Western Australian Current Acts Western Australian Current Acts (1) This section
applies whenever, in determining whether any limitation is invalid as
infringing the rule against perpetuities, or in determining the right of any
persons to put an end to a trust or accumulation, or generally in the
management or administration of any trust, estate or fund, or for any purposes
relating to the disposition, transmission or devolution of property, it
becomes relevant to enquire whether any person is or at a relevant date was or
will be capable of procreating or bearing a child or whether any person would
on or after a relevant date adopt a child.
(2) Where this section
applies, there is a presumption, rebuttable by sufficient evidence to the
contrary tendered at the time at which the matter falls for decision (but not
subsequently), that —
(a) a
woman who has attained the age of 55 years is incapable of bearing a child;
(aa) a
woman will not, after she has attained the age of 55 years, adopt a child; and
(b) a
male or female who has not attained the age of 12 years is incapable of
procreating or bearing a child.
(3) Where this section
applies, medical evidence that a male or female of any age is or at a relevant
date was or will be incapable of procreating or bearing a child is admissible
in proceedings in order to establish that incapacity, and the Court may accept
any such evidence of a high degree of improbability of procreating or
child-bearing as it thinks proper as establishing the incapacity.
(4) Any decision of
the Court, in which any such presumption as is mentioned in subsection (2) is
applied or in which any such evidence as is mentioned in subsection (3) is
accepted remains effective notwithstanding the subsequent birth of a child or,
in the case of the presumption mentioned in paragraph (aa) of that subsection
(2), the subsequent adoption of a child; but if a limitation, that is not
itself invalid as infringing the rule against perpetuities, confers upon that
child or his spouse or de facto partner, or upon his issue or the spouse or de
facto partner of any of his issue, a right to any property, that right
(including any right to follow or trace the property) is not affected by the
decision of the Court.
[Section 102 amended: No. 25 of 1972 s. 3; No. 28
of 2003 s. 161.]