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This is a Bill, not an Act. For current law, see the Acts databases.
Succession Amendment (Family
Provision) Bill 2008
No , 2008
A Bill for
An Act to amend the Succession Act 2006 to ensure that adequate provision is made
for members of the family of a deceased person, and certain other persons, from the
estate of the deceased person; to repeal the Family Provision Act 1982; and for other
purposes.
Clause 1 Succession Amendment (Family Provision) Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Succession Amendment (Family Provision) Act 2008. 3
2 Commencement 4
(1) This Act commences on a day or days to be appointed by proclamation, 5
except as provided by subsection (2). 6
(2) Schedule 2.1 is taken to have commenced on 1 March 2008. 7
3 Amendment of Succession Act 2006 No 80 8
The Succession Act 2006 is amended as set out in Schedule 1. 9
4 Amendment of other Acts 10
The Acts specified in Schedule 2 are amended as set out in that 11
Schedule. 12
5 Repeal of Family Provision Act 1982 No 160 13
The Family Provision Act 1982 is repealed. 14
6 Repeal of Act 15
(1) This Act is repealed on the day following the day on which all of the 16
provisions of this Act have commenced. 17
(2) The repeal of this Act does not, because of the operation of section 30 18
of the Interpretation Act 1987, affect any amendment made by this Act. 19
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
Schedule 1 Amendment of Succession Act 2006 1
(Section 3) 2
[1] Long title 3
Insert "to ensure that adequate provision is made for the members of the family 4
of a deceased person, and certain other persons, from the estate of the deceased 5
person;" after "Wales;". 6
[2] Section 3 Definitions 7
Omit the definition of Court from section 3 (1). Insert instead: 8
Court means: 9
(a) the Supreme Court, in relation to any matter (including a 10
matter referred to in paragraph (b)), or 11
(b) the District Court, in relation to a matter under Chapter 3 12
for which it has jurisdiction under section 134 of the 13
District Court Act 1973. 14
[3] Section 3 (1) 15
Insert in alphabetical order: 16
administration of the estate of a deceased person is defined in 17
section 55. 18
close personal relationship is defined in subsection (3). 19
costs, in relation to proceedings under this Act, means costs 20
payable in or in relation to the proceedings, and includes fees, 21
disbursements, expenses and remuneration. 22
deceased person includes any person in respect of whose estate 23
administration has been granted. 24
deceased transferee means a deceased transferee referred to in 25
section 81 or 82. 26
de facto relationship has the same meaning as it has in the 27
Property (Relationships) Act 1984. 28
domestic relationship has the same meaning as it has in the 29
Property (Relationships) Act 1984. 30
eligible person means a person who may make an application for 31
a family provision order under section 57. 32
family provision order means an order made by the Court under 33
Chapter 3 in relation to the estate or notional estate of a deceased 34
person to provide from that estate for the maintenance, education 35
or advancement in life of an eligible person. 36
legal representative of an estate is defined in section 55 (2). 37
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
notional estate of a deceased person means property designated 1
by a notional estate order as notional estate of the deceased 2
person. 3
notional estate order means an order made by the Court under 4
Chapter 3 designating property specified in the order as notional 5
estate of a deceased person. 6
property includes any valuable benefit. 7
[4] Section 3 (3) and (4) 8
Insert after section 3 (2) and renumber section 3 (3) as section 3 (5): 9
(3) For the purposes of this Act, a close personal relationship is a 10
close personal relationship (other than a marriage or a de facto 11
relationship) between two adult persons, whether or not related 12
by family, who are living together, one or each of whom provides 13
the other with domestic support and personal care. 14
(4) For the purposes of subsection (3), a close personal relationship 15
is taken not to exist between two persons where one of them 16
provides the other with domestic support and personal care: 17
(a) for fee and reward, or 18
(b) on behalf of another person or an organisation (including a 19
government or government agency, a body corporate or a 20
charitable or benevolent organisation). 21
[5] Section 3, note 22
Insert "References in headings to sections of this Act to "FPA" are references 23
to the Family Provision Act 1982 as in force immediately before it was 24
repealed by the Succession Amendment (Family Provision) Act 2008." after 25
"this Act.". 26
[6] Section 13 What is the effect of divorce or an annulment on a will? 27
Omit "the Family Provision Act 1982" from section 13 (5) (a). 28
Insert instead "Chapter 3 of this Act". 29
[7] Section 19 Information required in support of application for leave 30
Omit "the Family Provision Act 1982" from section 19 (2) (i). 31
Insert instead "Chapter 3 of this Act". 32
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
[8] Section 27 Court may rectify a will 1
Omit section 27 (2). Insert instead: 2
(2) A person who wishes to make an application for an order under 3
this section must apply to the Court within 12 months after the 4
date of the death of the testator. 5
[9] Section 28 Protection of personal representatives who distribute as if 6
will had not been rectified 7
Omit "under the Family Provision Act 1982" from section 28 (2) (b). 8
Insert instead "under Chapter 3". 9
[10] Chapter 3 10
Insert after section 54 and renumber Chapter 3 as Chapter 4 and sections 11
55-60 as sections 101-106, respectively: 12
Chapter 3 Family provision 13
Part 3.1 Application of Chapter 14
55 Interpretation 15
(1) For the purposes of this Chapter, administration is granted in 16
respect of the estate of a deceased person if: 17
(a) probate of the will of the deceased person is granted in 18
New South Wales or granted outside New South Wales but 19
sealed in accordance with section 107 (1) of the Probate 20
and Administration Act 1898, or 21
(b) letters of administration of the estate of the deceased 22
person are granted in New South Wales or granted outside 23
New South Wales but sealed in accordance with section 24
107 (1) of the Probate and Administration Act 1898, 25
whether the letters were granted with or without a will 26
annexed and whether for general, special or limited 27
purposes, or 28
(c) an order is made under section 18 (2) or 23 (1) of the 29
Public Trustee Act 1913 in respect of the estate of the 30
deceased person, or 31
(d) an election is made by the Public Trustee under section 32
18A of the Public Trustee Act 1913 in respect of the estate 33
of the deceased person, or 34
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
(e) an election is made by a trustee company under section 1
15A of the Trustee Companies Act 1964 in respect of the 2
estate of the deceased person. 3
(2) For the purposes of this Chapter, the legal representative of the 4
estate is the person to whom administration is granted. 5
(3) A reference in this Chapter to a person entitled to exercise a 6
power means a person entitled to exercise a power, whether or 7
not the power: 8
(a) is absolute or conditional, or 9
(b) arises under a trust or in some other manner, or 10
(c) is to be exercised solely by the person or by the person 11
together with one or more other persons (whether jointly or 12
severally). 13
(4) A reference in this Chapter to property held by a person includes 14
property in relation to which the person is entitled to exercise a 15
power of appointment or disposition in favour of himself or 16
herself. 17
56 Chapter to bind Crown (cf FPA 5) 18
This Chapter binds the Crown in right of New South Wales and, 19
in so far as the legislative power of the Parliament of New South 20
Wales permits, the Crown in all its other capacities. 21
Part 3.2 Family provision orders 22
Division 1 Applications for family provision orders 23
57 Eligible persons (cf FPA 6 (1), definition of "eligible person") 24
The following are eligible persons who may apply to the Court 25
for a family provision order in respect of the estate of a deceased 26
person: 27
(a) a person who was the wife or husband of the deceased 28
person at the time of the deceased person's death, 29
(b) a person with whom the deceased person was living in a de 30
facto relationship at the time of the deceased person's 31
death, 32
(c) a child of the deceased person or, if the deceased person 33
was, at the time of his or her death, a party to a domestic 34
relationship, a person who is, for the purposes of the 35
Property (Relationships) Act 1984, a child of that 36
relationship, 37
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
Note. A stepchild or foster child is not a child of a domestic 1
relationship--see section 5 (3) of the Property (Relationships) 2
Act 1984. 3
(d) a former wife or husband of the deceased person, 4
(e) a person: 5
(i) who was, at any particular time, wholly or partly 6
dependent on the deceased person, and 7
(ii) who is a grandchild of the deceased person or was, 8
at that particular time or at any other time, a member 9
of the household of which the deceased person was 10
a member, 11
(f) a person with whom the deceased person was living in a 12
close personal relationship at the time of the deceased 13
person's death. 14
Note. Section 60 sets out the matters that the Court may consider when 15
determining whether to make a family provision order, and the nature of 16
any such order. An application may be made by a tutor (within the 17
meaning of the Civil Procedure Act 2005) for an eligible person who is 18
under legal incapacity. 19
58 When an application may be made (cf FPA 16 (1) (b) and 17) 20
(1) An application for a family provision order may be made whether 21
or not administration of the estate of the deceased person has 22
been granted. 23
Note. Administration may be granted for the purposes of an application 24
for a family provision order (see section 91). 25
(2) An application for a family provision order must be made not 26
later than 12 months after the date of the death of the deceased 27
person, unless the Court otherwise orders on sufficient cause 28
being shown. 29
(3) An application is taken to be made on the day it is filed in the 30
Court's registry. 31
Division 2 Determination of applications 32
59 When family provision order may be made (cf FPA 7-9) 33
(1) The Court may, on application under Division 1, make a family 34
provision order in relation to the estate of a deceased person, if 35
the Court is satisfied that: 36
(a) the person in whose favour the order is to be made is an 37
eligible person, and 38
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
(b) in the case of a person who is an eligible person by reason 1
only of paragraph (d), (e) or (f) of the definition of eligible 2
person in section 57--having regard to all the 3
circumstances of the case (whether past or present) there 4
are factors which warrant the making of the application, 5
and 6
(c) at the time when the Court is considering the application, 7
adequate provision for the proper maintenance, education 8
or advancement in life of the person in whose favour the 9
order is to be made has not been made by the will of the 10
deceased person, or by the operation of the intestacy rules 11
in relation to the estate of the deceased person, or both. 12
(2) The Court may make such order for provision out of the estate of 13
the deceased person as the Court thinks ought to be made for the 14
maintenance, education or advancement in life of the eligible 15
person, having regard to the facts known to the Court at the time 16
the order is made. 17
Note. Property that may be the subject of a family provision order is set 18
out in Division 3. This Part applies to property, including property that is 19
designated as notional estate (see section 73). Part 3.3 sets out property 20
that may be designated as part of the notional estate of a deceased 21
person for the purpose of making a family provision order. 22
(3) The Court may make a family provision order in favour of an 23
eligible person in whose favour a family provision order has 24
previously been made in relation to the same estate only if: 25
(a) the Court is satisfied that there has been a substantial 26
detrimental change in the eligible person's circumstances 27
since a family provision order was last made in favour of 28
the person, or 29
(b) at the time that a family provision order was last made in 30
favour of the eligible person: 31
(i) the evidence about the nature and extent of the 32
deceased person's estate (including any property 33
that was, or could have been, designated as notional 34
estate of the deceased person) did not reveal the 35
existence of certain property (the undisclosed 36
property), and 37
(ii) the Court would have considered the deceased 38
person's estate (including any property that was, or 39
could have been, designated as notional estate of the 40
deceased person) to be substantially greater in value 41
if the evidence had revealed the existence of the 42
undisclosed property, and 43
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
(iii) the Court would not have made the previous family 1
provision order if the evidence had revealed the 2
existence of the undisclosed property. 3
(4) The Court may make a family provision order in favour of an 4
eligible person whose application for a family provision order in 5
relation to the same estate was previously refused only if, at the 6
time of refusal, there existed all the circumstances regarding 7
undisclosed property described in subsection (3) (b). 8
60 Matters to be considered by Court (cf FPA 7-9) 9
(1) The Court may have regard to the matters set out in subsection (2) 10
for the purpose of determining: 11
(a) whether the person in whose favour the order is sought to 12
be made (the applicant) is an eligible person, and 13
(b) whether to make a family provision order and the nature of 14
any such order. 15
(2) The following matters may be considered by the Court: 16
(a) any family or other relationship between the applicant and 17
the deceased person, including the nature and duration of 18
the relationship, 19
(b) the nature and extent of any obligations or responsibilities 20
owed by the deceased person to the applicant, to any other 21
person in respect of whom an application has been made 22
for a family provision order or to any beneficiary of the 23
deceased person's estate, 24
(c) the nature and extent of the deceased person's estate 25
(including any property that is, or could be, designated as 26
notional estate of the deceased person) and of any 27
liabilities or charges to which the estate is subject, as in 28
existence when the application is being considered, 29
(d) the financial resources (including earning capacity) and 30
financial needs, both present and future, of the applicant, 31
of any other person in respect of whom an application has 32
been made for a family provision order or of any 33
beneficiary of the deceased person's estate, 34
(e) if the applicant is cohabiting with another person--the 35
financial circumstances of the other person, 36
(f) any physical, intellectual or mental disability of the 37
applicant, any other person in respect of whom an 38
application has been made for a family provision order or 39
any beneficiary of the deceased person's estate that is in 40
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
existence when the application is being considered or that 1
may reasonably be anticipated, 2
(g) the age of the applicant when the application is being 3
considered, 4
(h) any contribution (whether financial or otherwise) by the 5
applicant to the acquisition, conservation and 6
improvement of the estate of the deceased person or to the 7
welfare of the deceased person or the deceased person's 8
family, whether made before or after the deceased person's 9
death, for which adequate consideration (not including any 10
pension or other benefit) was not received, by the 11
applicant, 12
(i) any provision made for the applicant by the deceased 13
person, either during the deceased person's lifetime or 14
made from the deceased person's estate, 15
(j) any evidence of the testamentary intentions of the 16
deceased person, including evidence of statements made 17
by the deceased person, 18
(k) whether the applicant was being maintained, either wholly 19
or partly, by the deceased person before the deceased 20
person's death and, if the Court considers it relevant, the 21
extent to which and the basis on which the deceased person 22
did so, 23
(l) whether any other person is liable to support the applicant, 24
(m) the character and conduct of the applicant before and after 25
the date of the death of the deceased person, 26
(n) the conduct of any other person before and after the date of 27
the death of the deceased person, 28
(o) any relevant Aboriginal or Torres Strait Islander 29
customary law, 30
(p) any other matter the Court considers relevant, including 31
matters in existence at the time of the deceased person's 32
death or at the time the application is being considered. 33
61 Other possible applicants (cf FPA 20) 34
(1) In determining an application for a family provision order, the 35
Court may disregard the interests of any other person by or in 36
respect of whom an application for a family provision order may 37
be made (other than a beneficiary of the deceased person's estate) 38
but who has not made an application. 39
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
(2) However, the Court may disregard any such interests only if: 1
(a) notice of the application, and of the Court's power to 2
disregard the interests, is served on the person concerned, 3
in the manner and form prescribed by the regulations or 4
rules of court, or 5
(b) the Court determines that service of any such notice is 6
unnecessary, unreasonable or impracticable in the 7
circumstances of the case. 8
62 Interim family provision orders and orders restraining distribution 9
of the estate (cf FPA 9 (5) and (6)) 10
(1) The Court may make an interim family provision order before it 11
has fully considered an application for a family provision order if 12
it is of the opinion that no less provision than that proposed in the 13
interim order would be made in favour of the eligible person 14
concerned in the final order. 15
(2) After making an interim family provision order, the Court must 16
proceed to finally determine the application for a family 17
provision order by confirming, revoking or varying the interim 18
order. 19
(3) The Court may make an order restraining the final or partial 20
distribution of an estate (other than a distribution under section 21
94 (1) of this Act or section 92A of the Probate and 22
Administration Act 1898) pending its determination of an 23
application for a family provision order. 24
Division 3 Property that may be used for family 25
provision orders 26
63 Property that may be used for family provision orders (cf FPA 6 (1), 27
definition of "estate", 6 (4) and (5)) 28
(1) A family provision order may be made in relation to the estate of 29
a deceased person. 30
(2) If the deceased person died leaving a will, the estate of the 31
deceased person includes property that would, on a grant of 32
probate of the will, vest in the executor of the will, or would on a 33
grant of administration with the will annexed, vest in the legal 34
representative appointed under that grant. 35
(3) A family provision order may not be made in relation to property 36
of the estate that has been distributed by the legal representative 37
of the estate in compliance with the requirements of section 93, 38
except as provided by subsection (5). 39
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
(4) Where property of the estate of a deceased person is held by the 1
legal representative of that estate as trustee for a person or for a 2
charitable or other purpose, the property is to be treated, for the 3
purposes of this Chapter, as not having been distributed unless it 4
is vested in interest in that person or for that purpose. 5
(5) A family provision order may be made in relation to property that 6
is not part of the estate of a deceased person, or that has been 7
distributed, if it is designated as notional estate of the deceased 8
person by an order under Part 3.3. 9
64 Orders may affect property in or outside jurisdiction (cf FPA 11 (1) 10
(b)) 11
A family provision order may be made in respect of property 12
situated in or outside New South Wales when, or at any time 13
after, the order is made, whether or not the deceased person was, 14
at the time of death, domiciled in New South Wales. 15
Division 4 General provisions relating to family 16
provision orders 17
65 Nature of orders (cf FPA 11 (1) (a) and (d)) 18
(1) A family provision order must specify: 19
(a) the person or persons for whom provision is to be made, 20
and 21
(b) the amount and nature of the provision, and 22
(c) the manner in which the provision is to be provided and the 23
part or parts of the estate out of which it is to be provided, 24
and 25
(d) any conditions, restrictions or limitations imposed by the 26
Court. 27
(2) A family provision order may require the provision to be made in 28
one or more of the following ways: 29
(a) by payment of a lump sum of money, 30
(b) by periodic payments of money, 31
(c) by application of specified existing or future property, 32
(d) by way of an absolute interest, or a limited interest only, in 33
property, 34
(e) by way of property set aside as a class fund for the benefit 35
of 2 or more persons, 36
(f) in any other manner the Court thinks fit. 37
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
(3) If provision is to be made by payment of an amount of money, the 1
family provision order may specify whether interest is payable on 2
the whole or any part of the amount payable for the period, and, 3
if so, the period during which interest is payable and the rate of 4
the interest. 5
66 Consequential and ancillary orders (cf FPA 15 (1), 34) 6
(1) The Court may, in addition to, or as part of, a family provision 7
order, make orders for or with respect to all or any of the 8
following matters for the purpose of giving effect to the family 9
provision order: 10
(a) the transfer of property of the estate directly to the eligible 11
person in whose favour the order is made, or to any other 12
person as trustee for that person, 13
(b) where property is to be held on trust, the purpose of the 14
trust and the way in which it is to be constituted, 15
(c) the appointment of a trustee of property of the estate, 16
(d) the powers and duties of a trustee of property of the estate, 17
including any trustee constituted or appointed under this 18
section, 19
(e) the vesting in any person of property of the estate, 20
(f) the exercise of a right or power to obtain property for the 21
estate, 22
(g) the sale of or dealing with property of the estate, 23
(h) the disposal of the proceeds of any sale or other realising 24
of property of the estate, 25
(i) the securing, either wholly or partially, of the due 26
performance of an order under this Part, 27
(j) the management of the property of the estate, 28
(k) the execution of any necessary conveyance, document or 29
instrument, the production of documents of title or the 30
doing of such other things as the Court thinks necessary in 31
relation to the performance of the family provision order, 32
(l) any other matter the Court thinks necessary. 33
(2) The Court may make such additional orders as it considers 34
necessary to adjust the interests of anyone with an interest in the 35
property of the estate and to be just and equitable to all persons 36
affected by a family provision order. 37
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
(3) The execution of an instrument relating to property in the 1
notional estate of a deceased person pursuant to an order under 2
this section is not liable to duty under the Duties Act 1997. 3
67 Undertakings to restore property (cf FPA 18) 4
(1) The Court may make a family provision order subject to a 5
condition that the eligible person in whose favour the order is 6
made is to enter into an undertaking, or give security, that, if the 7
order is revoked because the deceased person was not deceased 8
when the order was made, the person will restore any property 9
received under the order, or otherwise make restitution, in 10
accordance with any order of the Court made on the revocation. 11
(2) In this section: 12
deceased person means the person (whether or not deceased) 13
from whose estate a family provision order is made. 14
68 Payment for exoneration from liability for orders 15
(1) The Court may, as part of a family provision order, or at any time, 16
on the application of a beneficiary of the estate of a deceased 17
person, by order: 18
(a) fix a periodic payment or lump sum payable by a 19
beneficiary of an estate affected by a family provision 20
order to represent the proportion of the property in the 21
estate affected by the family provision order that is borne 22
by the beneficiary's portion of the estate, and 23
(b) exonerate the beneficiary's portion of the estate from any 24
further liability under the family provision order, on 25
condition that payment is made as directed by the Court. 26
(2) Without limiting subsection (1), in making any order under this 27
section, the Court may do any of the following: 28
(a) specify the person to whom the payment or lump sum is to 29
be paid, 30
(b) specify how any periodic payment is to be secured, 31
(c) specify how any lump sum is to be invested for the benefit 32
of any proposed beneficiary. 33
Note. Section 92 enables the Court to replace property in the estate or 34
notional estate of a deceased person that has been, or is proposed to 35
be, affected by a family provision order with property offered in 36
substitution for the affected property. 37
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
69 Effect of order vesting property in estate (cf FPA 15 (2)) 1
The provisions of sections 78 (except subsection (1)) and 79 of 2
the Trustee Act 1925 apply to and in relation to an order under 3
section 66 for the vesting of property in a person in the same way 4
as they apply to and in relation to a vesting order referred to in 5
those provisions and, in the case of section 78 (2) of that Act, as 6
if the provisions of section 66 and the other provisions of this Act 7
relating to the making of orders under this Act were contained in 8
Part 3 of that Act. 9
70 Variation and revocation of family provision orders (cf FPA 10
19 (1)-(3) and 20 (4)) 11
(1) A family provision order may be varied or revoked by the Court 12
only in accordance with this Chapter. 13
(2) The Court may, by order, vary or revoke a family provision order 14
so as to allow provision to be made in favour of another eligible 15
person wholly or partly from all or any property affected by the 16
order. 17
(3) The Court must not vary or revoke a family provision order so as 18
to allow provision to be made in favour of another eligible person 19
unless that person shows sufficient cause for not having applied 20
for a family provision order before the order sought to be varied 21
or revoked was made. 22
(4) A family provision order is revoked if the grant of administration 23
in respect of the estate of the deceased person is revoked or 24
rescinded, unless the Court otherwise provides when revoking or 25
rescinding the grant. 26
Note. The Court may also vary a family provision order under sections 27
62 and 92. 28
71 Variation and revocation of other orders (cf FPA 19 (4)) 29
If a family provision order is varied or revoked, the Court may: 30
(a) vary or revoke any other orders made by it as a 31
consequence of, or in relation to, the order to such extent 32
as may be necessary as a result of the variation or 33
revocation, and 34
(b) make such additional orders as may be so necessary. 35
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
72 Effect of family provision order (cf FPA 14 (1)) 1
(1) A family provision order takes effect, unless the Court otherwise 2
orders, as if the provision was made: 3
(a) in a codicil to the will of the deceased person, if the 4
deceased person made a will, or 5
(b) in a will of the deceased person, if the deceased person 6
died intestate. 7
(2) Without limiting subsection (1), the Court may at the time of 8
distribution of an estate that is insufficient to give effect to a 9
family provision order make such orders concerning the 10
abatement or adjustment of distributions from the estate as 11
between the person in whose favour the family provision order is 12
made and the other beneficiaries of the estate as it considers to be 13
just and equitable among the persons affected. 14
73 Application 15
(1) This Part applies to interim family provision orders in the same 16
way as it applies to family provision orders. 17
(2) This Part (other than section 63) applies to property designated as 18
part of the notional estate of a deceased person in the same way 19
as it applies to property that is part of the estate of a deceased 20
person. 21
Part 3.3 Notional estate orders 22
Note. This Part applies where, as a result of certain property transactions, property is 23
not included in the estate of a deceased person or where property has been distributed 24
from the estate of a deceased person. This Part enables the Court in limited 25
circumstances to make an order designating property that is not included in the estate, 26
or has been distributed from the estate, as "notional estate" of the deceased person for 27
the purpose of making a family provision order under Part 3.2 in respect of the estate 28
of the deceased person (or for the purpose of ordering that costs in the proceedings be 29
paid from the notional estate). 30
Property may be designated as notional estate if it is property held by, or on trust for, a 31
person by whom property became held (whether or not as trustee), or the object of a 32
trust for which property became held on trust: 33
(a) as a result of a distribution from the estate of a deceased person (see section 34
79), whether or not the property was the subject of the distribution, or 35
(b) as a result of a relevant property transaction, whether or not the property was 36
the subject of the transaction (see section 80), or 37
(c) as a result of a relevant property transaction entered into by a person by whom 38
property became held, or for whom property became held on trust, as a result 39
of a relevant property transaction or a distribution from the estate of a deceased 40
person (see section 81), whether or not the property was the subject of the 41
relevant property transaction. 42
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Property may also be designated as notional estate if it is property: 1
(a) held by the legal representative of the estate of a person by whom property 2
became held as a result of a relevant property transaction or distribution 3
referred to in paragraphs (a)-(c) above and who has since died (known as the 4
deceased transferee), or 5
(b) held by, or on trust for, a person by whom property became held, or for the 6
object of a trust for which property became held on trust, as a result of a 7
distribution from the estate of a deceased transferee, 8
whether or not the property was the subject of the relevant property transaction or the 9
distribution from the estate of the deceased person or the deceased transferee (see 10
section 82). 11
Section 92 enables the Court to replace property in the estate or notional estate of a 12
deceased person that has been, or is proposed to be, affected by a family provision 13
order with property offered in substitution for the affected property. 14
Division 1 Relevant property transactions 15
74 Definition 16
In this Part: 17
relevant property transaction means a transaction or 18
circumstance affecting property and described in section 75 or 19
76. 20
75 Transactions that are relevant property transactions (cf FPA 22 (1), 21
(3) and (7)) 22
(1) A person enters into a relevant property transaction if the person 23
does, directly or indirectly, or does not do, any act that 24
(immediately or at some later time) results in property being: 25
(a) held by another person (whether or not as trustee), or 26
(b) subject to a trust, 27
and full valuable consideration is not given to the person for 28
doing or not doing the act. 29
(2) The fact that a person has entered into a relevant property 30
transaction affecting property does not prevent the person from 31
being taken to have entered into another relevant property 32
transaction if the person subsequently does, or does not do, an act 33
affecting the same property the subject of the first transaction. 34
(3) The making of a will by a person, or the omission of a person to 35
make a will, does not constitute an act or omission for the 36
purposes of subsection (1), except in so far as it constitutes a 37
failure to exercise a power of appointment or disposition in 38
relation to property that is not in the person's estate. 39
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76 Examples of relevant property transactions (cf FPA 22 (4)) 1
(1) The circumstances set out in subsection (2), subject to full 2
valuable consideration not being given, constitute the basis of a 3
relevant property transaction for the purposes of section 75. 4
(2) The circumstances are as follows: 5
(a) if a person is entitled to exercise a power to appoint, or 6
dispose of, property that is not in the person's estate and 7
does not exercise that power before ceasing (because of 8
death or the occurrence of any other event) to be entitled to 9
do so, with the result that the property becomes held by 10
another person (whether or not as trustee) or subject to a 11
trust or another person (immediately or at some later time) 12
becomes, or continues to be, entitled to exercise the power, 13
(b) if a person holds an interest in property as a joint tenant and 14
the person does not sever that interest before ceasing 15
(because of death or the occurrence of any other event) to 16
be entitled to do so, with the result that, on the person's 17
death, the property becomes, by operation of the right of 18
survivorship, held by another person (whether or not as 19
trustee) or subject to a trust, 20
(c) if a person holds an interest in property in which another 21
interest is held by another person (whether or not as 22
trustee) or is subject to a trust, and the person is entitled to 23
exercise a power to extinguish the other interest in the 24
property and the power is not exercised before the person 25
ceases (because of death or the occurrence of any other 26
event) to be so entitled with the result that the other interest 27
in the property continues to be so held or subject to the 28
trust, 29
(d) if a person is entitled, in relation to a life assurance policy 30
on the person's life under which money is payable on the 31
person's death or if some other event occurs to a person 32
other than the legal representative of the person's estate, to 33
exercise a power: 34
(i) to substitute a person or a trust for the person to 35
whom, or trust subject to which, money is payable 36
under the policy, or 37
(ii) to surrender or otherwise deal with the policy, 38
and the person does not exercise that power before ceasing 39
(because of death or the occurrence of any other event) to 40
be entitled to do so, 41
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(e) if a person who is a member of, or a participant in, a body 1
(corporate or unincorporate), association, scheme, fund or 2
plan, dies and property (immediately or at some later time) 3
becomes held by another person (whether or not as trustee) 4
or subject to a trust because of the person's membership or 5
participation and the person's death or the occurrence of 6
any other event, 7
(f) if a person enters into a contract disposing of property out 8
of the person's estate, whether or not the disposition is to 9
take effect before, on or after the person's death or under 10
the person's will or otherwise. 11
(3) Nothing in this section prevents any other act or omission from 12
constituting the basis of a relevant property transaction for the 13
purposes of section 75. 14
(4) For the purposes of this Chapter, in the circumstances described 15
in subsection (2) (b), a person is not given full or any valuable 16
consideration for not severing an interest in property held as a 17
joint tenant merely because, by not severing that interest, the 18
person retains, until his or her death, the benefit of the right of 19
survivorship in respect of that property. 20
77 When relevant property transactions take effect (cf FPA 22 (2), (5) 21
and (6)) 22
(1) For the purposes of this Chapter, a relevant property transaction 23
is taken to have effect when the property concerned becomes held 24
by another person or subject to a trust or as otherwise provided 25
by this section. 26
(2) A relevant property transaction consisting of circumstances 27
described in section 76 (2) (a), (c) or (d) is taken to have been 28
entered into immediately before, and to take effect on, the 29
person's death or the occurrence of the other event resulting in 30
the person no longer being entitled to exercise the relevant power. 31
(3) A relevant property transaction consisting of circumstances 32
described in section 76 (2) (b) or (e) is taken to have been entered 33
into immediately before, and to take effect on, the person's death 34
or the occurrence of the other event referred to in those 35
paragraphs. 36
(4) A relevant property transaction that involves any kind of contract 37
for which valuable consideration, though not full valuable 38
consideration, is given for the person to enter into the transaction 39
is taken to be entered into and take effect when the contract is 40
entered into. 41
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Division 2 When notional estate orders may be made 1
78 Notional estate order may be made only if family provision order 2
or certain costs orders to be made 3
(1) The Court may make an order designating property as notional 4
estate only: 5
(a) for the purposes of a family provision order to be made 6
under Part 3.2, or 7
(b) for the purposes of an order that the whole or part of the 8
costs of proceedings in relation to the estate or notional 9
estate of a deceased person be paid from the notional estate 10
of the deceased person. 11
Note. Section 63 (5) enables a family provision order to be made in 12
relation to property designated as notional estate of a deceased person. 13
Section 99 enables the Court to order that costs be paid out of the 14
notional estate of a deceased person. 15
(2) The Court must not make an order under subsection (1) (b) for the 16
purposes of an order that the whole or part of an applicant's costs 17
be paid from the notional estate of the deceased person unless the 18
Court makes or has made a family provision order in favour of the 19
applicant. 20
79 Notional estate order may be made where property of estate 21
distributed (cf FPA 24) 22
The Court may, on application by an applicant for a family 23
provision order or on its own motion, make a notional estate 24
order designating property specified in the order as notional 25
estate of a deceased person if the Court is satisfied that on, or as 26
a result of, a distribution of the deceased person's estate, property 27
(whether or not the subject of the distribution) became held by a 28
person (whether or not as trustee) or subject to a trust. 29
80 Notional estate order may be made where estate affected by 30
relevant property transaction (cf FPA 23) 31
(1) The Court may, on application by an applicant for a family 32
provision order or on its own motion, make a notional estate 33
order designating property specified in the order as notional 34
estate of a deceased person if the Court is satisfied that the 35
deceased person entered into a relevant property transaction 36
before his or her death and that the transaction is a transaction to 37
which this section applies. 38
Note. The kinds of transactions that constitute relevant property 39
transactions are set out in sections 75 and 76. 40
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(2) This section applies to the following relevant property 1
transactions: 2
(a) a transaction that took effect within 3 years before the date 3
of the death of the deceased person and was entered into 4
with the intention, wholly or partly, of denying or limiting 5
provision being made out of the estate of the deceased 6
person for the maintenance, education or advancement in 7
life of any person who is entitled to apply for a family 8
provision order, 9
(b) a transaction that took effect within one year before the 10
date of the death of the deceased person and was entered 11
into when the deceased person had a moral obligation to 12
make adequate provision, by will or otherwise, for the 13
proper maintenance, education or advancement in life of 14
any person who is entitled to apply for a family provision 15
order which was substantially greater than any moral 16
obligation of the deceased person to enter into the 17
transaction, 18
(c) a transaction that took effect or is to take effect on or after 19
the deceased person's death. 20
(3) Property may be designated as notional estate by a notional estate 21
order under this section if it is property that is held by, or on trust 22
for: 23
(a) a person by whom property became held (whether or not 24
as trustee) as the result of a relevant property transaction, 25
or 26
(b) the object of a trust for which property became held on 27
trust as the result of a relevant property transaction, 28
whether or not the property was the subject of the relevant 29
property transaction. 30
81 Notional estate order may be made where estate affected by 31
subsequent relevant property transaction (cf FPA 25) 32
(1) The Court may, on application by an applicant for a family 33
provision order or on its own motion, make a notional estate 34
order designating property specified in the order as notional 35
estate of a deceased person if the Court is satisfied that: 36
(a) it: 37
(i) has power, under this or any other section of this 38
Chapter, to make a notional estate order designating 39
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Schedule 1 Amendment of Succession Act 2006
property held by, or on trust for, a person (the 1
transferee) as notional estate of the deceased 2
person, or 3
(ii) immediately before the date of the death of a person 4
(the deceased transferee), had power, under this or 5
any other section of this Chapter, to make a notional 6
estate order designating property held by, or on trust 7
for, the deceased transferee as notional estate of the 8
deceased person, and 9
(b) since the relevant property transaction or distribution that 10
gave rise to the power to make the order was entered into 11
or made, the transferee, or the deceased transferee, entered 12
into a relevant property transaction, and 13
(c) there are special circumstances that warrant the making of 14
the order. 15
(2) Property may be designated as notional estate by a notional estate 16
order under this section if it is property that is held by, or on trust 17
for: 18
(a) a person by whom property became held (whether or not 19
as trustee) as the result of the relevant property transaction 20
entered into by the transferee or the deceased transferee, or 21
(b) the object of a trust for which property became held on 22
trust as the result of the relevant property transaction 23
entered into by the transferee or the deceased transferee, 24
whether or not the property was the subject of the relevant 25
property transaction. 26
(3) A notional estate order may be made under this section instead of 27
or in addition to an order under section 79, 80 or 82. 28
82 Notional estate order may be made where property of deceased 29
transferee's estate held by legal representative or distributed 30
(1) The Court may, on application by an applicant for a family 31
provision order or on its own motion, make a notional estate 32
order designating property specified in the order as notional 33
estate of a deceased person if the Court is satisfied that: 34
(a) immediately before the date of the death of a person (the 35
deceased transferee), it had power, under this or any other 36
section of this Chapter, to make a notional estate order 37
designating property held by, or on trust for, the deceased 38
transferee as notional estate of the deceased person, and 39
(b) the power did not arise because property became held by 40
the deceased transferee as trustee only, and 41
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Amendment of Succession Act 2006 Schedule 1
(c) in the case of property referred to in subsection (2) (b), 1
there are special circumstances that warrant the making of 2
the order. 3
(2) The following property may be designated as notional estate by a 4
notional estate order under this section, whether or not it was the 5
property the subject of the relevant property transaction or 6
distribution from which the Court's power to make such an order 7
arose: 8
(a) if administration has been granted in respect of the estate 9
of the deceased transferee--property that is held by the 10
legal representative of the estate of the deceased transferee 11
in his or her capacity as legal representative of the estate of 12
the deceased transferee, 13
(b) if all or part of the estate of the deceased transferee has 14
been distributed--property that is held by, or on trust for: 15
(i) a person by whom property became held (whether 16
or not as trustee) as the result of the distribution of 17
the deceased transferee's estate, or 18
(ii) the object of a trust for which property became held 19
on trust as the result of the distribution of the 20
deceased transferee's estate. 21
(3) A notional estate order may be made under this section instead of 22
or in addition to an order under section 79, 80 or 81. 23
Note. Administration of the estate of a deceased transferee may be 24
granted for the purposes of being able to designate property as notional 25
estate under this section (see section 91). 26
83 Disadvantage and other matters required before order can be 27
made (cf FPA 26) 28
(1) The Court must not, merely because a relevant property 29
transaction has been entered into, make an order under section 30
80, 81 or 82 unless the Court is satisfied that the relevant property 31
transaction or the holding of property resulting from the relevant 32
property transaction: 33
(a) directly or indirectly disadvantaged the estate of the 34
principal party to the transaction or a person entitled to 35
apply for a family provision order from the estate or, if the 36
deceased person was not the principal party to the 37
transaction, the deceased person (whether before, on or 38
after death), or 39
(b) involved the exercise by the principal party to the 40
transaction or any other person (whether alone or jointly or 41
severally with any other person) of a right, a discretion or 42
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Schedule 1 Amendment of Succession Act 2006
a power of appointment, disposition, nomination or 1
direction that, if not exercised, could have resulted in a 2
benefit to the estate of the principal party to the transaction 3
or a person entitled to apply for a family provision order 4
from the estate or, if the deceased person was not the 5
principal party to the transaction, the deceased person 6
(whether before, on or after death), or 7
(c) involved the exercise by the principal party to the 8
transaction or any other person (whether alone or jointly or 9
severally with any other person) of a right, a discretion or 10
a power of appointment, disposition, nomination or 11
direction that could, when the relevant property 12
transaction was entered into or at a later time, have been 13
exercised so as to result in a benefit to the estate of the 14
principal party to the transaction or a person entitled to 15
apply for a family provision order from the estate or, if the 16
deceased person was not the principal party to the 17
transaction, the deceased person (whether before, on or 18
after death), or 19
(d) involved an omission to exercise a right, a discretion or a 20
power of appointment, disposition, nomination or 21
direction that could, when the relevant property 22
transaction was entered into or at a later time, have been 23
exercised by the principal party to the transaction or any 24
other person (whether alone or jointly or severally with 25
any other person) so as to result in a benefit to the estate of 26
the principal party to the transaction or a person entitled to 27
apply for a family provision order from the estate or, if the 28
deceased person was not the principal party to the 29
transaction, the deceased person (whether before, on or 30
after death). 31
(2) In this section: 32
principal party to the transaction, in relation to a relevant 33
property transaction, means the person who, under section 75 or 34
76, enters into the relevant property transaction. 35
84 Effect of notional estate order (cf FPA 29) 36
A person's rights are extinguished to the extent that they are 37
affected by a notional estate order. 38
85 More than one notional estate order may be made (cf FPA 28 (3)) 39
The Court may make one or more notional estate orders in 40
connection with the same proceedings for a family provision 41
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
order, or any subsequent proceedings relating to the estate of the 1
same deceased person. 2
86 Power subject to Division 3 3
The Court's power to make a notional estate order under this 4
Division is subject to Division 3. 5
Division 3 Restrictions and protections relating to 6
notional estate orders 7
87 General matters that must be considered by Court (cf FPA 27 (1)) 8
The Court must not make a notional estate order unless it has 9
considered the following: 10
(a) the importance of not interfering with reasonable 11
expectations in relation to property, 12
(b) the substantial justice and merits involved in making or 13
refusing to make the order, 14
(c) any other matter it considers relevant in the circumstances. 15
88 Estate must not be sufficient for provision or order as to costs (cf 16
FPA 28 (1)) 17
The Court must not make a notional estate order unless it is 18
satisfied that: 19
(a) the deceased person left no estate, or 20
(b) the deceased person's estate is insufficient for the making 21
of the family provision order, or any order as to costs, that 22
the Court is of the opinion should be made, or 23
(c) provision should not be made wholly out of the deceased 24
person's estate because there are other persons entitled to 25
apply for family provision orders or because there are 26
special circumstances. 27
89 Determination of property to be subject to notional estate order 28
(cf FPA 27 (2), 28 (2) and (4)) 29
(1) In determining what property should be designated as notional 30
estate of a deceased person, the Court must have regard to the 31
following: 32
(a) the value and nature of any property: 33
(i) the subject of a relevant property transaction, or 34
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(ii) the subject of a distribution from the estate of the 1
deceased person or from the estate of a deceased 2
transferee, or 3
(iii) held by the legal representative of the estate of any 4
deceased transferee in his or her capacity as legal 5
representative of the estate of the deceased 6
transferee, 7
(b) the value and nature of any consideration given in a 8
relevant property transaction, 9
(c) any changes in the value of property of the same nature as 10
the property referred to in paragraph (a), or the 11
consideration referred to in paragraph (b), in the time since 12
the relevant property transaction was entered into, the 13
distribution was made, the property became held by the 14
legal representative of the estate of the deceased transferee 15
or the consideration was given, 16
(d) whether property of the same nature as the property 17
referred to in paragraph (a), or the consideration referred to 18
in paragraph (b), could have been used to obtain income in 19
the time since the relevant property transaction was 20
entered into, the distribution was made, the property 21
became held by the legal representative of the estate of the 22
deceased transferee or the consideration was given, 23
(e) any other matter it considers relevant in the circumstances. 24
(2) The Court must not designate as notional estate property that 25
exceeds that necessary, in the Court's opinion, to allow the 26
provision that should be made, or, if the Court makes an order 27
that costs be paid from the notional estate under section 99, to 28
allow costs to be paid as ordered, or both. 29
(3) If, as a result of a relevant property transaction or of a distribution 30
from the estate of a deceased person or from the estate of a 31
deceased transferee, property becomes held by a person as a 32
trustee only, the Court must not designate as notional estate any 33
property held by the person other than the property held by the 34
person as a trustee as a consequence of any such relevant property 35
transaction or distribution. 36
90 Restrictions on out of time or additional applications (cf FPA 28 (5)) 37
(1) This section applies to proceedings where: 38
(a) an application for a family provision order is made later 39
than 12 months after the date of the death of the deceased 40
person, or 41
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
(b) an application for a family provision order is made in 1
relation to an estate that has been previously the subject of 2
a family provision order. 3
(2) The Court must not make a notional estate order in the 4
proceedings unless: 5
(a) it is satisfied that: 6
(i) the property to be designated as notional estate is 7
property that was the subject of a relevant property 8
transaction or of a distribution from the estate of a 9
deceased person or from the estate of a deceased 10
transferee, and 11
(ii) the person who holds the property holds it as a result 12
of the relevant property transaction or distribution 13
as trustee only, and 14
(iii) the property is not vested in interest in any 15
beneficiary under the trust, or 16
(b) it is satisfied that there are other special circumstances that 17
justify the making of the notional estate order. 18
Part 3.4 Miscellaneous 19
91 Grant of probate or administration to enable application to be dealt 20
with (cf WPA 41A) 21
(1) This section applies if an application is made by a person for a 22
family provision order, or notional estate order, in respect of the 23
estate of a deceased person, or deceased transferee, respectively, 24
in relation to which administration has not been granted. 25
(2) The Court may, if it is satisfied that it is proper to do so, grant 26
administration in respect of the estate of the deceased person or 27
deceased transferee to the applicant for the purposes only of 28
permitting the application concerned to be dealt with, whether or 29
not the deceased person or deceased transferee left property in 30
New South Wales. 31
(3) The granting of administration under the Probate and 32
Administration Act 1898 does not: 33
(a) prevent the Court from granting administration under this 34
section, or 35
(b) unless the Court otherwise orders, affect any previous 36
grant of administration under this section. 37
(4) The provisions of the Probate and Administration Act 1898 apply 38
to a grant of administration under this section, and to the legal 39
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Schedule 1 Amendment of Succession Act 2006
representative of the estate, in the same way as they apply to a 1
grant of administration under that Act and the legal representative 2
of any estate for which such a grant has been made. 3
92 Substitution of property affected by orders or proposed orders (cf 4
FPA 30) 5
(1) If the Court has made, or proposes to make, a family provision 6
order affecting certain property in the estate of a deceased person 7
or a deceased transferee, the Court may, on application by a 8
person who offers other property in substitution (the replacement 9
property): 10
(a) vary the family provision order by substituting the 11
replacement property for the property affected by the 12
order, or 13
(b) make a family provision order in respect of the 14
replacement property instead of the property proposed to 15
be affected by such an order, 16
as appropriate. 17
(2) If the Court has made, or proposes to make, a notional estate 18
order designating certain property as notional estate, the Court 19
may, on application by a person who offers other property in 20
substitution (the replacement property): 21
(a) vary the notional estate order by substituting the 22
replacement property for the property designated as 23
notional estate by the order, or 24
(b) make a notional estate order designating the replacement 25
property as notional estate instead of the property proposed 26
to be designated as notional estate by such an order, 27
as appropriate. 28
(3) The Court may vary or make an order under this section only if it 29
is satisfied that the replacement property can properly be 30
substituted for the property affected or proposed to be affected by 31
the family provision order, or the property designated or 32
proposed to be designated as notional estate, as appropriate. 33
(4) An order varied or made under this section is taken to be an order 34
in respect of property of the estate or notional estate of the 35
deceased person for the purposes of this Chapter (except section 36
72 (Effect of family provision order)). 37
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93 Protection of legal representative who distributes after giving 1
notice (cf FPA 35 (1)) 2
(1) The legal representative of the estate of a deceased person may 3
distribute the property in the estate if: 4
(a) the property is distributed at least 6 months after the 5
deceased person's death, and 6
(b) the legal representative has given notice in the form 7
approved under section 17 of the Civil Procedure Act 2005 8
that the legal representative intends to distribute the 9
property in the estate after the expiration of a specified 10
time, and 11
Note. Section 101 of this Act provides for the service of notices. 12
(c) the time specified in the notice is not less than 30 days after 13
the notice is given, and 14
(d) the time specified in the notice has expired, and 15
(e) at the time of distribution, the legal representative does not 16
have notice of any application or intended application for 17
a family provision order affecting the estate of the 18
deceased person. 19
(2) A legal representative who distributes property of the estate of a 20
deceased person is not liable in respect of that distribution to any 21
person who was an applicant for a family provision order 22
affecting the estate if the legal representative did not have notice 23
at the time of the distribution of the application and if: 24
(a) the distribution was made in accordance with this section, 25
and 26
(b) the distribution was properly made by the legal 27
representative. 28
(3) For the purposes of this section, notice to the legal representative 29
of an application or intention to make any application under this 30
Chapter must be in writing signed in accordance with rules for the 31
signing of documents by a party in proceedings under the 32
Uniform Civil Procedure Rules 2005. 33
Note. On the enactment of this subsection, rules for the signing of 34
documents by a party in proceedings were contained in Rule 4.4 of the 35
Uniform Civil Procedure Rules 2005. 36
94 Protection of legal representative in other circumstances 37
(1) A legal representative of the estate of a deceased person who 38
distributes property in the estate for the purpose of providing 39
those things immediately necessary for the maintenance or 40
education of an eligible person who was wholly or substantially 41
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Schedule 1 Amendment of Succession Act 2006
dependent on the deceased person immediately before his or her 1
death is not liable for any such distribution that is properly made. 2
(2) Subsection (1) applies whether or not the legal representative had 3
notice at the time of the distribution of any application or 4
intended application for a family provision order affecting 5
property in the estate. 6
(3) No person who may have made or may be entitled to make an 7
application under this Chapter is entitled to bring an action 8
against the legal representative of the estate of a deceased person 9
because the legal representative has distributed any part of the 10
estate if the distribution was properly made by the legal 11
representative after the person (being of full legal capacity) has 12
notified the legal representative in writing that the person either: 13
(a) consents to the distribution, or 14
(b) does not intend to make any application under this Chapter 15
that would affect the proposed distribution. 16
(4) A legal representative of the estate of a deceased person who 17
receives notice of an intended application under this Chapter is 18
not liable in respect of a distribution of any part of the estate if the 19
distribution was made in compliance with section 93 (1) by the 20
legal representative not earlier than 12 months after the deceased 21
person's death. 22
(5) Subsection (4) does not apply if the legal representative receives 23
written notice that the application has been commenced in the 24
Court or is served with a copy of the application before making 25
the distribution. 26
(6) For the purposes of this section, notice to the legal representative 27
of an application or intention to make any application under this 28
Chapter must be in writing signed in accordance with rules for the 29
signing of documents by a party in proceedings under the 30
Uniform Civil Procedure Rules 2005. 31
Note. On the enactment of this subsection, rules for the signing of 32
documents by a party in proceedings were contained in Rule 4.4 of the 33
Uniform Civil Procedure Rules 2005. 34
95 Release of rights under Chapter (cf FPA 31 (1)-(6)) 35
(1) A release by a person of the person's rights to apply for a family 36
provision order has effect only if it has been approved by the 37
Court and to the extent that the approval has not been revoked by 38
the Court. 39
(2) Proceedings for the approval by the Court of a release of a 40
person's rights to apply for a family provision order may be 41
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
commenced before or after the date of the death of the person 1
whose estate may be the subject of the order. 2
(3) The Court may approve of a release in relation to the whole or 3
any part of the estate or notional estate of a person. 4
(4) In determining an application for approval of a release, the Court 5
is to take into account all the circumstances of the case, including 6
whether: 7
(a) it is or was, at the time any agreement to make the release 8
was made, to the advantage, financially or otherwise, of 9
the releasing party to make the release, and 10
(b) it is or was, at that time, prudent for the releasing party to 11
make the release, and 12
(c) the provisions of any agreement to make the release are or 13
were, at that time, fair and reasonable, and 14
(d) the releasing party has taken independent advice in relation 15
to the release and, if so, has given due consideration to that 16
advice. 17
(5) In this section: 18
release of rights to apply for a family provision order means a 19
release of such rights, if any, as a person has to apply for a family 20
provision order, and includes a reference to: 21
(a) an instrument executed by the person that would be 22
effective as a release of those rights if approved by the 23
Court under this section, and 24
(b) an agreement to execute such an instrument. 25
96 Revocation of approval of release (cf FPA 31 (7)-(9)) 26
(1) The Court may not revoke an approval of a release given by it 27
under section 95, except as provided by this section. 28
(2) The Court may revoke an approval if it is satisfied: 29
(a) that its approval was obtained by fraud, or 30
(b) that the release was obtained by fraud or undue influence. 31
(3) The Court may also revoke an approval, either wholly or partially 32
in respect of specified property, if it is satisfied that all persons 33
who would be, in the Court's opinion, sufficiently affected by the 34
revocation consent to the revocation. 35
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
97 Court may determine date of death (cf FPA 6 (8)) 1
The Court may, if the date or time of death of a person is 2
uncertain, determine, for the purpose of giving effect to any 3
provision of this Chapter, a date or time of death that the Court 4
thinks is reasonable for the purposes of the provision. 5
98 Mediation, orders with consent and costs (cf FPA 33 (1)) 6
(1) The object of this section is to encourage the settlement by 7
affected parties of disputes concerning the estate of a deceased 8
person. 9
(2) Unless the Court, for special reasons, otherwise orders, it must 10
refer an application for a family provision order for mediation 11
before it considers the application. 12
(3) The Court may make a family provision order in terms of a 13
written agreement (a consent order) that: 14
(a) is produced to the Court by the affected parties in relation 15
to an application after mediation, or on the advice of a legal 16
practitioner, and 17
(b) indicates the parties' consent to the making of the family 18
provision order in those terms. 19
(4) The regulations may make provision for or with respect to the 20
following: 21
(a) mediations and consent orders under this section, 22
(b) regulating or prohibiting advertising concerning the 23
provision of legal services in connection with mediations 24
and other proceedings under this Chapter in relation to the 25
estate or notional estate of a deceased person. 26
(5) In this section, legal services has the same meaning as in the 27
Legal Profession Act 2004. 28
99 Costs (cf FPA 33 (1)) 29
(1) The Court may order that the costs of proceedings under this 30
Chapter in relation to the estate or notional estate of a deceased 31
person (including costs in connection with mediation) be paid out 32
of the estate or notional estate, or both, in such manner as the 33
Court thinks fit. 34
Note. Section 78 sets out the circumstances in which the Court may 35
make a notional estate order for the purpose of ordering that costs be 36
paid from the notional estate of a deceased person. 37
(2) The regulations may make provision for or with respect to the 38
costs in connection with proceedings under this Chapter, 39
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
including the fixing of the maximum costs for legal services that 1
may be paid out of the estate or notional estate of a deceased 2
person. 3
(3) This section and any regulations under this section prevail to the 4
extent of any inconsistency with the Legal Profession Act 2004 5
and the regulations under that Act. An assessment under that Act 6
of any costs in respect of which provision is made by a regulation 7
under this section is to be made so as to give effect to that 8
regulation. 9
(4) In this section, legal services has the same meaning as in the 10
Legal Profession Act 2004. 11
100 Evidence (cf FPA 32) 12
(1) In this section: 13
statement includes any representation of fact whether or not in 14
writing. 15
(2) In any proceedings under this Chapter, evidence of a statement 16
made by a deceased person is, subject to this section, admissible 17
as evidence of any fact stated in it of which direct oral evidence 18
by the deceased person would, if the person were able to give that 19
evidence, be admissible. 20
(3) Subject to subsection (4) and unless the Court otherwise orders, 21
where a statement was made by a deceased person during the 22
person's lifetime otherwise than in a document, no evidence 23
other than direct testimony (including oral evidence, evidence by 24
affidavit and evidence taken before a commissioner or other 25
person authorised to receive evidence for the purpose of the 26
proceedings) by a person who heard or otherwise perceived the 27
statement being made is admissible for the purpose of proving it. 28
(4) Where a statement was made by a deceased person during the 29
person's lifetime while giving oral evidence in a legal proceeding 30
(being a civil or criminal proceeding or inquiry in which evidence 31
is or may be given, or an arbitration), the statement may be 32
approved in any manner authorised by the Court. 33
(5) Where a statement made by a deceased person during the 34
person's lifetime was contained in a document, the statement 35
may be proved by the production of the document or, whether or 36
not the document is still in existence, by leave of the Court, by the 37
production of a copy of the document, or of the material part of 38
the document, authenticated in such manner as the Court may 39
approve. 40
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
(6) Where, under this section, a person proposes to tender, or tenders, 1
evidence of a statement contained in a document, the Court may 2
require that any other document relating to the statement be 3
produced and, in default, may reject the evidence or, if it has been 4
received, exclude it. 5
(7) For the purpose of determining questions of admissibility of a 6
statement under this section, the Court may draw any reasonable 7
inference from the circumstances in which the statement was 8
made or from any other circumstances, including, in the case of a 9
statement contained in a document, the form or content of the 10
document. 11
(8) In estimating the weight, if any, to be attached to evidence of a 12
statement tendered for admission or admitted under this section, 13
regard must be had to all the circumstances from which any 14
inference can reasonably be drawn as to the accuracy or 15
otherwise of the statement, including: 16
(a) the recency or otherwise, at the time when the deceased 17
person made the statement, of any relevant matter dealt 18
with in the statement, and 19
(b) the presence or absence of any incentive for the deceased 20
person to conceal or misrepresent any relevant matter in 21
the statement. 22
(9) Subject to subsection (11), where evidence of a statement of a 23
deceased person is admitted under this section, evidence is 24
admissible for the purpose of destroying or supporting the 25
credibility of the deceased person. 26
(10) Subject to subsection (11), where evidence of a statement of a 27
deceased person is admitted under this section, evidence is 28
admissible for the purpose of showing that the statement is 29
inconsistent with another statement made at any time by the 30
deceased person. 31
(11) No evidence of a matter is admissible under subsection (9) or (10) 32
in relation to a statement of a deceased person where, if the 33
deceased person had been called as a witness and had denied the 34
matter in cross-examination, evidence would not be admissible if 35
adduced by the cross-examining party. 36
(12) This section applies notwithstanding the rules against hearsay 37
and notwithstanding that a statement is in such a form that it 38
would not be admissible if given as oral testimony, but does not 39
make admissible a statement of a deceased person which is 40
otherwise inadmissible. 41
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
(13) The exceptions to the rules against hearsay set out in this section 1
are in addition to the exceptions to the hearsay rule set out in the 2
Evidence Act 1995. 3
[11] Section 102 (as renumbered by item [10]) Rules of Court 4
Insert "(including the costs payable out of small estates and other estates)" 5
after "costs" in section 102 (2) (d). 6
[12] Section 102 (2) (e)-(g) 7
Insert after section 102 (2) (d) (as renumbered by item [10]): 8
(e) dispensing with the rules of evidence for proving any 9
matter that is not bona fide in dispute or in which formal 10
proof may give rise to expense or delay, 11
(f) without limiting the generality of paragraph (e), permitting 12
informal evidence to be given of property valuations or the 13
medical condition of the deceased or any other persons 14
concerned with proceedings under Chapter 3, 15
(g) the circumstances in which proceedings under Chapter 3 in 16
respect of small estates may be dealt with in the absence of 17
the parties. 18
[13] Section 102 (4) 19
Insert after section 102 (3) (as renumbered by item [10]): 20
(4) In this section: 21
small estate means an estate the value of which is less than 22
$750,000 or such other amount as may be prescribed by the 23
regulations. 24
[14] Section 105 (as renumbered by item [10]) Amendment of other Acts and 25
regulation 26
Omit the section. 27
[15] Schedule 1 Savings, transitional and other provisions 28
Omit "(Section 58)". Insert instead "(Section 104)". 29
[16] Schedule 1 30
Insert at the end of clause 1 (1): 31
Succession Amendment (Family Provision) Act 2008 32
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Succession Amendment (Family Provision) Bill 2008
Schedule 1 Amendment of Succession Act 2006
[17] Schedule 1, Part 3 1
Insert after clause 8: 2
Part 3 Provisions consequent on enactment of 3
Succession Amendment (Family 4
Provision) Act 2008 5
9 Definitions 6
In this Part: 7
amending Act means the Succession Amendment (Family 8
Provision) Act 2008. 9
the 1982 Act means the Family Provision Act 1982. 10
10 General savings 11
(1) Without limiting section 30 of the Interpretation Act 1987, any 12
act, matter or thing done or omitted to be done under a provision 13
of the 1982 Act and having any force or effect immediately 14
before the commencement of a provision of this Act that replaces 15
that provision is, on that commencement, taken to have been 16
done or omitted under the relevant provision of this Act. 17
(2) This clause does not apply: 18
(a) to the extent that its application is inconsistent with any 19
other provision of this Schedule or a provision of a 20
regulation under clause 1, or 21
(b) to the extent that its application would be inappropriate in 22
a particular case. 23
11 Transitional provisions 24
(1) Chapter 3, as inserted by the amending Act, applies in relation to 25
the estate of a person who dies on or after the commencement of 26
this clause. 27
(2) The provisions of the 1982 Act, as in force before the 28
commencement of this clause, continue to apply in relation to the 29
estate of a person who dies before the commencement of this 30
clause, in so far as they are not affected by the operation of this 31
Part. 32
(3) Without limiting subclause (2), the provisions of the 1982 Act, as 33
in force immediately before the commencement of this clause, 34
continue to have effect in relation to the determination of an 35
application made before that commencement. 36
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Succession Amendment (Family Provision) Bill 2008
Amendment of Succession Act 2006 Schedule 1
(4) Section 59 (3) (b) and (4) (relating to undisclosed property) 1
extend to an order for provision out of the estate or notional estate 2
of a deceased person made before the commencement of this 3
clause. 4
[18] Schedules 2 and 3 5
Omit the Schedules. 6
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Succession Amendment (Family Provision) Bill 2008
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts 1
(Section 4) 2
2.1 Conveyancing Act 1919 No 6 3
[1] Section 36B 4
Insert after section 36A: 5
36B Contingent and future interests to carry the immediate income 6
Where under an instrument other than a will coming into 7
operation after the commencement of the Conveyancing 8
(Amendment) Act 1930 property stands limited to a person for a 9
contingent or future interest, or stands limited to trustees upon 10
trust for a person whose interest is contingent or executory, such 11
interest shall, subject to the statutory provisions relating to 12
accumulations, carry the immediate income of that property from 13
the time when the instrument comes into operation, except so far 14
as such income or any part thereof may be otherwise expressly 15
disposed of. 16
[2] Schedule 9 Savings, transitional and other provisions 17
Omit Part 7. Insert instead: 18
Part 7 Provision consequent on enactment of 19
Succession Act 2006 20
13 Contingent and future testamentary gifts 21
Section 36B (1) of this Act, as in force immediately before its 22
repeal by the Succession Act 2006, continues to apply (in so far 23
as it is not affected by the operation of Schedule 1 to the 24
Succession Act 2006) to a will made before that repeal as if that 25
section had not been repealed. 26
Note. Section 36B was repealed on the commencement of the 27
Succession Act 2006 on 1.3.2008. Schedule 1 to the Succession Act 28
2006 provides for section 34 of that Act to apply to a will whenever made 29
if the testator dies on or after 1.3.2008. 30
Page 38
Succession Amendment (Family Provision) Bill 2008
Amendment of other Acts Schedule 2
2.2 District Court Act 1973 No 9 1
[1] Section 134 Jurisdiction in equity proceedings 2
Omit "an order under section 7 of the Family Provision Act 1982" from section 3
134 (1) (c). 4
Insert instead "a family provision order under Chapter 3 of the Succession Act 5
2006". 6
[2] Section 134 (2) 7
Omit "the Family Provision Act 1982". 8
Insert instead "Chapter 3 of the Succession Act 2006". 9
2.3 Duties Act 1997 No 123 10
Section 163ZB Exempt transactions 11
Omit "the Family Provision Act 1982" from section 163ZB (1) (d). 12
Insert instead "Chapter 3 of the Succession Act 2006". 13
2.4 Forfeiture Act 1995 No 65 14
Section 3 Definitions 15
Omit "the Family Provision Act 1982" from the definition of benefit. 16
Insert instead "Chapter 3 of the Succession Act 2006". 17
2.5 Judges' Pensions Act 1953 No 41 18
Section 16 Payment of pension to legal personal representative in 19
certain cases 20
Omit "the Family Provision Act 1982". 21
Insert instead "Chapter 3 of the Succession Act 2006". 22
2.6 Legal Aid Commission Act 1979 No 78 23
Section 35 Means test 24
Omit "the Family Provision Act 1982" from section 35 (4) (e). 25
Insert instead "Chapter 3 of the Succession Act 2006". 26
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Succession Amendment (Family Provision) Bill 2008
Schedule 2 Amendment of other Acts
2.7 Local Government and Other Authorities (Superannuation) 1
Act 1927 No 35 2
Section 17BA Payment without grant of probate etc 3
Omit "the Family Provision Act 1982" wherever occurring from section 17BA 4
(2) (a) and (3). 5
Insert instead "Chapter 3 of the Succession Act 2006". 6
2.8 Police Regulation (Superannuation) Act 1906 No 28 7
Section 18B Payment without grant of probate etc 8
Omit "the Family Provision Act 1982" wherever occurring from section 18B 9
(2) and (3). 10
Insert instead "Chapter 3 of the Succession Act 2006". 11
2.9 Probate and Administration Act 1898 No 13 12
[1] Section 40A Evidence or presumption of death 13
Omit "the Family Provision Act 1982" from section 40A (2). 14
Insert instead "Chapter 3 of the Succession Act 2006". 15
[2] Section 41A Probate or administration for purpose of Family Provision 16
Act 1982 17
Omit the section. 18
[3] Section 42, note 19
Insert at the end of section 42: 20
Note. On grant of administration in respect of a deceased person to 21
permit an application to be made for a family provision order, see section 22
91 of the Succession Act 2006. 23
[4] Section 92 Distribution of assets after notice given by executor or 24
administrator 25
Omit section 92 (1). Insert instead: 26
(1) The executor or administrator of the estate of a testator or an 27
intestate may distribute the assets, or any part of the assets, of that 28
estate among the persons entitled having regard to the claims of 29
beneficiaries (including children conceived but not yet born at the 30
date of the death of the testator or intestate), creditors and other 31
persons in respect of the assets of the estate of which the executor 32
or administrator has notice at the time of distribution if: 33
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Succession Amendment (Family Provision) Bill 2008
Amendment of other Acts Schedule 2
(a) the assets are distributed at least 6 months after the 1
testator's or intestate's death, and 2
(b) the executor or administrator has given notice in the form 3
approved under section 17 of the Civil Procedure Act 2005 4
that the executor or administrator intends to distribute the 5
assets in the estate after the expiration of a specified time, 6
and 7
(c) the time specified in the notice is not less than 30 days after 8
the notice is given, and 9
(d) the time specified in the notice has expired. 10
[5] Fifth Schedule Savings and transitional provisions arising from 11
amendments to this Act 12
Insert after Part 1: 13
Part 2 Provisions consequent on enactment of 14
Succession Amendment (Family 15
Provision) Act 2008 16
8 Distribution of assets after notice given by executor or 17
administrator 18
Section 92 (1), as in force immediately before the 19
commencement of Schedule 2.9 [4] to the Succession 20
Amendment (Family Provision) Act 2008, continues to apply to 21
and in respect of the estate of testator or intestate who died before 22
that commencement. 23
2.10 Public Authorities Superannuation Act 1985 No 41 24
Section 58 Payment without grant of probate etc 25
Omit "the Family Provision Act 1982" wherever occurring from section 58 (2) 26
(a) and (3). 27
Insert instead "Chapter 3 of the Succession Act 2006". 28
2.11 State Authorities Non-contributory Superannuation Act 29
1987 No 212 30
Section 31 Payment without grant of probate etc 31
Omit "the Family Provision Act 1982" wherever occurring from section 31 (2) 32
(a) and (3). 33
Insert instead "Chapter 3 of the Succession Act 2006". 34
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Succession Amendment (Family Provision) Bill 2008
Schedule 2 Amendment of other Acts
2.12 State Authorities Superannuation Act 1987 No 211 1
Section 51 Payment without grant of probate etc 2
Omit "the Family Provision Act 1982" wherever occurring from section 51 (2) 3
(a) and (3). 4
Insert instead "Chapter 3 of the Succession Act 2006". 5
2.13 State Public Service Superannuation Act 1985 No 45 6
Section 57 Payment without grant of probate etc 7
Omit "the Family Provision Act 1982" wherever occurring from section 57 (2) 8
(a) and (3). 9
Insert instead "Chapter 3 of the Succession Act 2006". 10
2.14 Superannuation Act 1916 No 28 11
Section 88A Payment without grant of probate etc 12
Omit "the Family Provision Act 1982" wherever occurring from section 88A 13
(2) (a) and (3). 14
Insert instead "Chapter 3 of the Succession Act 2006". 15
2.15 Testator's Family Maintenance and Guardianship of Infants 16
Act 1916 No 41 17
Section 1A Application of Act 18
Omit "the Family Provision Act 1982". 19
Insert instead "Chapter 3 of the Succession Act 2006". 20
Page 42
Succession Amendment (Family Provision) Bill 2008
Amendment of other Acts Schedule 2
2.16 Transport Employees Retirement Benefits Act 1967 No 96 1
Section 58 Payment without grant of probate etc 2
Omit "the Family Provision Act 1982" wherever occurring from section 58 (2) 3
(a) and (3). 4
Insert instead "Chapter 3 of the Succession Act 2006". 5
Page 43
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