Western Australian Current Acts Western Australian Current Acts[s. 14]
[Heading inserted: No. 138 of 1976 s. 16; amended:
No. 25 of 2002 s. 52; No. 19 of 2010 s. 6(3).]
1 . Rights of surviving spouse if dwelling house
is residence
(1) Subject to the
provisions of this Schedule where —
[(a) deleted]
(b) the
whole or a part of the intestate property consists of an interest in a
dwelling house that, at the date of the death of the deceased person, was
ordinarily used by the surviving husband or wife as his or her ordinary place
of residence (in this Schedule called the interest ); and
(c) the
surviving husband or wife is not entitled under sections 14 and 15 to the
whole of the intestate property,
the surviving husband
or wife may elect to have the interest appropriated under section 30(1)(k) of
the Trustees Act 1962 in or towards satisfaction of any entitlement or
entitlements that the surviving husband or wife has under item 2 or 3 of the
Table.
(2) The right
conferred by this paragraph shall not be exercisable where the interest is
—
(a) a
tenancy that, at the date of the death of the intestate, was a tenancy that
would determine within the period of 2 years from that date; or
(b) a
tenancy that the landlord, by notice given after the date of the death of the
intestate, could determine within the period of 2 years from that date of
death.
(3) Where part of a
building was, at the date of the death of the intestate, ordinarily occupied
as a separate dwelling, that part of the building shall, for the purposes of
this Schedule, be treated as a dwelling house.
(4) Except where the
context otherwise requires, references in this Schedule to a dwelling house
include references to any garden or portion of ground attached to and usually
occupied with the dwelling house or otherwise required for the amenity or
convenience of the dwelling house.
[Clause 1 amended: No. 19 of 2010 s. 51.]
2 . Court order required in certain cases
Where —
(a) the
dwelling house forms part of a building and an interest in the whole of the
building is comprised in the intestate property; or
(b) the
dwelling house is held with land used for agricultural purposes and an
interest in that land is comprised in the intestate property; or
(c) the
whole or a part of the dwelling house was, at the date of the death of the
intestate, used as an hotel or lodging house; or
(d) a
part of the dwelling house was, at the date of the death of the intestate,
used for purposes other than domestic purposes,
the right conferred by
paragraph 1 shall not be exercisable unless the Court, on being satisfied that
the exercise of that right is not likely to diminish the value of assets in
the estate of the intestate (other than the interest) or make them more
difficult to dispose of, so orders.
[Clause 2 amended: No. 19 of 2010 s. 51.]
3 . Time limit for exercising right under par. 1
(1) The right
conferred by paragraph 1 shall not be exercisable —
(a)
after the expiration of 12 months from the first grant of administration of
the estate of the intestate; or
(b)
after the death of the surviving husband or wife.
(2) The Court may, on
the application of the surviving husband or wife, grant an extension of the
period of 12 months mentioned in this paragraph.
[Clause 3 amended: No. 19 of 2010 s. 51.]
4 . Mode of exercising right under par. 1
(1) The right
conferred by paragraph 1 shall be exercisable by furnishing a notification in
writing —
(a) if
the surviving husband or wife is not a personal representative of the
intestate — to the personal representative or to each personal
representative, as the case may be, of the intestate; or
(b) if
the surviving husband or wife is one of the personal representatives of the
intestate — to the other personal representative, or to each other
personal representative, as the case may be, of the intestate; or
(c) if
the surviving husband or wife is the sole personal representative of the
intestate — to the Principal Registrar.
(2) A notification
under subparagraph (1) is not revocable except with the consent of the
personal representative or of each personal representative, as the case may
be, of the intestate.
(3) Where the
surviving husband or wife is not a personal representative of the intestate he
or she may require the personal representative to have the interest valued and
to inform him or her of the result of that valuation before he or she decides
whether to exercise the right conferred by paragraph 1.
[Clause 4 amended: No. 19 of 2010 s. 51.]
Notwithstanding
section 50 of the Trustees Act 1962 , as respects an appropriation in
pursuance of paragraph 1 the value of the interest is the amount determined by
a qualified valuer engaged by the personal representative of the intestate to
be the market value of the interest.
[Clause 5 amended: No. 19 of 2010 s. 51.]
6 . Restriction on sale during election period
(1) In this paragraph
—
election period means the period of 12 months
mentioned in paragraph 3 and includes any extension of that period granted
under subparagraph (2) of that paragraph.
(2) During the
election period the personal representative of the intestate shall not,
without the written consent of the surviving husband or wife, sell or
otherwise dispose of the interest except in the course of administration owing
to want of other assets or except with the approval of the Court.
(3) An application to
the Court under paragraph 2 may be made by the personal representative of the
intestate as well as by the surviving husband or wife, and if, on an
application under that paragraph, the Court does not order that the right
conferred by paragraph 1 shall be exercisable by the surviving husband or
wife, the Court may authorise the personal representative to dispose of the
interest within the election period.
(4) This paragraph
shall not apply where the surviving husband or wife is the sole personal
representative, or one of 2 or more personal representatives, of the
intestate.
(5) Nothing in this
paragraph shall confer any right on the surviving husband or wife as against a
purchaser from the personal representative of the intestate.
[Clause 6 amended: No. 19 of 2010 s. 51.]
7 . Surviving spouse as sole personal
representative
(1) Where the
surviving husband or wife is the sole personal representative, or one of 2 or
more personal representatives of the intestate, he or she may, notwithstanding
that he or she is a trustee, acquire the interest under an appropriation in
pursuance of paragraph 1.
(2) The power of
appropriation under section 30(1)(k) of the Trustees Act 1962 shall include
power to appropriate the interest partly in satisfaction of the entitlement or
entitlements of the surviving husband or wife under item 2 or 3 of the Table
and partly in return for a payment of money by the surviving husband or wife
to be applied in or towards satisfaction of the other entitlements under these
items.
[Clause 7 amended: No. 19 of 2010 s. 51.]
8 . Surviving spouse not of full mental capacity
(1) Where the
surviving husband or wife is not of full mental capacity a requirement or
consent under this Schedule may be made or given on his or her behalf by the
person, if any, having the care and management of his or her estate, or, where
there is no such person, by the Court.
(2) A requirement or
consent made or given under this Schedule by a surviving husband or wife who
is an infant shall be as valid and binding as it would be if he or she were of
age; and, as respects an appropriation in pursuance of paragraph 1, the
provisions of section 30(1)(k) of the Trustees Act 1962 as to obtaining the
consent of the infant’s parent or guardian shall not apply.
[Clause 8 amended: No. 19 of 2010 s. 51.]
Unless the contrary
intention appears, words and expressions used in this Schedule have the same
respective meanings as they have in and for the purposes of section 14.
[Clause 9 amended: No. 19 of 2010 s. 51.]
[Fourth Schedule inserted: No. 138 of 1976 s. 16;
amended: No. 67 of 1979 s. 44(z); No. 25 of 2002 s. 52; No. 19 of 2010 s. 51.]