fit.
(4) Before making an order under this section, the Court must be satisfied
that:
(a) the minor understands the nature and effect of the proposed will
or alteration or revocation of the will and the extent of the
property disposed of by it, and
(b) the proposed will or alteration or revocation of the will accurately
reflects the intentions of the minor, and
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Succession Bill 2006 Clause 17
Wills Chapter 2
Wills made or rectified under Court authorisation Part 2.2
(c) it is reasonable in all the circumstances that the order should be
made.
(5) A will made under this section is not valid unless:
(a) for a will--the will is executed in accordance with the
requirements of Part 2.1, and
(b) in addition to the requirements of Part 2.1, one of the witnesses
to the making of the will under this section is the Registrar, and
(c) the conditions of the authorisation (if any) are complied with.
(6) A will that is authorised to be made, altered or revoked in part by an
order under this section must be deposited with the Registrar under
Part 2.5.
(7) A failure to comply with subsection (6) does not affect the validity of
the will.
17 Will made by minor under an order of a foreign court
(1) A will of a deceased person that is a court authorised will for a minor is
a valid will.
(2) A will is a court authorised will for a minor if:
(a) a court, in a place outside New South Wales, made an order
authorising a minor to make the will, and
(b) the will was executed according to the law of the place relating to
wills of minors, and
(c) the minor was a resident in the place at the time the will was
executed.
Division 2 Court authorised wills for persons who do not
have testamentary capacity
18 Court may authorise a will to be made, altered or revoked for a person
without testamentary capacity
(1) The Court may, on application by any person, make an order
authorising:
(a) a will to be made or altered, in specific terms approved by the
Court, on behalf of a person who lacks testamentary capacity, or
(b) a will or part of a will to be revoked on behalf of a person who
lacks testamentary capacity.
Note. A person may only make an application for an order if the person has
obtained the leave of the Court--see section 19.
Page 11
Clause 19 Succession Bill 2006
Chapter 2 Wills
Part 2.2 Wills made or rectified under Court authorisation
(2) An order under this section may authorise:
(a) the making or alteration of a will that deals with the whole or part
of the property of the person who lacks testamentary capacity, or
(b) the alteration of part only of the will of the person.
(3) The Court is not to make an order under this section unless the person
in respect of whom the application is made is alive when the order is
made.
(4) The Court may make an order under this section on behalf of a person
who is a minor and who lacks testamentary capacity.
(5) In making an order, the Court may give any necessary related orders or
directions.
Note. The power of the Court to make orders includes a power to make orders
on such terms and conditions as the Court thinks fit--see section 86 of the Civil
Procedure Act 2005. The Court also has extensive powers to make directions
under sections 61 and 62 of that Act.
(6) A will that is authorised to be made or altered by an order under this
section must be deposited with the Registrar under Part 2.5.
(7) A failure to comply with subsection (6) does not affect the validity of
the will.
19 Information required in support of application for leave
(1) A person must obtain the leave of the Court to make an application to
the Court for an order under section 18.
(2) In applying for leave, the person must (unless the Court otherwise
directs) give the Court the following information:
(a) a written statement of the general nature of the application and
the reasons for making it,
(b) satisfactory evidence of the lack of testamentary capacity of the
person in relation to whom an order under section 18 is sought,
(c) a reasonable estimate, formed from the evidence available to the
applicant, of the size and character of the estate of the person in
relation to whom an order under section 18 is sought,
(d) a draft of the proposed will, alteration or revocation for which the
applicant is seeking the Court's approval,
(e) any evidence available to the applicant of the person's wishes,
(f) any evidence available to the applicant of the likelihood of the
person acquiring or regaining testamentary capacity,
(g) any evidence available to the applicant of the terms of any will
previously made by the person,
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Succession Bill 2006 Clause 20
Wills Chapter 2
Wills made or rectified under Court authorisation Part 2.2
(h) any evidence available to the applicant, or that can be discovered
with reasonable diligence, of any persons who might be entitled
to claim on the intestacy of the person,
(i) any evidence available to the applicant of the likelihood of an
application being made under the Family Provision Act 1982 in
respect of the property of the person,
(j) any evidence available to the applicant, or that can be discovered
with reasonable diligence, of the circumstances of any person for
whom provision might reasonably be expected to be made by will
by the person,
(k) any evidence available to the applicant of a gift for a charitable or
other purpose that the person might reasonably be expected to
make by will,
(l) any other facts of which the applicant is aware that are relevant
to the application.
20 Hearing of application for leave
(1) On hearing an application for leave the Court may:
(a) give leave and allow the application for leave to proceed as an
application for an order under section 18, and
(b) if satisfied of the matters set out in section 22, make the order.
(2) Without limiting the action the Court may take in hearing an application
for leave, the Court may revise the terms of any draft of the proposed
will, alteration or revocation for which the Court's approval is sought.
21 Hearing an application for an order
In considering an application for an order under section 18, the Court:
(a) may have regard to any information given to the Court in support
of the application, and
(b) may inform itself of any other matter in any manner it sees fit, and
(c) is not bound by the rules of evidence.
22 Court must be satisfied about certain matters
The Court must refuse leave to make an application for an order under
section 18 unless the Court is satisfied that:
(a) there is reason to believe that the person in relation to whom the
order is sought is, or is reasonably likely to be, incapable of
making a will, and
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Clause 23 Succession Bill 2006
Chapter 2 Wills
Part 2.2 Wills made or rectified under Court authorisation
(b) the proposed will, alteration or revocation is, or is reasonably
likely to be, one that would have been made by the person if he
or she had testamentary capacity, and
(c) it is or may be appropriate for the order to be made, and
(d) the applicant for leave is an appropriate person to make the
application, and
(e) adequate steps have been taken to allow representation of all
persons with a legitimate interest in the application, including
persons who have reason to expect a gift or benefit from the estate
of the person in relation to whom the order is sought.
23 Execution of will made under order
(1) A will that is made or altered by an order under section 18 is properly
executed if:
(a) it is in writing, and
(b) it is signed by the Registrar and sealed with the seal of the Court.
(2) A will may only be signed by the Registrar if the person in relation to
whom the order was made is alive.
24 Retention of will
(1) Despite section 52 (Delivery of wills by Registrar), a will deposited
with the Registrar in accordance with this Part may not be withdrawn
from deposit with the Registrar by or on behalf of the person on whose
behalf it was made unless:
(a) the Court has made an order under section 18 authorising the
revocation of the whole of the will, or
(b) the person has acquired or regained testamentary capacity.
(2) On being presented with a copy of an order under section 18 authorising
the revocation of the whole of a will, the Registrar must withdraw the
will from deposit.
25 Separate representation of person lacking testamentary capacity
If it appears to the Court that the person who lacks testamentary
capacity should be separately represented in proceedings under this
Division, the Court may order that the person be separately represented,
and may also make such orders as it considers necessary to secure that
representation.
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Succession Bill 2006 Clause 26
Wills Chapter 2
Wills made or rectified under Court authorisation Part 2.2
26 Recognition of statutory wills
(1) A statutory will made according to the law of the place where the
deceased was resident at the time of the execution of the will is to be
regarded as a valid will of the deceased.
(2) In this section:
statutory will means a will executed by virtue of a provision of an Act
of New South Wales or other place on behalf of a person who, at the
time of execution, lacked testamentary capacity.
Division 3 Rectification of wills by Court
27 Court may rectify a will (cf WPA 29A)
(1) The Court may make an order to rectify a will to carry out the intentions
of the testator, if the Court is satisfied the will does not carry out the
testator's intentions because:
(a) a clerical error was made, or
(b) the will does not give effect to the testator's instructions.
(2) A person who wishes to make an application for an order under this
section must apply to the Court:
(a) within 18 months after the date of the death of the testator, or
(b) if the Court has made an order under section 17 of the Family
Provision Act 1982 specifying a lesser period in relation to an
application concerning the deceased testator under that Act--
within that period.
(3) However, the Court may, at any time, extend the period of time for
making an application specified in subsection (2) if:
(a) the Court considers it necessary, and
(b) the final distribution of the estate has not been made.
28 Protection of personal representatives who distribute as if will had not
been rectified (cf WPA 29A)
(1) This section applies if:
(a) a will is rectified under section 27, and
(b) a personal representative made a distribution to a beneficiary as
if the will had not been rectified.
(2) A personal representative is not liable if:
(a) the distribution was made under section 92A (Personal
representatives may make maintenance distributions within 30
days) of the Probate and Administration Act 1898, or
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Chapter 2 Wills
Part 2.3 Construction of wills
(b) the distribution was made at least 6 months after the date of the
death of the testator and at the time of making the distribution the
personal representative was not aware of an application in respect
of the estate having been made under section 27 or under the
Family Provision Act 1982,
and the personal representative has complied with the requirements of
section 92 (Distribution of assets after notice given by executor or
administrator) of the Probate and Administration Act 1898.
Part 2.3 Construction of wills
Division 1 General rules about construction of wills
29 What interest in property does a will dispose of? (cf WPA 20)
If:
(a) a testator has made a will disposing of property, and
(b) after the making of the will and before his or her death, the
testator disposes of an interest in that property,
the will operates to dispose of any remaining interest the testator has in
the property.
30 When a will takes effect (cf WPA 21)
(1) A will takes effect, with respect to the property disposed of by the will,
as if it had been executed immediately before the death of the testator.
(2) This section does not apply if a contrary intention appears in the will.
31 Effect of failure of a disposition (cf WPA 22)
(1) If, and to the extent, that a disposition of property under a will is
ineffective wholly or in part, the will takes effect as if the property or
undisposed part of the property were part of the residuary estate of the
testator.
(2) This section does not apply if a contrary intention appears in the will.
(3) In this section:
disposition of property does not include the exercise of a power of
appointment.
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Construction of wills Part 2.3
32 Use of extrinsic evidence to construe wills
(1) In proceedings to construe a will, evidence (including evidence of the
testator's intention) is admissible to assist in the interpretation of the
language used in the will if the language makes the will or any part of
the will:
(a) meaningless, or
(b) ambiguous on the face of the will, or
(c) ambiguous in the light of the surrounding circumstances.
(2) Despite subsection (1), evidence of the testator's intention is not
admissible to establish any of the circumstances mentioned in
subsection (1) (c).
(3) Despite subsection (2), nothing in this section prevents evidence that is
otherwise admissible at law from being admissible in proceedings to
construe a will.
33 Effect of a change in testator's domicile (cf WPA 32F)
The construction of a will is not altered because of a change in the
testator's domicile after executing the will.
34 Income on contingent, future or deferred dispositions
A contingent, future or deferred disposition of property, whether
specific or residuary, includes any intermediate income of the property
that has not been disposed of by will.
35 Beneficiaries must survive testator by 30 days
(1) If a disposition of property is made to a person who dies within 30 days
after the testator's death, the will is to take effect as if the person had
died immediately before the testator.
(2) This section does not apply if a contrary intention appears in the will.
(3) A general requirement or condition that a beneficiary survive the
testator does not indicate a contrary intention for the purposes of this
section.
Division 2 Construction of particular provisions in wills
36 What a general disposition of land includes (cf WPA 23 (1))
(1) A general disposition of land, or of land in a particular area, includes
leasehold land whether or not the testator owns freehold land.
(2) This section does not apply if a contrary intention appears in the will.
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Part 2.3 Construction of wills
37 What a general disposition of property includes (cf WPA 23 (2) and (3))
(1) A general disposition of:
(a) all or the residue of the testator's property, or
(b) all or the residue of his or her property of a particular description,
includes all of the property, or all of the property of the relevant
description, over which he or she has a general power of appointment
exercisable by will and operates as an exercise of the power.
(2) This section does not apply if a contrary intention appears in the will.
38 Effect of devise of real property without words of limitation
(cf WPA 24 and 26)
(1) A disposition of real property to a person without words of limitation is
to be construed as passing the whole estate or interest of the testator in
that property to that person.
(2) This section does not apply if a contrary intention appears in the will.
39 How dispositions to issue operate
A disposition to a person's issue, without limitation as to remoteness,
must be distributed to that person's issue in the same way as the
person's estate would be distributed if that person had died intestate
leaving only issue surviving.
40 How are requirements to survive with issue construed? (cf WPA 25)
(1) If a disposition to a person is expressed to fail if there is:
(a) a want or failure of issue of that person either in his or her lifetime
or at his or her death, or
(b) an indefinite failure of issue of that person,
the words used are to be construed to mean a want or failure of issue in
the person's lifetime or at the person's death and not an indefinite
failure of his or her issue.
(2) This section does not apply if a contrary intention appears in the will,
except where the result would be to cause a failure of the disposition.
41 Dispositions not to fail because issue have died before testator
(cf WPA 29)
(1) This section applies if:
(a) a testator makes a disposition of property to a person, whether as
an individual or as a member of a class, who is issue of the
testator (the original beneficiary), and
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Construction of wills Part 2.3
(b) under the will, the interest of the original beneficiary in the
property does not come to an end on or before the original
beneficiary's death, and
(c) the disposition is not a disposition of property to the testator's
issue, without limitation as to remoteness, and
(d) the original beneficiary does not survive the testator for 30 days.
(2) The issue of the original beneficiary who survive the testator for 30 days
take the original beneficiary's share of the property in place of the
original beneficiary as if the original beneficiary had died intestate
leaving only issue surviving.
(3) Subsection (2) does not apply if:
(a) the original beneficiary does not fulfil a condition imposed on the
original beneficiary in the will, or
(b) a contrary intention appears in the will.
(4) A general requirement or condition that issue survive the testator or
reach a specified age does not indicate a contrary intention for the
purposes of subsection (3) (b).
(5) A gift to persons as joint tenants on its own indicates a contrary
intention for the purposes of subsection (3) (b).
42 Construction of residuary dispositions
(1) A disposition of all, or the residue, of the estate of a testator that refers
only to the real estate of the testator, or only to the personal estate of the
testator, is to be construed to include both the real and personal estate of
the testator.
(2) If a part of a disposition in fractional parts of all, or the residue, of the
testator's estate fails, the part that fails passes to the part that does not
fail, and, if there is more than one part that does not fail, to all those parts
proportionally.
(3) This section does not apply if a contrary intention appears in the will.
43 Dispositions to unincorporated associations of persons
(1) Each of the following dispositions of property has effect as a disposition
in augmentation of the general funds of the association to which the
disposition is made:
(a) a disposition to an unincorporated association of persons that is
not a charity,
(b) a disposition to or on trust for the aims, objects or purposes of an
unincorporated association of persons that is not a charity,
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Clause 44 Succession Bill 2006
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Part 2.3 Construction of wills
(c) a disposition to or on trust for the present and future members of
an unincorporated association of persons that is not a charity.
(2) Property, a disposition of which is, or has effect under subsection (1) as,
a disposition in augmentation of the general funds of an unincorporated
association, must be:
(a) paid into the general fund of the association, or
(b) transferred to the association, or
(c) sold or otherwise disposed of on behalf of the association, with
the proceeds being paid into the general fund of the association.
(3) If a personal representative pays an amount to an unincorporated
association under a disposition, the receipt of the treasurer or a like
officer of the association (however described) is an absolute discharge
for the payment.
(4) If a personal representative transfers property to an unincorporated
association under a disposition, the transfer of the property to a person
nominated in writing by any two persons holding the offices of
president, chairperson, treasurer or secretary of the association, or like
officers of the association (however described), is an absolute discharge
to the personal representative for the transfer of the property.
(5) Subsections (3) and (4) do not apply if a contrary intention appears in
the will.
(6) It is not an objection to the validity of a disposition to an unincorporated
association of persons that:
(a) a list of persons who were members of the association at the time
of the testator's death cannot be compiled, or
(b) the members of the association may not divide assets of the
association beneficially among themselves.
(7) In this section:
charity means a body constituted primarily for a purpose that is a
charitable purpose under the general law.
44 Can a person, by will, delegate the power to dispose of property?
A power or a trust to dispose of property, created by will, is not void on
the ground that it is a delegation of the testator's power to make a will,
if the same power or trust would be valid if made by the testator by
instrument during his or her lifetime.
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Succession Bill 2006 Clause 45
Wills Chapter 2
Wills under foreign law Part 2.4
45 Effect of referring to a valuation in a will
(1) This section applies if:
(a) there is an express or implied requirement in a will that a
valuation of property be made or accepted for a purpose, and
(b) either:
(i) the will does not provide an effective method of valuation,
or
(ii) the method of valuation is not provided for by a law of
New South Wales or of another place.
(2) The reference to the valuation in the will is to be construed, to the extent
the method of valuation is not provided for as mentioned in subsection
(1) (b) (i) or (ii), as if the reference were a reference to a valuation of the
property at the date of the testator's death made by a competent valuer.
(3) Subsection (2) does not apply if a contrary intention appears in the will.
46 Operation of wills relating to transgender persons (cf WPA 14)
A beneficiary under a will does not, except in so far as the will may
otherwise expressly provide, lose any right or entitlement under the will
merely because the beneficiary is a transgender person as referred to in
Part 3A of the Anti-Discrimination Act 1977.
Part 2.4 Wills under foreign law
47 Definition of "internal law" (cf WPA 32A (1))
In this Part:
internal law, in relation to a place, means the law applying in a case
where no question of the law in force in any other place arises.
48 General rule as to the validity of a will executed in a foreign place
(cf WPA 32C and 32D)
(1) A will is taken to be properly executed if its execution conforms to the
internal law in force in the place:
(a) where it is executed, or
(b) that was the testator's domicile or habitual residence, either at the
time the will was executed or at the time of the testator's death, or
(c) of which the testator was a national, either at the time the will was
executed or at the time of the testator's death.
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Clause 49 Succession Bill 2006
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Part 2.4 Wills under foreign law
(2) The following wills are also taken to be properly executed:
(a) a will executed on board a vessel or aircraft in conformity with
the internal law in force at the place with which the vessel or
aircraft may be taken to have been most closely connected having
regard to its registration and other relevant circumstances,
(b) a will, to the extent that it disposes of immovable property,
executed in conformity with the internal law in force in the place
where the property is situated,
(c) a will, to the extent that it revokes:
(i) a will, or a provision of a will, that has been executed in
accordance with this Act, or
(ii) a will, or a provision of a will, that is taken by this Act to
be properly executed,
if the later will has been executed in conformity with any law
under which the earlier will or provision would be taken to have
been validly executed.
(3) A will to which this section applies is not, to the extent that it exercises
a power of appointment, to be taken to have been improperly executed
only because it has not been executed in accordance with the formalities
required by the instrument creating the power.
49 Deciding system of law to apply if more than one system of law
(cf WPA 32A (2))
(1) This section applies if:
(a) the internal law in force in a place must be applied under section
48, and
(b) there is more than one system of internal law in force in that place
relating to the formal validity of wills.
(2) The system of law to be applied under section 48 is to be determined as
follows:
(a) if there is a rule in force throughout the place that indicates which
system of internal law applies to the will, that rule must be
followed,
(b) if there is no rule, the system of internal law is that with which the
testator was most closely connected:
(i) if the matter is to be determined by reference to
circumstances prevailing at the testator's death--at the
time of the testator's death, or
(ii) in any other case--at the time of execution of the will.
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Deposit of and access to wills Part 2.5
50 Construction of the law applying to wills under foreign law
(cf WPA 32A (4))
(1) In determining, for the purposes of section 48, whether a will has been
executed in conformity with a particular law, regard must be had to the
formal requirements of that law at the time of execution, but account
may be taken of a later alteration of the law affecting wills executed at
that time, if the alteration enables the will to be treated as properly
executed.
(2) If a law outside New South Wales is applied to a will (whether or not
for the purposes of section 48), a requirement of that law that special
formalities must be observed by testators of a particular description, or
that the witnesses to the execution of the will must have certain
qualifications, is taken to be a formal requirement only, despite any rule
of law to the contrary.
Note. Section 17 provides for the recognition in New South Wales of a court
authorised will for a minor made in another jurisdiction. Section 26 provides for
the recognition of statutory wills (including such wills made in other jurisdictions)
made for persons lacking testamentary capacity.
Part 2.5 Deposit of and access to wills
51 Will may be deposited with Registrar
(1) Any person may deposit a will in the office of the Registrar.
(2) A will is not to be deposited unless it is in a sealed envelope that has
written on it the following information:
(a) the testator's name and address (as they appear in the will),
(b) the name and address (as they appear in the will) of any executor,
(c) the date of the will,
(d) the name of the person depositing the will.
(3) A will that is deposited must be accompanied by the fee prescribed by
the regulations.
(4) Despite subsection (3), a fee is not payable for the deposit of a will if:
(a) the will is deposited:
(i) in accordance with section 16 or 18, or
(ii) because a local legal practitioner has died, or has ceased,
or is about to cease practising law in New South Wales, or
(b) the fee is waived by the Registrar in accordance with regulations
made under the Civil Procedure Act 2005.
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Part 2.5 Deposit of and access to wills
52 Delivery of wills by Registrar (cf WPA 32)
(1) If a will has been deposited with the Registrar under this Act, the
testator may at any time apply in writing to the Registrar to be given the
will or to have the will given to another person authorised by the testator
in writing to receive it.
(2) On receiving the application, the Registrar must give the will to the
testator or the person authorised by the testator unless the testator is a
minor or a person who lacks testamentary capacity.
(3) If a will has been deposited with the Registrar under this Act and the
testator has died, any executor named in the will or any person entitled
to apply for letters of administration with the will annexed may apply in
writing to the Registrar to be given the will.
(4) On receiving the application referred to in subsection (3), the Registrar
must give the will to the executor or other person or to any Australian
legal practitioner or trustee company nominated by the executor or
person.
(5) The Registrar may examine any will to enable the Registrar to comply
with this Part.
(6) The Registrar must ensure that an accurate copy of every will given to
a person under this section is made and retained by the Registrar.
(7) If there is any doubt as to whom a will should be given, the Registrar,
or any other person, may apply to the Court for directions as to whom
the Registrar should give the will.
53 Failure to retain does not affect validity of will
Any failure of the Registrar to retain a will as required by this Act does
not affect the validity of the will.
54 Persons entitled to inspect will of deceased person
(1) In this section:
will includes a revoked will, a document purporting to be a will, a part
of a will and a copy of a will.
(2) A person who has possession or control of a will of a deceased person
must allow any one or more of the following persons to inspect or be
given copies of the will (at their own expense):
(a) any person named or referred to in the will, whether as a
beneficiary or not,
(b) any person named or referred to in an earlier will as a beneficiary
of the deceased person,
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Deposit of and access to wills Part 2.5
(c) the surviving spouse, de facto partner (whether of the same or the
opposite sex) or children of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the
deceased person if the deceased person had died intestate,
(f) any parent or guardian of a minor referred to in the will or who
would be entitled to a share of the estate of the testator if the
testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at
law or in equity against the estate of the deceased person,
(h) any person committed with the management of the deceased
person's estate under the Protected Estates Act 1983 immediately
before the death of the deceased person,
(i) any attorney under an enduring power of attorney made by the
deceased person,
(j) any person belonging to a class of persons prescribed by the
regulations.
(3) A person who has possession or control of a will of a deceased person
must produce it in a court if the court requires the person to do so.
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Clause 55 Succession Bill 2006
Chapter 3 Miscellaneous
Part 2.5 Deposit of and access to wills
Chapter 3 Miscellaneous
55 Service of documents
A document that is authorised or required by this Act or the regulations
to be served on any person may be served in accordance with rules for
the various methods of service of documents under the Uniform Civil
Procedure Rules 2005.
Note. On the enactment of this section, Rule 10.5 of the Uniform Civil
Procedure Rules 2005 contained the rules for general service of documents.
56 Rules of Court
(1) Rules of Court may be made under the Supreme Court Act 1970 for or
with respect to the practice and procedure to be followed in respect of
proceedings under this Act and any matters incidental to, or relating to,
such practice and procedure.
Note. Under section 9 (2) and clause 30 of Schedule 3 to the Civil Procedure
Act 2005 rules may also be made under that Act.
(2) Without limiting subsection (1), rules of court may be made for or with
respect to the following:
(a) the service of documents (including the service of documents
outside New South Wales),
(b) the giving of notices under this Act,
(c) applications under this Act,
(d) matters relating to costs in proceedings under this Act.
(3) This section does not limit the rule-making powers conferred by the
Supreme Court Act 1970.
57 Regulations
The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
58 Savings, transitional and other provisions
Schedule 1 has effect.
59 Amendment of other Acts and regulation
The Acts and regulation specified in Schedules 2 and 3 are amended as
set out in those Schedules.
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Succession Bill 2006 Clause 60
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60 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 5 years.
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Succession Bill 2006
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other
provisions
(Section 58)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
(4) Regulations made as referred to in subclause (1) may have effect despite
the terms of any savings or transitional provisions contained in this
Schedule, if the regulations so provide.
Part 2 Provisions consequent on enactment of this
Act
2 Definition
In this Part:
repealed provisions means the provisions of the Wills, Probate and
Administration Act 1898 repealed by Schedule 2.
3 Transitional provisions
(1) This Act, other than sections 4, 7, 8, 27-31, 33, 34, 36-38 and 43-45,
applies only to wills made on or after the commencement of this clause.
(2) Sections 4, 7, 8, 27-31, 33, 34, 36-38 and 43-45 apply to a will whether
or not it is made before, on or after the commencement of this clause, if
the testator dies on or after that commencement.
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Savings, transitional and other provisions Schedule 1
(3) The repealed provisions, as in force immediately before the
commencement of this clause, continue to apply to wills made before
the commencement of this clause, in so far as those wills are not
affected by the operation of subclause (4), (5) or (6) or by the operation
of the sections specified in subclause (2).
(4) Section 9 (Persons who cannot act as witnesses to wills) extends to a
codicil or other testamentary disposition that alters or revokes a will and
that is made on or after the commencement of this clause even if the will
was made before the commencement.
(5) Section 12 (Effect of marriage on a will) applies to a will made before
the commencement of this clause, in relation to a marriage solemnised
on or after the commencement.
(6) Section 13 (What is the effect of divorce or an annulment on a will)
applies to a will made before the commencement of this clause, if the
divorce or the annulment of the marriage occurs on or after the
commencement of this clause.
4 Will of minor pursuant to leave of Court
Despite the repeal of section 6A of the Wills, Probate and
Administration Act 1898, a will may be made by a minor after repeal of
that section pursuant to (and in accordance with any conditions of) leave
granted under that section before its repeal.
5 Anti-lapse provisions
Despite clause 3 (1), section 41 (Dispositions not to fail because issue
have died before testator) applies to a will made before the
commencement of this clause if the testator dies on or after the
commencement and on or after the death of the issue.
6 Construction of references
Subject to this Schedule and the regulations, in any Act (other than this
Act) or instrument:
(a) a reference to a repealed provision for which there is a
corresponding provision in this Act extends to the corresponding
provision of this Act, and
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Succession Bill 2006
Schedule 1 Savings, transitional and other provisions
(b) a reference to any act, matter or thing referred to in a repealed
provision for which there is a corresponding provision in this Act
extends to the corresponding act, matter or thing referred to in the
corresponding provision of this Act.
7 Pending proceedings
(1) Subject to this Schedule and the regulations, this Act and the rules apply
to proceedings commenced before the commencement of this clause in
relation to the repealed provisions in the same way as they apply to
proceedings commenced on or after the commencement.
(2) The Court may in such proceedings make such orders dispensing with
the requirements of this Act or the rules in relation to the proceedings,
and such consequential orders (including orders as to costs) and
directions, as are appropriate in the circumstances.
8 Wills deposited in registry of Court
A will deposited in the registry of the Court under section 32 of the
Wills, Probate and Administration Act 1898, as in force immediately
before the repeal of that section by this Act, is taken to have been
deposited with the Registrar under section 51 (Will may be deposited
with Registrar).
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Succession Bill 2006
Amendment of Wills, Probate and Administration Act 1898 No 13 Schedule 2
Schedule 2 Amendment of Wills, Probate and
Administration Act 1898 No 13
(Section 59)
[1] Section 1 Name of Act
Omit "Wills,".
[2] Part 1 Wills
Omit the Part (other than sections 30 and 31).
[3] Section 30 Place of original wills
Omit "brought into the Court or".
[4] Section 31 Official copy of whole or part of will may be obtained
Omit "An".
Insert instead "Without limiting section 52 (Delivery of wills by Registrar) of
the Succession Act 2006, an".
[5] Part 1A Formal validity of wills
Omit the Part.
[6] Section 92 Distribution of assets after notice given by executor or
administrator
Insert "or the distribution was not made in the circumstances described in
subsection (2) (a) or (b) of section 28 (Protection of personal representatives
who distribute as if will had not been rectified) of the Succession Act 2006"
after "time of the distribution" in section 92 (2).
[7] Section 92A
Insert after section 92:
92A Personal representatives may make maintenance distributions
within 30 days
(1) This section applies if a person (the survivor):
(a) survives a deceased person, and
(b) at the time of the deceased person's death, was wholly or
substantially dependent on the deceased person, and
(c) will be entitled to part or all of the deceased person's estate
if the person survives the deceased person for 30 days.
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Succession Bill 2006
Schedule 2 Amendment of Wills, Probate and Administration Act 1898 No 13
(2) The executor or administrator of the deceased person's estate
may make a distribution that is an adequate amount for the proper
maintenance, support or education of the survivor at any time
after the death of the deceased person, including within 30 days
after the death of the deceased person.
(3) The executor or administrator may make the distribution even
though the executor or administrator knows, when the
distribution is made, of a pending application, or an intended
application, for an order under the Family Provision Act 1982 in
relation to the deceased person.
(4) The executor or administrator is not liable for a distribution under
subsection (2) that is made in good faith.
(5) An amount distributed under subsection (2) to a person must be
deducted from any share of the estate to which the person
becomes entitled.
(6) However, if the person does not survive the deceased person for
30 days, the distribution is to be treated as an administration
expense.
(7) An authorised deposit-taking institution does not incur any
liability in relation to any transaction concerning an account of
the deceased person kept with the institution or with some other
financial institution that it is authorised to make by the executor
or administrator of the deceased person for the purposes of a
distribution under subsection (2).
(8) Subsection (7) does not relieve an authorised deposit-taking
institution from any liability or obligation it would have apart
from that subsection.
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Succession Bill 2006
Amendment of other Acts and regulation Schedule 3
Schedule 3 Amendment of other Acts and regulation
(Section 59)
3.1 Administration (Validating) Act 1900 No 38
[1] Section 1 Incorporation and name of Act
Omit "Wills,".
[2] Section 4 Power of court to authorise sale, mortgage, or lease
Omit "Wills,".
3.2 Adoption Act 2000 No 75
[1] Section 99 Relationship of adopted child to other children of the adopter
Omit "Wills," from section 99 (1) (a).
[2] Section 100 Liability of trustees and personal representatives in relation
to adopted persons
Omit "Wills," from the definition of claims notice in section 100 (3).
3.3 Compensation to Relatives Act 1897 No 31
Section 7 Construction of Act
Omit "Wills" from section 7 (2).
3.4 Contaminated Land Management Act 1997 No 140
[1] Section 14 Concept of notional owner
Omit "Wills," from section 14 (2) (c).
[2] Section 38 Limit on liability of representative or trustee
Omit "Wills," from section 38 (3).
3.5 Conveyancing Act 1919 No 6
[1] Section 7 Definitions
Omit "Wills," wherever occurring from the definitions of Administrator and
Disposition in section 7 (1).
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Succession Bill 2006
Schedule 3 Amendment of other Acts and regulation
[2] Section 23B Assurances of land to be by deed
Omit "Wills," from section 23B (2) (a).
[3] Section 33 Meaning of heir, next of kin, or statutory next of kin of any
person
Omit "Wills," wherever occurring in section 33 (1) and (3).
[4] Section 37 Extension of sec 29 of Wills, Probate and Administration Act
1898
Omit the section.
[5] Section 152 Definitions
Omit "Wills," from section 152 (a).
3.6 Duties Act 1997 No 123
Section 65 Exemptions from duty
Insert after section 65 (12):
(12A) Consents to gifts by will to interested witnesses
No duty is chargeable under this Chapter on a consent referred to
in section 10 (3) (b) of the Succession Act 2006.
3.7 Family Provision Act 1982 No 160
Section 6 Definitions
Omit "Wills," from paragraph (a) of the definition of administration in section
6 (1).
3.8 Inheritance Act of 1901 No 19
Section 14 Extent of Act
Omit "and the Wills Probate and Administration Act 1898".
Insert instead "the Probate and Administration Act 1898 and the Succession
Act 2006".
Page 34
Succession Bill 2006
Amendment of other Acts and regulation Schedule 3
3.9 Landlord and Tenant (Amendment) Act 1948 No 25
[1] Section 83B Public Trustee's title not a defence to recovery of
possession of prescribed premises after death of lessee in certain cases
Omit "Wills,".
[2] Section 83C Periodic leases may not be disposed of by will or pass on
intestacy
Omit "Wills,".
3.10 Limitation Act 1969 No 31
Section 11 Definitions
Omit "Wills," from the definition of Personal representative in section 11 (1).
3.11 Minors (Property and Contracts) Act 1970 No 60
Second Schedule Saving of specific enactments
Omit "Wills," from under the heading "Subject" in the Table to the Schedule.
3.12 Powers of Attorney Act 2003 No 53
[1] Section 3 Definitions
Omit "Wills," from paragraph (b) of the definition of disposition in section 3
(1).
[2] Section 24 Effect of disposal of home shared by spouses under enduring
power of attorney in cases of intestacy
Omit "Wills," wherever occurring.
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Succession Bill 2006
Schedule 3 Amendment of other Acts and regulation
3.13 Public Trustee Act 1913 No 19
[1] Section 1 Name of Act, construction and commencement
Omit "Wills,".
[2] Section 1
Insert "the Succession Act 2006," after "1898,".
[3] Section 4A Definitions
Omit the definition of Principal Act.
[4] Section 18A Election by Public Trustee to administer
Omit "Wills," from section 18A (5A).
[5] Section 34A Small estates
Omit "section 30 of the Principal Act" from section 34A (1).
Insert instead "section 51 (Will may be deposited with Registrar) of the
Succession Act 2006".
[6] Section 34B Dispute by Public Trustee of any claim
Omit "Principal Act" wherever occurring.
Insert instead "Probate and Administration Act 1898".
[7] Schedule Enactments of Principal Act repealed by this Act
Insert at the end of the Schedule:
Note. The Schedule repealed provisions of the Wills, Probate and Administration Act
1898.
3.14 Stamp Duties Act 1920 No 47
Second Schedule Stamp duties and exemptions
Omit "Wills," from Part 1.
Page 36
Succession Bill 2006
Amendment of other Acts and regulation Schedule 3
3.15 Trustee Act 1925 No 14
[1] Section 5 Definitions
Omit "Wills," from the definition of Administrator.
[2] Section 61 Distribution where estate comprises leaseholds, and in
certain other cases
Omit "Wills," from section 61 (1).
[3] Section 101 Property vested in the Public Trustee
Omit "Wills,".
3.16 Wills, Probate and Administration Regulation 2003
[1] Clause 1 Name of Regulation
Omit "Wills,".
[2] Clause 3 Definition
Omit "Wills," from the definition of the Act.
Page 37
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