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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
SUCCESSION AMENDMENT
BILL 1997
Queensland
SUCCESSION AMENDMENT BILL 1997
TABLE OF PROVISIONS
Section Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4 Amendment of s 5 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5 Insertion of new pt 3, div 1 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6 Amendment of s 34 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7 Insertion of new ss 34A and 34B and pt 3, div 2 hdg . . . . . . . . . . . . . . . . . . 5
34A Meaning of "household chattels" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
34B Meaning of "matrimonial home" and related definitions . . . . . . . . . 6
Division 2--Distribution rules
8 Amendment of s 35 (Distribution of residuary estate on intestacy) . . . . . . 7
9 Replacement of s 36 (Manner of distribution to issue) . . . . . . . . . . . . . . . . 7
36 Distribution of spouse and de facto spouse's entitlement . . . . . . . . . 7
36A Distribution of issue's entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10 Amendment of s 37 (Manner of distribution to next of kin) . . . . . . . . . . . . . 10
11 Amendment of s 38 (Partial intestacies) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12 Insertion of new pt 3, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Division 3--Provisions about matrimonial home
39A Election by spouse or de facto spouse to acquire
matrimonial home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
39B Restriction on right to elect to acquire matrimonial home . . . . . . . 12
39C Acquisition of matrimonial home under election . . . . . . . . . . . . . . . 13
39D Personal representative not to dispose of intestate's
interest in matrimonial home pending election or if election
made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2
Succession Amendment
13 Amendment of s 40 (Definitions for pt 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
14 Insertion of new s 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
73 Application of amendments made by Succession
Amendment Act 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
15 Amendment of sch 2 (Distribution of residuary estate upon intestacy) . . . 15
1997
A BILL
FOR
An Act to amend the Succession Act 1981
s1 4 s5
Succession Amendment
The Parliament of Queensland enacts-- 1
title 2
Short
Clause 1. This Act may be cited as the Succession Amendment Act 1997. 3
4
Commencement
Clause 2. This Act commences on a day to be fixed by proclamation. 5
amended 6
Act
Clause 3. This Act amends the Succession Act 1981. 7
of s 5 (Definitions) 8
Amendment
Clause 4. Section 5-- 9
insert-- 10
` "de facto spouse", of a deceased person, means a person who-- 11
(a) has lived in a connubial relationship with the deceased person for 12
a continuous period of at least 5 years ending on the death of the 13
deceased person; or 14
(b) within the period of 6 years ending on the death of the deceased 15
person, has lived in a connubial relationship with the deceased 16
person for periods totalling at least 5 years that include a period 17
ending on the death of the deceased person.'. 18
of new pt 3, div 1 hdg 19
Insertion
Clause 5. Part 3, before section 34-- 20
insert-- 21
`Division 1--Interpretation'. 22
s6 5 s7
Succession Amendment
of s 34 (Interpretation) 1
Amendment
Clause 6. Section 34(1)-- 2
insert-- 3
` "building" see section 34B(2). 4
"household chattels" see section 34A. 5
"interest", in an intestate's matrimonial home, see section 34B(3). 6
"matrimonial home" see section 34B(1). 7
"transfer value" see section 34B(4).'. 8
of new ss 34A and 34B and pt 3, div 2 hdg 9
Insertion
Clause 7. After section 34-- 10
insert-- 11
of "household chattels" 12
`Meaning
`34A.(1) "Household chattels" means all furniture, curtains, drapes, 13
carpets, linen, china, glassware, ornaments, domestic appliances and 14
utensils, garden appliances, utensils and effects and other chattels of 15
ordinary household use or decoration, liquors, wines, consumable stores 16
and domestic animals owned by the intestate immediately before the 17
intestate's death. 18
`(2) "Household chattels" does not include a motor vehicle, boat, 19
aircraft, racing animal, original painting or other original work of art, 20
trophy, clothing, jewellery, or other chattel of a personal nature. 21
`(3) A thing is taken to be owned by the intestate even if-- 22
(a) it is owned subject to a charge, encumbrance or lien securing the 23
payment of money; or 24
(b) the intestate only held an interest in the thing as grantor under a 25
bill of sale or as hirer under a hire purchase agreement within the 26
meaning of the Hire-purchase Act 1959, section 2(1) or a 27
corresponding provision of a law of another State or the 28
Commonwealth. 29
s7 6 s7
Succession Amendment
`(4) This definition applies for the purposes of applying schedule 2 under 1
this part. 2
of "matrimonial home" and related definitions 3
`Meaning
`34B.(1) A "matrimonial home" means a building, or part of a 4
building, designed to be used solely or principally as a separate residence 5
for 1 family or person. 6
`(2) A "building" includes a caravan, or mobile home, within the 7
meaning of the Mobile Homes Act 1989.1 8
`(3) An "interest", in an intestate's matrimonial home, means-- 9
(a) an interest registered or registrable under an Act that is or includes 10
a matrimonial home; or 11
(b) if the matrimonial home is a caravan or mobile home--an interest 12
in the caravan or mobile home and any interest in a relevant 13
1 The Mobile Homes Act 1989, section 3--
` "caravan" means--
(a) a vehicle ordinarily fitted with wheels and designed for attachment to a
vehicle; or
(b) a vehicle designed for use as part of a motor vehicle;
and designed for use for residence therein;
"mobile home" means a structure (other than a caravan) prescribed by
regulation'.
Under the Mobile Homes Regulation 1994, the following structures are
prescribed--
`(a) a home that was originally designed and constructed to allow its
transportation (whether wholly or in parts) regardless of whether later
changes to the home, or land in the home's immediate vicinity, have
made transportation more difficult;
(b) a home that is positioned on an approved site, regardless of whether later
changes to the home, or land in the home's immediate vicinity, have
made its transportation more difficult.'.
s8 7 s9
Succession Amendment
agreement within the meaning of the Mobile Homes Act 19892 1
for the caravan or mobile home. 2
`(4) The "transfer value", of an intestate's interest in a matrimonial 3
home, means the market value of the interest at the date of the intestate's 4
death, less the amount (if any) needed to discharge any mortgage, charge, 5
encumbrance or lien to which the interest may be subject at the time of 6
transfer. 7
`Division 2--Distribution rules'. 8
of s 35 (Distribution of residuary estate on intestacy) 9
Amendment
Clause 8. Section 35(1), `the provisions of subsection (2)'-- 10
omit, insert-- 11
`subsection (2) and division 3,'. 12
of s 36 (Manner of distribution to issue) 13
Replacement
Clause 9. Section 36-- 14
omit, insert-- 15
of spouse and de facto spouse's entitlement 16
`Distribution
`36.(1) If a spouse and a de facto spouse of an intestate are entitled to the 17
whole or a part of the intestate's residuary estate, the entitlement is to be 18
distributed between them-- 19
(a) in accordance with a written agreement between the spouse and 20
de facto spouse about distributing the entitlement between them (a 21
"distribution agreement"); or 22
(b) in accordance with an order made under this section distributing 23
2 The Mobile Homes Act 1989, section 3--
` "relevant agreement" means an agreement under which a person is entitled--
(a) to position a mobile home on a site; and
(b) to occupy the mobile home as the person's only or principal place of
residence'.
s9 8 s9
Succession Amendment
the entitlement between the spouse and de facto spouse (a 1
"distribution order"); or 2
(c) in equal shares as decided by the personal representative, if, at the 3
time of distribution-- 4
(i) the spouse and de facto spouse have been given a notice 5
under subsection (3) and 3 months have passed since the last 6
of the notices was given; and 7
(ii) the personal representative has no notice of a distribution 8
agreement; and 9
(iii) the personal representative-- 10
(A) has no notice of an application for a distribution order; 11
or 12
(B) has been notified in writing by the spouse and de facto 13
spouse that the personal representative may distribute 14
their entitlement equally even though an application for 15
a distribution order has previously been made; or 16
(C) has a copy of an order of the court striking out or 17
discontinuing an application for a distribution order. 18
`(2) However, for a distribution under subsection (1)(c), if the intestate is 19
survived by issue, the entitlement under schedule 2 to the $100 000 must be 20
distributed in equal shares. 21
`(3) A personal representative may give a spouse or de facto spouse a 22
notice stating that the personal representative may be entitled to distribute 23
any entitlement of a spouse and de facto spouse equally if the spouse or 24
de facto spouse does not, within 3 months after the notice is given-- 25
(a) enter into a written agreement with the spouse or de facto spouse 26
about distributing the entitlement between them and give the 27
personal representative written notice of the agreement; or 28
(b) apply to the court for an order distributing the entitlement between 29
the spouse and de facto spouse and give the personal 30
representative written notice of the application. 31
`(4) If a spouse or de facto spouse asks the personal representative to 32
give the notices that may be given under subsection (3), the personal 33
representative must give the notices (including a notice to that person) as 34
s9 9 s9
Succession Amendment
soon as practicable. 1
`(5) An intestate's spouse, de facto spouse or personal representative 2
may apply to the court for a distribution order. 3
`(6) However, an application for a distribution order may not be made if 4
there is a distribution agreement or distribution of the entitlement has 5
commenced under subsection (1)(c). 6
`(7) The court may order that the entitlement be distributed in the way it 7
considers is just and equitable. 8
`(8) In deciding what is just and equitable, no assumption is to be made 9
in favour of an equal distribution as a starting point or otherwise. 10
`(9) If the court considers it is just and equitable, it may order that an 11
entitlement be distributed solely to a spouse or solely to a de facto spouse. 12
`(10) A distribution order may include conditions. 13
`(11) Nothing in this section requires a personal representative to 14
distribute an entitlement at a time that would preclude the operation of 15
section 44(3) in relation to the distribution.3 16
`(12) To prevent any doubt, it is declared that the Trusts Act 1973, 17
section 67(3)4 does not authorise a personal representative to distribute an 18
entitlement of a spouse and de facto spouse before the time the personal 19
representative becomes entitled to distribute the entitlement under 20
subsection (1). 21
of issue's entitlement 22
`Distribution
`36A.(1) In this section-- 23
"survive" means survive the intestate. 24
`(2) If an intestate's issue are entitled to the whole or a part of the 25
intestate's residuary estate, the entitlement is to be distributed among the 26
issue as set out in this section. 27
3 Section 44(3) protects personal representatives from being sued for making
distributions after specified times without notice of certain applications, or
intended applications, about family provision.
4 Section 67 (Protection of trustees by means of advertisements)
s 10 10 s 12
Succession Amendment
`(3) If the intestate had only 1 child and the child survived, the child 1
takes. 2
`(4) If the intestate had 2 or more children, all of whom survived, the 3
children take in equal shares. 4
`(5) If the intestate had 2 or more children, of whom some survived and 5
the remainder did not survive and did not leave surviving issue, the 6
surviving children take in equal shares. 7
`(6) If subsections (3) to (5) do not apply, the entitlement is divided into 8
as many equal shares as the intestate had children who survived or who did 9
not survive but left surviving issue. 10
`(7) The equal shares are then taken as follows-- 11
(a) the intestate's surviving children (if any) take 1 share each; 12
(b) for each child of the intestate who did not survive but left 13
surviving issue--1 share is taken by representation by the child's 14
surviving issue.'. 15
of s 37 (Manner of distribution to next of kin) 16
Amendment
Clause 10. Section 37, heading-- 17
omit, insert-- 18
`Distribution of next of kin's entitlement'. 19
of s 38 (Partial intestacies) 20
Amendment
Clause 11. Section 38(2) and (3)-- 21
omit. 22
of new pt 3, div 3 23
Insertion
Clause 12. Part 3, after section 39-- 24
insert-- 25
s 12 11 s 12
Succession Amendment
3--Provisions about matrimonial home 1
`Division
by spouse or de facto spouse to acquire matrimonial home 2
`Election
`39A.(1) This section applies if-- 3
(a) an intestate has an interest in a matrimonial home that is not 4
effectively disposed of by a will (whether or not the intestate 5
leaves a will); and 6
(b) at the time of the intestate's death, the intestate's spouse or 7
de facto spouse (the "resident") ordinarily resided in the 8
matrimonial home. 9
`(2) Subject to section 39B, the resident may, by written notice, elect to 10
acquire the intestate's interest in the matrimonial home at transfer value. 11
`(3) The election must be made-- 12
(a) if the resident is a personal representative--within 3 months after 13
the resident's appointment as personal representative; or 14
(b) if the resident is not a personal representative--within 3 months 15
after the personal representative gives the resident a written notice 16
stating that-- 17
(i) if the resident wants to acquire the intestate's interest in the 18
matrimonial home, the resident must elect to do so in 19
accordance with this section within 3 months after the notice 20
is given; and 21
(ii) in certain circumstances, the resident must first obtain an 22
order of the court under section 39B allowing the election to 23
be made. 24
`(4) The election must be given-- 25
(a) if the resident is not a personal representative--to the personal 26
representative; or 27
(b) if the resident is a joint personal representative--to each other 28
personal representative; or 29
(c) if the resident is the sole personal representative--to the registrar 30
of the court. 31
s 12 12 s 12
Succession Amendment
`(5) To enable the resident to decide whether to make an election, the 1
resident may ask the personal representative to obtain a valuation of the 2
intestate's interest in the matrimonial home from a registered valuer and 3
give a copy of it to the resident. 4
`(6) The personal representative must promptly comply with the request. 5
`(7) An election may only be revoked with the personal representative's 6
written consent. 7
on right to elect to acquire matrimonial home 8
`Restriction
`39B.(1) This section applies if, apart from this section, an intestate's 9
spouse or de facto spouse (the "resident") would be entitled to make an 10
election under section 39A to acquire the intestate's interest in a matrimonial 11
home and-- 12
(a) the matrimonial home forms part of a building, and the 13
deceased's estate includes an interest in the whole of the building; 14
or 15
(b) the matrimonial home forms part of a registered or registrable 16
interest in land and-- 17
(i) the deceased's estate includes an interest in the whole of that 18
interest; and 19
(ii) part or all of the land is used for agricultural purposes; or 20
(c) the matrimonial home forms part of a building used as a hotel, 21
motel, boarding house or hostel at the date of the intestate's death; 22
or 23
(d) part of the matrimonial home was used for purposes other than 24
domestic purposes at the date of the intestate's death. 25
`(2) The resident may make an election under section 39A only if the 26
court makes an order allowing the election to be made. 27
`(3) The resident may apply to the court for the order. 28
`(4) The application must be made-- 29
(a) if the resident is a personal representative--within 3 months after 30
the resident's appointment as personal representative; or 31
s 12 13 s 12
Succession Amendment
(b) if the resident is not a personal representative--within 3 months 1
after the resident is given the notice mentioned in 2
section 39A(3)(b). 3
`(5) The court may make the order only if it is satisfied the resident's 4
acquisition of the intestate's interest in the matrimonial home is not likely 5
to-- 6
(a) substantially diminish the value of the assets in the deceased's 7
estate; or 8
(b) make disposal of the assets substantially more difficult. 9
`(6) If the court makes an order allowing an election to be made, the time 10
for making the election under section 39A is extended until 1 month after 11
the order is made. 12
of matrimonial home under election 13
`Acquisition
`39C.(1) This section applies if a spouse or de facto spouse (the 14
"resident") makes an election under section 39A to acquire an intestate's 15
interest in a matrimonial home at transfer value. 16
`(2) On payment of the transfer value adjusted on an equitable basis to 17
apportion any outgoings paid or payable, or rent or other amount received, 18
that are ordinarily adjusted on sale, the resident is entitled to transfer of the 19
intestate's interest. 20
`(3) However-- 21
(a) before payment of the transfer value, the transfer documentation 22
must be stamped under the Stamp Act 1894 at the resident's 23
expense; and 24
(b) the resident is not entitled to a discharge of any mortgage, charge, 25
encumbrance or lien over the intestate's interest in the 26
matrimonial home. 27
`(4) At the resident's option, money that may at the time of transfer be 28
distributed to the resident from the deceased's estate (whether under a will 29
or on intestacy) may be set off to reduce the amount of the transfer value. 30
`(5) A resident may acquire an intestate's interest in a matrimonial home 31
under this section even if the resident is a personal representative of the 32
s 13 14 s 14
Succession Amendment
intestate. 1
`(6) If production of a document or other assistance by a person (other 2
than the resident or personal representative) is necessary to effect the 3
acquisition, the person must, at the personal representative's request, give 4
the assistance on payment of the person's reasonable costs and outlays by 5
the personal representative. 6
representative not to dispose of intestate's interest in 7
`Personal
matrimonial home pending election or if election made 8
`39D.(1) This section applies if a spouse or de facto spouse is entitled to 9
make an election under section 39A to acquire an intestate's interest in a 10
matrimonial home. 11
`(2) The personal representative must not sell or otherwise dispose of the 12
intestate's interest in the matrimonial home-- 13
(a) if the time within which the election may be made has not ended; 14
or 15
(b) contrary to an election under section 39A. 16
`(3) However, subsection (2) does not prevent an intestate's interest in 17
the matrimonial home being disposed of as a last resort to pay a liability of 18
the intestate. 19
`(4) A disposal of the intestate's interest in the matrimonial home in 20
contravention of subsection (2) does not affect the validity of the disposal.'. 21
of s 40 (Definitions for pt 4) 22
Amendment
Clause 13. Section 40, definition "dependant", paragraph (d)-- 23
omit, insert-- 24
`(d) a de facto spouse.'. 25
of new s 73 26
Insertion
Clause 14. After section 72-- 27
insert-- 28
s 15 15 s 15
Succession Amendment
of amendments made by Succession Amendment 1
`Application
Act 1997 2
`73. To prevent any doubt, it is declared that the amendments of this Act 3
made by the Succession Amendment Act 1997 do not apply to the estate of a 4
person who died before the commencement of the amendments.'. 5
of sch 2 (Distribution of residuary estate upon intestacy) 6
Amendment
Clause 15.(1) Schedule 2, to part 2 column headings-- 7
omit, insert-- 8
`SCHEDULE 2 9
`DISTRIBUTION OF RESIDUARY ESTATE ON 10
INTESTACY 11
sections 35 to 37 12
`PART 1--INTESTATE SURVIVED BY SPOUSE OR 13
DE FACTO SPOUSE 14
Circumstance Way in which the intestate's
residuary estate is to be
distributed
1. If the intestate is not survived 1. If there is a surviving spouse but 15
by issue no surviving de facto spouse, the
spouse is entitled to the whole of
the residuary estate.
2. If there is a surviving de facto
spouse but no surviving spouse, the
de facto spouse is entitled to the
whole of the residuary estate.
s 15 16 s 15
Succession Amendment
3. If there is a surviving spouse and
a surviving de facto spouse, the
spouse and de facto spouse are
entitled to the whole of the
residuary estate in accordance with
section 36.
2. If the intestate is survived by 1. If there is a surviving spouse but 1
issue no surviving de facto spouse, the
spouse is entitled to--
(a) $100 000 and the household
chattels; and
(b) the following part of the
residuary estate then
remaining--
(i) if there is only 1 child of
the intestate who survived,
or who did not survive but
left issue who survived, the
intestate--1/2 ;
(ii) otherwise--1/3 .
2. If there is a surviving de facto
spouse but no surviving spouse, the
de facto spouse is entitled to--
(a) $100 000 and the household
chattels; and
(b) the following part of the
residuary estate then
remaining--
(i) if there is only 1 child of
the intestate who survived,
or who did not survive but
left issue who survived, the
intestate--1/2 ;
(ii) otherwise--1/3 .
2
s 15 17 s 15
Succession Amendment
3. If there is a surviving spouse and
a surviving de facto spouse, the
spouse and de facto spouse are
entitled, in accordance with
section 36, to--
(a) $100 000 and the household 1
chattels; and
(b) the following part of the
residuary estate then
remaining--
(i) if there is only 1 child of
the intestate who survived,
or who did not survive but
left issue who survived, the
intestate--1/2 ;
(ii) otherwise--1/3 .
4. The issue of the intestate are
entitled to the balance of the
residuary estate in accordance
with section 36A.
`PART 2--INTESTATE NOT SURVIVED BY SPOUSE 2
OR DE FACTO SPOUSE 3
Circumstance Way in which the intestate's
residuary estate is to be
distributed'.
s 15 18 s 15
Succession Amendment
(2) Schedule 2, part 2, item 1, after `estate'-- 1
insert-- 2
`in accordance with section 36A'. 3
4
© State of Queensland 1997
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