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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Succession Amendment
Bill 2005
Queensland
Succession Amendment Bill 2005
Contents
Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Amendment of s 5 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5 Insertion of new s 5C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5C Notes in text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6 Replacement of pt 2 (Wills) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Part 2 Wills
Division 1 Application of part 2
7 Application of pt 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Division 2 Making a will
8 Property that may be disposed of by will . . . . . . . . . . 8
9 Minimum age for making a will . . . . . . . . . . . . . . . . . . 8
10 How a will must be executed . . . . . . . . . . . . . . . . . . . 9
11 When an interested witness may benefit from a
disposition .............................. 10
12 When an interpreter may benefit from a disposition. . 11
Division 3 Revoking, altering or reviving a will
13 How a will may be revoked . . . . . . . . . . . . . . . . . . . . . 11
14 Effect of marriage on a will . . . . . . . . . . . . . . . . . . . . . 12
15 Effect of divorce or annulment on a will . . . . . . . . . . . 13
16 How a will may be altered. . . . . . . . . . . . . . . . . . . . . . 14
17 How a revoked will may be revived. . . . . . . . . . . . . . . 15
Division 4 Powers of court
Subdivision 1 Execution requirements
18 Court may dispense with execution requirements
for will, alteration or revocation . . . . . . . . . . . . . . . . . . 16
Subdivision 2 Minors
2
Succession Amendment Bill 2005
19 Court may authorise minor to make, alter or revoke
a will .................................. 16
20 Execution of will or other instrument made under order 17
Subdivision 3 Persons without testamentary capacity
21 Court may authorise a will to be made, altered or
revoked for person without testamentary capacity . . . 18
22 Leave to apply for s 21 order . . . . . . . . . . . . . . . . . . . 19
23 Information required by court in support of
application for leave . . . . . . . . . . . . . . . . . . . . . . . . . . 19
24 Matters court must be satisfied of before giving leave 20
25 Hearing an application for leave or for an order . . . . . 21
26 Execution of will or other instrument made under
order ................................ 21
27 Validity of will or other instrument made under order . 21
28 Relationship with Guardianship and Administration
Act 2000 and Powers of Attorney Act 1998 . . . . . . . . 22
Subdivision 4 Particular wills held by registrar
29 Registrar to hold will or other instrument made
under order under s 19. . . . . . . . . . . . . . . . . . . . . . . . 22
30 Registrar to hold will or other instrument made
under order under s 21. . . . . . . . . . . . . . . . . . . . . . . . 23
31 Envelope required for will held by registrar. . . . . . . . . 23
32 Delivery of will or other instrument if testator has died 24
Subdivision 5 Rectification
33 Court may rectify a will . . . . . . . . . . . . . . . . . . . . . . . . 25
33A Protection of personal representatives who distribute
as if the will had not been rectified . . . . . . . . . . . . . . . 25
Division 5 Interpretation of wills
33B Beneficiaries must survive testator for 30 days . . . . . 26
33C Use of evidence to interpret a will . . . . . . . . . . . . . . . 27
33D Effect of a change in testator's domicile . . . . . . . . . . . 27
33E When a will takes effect . . . . . . . . . . . . . . . . . . . . . . . 27
33F Will operates to dispose of remaining interest in
property if part interest disposed of before death. . . . 27
33G Effect of a failure of a disposition of property . . . . . . . 28
33H Income of contingent, future or deferred disposition
of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
33I What a general disposition of land includes . . . . . . . . 28
33J What a general disposition of property includes. . . . . 28
3
Succession Amendment Bill 2005
33K Effect of a disposition of real property without words
of limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
33L How dispositions of property to issue operate . . . . . . 29
33M How requirements to survive with issue are
interpreted ............................ 30
33N Dispositions not to fail because issue have died
before testator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
33O Disposition of real estate or personal estate may
include both in particular case . . . . . . . . . . . . . . . . . . 31
33P Disposition of fractional part in particular case. . . . . . 31
33Q Dispositions to unincorporated associations of
persons ............................... 31
33R When a person may delegate power to dispose of
property by a will . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
33S Effect of reference to valuation in will . . . . . . . . . . . . . 33
Division 6 Wills with a foreign connection
33T Wills that are taken to be properly executed . . . . . . . 33
33U Deciding system of law to apply if more than
1 system of internal law . . . . . . . . . . . . . . . . . . . . . . . 35
33V Formal requirements at time of execution apply. . . . . 35
33W Matters that are taken to be formal requirements. . . . 35
33X Will by minor made under an order of a foreign court 36
33Y Recognition of statutory wills made by
non-Queensland resident . . . . . . . . . . . . . . . . . . . . . . 36
Division 7 Miscellaneous
33Z Persons entitled to inspect a will or to obtain a copy
of a will . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7 Amendment of s 49 (Powers of personal representatives). . . . . . 38
8 Insertion of new s 49A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
49A Personal representatives may make particular
maintenance distribution . . . . . . . . . . . . . . . . . . . . . . 38
9 Omission of ss 62, 63, 64 and 67. . . . . . . . . . . . . . . . . . . . . . . . . 39
10 Insertion of new pt 7, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Division 4 Transitional provision for Succession
Amendment Act 2005
76 Transitional provision for Succession Amendment
Act 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
2005
A Bill
for
An Act to amend the Succession Act 1981
s1 6 s4
Succession Amendment Bill 2005
The Parliament of Queensland enacts-- 1
Clause 1 Short title 2
This Act may be cited as the Succession Amendment Act 3
2005. 4
Clause 2 Commencement 5
This Act commences on a day to be fixed by proclamation. 6
Clause 3 Act amended 7
This Act amends the Succession Act 1981. 8
Clause 4 Amendment of s 5 (Definitions) 9
(1) Section 5, definitions disposition, internal law, property and 10
will-- 11
omit. 12
(2) Section 5-- 13
insert-- 14
`annulment see section 15. 15
disposition means a disposition by will and includes the 16
following-- 17
(a) a gift, devise or bequest of property by a will; 18
(b) the creation by will of a power of appointment affecting 19
property; 20
(c) the exercise by will of a power of appointment affecting 21
property. 22
divorce see section 15. 23
document-- 24
(a) for part 2, other than section 18, means any paper or 25
material on which there is writing; or 26
s5 7 s6
Succession Amendment Bill 2005
(b) for section 18, see the Acts Interpretation Act 1954, 1
section 36. 2
internal law, for part 2, in relation to a place, means the law 3
that would apply if no question of the law in force in any other 4
place arose. 5
registrar, for part 2, means a registrar or deputy registrar of 6
the Supreme Court. 7
will includes a codicil and any other testamentary 8
disposition.'. 9
Clause 5 Insertion of new s 5C 10
After section 5B-- 11
insert-- 12
`5C Notes in text 13
`A note in the text of this Act is part of the Act.'. 14
Clause 6 Replacement of pt 2 (Wills) 15
Part 2-- 16
omit, insert-- 17
`Part 2 Wills 18
`Division 1 Application of part 2 19
`7 Application of pt 2 20
`Subject to section 76, this part applies only to a will of a
1
21
person who dies after the commencement of this section. 22
1 Section 76 (Transitional provision for Succession Amendment Act 2005)
s6 8 s6
Succession Amendment Bill 2005
`Division 2 Making a will 1
`8 Property that may be disposed of by will 2
`(1) A person may dispose by will of any property to which the 3
person is entitled at the time of the person's death. 4
`(2) Subsection (1) applies whether or not the entitlement existed 5
at the date of the making of the will. 6
`(3) A person may dispose by will of any property to which the 7
person's personal representative becomes entitled, in the 8
person's capacity as personal representative, after the person's 9
death. 10
`(4) Subsection (3) applies whether or not the entitlement existed 11
at the time of the person's death. 12
`(5) A person may not dispose by will of property of which the 13
person is trustee at the time of the person's death. 14
`9 Minimum age for making a will 15
`(1) A will made by a minor is not valid. 16
`(2) However-- 17
(a) a minor may make a will in contemplation of marriage, 18
and may alter or revoke the will, but the will is of no 19
effect if the marriage contemplated does not take place; 20
and 21
(b) a minor who is married may make, alter or revoke a will; 22
and 23
(c) a minor whose marriage has ended, whether by divorce, 24
annulment or death of the minor's spouse, may revoke 25
part or all of a will made-- 26
(i) in contemplation of the marriage; or 27
(ii) while the person was married. 28
`(3) Subsection (1) does not apply to a will-- 29
s6 9 s6
Succession Amendment Bill 2005
(a) made under an order made under section 19;2 or 1
(b) mentioned in section 33X.3 2
`10 How a will must be executed 3
`(1) This section sets out the way a will must be executed. 4
`(2) A will must be-- 5
(a) in writing; and 6
(b) signed by-- 7
(i) the testator; or 8
(ii) someone else, in the presence of and at the 9
direction of the testator. 10
`(3) The signature must be made or acknowledged by the testator 11
in the presence of 2 or more witnesses present at the same 12
time. 13
`(4) At least 2 of the witnesses must attest and sign the will in the 14
presence of the testator, but not necessarily in the presence of 15
each other. 16
`(5) However, none of the witnesses need to know that the 17
document attested and signed is a will. 18
`(6) The signatures need not be at the foot of the will. 19
`(7) The signature of the testator must be made with the intention 20
of executing the will. 21
`(8) The signature of a person, other than the testator, made in the 22
presence of and at the direction of the testator must be made 23
with the intention of executing the will. 24
`(9) A will need not have an attestation clause. 25
`(10) A person who can not see and attest that a testator has signed a 26
document may not act as a witness to a will. 27
2 Section 19 (Court may authorise minor to make, alter or revoke a will)
3 Section 33X (Will by minor made under an order of a foreign court)
s6 10 s6
Succession Amendment Bill 2005
`(11) If a testator purports to make an appointment by will in the 1
exercise of a power of appointment by will, the appointment is 2
not valid unless the will is executed under this section. 3
`(12) If a power is conferred on a person to make an appointment by 4
will and the appointment must be executed in a particular way 5
or with a particular solemnity, the person may make the 6
appointment by a will that is executed under this section but is 7
not executed in the particular way or with the particular 8
solemnity. 9
`(13) This section does not apply to a will made under an order 10
under section 21.4 11
`11 When an interested witness may benefit from a 12
disposition 13
`(1) This section applies if a disposition of property is made by a 14
will to a person (the interested witness) who attests the 15
execution of the will. 16
`(2) The disposition is void to the extent it concerns the interested 17
witness or a person claiming under the interested witness. 18
`(3) However, subsection (2) does not apply if-- 19
(a) at least 2 of the people who attested the execution of the 20
will are not interested witnesses; or 21
(b) all the persons who would benefit directly from the 22
avoidance of the disposition consent in writing to the 23
distribution of the disposition under the will and have 24
the capacity to give the consent; or 25
(c) the court is satisfied that the testator knew and approved 26
of the disposition and it was made freely and voluntarily 27
by the testator. 28
`(4) In this section-- 29
disposition of property does not include a charge or direction 30
for the payment of-- 31
(a) a debt; or 32
4 Section 21 (Court may authorise a will to be made, altered or revoked for person
without testamentary capacity)
s6 11 s6
Succession Amendment Bill 2005
(b) appropriate remuneration to an executor, administrator, 1
legal practitioner or other person for acting in relation to 2
the administration of the testator's estate. 3
`12 When an interpreter may benefit from a disposition 4
`(1) This section applies if-- 5
(a) for the purposes of making a will the services of a 6
person (an interpreter) are used to interpret or translate 7
from or to a language understood by the testator; and 8
(b) a disposition of property is made by the will to the 9
interpreter. 10
`(2) The disposition is void to the extent it concerns the interpreter 11
or a person claiming under the interpreter. 12
`(3) However, subsection (2) does not apply if-- 13
(a) all the persons who would benefit directly from the 14
avoidance of the disposition consent in writing to the 15
distribution of the disposition under the will and have 16
the capacity to give the consent; or 17
(b) the court is satisfied that the testator knew and approved 18
of the disposition and it was made freely and voluntarily 19
by the testator. 20
`(4) In this section-- 21
disposition of property does not include a charge or direction 22
for the payment of appropriate remuneration for being an 23
interpreter for the testator in relation to the will. 24
`Division 3 Revoking, altering or reviving a will 25
`13 How a will may be revoked 26
`A will or part of a will may be revoked only-- 27
(a) under section 14 or 15;5 or 28
5 Section 14 (Effect of marriage on a will) or 15 (Effect of divorce or annulment on a
will)
s6 12 s6
Succession Amendment Bill 2005
(b) by a will or other instrument made under an order under 1
section 19 or 21;6 or 2
(c) by a later will; or 3
(d) by a document that-- 4
(i) declares an intention to revoke the will or part; and 5
(ii) is executed in the way in which a will is required to 6
be executed under this part; or 7
(e) by the testator, or someone in the testator's presence and 8
at the testator's direction-- 9
(i) burning, tearing or otherwise destroying the will 10
with the intention of the testator to revoke it; or 11
(ii) writing on the will, or dealing with the will, in a 12
way that satisfies the court, from the state of the 13
will, that the testator intended to revoke it. 14
`14 Effect of marriage on a will 15
`(1) A will is revoked by the marriage of the testator. 16
17
Note--
18
For wills made before the commencement of section 7 as inserted by the
19
Succession Amendment Act 2005, see section 76(2) and (3).
`(2) However, the following are not revoked by the marriage of the 20
testator-- 21
(a) a disposition to the person to whom the testator is 22
married at the time of the testator's death; 23
(b) an appointment as executor, trustee, advisory trustee or 24
guardian of the person to whom the testator is married at 25
the time of the testator's death; 26
(c) a will, to the extent it exercises a power of appointment, 27
if the property in relation to which the appointment is 28
exercised would not pass to an executor under any other 29
will of the testator or to an administrator of any estate of 30
6 Section 19 (Court may authorise minor to make, alter or revoke a will) or 21 (Court
may authorise a will to be made, altered or revoked for person without testamentary
capacity)
s6 13 s6
Succession Amendment Bill 2005
the testator if the power of appointment were not 1
exercised. 2
`(3) Also-- 3
(a) a will made in contemplation of a marriage, whether or 4
not that contemplation is stated in the will, is not 5
revoked by the solemnisation of the marriage 6
contemplated; and 7
(b) a will that is stated to be made in contemplation of 8
marriage generally is not revoked by the solemnisation 9
of a marriage of the testator. 10
`15 Effect of divorce or annulment on a will 11
`(1) A testator's divorce or the annulment of a testator's marriage 12
revokes-- 13
(a) a disposition to the testator's former spouse made by a 14
will in existence when the divorce or annulment 15
happens; and 16
(b) an appointment, made by the will, of the former spouse 17
as an executor, trustee, advisory trustee or guardian; and 18
(c) any grant, made by the will, of a power of appointment 19
exercisable by, or in favour of, the testator's former 20
spouse. 21
22
Note--
23
For wills made before the commencement of section 7 as inserted by the
24
Succession Amendment Act 2005, see section 76 (4) and (5).
`(2) However, a testator's divorce or the annulment of a testator's 25
marriage does not revoke-- 26
(a) the appointment of the testator's former spouse as 27
trustee of property left by the will on trust for 28
beneficiaries that include the former spouse's children; 29
or 30
(b) the grant of a power of appointment exerciseable by the 31
testator's former spouse only in favour of children of 32
whom both the testator and the former spouse are 33
parents. 34
s6 14 s6
Succession Amendment Bill 2005
`(3) Subsection (1) does not apply if a contrary intention appears 1
in the will. 2
`(4) If a disposition, appointment or grant is revoked by this 3
section, the will takes effect as if the former spouse had died 4
before the testator. 5
`(5) In this section-- 6
annulment, in relation to a testator, means-- 7
(a) the granting of a decree of nullity in relation to the 8
testator's marriage by the Family Court of Australia; or 9
(b) the annulment of the testator's marriage under the law of 10
a place outside Australia, if the annulment is recognised 11
in Australia under the Family Law Act 1975 (Cwlth). 12
divorce, in relation to a testator, means-- 13
(a) the taking effect of a divorce order for the testator under 14
the Family Law Act 1975 (Cwlth); or 15
(b) the dissolution of the testator's marriage under the law 16
of a place outside Australia, if the dissolution is 17
recognised in Australia under the Family Law Act 1975 18
(Cwlth). 19
former spouse, in relation to a testator, means the person who 20
was the spouse of the testator immediately before the divorce 21
or annulment. 22
spouse includes a party to a purported or void marriage. 23
`16 How a will may be altered 24
`(1) An alteration to a will after it has been executed is not 25
effective unless the alteration-- 26
(a) is executed in the way a will is required to be executed 27
under this part; or 28
(b) is authorised by an order under section 197 and is 29
executed under section 20;8 or 30
7 Section 19 (Court may authorise minor to make, alter or revoke a will)
8 Section 20 (Execution of will or other instrument made under order)
s6 15 s6
Succession Amendment Bill 2005
(c) is authorised by an order under section 219 and is 1
executed under section 26.10 2
`(2) Subsection (1) does not apply to an alteration to a will made 3
by, or at the direction of, the testator if the words or effect of 4
the will are no longer apparent because of the alteration. 5
`(3) If a will is altered, it is sufficient compliance with the 6
requirements under this section for execution of the alteration, 7
if the signature of the testator and of the witnesses to the 8
alteration are made-- 9
(a) in the margin or on some other part of the will beside, 10
near or otherwise relating to the alteration; or 11
(b) as authentication of a memorandum referring to the 12
alteration and written on the will. 13
`17 How a revoked will may be revived 14
`(1) A will or part of a will that has been revoked is revived by 15
re-execution or by execution of a will that shows an intention 16
to revive the will or part. 17
`(2) A revival of a will that was partly revoked and later revoked as 18
to the balance only revives the part of the will most recently 19
revoked. 20
`(3) Subsection (2) does not apply if a contrary intention appears 21
in the document that revives the will. 22
`(4) A will that has been revoked and is later entirely or partly 23
revived is taken to have been executed on the day on which 24
the will is revived. 25
9 Section 21 (Court may authorise a will to be made, altered or revoked for person
without testamentary capacity)
10 Section 26 (Execution of will or other instrument made under order)
s6 16 s6
Succession Amendment Bill 2005
`Division 4 Powers of court 1
`Subdivision 1 Execution requirements 2
`18 Court may dispense with execution requirements 3
for will, alteration or revocation 4
`(1) This section applies to a document, or a part of a document, 5
that-- 6
(a) purports to state the testamentary intentions of a 7
deceased person; and 8
(b) has not been executed under this part. 9
`(2) The document or the part forms a will, an alteration of a will, 10
or a full or partial revocation of a will, of the deceased person 11
if the court is satisfied that the person intended the document 12
or part to form the person's will, an alteration to the person's 13
will or a full or partial revocation of the person's will. 14
`(3) In making a decision under subsection (2), the court may, in 15
addition to the document or part, have regard to-- 16
(a) any evidence relating to the way in which the document 17
or part was executed; and 18
(b) any evidence of the person's testamentary intentions, 19
including evidence of statements made by the person. 20
`(4) Subsection (3) does not limit the matters a court may have 21
regard to in making a decision under subsection (2). 22
`(5) This section applies to a document, or a part of a document, 23
whether the document came into existence within or outside 24
the State. 25
`Subdivision 2 Minors 26
`19 Court may authorise minor to make, alter or revoke 27
a will 28
`(1) The court may make an order authorising a minor to-- 29
(a) make or alter a will in the terms stated by the court; or 30
s6 17 s6
Succession Amendment Bill 2005
(b) revoke a will or part of a will. 1
`(2) A minor, or a person on behalf of a minor, may apply for an 2
order under subsection (1). 3
`(3) The court may make the order only if the court-- 4
(a) is satisfied that the minor understands the nature and 5
effect of the proposed will, alteration or revocation and 6
the extent of any property disposed of under the 7
proposed will or alteration; and 8
(b) is satisfied that the proposed will, alteration or 9
revocation accurately reflects the intentions of the 10
minor; and 11
(c) is satisfied that it is reasonable in all the circumstances 12
that the order be made; and 13
(d) has approved the proposed will, alteration or revocation. 14
`(4) The court may make the order on the conditions it considers 15
appropriate. 16
`(5) To remove any doubt, it is declared that an order under this 17
section does not make, alter or revoke a will or dispose of any 18
property. 19
`20 Execution of will or other instrument made under order 20
`A will or other instrument made under an order under section 21
19 is not valid unless the following requirements are 22
satisfied-- 23
(a) for a will--the will is executed under this part; 24
(b) for another instrument--the other instrument is 25
executed in the way a will is required to be executed 26
under this part; 27
(c) 1 of the witnesses attesting the will or other instrument 28
is the registrar; 29
(d) the conditions of the order, if any, are complied with. 30
31
Note--
32
For the holding of the will or other instrument by the registrar, see
33
subdivision 4.
s6 18 s6
Succession Amendment Bill 2005
`Subdivision 3 Persons without testamentary 1
capacity 2
`21 Court may authorise a will to be made, altered or 3
revoked for person without testamentary capacity 4
`(1) The court may, on application, make an order authorising-- 5
(a) a will to be made or altered, in the terms stated by the 6
court, on behalf of a person without testamentary 7
capacity; or 8
(b) a will or part of a will to be revoked on behalf of a 9
person without testamentary capacity. 10
`(2) The court may make the order only if-- 11
(a) the person in relation to whom the order is sought lacks 12
testamentary capacity; and 13
(b) the person is alive when the order is made; and 14
(c) the court has approved the proposed will, alteration or 15
revocation. 16
`(3) For the order, the court may make or give any necessary 17
related orders or directions. 18
`(4) The court may make the order on the conditions the court 19
considers appropriate. 20
`(5) The court may order that costs in relation to either or both of 21
the following be paid out of the person's assets-- 22
(a) an application for an order under this section; 23
(b) an application for leave under section 22. 24
`(6) To remove any doubt, it is declared that an order under this 25
section does not make, alter or revoke a will or dispose of any 26
property. 27
`(7) In this section-- 28
person without testamentary capacity includes a minor. 29
s6 19 s6
Succession Amendment Bill 2005
`22 Leave to apply for s 21 order 1
`(1) A person may apply for an order under section 21 only with 2
the court's leave. 3
`(2) The court may give leave on the conditions the court considers 4
appropriate. 5
`(3) The court may hear an application for an order under section 6
21 with or immediately after the application for leave to make 7
the application. 8
`23 Information required by court in support of 9
application for leave 10
`On the hearing of an application for leave under section 22, 11
the applicant must give the court the following information, 12
unless the court directs otherwise-- 13
(a) a written statement of the general nature of the 14
application to be made by the applicant under section 21 15
and the reasons for making it; 16
(b) satisfactory evidence of the lack of testamentary 17
capacity of the person in relation to whom an order 18
under section 21 is sought; 19
(c) any evidence available to the applicant, or that can be 20
discovered with reasonable diligence, of the likelihood 21
of the person acquiring or regaining testamentary 22
capacity; 23
(d) a reasonable estimate, formed from the evidence 24
available to the applicant, of the size and character of the 25
person's estate; 26
(e) a draft of the proposed will, alteration or revocation in 27
relation to which the order is sought; 28
(f) any evidence available to the applicant of the person's 29
wishes; 30
(g) any evidence available to the applicant of the terms of 31
any will previously made by the person; 32
s6 20 s6
Succession Amendment Bill 2005
(h) any evidence available to the applicant of the likelihood 1
of an application being made under section 4111 in 2
relation to the person; 3
(i) any evidence available to the applicant of a gift for a 4
charitable or other purpose that the person might 5
reasonably be expected to give by will; 6
(j) any evidence available to the applicant, or that can be 7
discovered with reasonable diligence, of the 8
circumstances of a person for whom provision might 9
reasonably be expected to be made by a will by the 10
person in relation to whom the order is sought; 11
(k) any evidence available to the applicant, or that can be 12
discovered with reasonable diligence, of any persons 13
who might be entitled to claim on intestacy; 14
(l) any other facts of which the applicant is aware that are 15
relevant to the application. 16
`24 Matters court must be satisfied of before giving leave 17
`A court may give leave under section 22 only if the court is 18
satisfied of the following matters-- 19
(a) the applicant for leave is an appropriate person to make 20
the application; 21
(b) adequate steps have been taken to allow representation 22
of all persons with a proper interest in the application, 23
including persons who have reason to expect a gift or 24
benefit from the estate of the person in relation to whom 25
an order under section 21 is sought; 26
(c) there are reasonable grounds for believing that the 27
person does not have testamentary capacity; 28
(d) the proposed will, alteration or revocation is or may be a 29
will, alteration or revocation that the person would make 30
if the person were to have testamentary capacity; 31
(e) it is or may be appropriate for an order to be made under 32
section 21 in relation to the person. 33
11 Section 41 (Estate of deceased person liable for maintenance)
s6 21 s6
Succession Amendment Bill 2005
`25 Hearing an application for leave or for an order 1
`On the hearing of an application for leave under section 22 or 2
for an order under section 21, the court-- 3
(a) may have regard to any information given to the court 4
under section 23; and 5
(b) may inform itself of any other matter relating to the 6
application in any way it considers appropriate; and 7
(c) is not bound by the rules of evidence. 8
`26 Execution of will or other instrument made under 9
order 10
`(1) A will or other instrument made under an order under section 11
21 is properly executed if-- 12
(a) it is in writing; and 13
(b) it is signed by the registrar and sealed with the seal of 14
the court. 15
`(2) A will or other instrument made under an order under section 16
21 may only be signed by the registrar if the person in relation 17
to whom the order was made is alive. 18
19
Note--
20
For the holding of the will or other instrument by the registrar, see
21
subdivision 4.
`27 Validity of will or other instrument made under order 22
`(1) A will made under an order under section 21 has the same 23
effect for all purposes as if-- 24
(a) the person without testamentary capacity were capable 25
of making a valid will; and 26
(b) the person executed the will under section 10.12 27
`(2) An instrument, revoking a will or part of a will, made under 28
an order under section 21 has the same effect for all purposes 29
as if-- 30
12 Section 10 (How a will must be executed)
s6 22 s6
Succession Amendment Bill 2005
(a) the person were capable of validly revoking a will or 1
part of a will; and 2
(b) the person executed the instrument under section 3
13(d)(ii).13 4
`(3) An instrument, altering a will, made under an order under 5
section 21 has the same effect for all purposes as if-- 6
(a) the person were capable of making a valid alteration of a 7
will; and 8
(b) the person executed the instrument under section 9
16(1)(a).14 10
`28 Relationship with Guardianship and Administration 11
Act 2000 and Powers of Attorney Act 1998 12
`Nothing in the Guardianship and Administration Act 2000 or 13
the Powers of Attorney Act 1998 prevents a person from 14
making an application for an order under section 2115 or for 15
leave under section 22.16 16
`Subdivision 4 Particular wills held by registrar 17
`29 Registrar to hold will or other instrument made 18
under order under s 19 19
`(1) A will or other instrument made under an order under section 20
1917 must be held by the registrar. 21
`(2) The registrar may stop holding the will or other instrument 22
only if-- 23
(a) the testator is at least 18 years and has testamentary 24
capacity; or 25
13 Section 13 (How a will may be revoked)
14 Section 16 (How a will may be altered)
15 Section 21 (Court may authorise a will to be made, altered or revoked for person
without testamentary capacity)
16 Section 22 (Leave to apply for s 21 order)
17 Section 19 (Court may authorise minor to make, alter or revoke a will)
s6 23 s6
Succession Amendment Bill 2005
(b) the court makes an order-- 1
(i) under section 19 authorising the minor to revoke 2
the will; or 3
(ii) under section 21 authorising the will to be revoked; 4
or 5
(c) the will or other instrument is given to a person under 6
section 32.18 7
`(3) A failure to comply with subsection (1) or (2) does not affect 8
the validity of the will or other instrument. 9
`30 Registrar to hold will or other instrument made 10
under order under s 21 11
`(1) A will or other instrument made under an order under section 12
21 must be held by the registrar. 13
`(2) The registrar may stop holding the will or other instrument 14
only if-- 15
(a) the person on whose behalf the will or other instrument 16
has been made (the relevant person) has acquired or 17
regained testamentary capacity; or 18
(b) the court makes an order-- 19
(i) under section 19 authorising the relevant person to 20
revoke the will; or 21
(ii) under section 21 authorising the will to be revoked; 22
or 23
(c) the will or other instrument is given to a person under 24
section 32. 25
`(3) A failure to comply with subsection (1) or (2) does not affect 26
the validity of the will or other instrument. 27
`31 Envelope required for will held by registrar 28
`(1) A will or other instrument held by the registrar under section 29
29 or 30 must be in a sealed envelope that has written on it-- 30
18 Section 32 (Delivery of will or other instrument if testator has died)
s6 24 s6
Succession Amendment Bill 2005
(a) the name and address of the minor or other person 1
without testamentary capacity as they appear on the will 2
or other instrument; and 3
(b) the name and address, as they appear on the will, of any 4
executor; and 5
(c) the date of the will or other instrument; and 6
(d) for a will or other instrument held under section 30--the 7
name of the person who applied for the order under 8
section 21. 9
`(2) The registrar may examine the will or other instrument to 10
enable the registrar to comply with this subdivision. 11
`32 Delivery of will or other instrument if testator has died 12
`(1) This section applies if-- 13
(a) a will or other instrument is held by the registrar under 14
section 29 or 30; and 15
(b) the minor or other person without testamentary capacity 16
has died. 17
`(2) An executor named in the will, an executor by representation 18
or a person entitled to apply for letters of administration with 19
the will, may apply in writing to the registrar to be given the 20
will or other instrument. 21
`(3) On receiving the application, the registrar must give the will 22
or other instrument to-- 23
(a) the applicant; or 24
(b) any legal practitioner or trustee company nominated by 25
the applicant; or 26
(c) the public trustee, if nominated by the applicant. 27
`(4) If there is doubt about the person to whom the will or other 28
instrument should be given, the registrar or anyone else may 29
apply to the court for directions. 30
`(5) The registrar must make an accurate copy of each will or other 31
instrument given to a person under subsection (3) and hold the 32
copy. 33
s6 25 s6
Succession Amendment Bill 2005
`(6) In this section-- 1
trustee company see the Trustee Companies Act 1968, section 2
4.19 3
`Subdivision 5 Rectification 4
`33 Court may rectify a will 5
`(1) The court may make an order to rectify a will to carry out the 6
intentions of the testator if the court is satisfied that the will 7
does not carry out the testator's intentions because-- 8
(a) a clerical error was made; or 9
(b) the will does not give effect to the testator's instructions. 10
`(2) An application for an order to rectify a will may only be made 11
within 6 months after the date of death of the testator. 12
`(3) However, the court may, at any time, extend the time for 13
making an application under subsection (2) if-- 14
(a) the court considers it appropriate; and 15
(b) the final distribution of the estate has not been made. 16
`(4) If the court makes an order to rectify a will, the court may 17
direct that a certified copy of the order be attached to the will. 18
`(5) If the court gives a direction under subsection (4), the court 19
must hold the will until the certified copy is attached to it. 20
`33A Protection of personal representatives who distribute 21
as if the will had not been rectified 22
`(1) This section applies if-- 23
(a) a will is rectified under section 33; and 24
(b) a personal representative makes a distribution to a 25
beneficiary as if the will had not been rectified. 26
19 Trustee Companies Act 1968, section 4 (Definitions)
s6 26 s6
Succession Amendment Bill 2005
`(2) The personal representative is not liable if the distribution is 1
made under section 49A.20 2
`(3) The personal representative is also not liable if the distribution 3
is made not earlier than 6 months after the testator's death and 4
without notice of either of the following-- 5
(a) an application, or intended application, for an order to 6
rectify the will; 7
(b) an application, or intended application, under section 8
41(1) or 4221 in relation to the testator. 9
`(4) If the personal representative receives notice of an application 10
or intended application mentioned in subsection (3) (a 11
relevant application), the personal representative is not liable 12
if-- 13
(a) the distribution is made not earlier than 9 months after 14
the testator's death; and 15
(b) the personal representative has not-- 16
(i) received notice that a relevant application has been 17
started in the court; or 18
(ii) been served with a copy of a relevant application. 19
`(5) For subsections (3) and (4), a notice in relation to an 20
application or intended application must be in writing signed 21
by the applicant or the applicant's legal practitioner. 22
`Division 5 Interpretation of wills 23
`33B Beneficiaries must survive testator for 30 days 24
`(1) If a disposition of property is made to a person who dies 25
within 30 days after the testator's death, the will takes effect 26
as if the person had died immediately before the testator. 27
20 Section 49A (Personal representatives may make particular maintenance
distribution)
21 Section 41 (Estate of deceased person liable for maintenance) or 42 (Court may vary
order)
s6 27 s6
Succession Amendment Bill 2005
`(2) Subsection (1) does not apply if a contrary intention appears 1
in the will. 2
`(3) A general requirement or condition that a beneficiary survive 3
the testator is not a contrary intention. 4
`33C Use of evidence to interpret a will 5
`(1) In a proceeding to interpret a will, evidence, including 6
evidence of the testator's intention, is admissible to help in the 7
interpretation of the language used in the will if the language 8
makes the will or part of it-- 9
(a) meaningless; or 10
(b) ambiguous on the face of the will; or 11
(c) ambiguous in the light of surrounding circumstances. 12
`(3) However, evidence of the testator's intention is not admissible 13
to establish any of the circumstances mentioned in subsection 14
(1)(c). 15
`(4) This section does not prevent the admission of evidence that 16
would otherwise be admissible in a proceeding to interpret a 17
will. 18
`33D Effect of a change in testator's domicile 19
`The interpretation of a will is not changed by a change in the 20
testator's domicile after the testator has executed the will. 21
`33E When a will takes effect 22
`(1) A will takes effect, in relation to the property disposed of by 23
the will, as if it had been executed immediately before the 24
testator's death. 25
`(2) Subsection (1) does not apply if a contrary intention appears 26
in the will. 27
`33F Will operates to dispose of remaining interest in 28
property if part interest disposed of before death 29
`(1) This section applies if-- 30
s6 28 s6
Succession Amendment Bill 2005
(a) a testator has made a will disposing of property; and 1
(b) after the making of the will and before the testator's 2
death, the testator disposes of an interest in the property. 3
`(2) The will operates to dispose of any remaining interest the 4
testator has in the property. 5
`33G Effect of a failure of a disposition of property 6
`(1) If a disposition of property by a will is fully or partly 7
ineffective, the will takes effect as if the property were part of 8
the residuary estate of the testator. 9
`(2) Subsection (1) does not apply if a contrary intention appears 10
in the will. 11
`(3) In this section-- 12
disposition of property does not include the exercise of a 13
power of appointment. 14
`33H Income of contingent, future or deferred disposition 15
of property 16
`A contingent, future or deferred disposition of property, 17
whether specific or residuary, includes any intermediate 18
income of the property that has not been disposed of by the 19
will. 20
`33I What a general disposition of land includes 21
`(1) A general disposition of land, or of land in a particular area, 22
includes leasehold land, whether or not the testator owns 23
freehold land. 24
`(2) Subsection (1) does not apply if a contrary intention appears 25
in the will. 26
`33J What a general disposition of property includes 27
`(1) A general disposition of all of the testator's property-- 28
s6 29 s6
Succession Amendment Bill 2005
(a) includes any property over which the testator has a 1
general power of appointment exerciseable by will; and 2
(b) operates as an exercise of the power of appointment. 3
`(2) A general disposition of all of the testator's property of a 4
particular description-- 5
(a) includes any property of that description over which the 6
testator has a general power of appointment exerciseable 7
by will; and 8
(b) operates as an exercise of the power of appointment. 9
`(3) A general disposition of the residue of the testator's 10
property-- 11
(a) includes any property over which the testator has a 12
general power of appointment exerciseable by will; and 13
(b) operates as an exercise of the power of appointment. 14
`(4) A general disposition of the residue of the testator's property 15
of a particular description-- 16
(a) includes any property of that description over which the 17
testator has a general power of appointment exerciseable 18
by will; and 19
(b) operates as an exercise of the power of appointment. 20
`(5) Subsection (1), (2), (3) or (4) does not apply if a contrary 21
intention appears in the will. 22
`33K Effect of a disposition of real property without words 23
of limitation 24
`(1) A disposition of real property to a person without words of 25
limitation passes the whole estate or interest of the testator in 26
the property to the person. 27
`(2) Subsection (1) does not apply if a contrary intention appears 28
in the will. 29
`33L How dispositions of property to issue operate 30
`(1) A disposition of property to a person's issue, without 31
limitation as to remoteness, must be distributed to the person's 32
s6 30 s6
Succession Amendment Bill 2005
issue in the same way as the person's estate would be 1
distributed if the person had died intestate leaving only issue 2
surviving. 3
`(2) Subsection (1) does not apply if a contrary intention appears 4
in the will. 5
`33M How requirements to survive with issue are 6
interpreted 7
`(1) This section applies if there is a disposition of property to a 8
person that, apart from this section, would be interpreted to 9
mean that the disposition fails if there is an indefinite failure 10
of issue of the person. 11
`(2) The disposition must be interpreted to mean that the 12
disposition fails if there is a want or a failure of issue of the 13
person either in the person's lifetime or at the person's death. 14
`(3) This section does not apply if a contrary intention appears in 15
the will, other than if the result would be to cause a failure of 16
the disposition. 17
`33N Dispositions not to fail because issue have died 18
before testator 19
`(1) This section applies if-- 20
(a) a testator makes a disposition of property to a person, 21
whether as an individual or as a member of a class, who 22
is issue of the testator (an original beneficiary); and 23
(b) under the will, the interest of the original beneficiary in 24
the property does not come to an end at or before the 25
original beneficiary's death; and 26
(c) the disposition is not a disposition of property to the 27
testator's issue, without limitation as to remoteness; and 28
(d) the original beneficiary does not survive the testator for 29
30 days. 30
`(2) The issue of the original beneficiary who survive the testator 31
for 30 days take the original beneficiary's share of the 32
property in place of the original beneficiary as if the original 33
beneficiary had died intestate leaving only issue surviving. 34
s6 31 s6
Succession Amendment Bill 2005
`(3) Subsection (2) does not apply if-- 1
(a) the original beneficiary did not fulfil a condition 2
imposed on the original beneficiary in the will; or 3
(b) a contrary intention appears in the will. 4
`(4) A general requirement or condition that issue survive the 5
testator or reach a specified age does not show a contrary 6
intention for subsection (3)(b). 7
`(5) A disposition of property to issue as joint tenants does not, of 8
itself, show a contrary intention for subsection (3)(b). 9
`33O Disposition of real estate or personal estate may 10
include both in particular case 11
`(1) A disposition of all, or the residue, of the estate of a testator 12
that refers only to the real estate of the testator, or only to the 13
personal estate of the testator, must be interpreted as referring 14
to both the real and personal estate of the testator. 15
`(2) Subsection (1) does not apply if a contrary intention appears 16
in the will. 17
`33P Disposition of fractional part in particular case 18
`(1) If a part of a disposition in fractional parts of all, or the 19
residue, of the testator's estate fails, the part that fails passes 20
to the part that does not fail and, if there is more than 1 part 21
that does not fail, to all those parts proportionately. 22
`(2) Subsection (1) does not apply if a contrary intention appears 23
in the will. 24
`33Q Dispositions to unincorporated associations of 25
persons 26
`(1) Each of the following dispositions of property has effect as a 27
disposition in augmentation of the general funds of the 28
association to which the disposition is made-- 29
(a) a disposition to an unincorporated association of 30
persons that is not a charity; 31
s6 32 s6
Succession Amendment Bill 2005
(b) a disposition to or on trust for the aims, objects or 1
purposes of an unincorporated association of persons 2
that is not a charity; 3
(c) a disposition to or on trust for the present and future 4
members of an unincorporated association of persons 5
that is not a charity. 6
`(2) Property, a disposition of which is, or has effect under 7
subsection (1) as, a disposition in augmentation of the general 8
funds of an unincorporated association, must be-- 9
(a) paid into the general fund of the association; or 10
(b) transferred to the association; or 11
(c) sold or otherwise disposed of on behalf of the 12
association, with the proceeds being paid into the 13
general fund of the association. 14
`(3) If the personal representative pays an amount to an 15
unincorporated association under a disposition, the receipt of 16
the treasurer or a similar officer of the association (however 17
described) is an absolute discharge for the payment. 18
`(4) If the personal representative transfers property to an 19
unincorporated association under a disposition, the transfer of 20
the property to a person nominated in writing by any 2 21
persons holding the offices of president, chairperson, treasurer 22
or secretary of the association, or similar officers of the 23
association (however described), is an absolute discharge to 24
the personal representative for the transfer of the property. 25
`(5) Subsections (3) and (4) do not-- 26
(a) limit the way an absolute discharge may otherwise be 27
obtained in accordance with the will; or 28
(b) apply if a contrary intention appears in the will. 29
`(6) It is not an objection to the validity of a disposition to an 30
unincorporated association of persons that-- 31
(a) a list of persons who were members of the association at 32
the time of the testator's death can not be compiled; or 33
(b) the members of the association may not divide assets of 34
the association beneficially among themselves. 35
s6 33 s6
Succession Amendment Bill 2005
`33R When a person may delegate power to dispose of 1
property by a will 2
`A power or a trust, created by will, to dispose of property is 3
not void on the ground that it is a delegation of the testator's 4
power to make a will, if the same power or trust would be 5
valid if made by the testator, by instrument, in the testator's 6
lifetime. 7
`33S Effect of reference to valuation in will 8
`(1) This section applies if-- 9
(a) there is an express or implied requirement in a will that a 10
valuation of property be made or accepted for a purpose; 11
and 12
(b) either-- 13
(i) the will does not provide a method of valuation; or 14
(ii) the method of valuation is not provided for by the 15
law of Queensland or another place. 16
`(2) The reference in the will to the valuation must be interpreted, 17
to the extent the method of valuation is not provided for as 18
mentioned in subsection (1)(b)(i) or (ii), as if the reference 19
were a reference to a valuation of the property as at the date of 20
the testator's death made by a competent valuer. 21
`(3) Subsection (2) does not apply if a contrary intention appears 22
in the will. 23
`Division 6 Wills with a foreign connection 24
`33T Wills that are taken to be properly executed 25
`(1) A will is taken to be properly executed if its execution is in 26
accordance with the internal law in force in the place-- 27
(a) where it was executed; or 28
(b) that was the testator's domicile or habitual residence, 29
either at the time the will was executed or at the time of 30
the testator's death; or 31
s6 34 s6
Succession Amendment Bill 2005
(c) of which the testator was a national, either at the time 1
the will was executed or at the time of the testator's 2
death. 3
`(2) The following wills are also taken to be properly executed-- 4
(a) a will executed on board a vessel or aircraft and in 5
accordance with the internal law in force in the place 6
with which the vessel or aircraft was most closely 7
connected having regard to its registration and other 8
relevant circumstances; 9
(b) a will, to the extent it disposes of immovable property, 10
executed in accordance with the internal law in force in 11
the place where the property is situated; 12
(c) a will, to the extent it exercises a power of appointment, 13
executed in accordance with the law governing the 14
essential validity of the power; 15
(d) a will to the extent it revokes-- 16
(i) a will, or a provision of a will, that has been 17
executed under this part; or 18
(ii) a will, or a provision of a will, that is taken by this 19
section to be properly executed; 20
if the later will has been executed in accordance with a 21
law under which the earlier will or provision would be 22
taken to be validly executed. 23
`(3) A will to which this section applies is not improperly executed 24
to the extent it exercises a power of appointment only because 25
it has not been executed in the particular way or with the 26
particular solemnity required by the instrument creating the 27
power. 28
29
Example of subsection (3)--
30
A will to which this section applies exercises a power of appointment.
31
The instrument creating the power requires the instrument exercising the
32
power to be witnessed by a notary public. The will, to the extent it
33
exercises the power, is not improperly executed only because the will is
34
not witnessed by a notary public.
s6 35 s6
Succession Amendment Bill 2005
`33U Deciding system of law to apply if more than 1
1 system of internal law 2
`(1) This section applies if-- 3
(a) the internal law of a place must be applied under section 4
33T; and 5
(b) there is more than 1 system of internal law, in force in 6
the place, relating to the formal validity of wills. 7
`(2) The system of internal law to be applied under section 33T is 8
decided as follows-- 9
(a) if there is a rule in force throughout the place that states 10
which system applies to the will, the rule must be 11
followed; 12
(b) otherwise, the system is that with which the testator was 13
most closely connected-- 14
(i) if the matter is to be decided by reference to 15
circumstances prevailing at the testator's death--at 16
the time of the testator's death; or 17
(ii) otherwise--at the time the will was executed. 18
`33V Formal requirements at time of execution apply 19
`(1) In deciding, for the purpose of section 33T, whether a will has 20
been executed in accordance with a particular law, regard 21
must be had to the formal requirements of the particular law at 22
the time the will was executed. 23
`(2) However, regard may be had to a later change of the particular 24
law affecting wills executed at the time the relevant will was 25
executed, if the change enables the relevant will to be treated 26
as properly executed. 27
`33W Matters that are taken to be formal requirements 28
`(1) This section applies if a particular law of a place outside 29
Queensland is to be applied to a will, whether or not for the 30
purpose of section 33T. 31
`(2) The following requirements of the particular law are taken to 32
be formal requirements only-- 33
s6 36 s6
Succession Amendment Bill 2005
(a) a requirement that special formalities be complied with 1
by particular testators; 2
(b) a requirement that the witnesses to the execution of a 3
will have particular qualifications. 4
`(3) Subsection (2) applies despite any contrary rule of the 5
particular law. 6
`33X Will by minor made under an order of a foreign court 7
`(1) A will of a deceased person that is a court authorised will for a 8
minor is a valid will. 9
`(2) A will is a court authorised will for a minor if-- 10
(a) a court, in a place outside Queensland, made an order 11
authorising a minor to make the will; and 12
(b) the will is executed according to the law of the place 13
relating to wills of minors; and 14
(c) the minor was a resident in the place at the time the will 15
was executed. 16
`33Y Recognition of statutory wills made by 17
non-Queensland resident 18
`(1) A statutory will made under the law of the place outside 19
Queensland where a deceased person was resident at the time 20
the statutory will was executed is a valid will of the person. 21
`(2) In this section-- 22
statutory will means a will executed in accordance with a 23
statutory provision on behalf of a person who, at the time the 24
will was executed, did not have testamentary capacity. 25
`Division 7 Miscellaneous 26
`33Z Persons entitled to inspect a will or to obtain a copy 27
of a will 28
`(1) A person who has possession or control of a will of a deceased 29
testator must, if asked, do either or both of the following-- 30
s6 37 s6
Succession Amendment Bill 2005
(a) allow an entitled person to inspect the will; 1
(b) give an entitled person a certified copy of the will on 2
payment of the person's reasonable expenses of giving 3
the certified copy. 4
`(2) If a will of a deceased testator has been lost, stolen or 5
destroyed, a person who has possession or control of a copy of 6
the will must, if asked, do either or both of the following-- 7
(a) allow an entitled person to inspect the copy; 8
(b) give an entitled person a certified copy of the copy on 9
payment of the person's reasonable expenses of giving 10
the certified copy. 11
`(3) A person who has possession or control of a will, or a copy of 12
a will, of a deceased person must produce it in court if the 13
court requires it. 14
`(4) In this section-- 15
certified copy-- 16
(a) of a will--means a copy of the will that has a statement 17
on it, signed by the person giving the copy, that the copy 18
is a true copy of the will; or 19
(b) of a copy of a will--means a copy of the copy of the will 20
that has a statement on it, signed by the person giving 21
the copy, that the copy is a true copy of what it purports 22
to be. 23
entitled person, in relation to a will, means-- 24
(a) a person mentioned in the will, whether as beneficiary 25
or not and whether named or not; or 26
(b) a person mentioned in any earlier will of the testator as a 27
beneficiary and whether named or not; or 28
(c) a spouse, parent or issue of the testator; or 29
(d) a person who would be entitled to a share of the estate of 30
the testator if the testator had died intestate; or 31
(e) a parent or guardian of a minor mentioned in the will or 32
who would be entitled to a share of the estate if the 33
testator had died intestate; or 34
s7 38 s8
Succession Amendment Bill 2005
(f) a creditor or other person who has a claim at law or in 1
equity against the estate; or 2
(g) a person who may apply for an order under section 41.22 3
parent see section 61A. 4
will includes-- 5
(a) a purported will or revoked will; and 6
(b) a part of a will, purported will or revoked will.'. 7
Clause 7 Amendment of s 49 (Powers of personal representatives) 8
(1) Section 49, heading, `Powers'-- 9
omit, insert-- 10
`Particular powers'. 11
(2) Section 49(3)-- 12
omit. 13
(3) Section 49(4) to (6)-- 14
renumber as section 49(3) to (5). 15
Clause 8 Insertion of new s 49A 16
After section 49-- 17
insert-- 18
`49A Personal representatives may make particular 19
maintenance distribution 20
`(1) This section applies if a person-- 21
(a) survives a deceased person; and 22
(b) at the time of the deceased person's death, was totally or 23
substantially dependent on the deceased person; and 24
(c) will be entitled to part or all of the deceased person's 25
estate if the person survives the deceased person for 30 26
days. 27
22 Section 41 (Estate of deceased person liable for maintenance)
s9 39 s 10
Succession Amendment Bill 2005
`(2) The deceased person's personal representative may make a 1
distribution for the person's maintenance, support or 2
education at any time after the death of the deceased person, 3
including within 30 days after the death of the deceased 4
person. 5
`(3) The personal representative may make the distribution even 6
though the personal representative knows, when the 7
distribution is made, of a pending application or an intended 8
application for an order under section 4123 in relation to the 9
deceased person. 10
`(4) The personal representative is not liable for a distribution 11
under subsection (2) made in good faith. 12
`(5) An amount distributed under subsection (2) to a person must 13
be deducted from any share of the estate to which the person 14
becomes entitled. 15
`(6) However, if the person does not survive the deceased person 16
for 30 days, the distribution must be treated as an 17
administration expense.'. 18
Clause 9 Omission of ss 62, 63, 64 and 67 19
Sections 62, 63, 64 and 67-- 20
omit. 21
Clause 10 Insertion of new pt 7, div 4 22
After section 75-- 23
insert-- 24
`Division 4 Transitional provision for 25
Succession Amendment Act 2005 26
`76 Transitional provision for Succession Amendment 27
Act 2005 28
`(1) The repeal of old section 16 does not affect the validity of a 29
will made under that section. 30
23 Section 41 (Estate of deceased person liable for maintenance)
s 10 40 s 10
Succession Amendment Bill 2005
`(2) Old section 17 continues to apply to a will made before the 1
commencement in relation to a marriage solemnised before 2
the commencement. 3
`(3) New section 14 applies to a will made before the 4
commencement in relation to a marriage solemnised on or 5
after the commencement. 6
`(4) Old section 18 continues to apply to a will made before the 7
commencement in relation to a divorce or annulment that 8
happens before the commencement. 9
`(5) New section 15 applies to a will made before the 10
commencement in relation to a divorce or annulment that 11
happens on or after the commencement. 12
`(6) For the purposes of subsections (2) and (4), section 5 as in 13
force immediately before the commencement applies. 14
`(7) For the purposes of subsections (3) and (5), section 5 as 15
amended by the Succession Amendment Act 2005 applies. 16
`(8) New section 33Z applies to a will regardless of when the 17
testator died. 18
`(9) In this section-- 19
commencement means the commencement of section 7 as 20
inserted by the Succession Amendment Act 2005. 21
new section 14 means section 1424 as inserted by the 22
Succession Amendment Act 2005. 23
new section 15 means section 1525 as inserted by the 24
Succession Amendment Act 2005. 25
new section 33Z means section 33Z26 as inserted by the 26
Succession Amendment Act 2005. 27
old section 16 means section 1627 as in force immediately 28
before the commencement. 29
24 Section 14 (Effect of marriage on a will)
25 Section 15 (Effect of divorce or annulment on a will)
26 Section 33Z (Persons entitled to inspect a will or to obtain a copy of a will)
27 Section 16 (Privileged wills)
s 10 41 s 10
Succession Amendment Bill 2005
old section 17 means section 1728 as in force immediately 1
before the commencement. 2
old section 18 means section 1829 as in force immediately 3
before the commencement.'. 4
© State of Queensland 2005
28 Section 17 (Revocation of will by marriage)
29 Section 18 (Effect of divorce on will)
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