New South Wales Consolidated Acts

SUCCESSION ACT 2006 - SECT 115

115 Spouse's right of election

(1) A spouse is entitled to elect to acquire property from an intestate estate.

(2) A spouse's election to acquire property from an intestate estate requires the Court's authorisation if--

(a) the property forms part of a larger aggregate, and

(b) the acquisition could substantially diminish the value of the remainder of the property or make the administration of the estate substantially more difficult.

Note : For example--

(a) The acquisition of a single item from a group of items might substantially diminish the value of the remainder of the group or make it substantially more difficult to dispose of the remainder of the group.

(b) The acquisition of the farmhouse from a farming property might substantially diminish the value of the remainder of the farming property or make it substantially more difficult to dispose of it.

(3) The Court may grant an authorisation under subsection (2) and may impose such conditions as it considers just and equitable to address the matters referred to in that subsection, including a condition that the spouse pay compensation to the estate in addition to consideration to be given for the property under this Division and a condition as to costs.

(4) The Court must refuse authorisation if it considers that the matters referred to in subsection (2) cannot be adequately addressed by granting an authorisation subject to such conditions.

(5) A spouse is not entitled to elect to acquire property from an intestate estate if the transfer or conveyance by the personal representative to the spouse of the interest of the intestate in the property would require compliance with the mandatory provisions unless those provisions would be complied with and the costs of complying with the provisions are paid by the spouse.

(6) A spouse who is a personal representative of the intestate is not prevented from making an election to acquire property from the intestate estate by the fact that the spouse is a trustee of the intestate estate.

(7) Nothing in this section confers on a spouse any right against a person who in good faith purchased for value from the personal representative of the intestate any property of the intestate.

(8) In this section--

"mandatory provisions" means the following--

(a) the Environmental Planning and Assessment Act 1979 , the Conveyancing Act 1919 and any other Act with respect to the manner of dividing land into parts, and with respect to any requirement incidental to the manner of dividing land into parts,

(b) the Strata Schemes Development Act 2015 with respect to the manner of subdividing land to which section 9 of that Act applies or of any lot within the meaning of that Act, and with respect to any requirement incidental to the manner of subdividing any such land or lot.