Deceased Soldiers' Estates Regulations 1919 (Cth)

STATUTORY RULES.

1926. No. 208.

––––––

REGULATIONS UNDER THE DECEASED SOLDIERS’ ESTATES ACT 1918-1919.

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Deceased Soldiers’ Estates Act 1918-1919, to come into operation forthwith.

Dated this twenty-second day of December, One thousand nine hundred and twenty-six.

STONEHAVEN,

Governor-General.

By His Excellency’s Command,

G. F. PEARCE,

for Minister of State for Defence.

 

Deceased Soldiers’ Estates Regulations.

The Deceased Soldiers’ Estates Regulations 1919 (being Statutory Rules 1919, No. 67, as amended by Statutory Rules 1919, No. 223; 1920, Nos. 109, 194; and 1924, No. 10) are hereby repealed save as to anything lawfully done or any right, privilege, obligation or liability acquired, accrued, or incurred thereunder.

Short title.

1. These Regulations may be cited as the Deceased Soldiers’ Estates Regulations 1919.

Definitions.

2. In these Regulations, unless the contrary intention appears—

“child” includes son, daughter, step-son, step-daughter, and adopted child;

“the Repatriation Commission” means the Repatriation Commission appointed under the Australian Soldiers’ Repatriation Act 1920;

“legal personal representative” means the person to whom probate of the will of a deceased member, or letters of administration, with or without the will of a deceased member annexed, have been granted;

“pay” in relation to a military estate includes the delivery of chattels and effects;

“prescribed authority” has the same meaning as is provided in sub-section (2) of section 4 of the Act;

C.18008.—Price 3d.

“prescribed officer of the Commonwealth, for the purposes of section seven of the Act” means the Minister or any of the following officers of the Department of Defence, namely, the Secretary, the Finance Secretary, District Finance Officers or the Chief Paymaster of the Australian Imperial Force abroad;

“the Act” means the Deceased Soldiers’ Estates Act 1918.

Amount of military estate to be ascertained.

3. On the death of a member the prescribed authority shall cause the amount of the military estate of the member to be ascertained.

Payment to legal personal representative.

4. If the prescribed authority has notice of a legal personal representative he shall, subject to these Regulations, pay the full amount of the military estate to the legal personal representative.

Advertisement where no will found.

5. (1) If the prescribed authority has no notice of a will or of the grant of letters of administration, he shall cause a notice to be published once in each of two daily newspapers published in the Capital City of the State in which the deceased member enlisted.

(2) The prescribed authority shall also notify, by registered letter addressed to the next of kin at the address shown in the official military records, the next of kin of the deceased member as shown in the records.

Payment after notice.

6. After the expiration of 30 days from the date of publication of any notice published as provided in the last preceding regulation, the prescribed authority shall pay the military estate to the person or persons entitled thereto under the Act or these Regulations.

Proceedings where will not proved.

7. If a deceased member left a will and the executor named therein fails to prove the will, or if no executor is named in the will, the prescribed authority may, at his discretion, after the expiration of 30 days after the date of posting of a notice by him to the executor, or if there is no executor, to the beneficiaries named in the will, of his intention so to do—

(a) pay the military estate of the deceased member to the beneficiaries;

(b) if any of the beneficiaries are children under the age of sixteen years, pay the shares of the children in the military estate to the guardian or person who, in the opinion of the prescribed authority, stands in the relationship of guardian to the children: Provided that if, in the opinion of the Minister, the guardian or person who, in the opinion of the prescribed authority, stands in the relationship of guardian to the children, is unfitted to receive the shares of the children the Minister may for the purposes of these Regulations appoint the Repatriation Commission to be the guardian of the children and the shares of the children shall thereupon be paid to the Repatriation Commission and shall be held by it on such trusts as the Minister determines; or

(c) decline to pay the military estate of the deceased member except to a person who is appointed legal personal representative of the deceased member.

Payment where these is no will.

8. If the prescribed authority ascertains that there is no legal personal representative, and has not within 30 days after the publication of a notice in the daily papers, in accordance with regulation 5 of these Regulations, received a notification of the existence of a will, he shall proceed to ascertain the next of kin and relatives of the deceased member, and shall thereafter distribute the military estate in accordance with the following rules:—

(a) If the deceased member has left a widow, with or without children, the estate shall be paid to the widow: Provided that if the widow has children, and, in the opinion of the Minister, is unfitted to receive the estate, the Minister may for the purposes of these Regulations appoint the Repatriation Commission to be the guardian of the children, and the estate shall thereupon be paid to the Repatriation Commission and shall be held by it on such trusts as the Minister determines.

(b) If the deceased member was a widower and has left children, all of whom are over the age of sixteen years, the estate shall be divided amongst the children in equal shares.

(c) If the deceased member was a widower and has left children, some at least of whom are under the age of sixteen years, the estate shall be paid to the guardian or to the person who, in the opinion of the prescribed authority, stands in the relationship of guardian to the children, and the receipt of the guardian or person shall be a sufficient discharge in respect of any moneys so paid.

(d) Where the deceased member at the time of his death was unmarried, or was a widower without children, and has left both a father and a mother, the estate shall, subject to the next succeeding paragraph of this regulation, be divided equally between the father and the mother to the exclusion of the claims of any brothers or sisters of the member; but, if either parent dies prior to payment being made under these Regulations, the estate shall be paid to the surviving parent.

(e) Where, under the provisions of the last preceding paragraph, the father and mother of the deceased member are entitled to share equally in the distribution of the estate of the member, then, if the father is on active service and an allotment from his pay is being paid to the mother, the whole of the estate of the deceased member shall be paid to the mother.

(f) If the deceased member has not left a widow, child, father, or mother, but has left brothers or sisters, or both brothers and sisters, the estate shall be divided in equal shares amongst the brothers and sisters.

(g) Where the deceased member was an adopted son and has not left a widow, child, father, or mother, the estate shall be paid to the foster parent or parents named in the deed of adoption, or where no deed of adoption has been executed, then to such person as, in the opinion of the prescribed authority, stands in loco parentis to the deceased member.

(h) If at the time of his decease the member was illegitimate, the estate shall be paid to such person or persons as the Minister approves.

(i) In any oases not provided for in this regulation, the estate of the deceased member shall, subject to these Regulations, be paid to the person or persons entitled, under the law in force in the State in which the deceased member was resident at the date of his enlistment, to the estate of the deceased member which is not included in his military estate.

Disclaimer.

9. Notwithstanding anything contained in these Regulations, where two or more persons are entitled to share in the distribution of the estate of a deceased member, and any of the persons so entitled gives to the prescribed authority a notice, in writing, stating that he foregoes his claim to the estate, and directing that his share he paid to one of the other persons entitled to share in the estate, the prescribed authority shall pay the share as so directed

Payment to Curator of Intestate Estates.

10. In any case which is not specifically provided for by these Regulations, or in which the prescribed authority is unable to determine the person or persons to whom the military estate should he paid, the estate may be paid to the Curator in the State in which the deceased member enlisted.

Receipts by minors.

11. Any receipt given by a minor who is over the age of sixteen years in respect of any payment made to him in pursuance of these Regulations shall be a sufficient discharge for the amount so paid.

Reference to Minister.

12. Notwithstanding anything contained in these Regulations, if the prescribed authority considers that there are any special reasons or circumstances which make it inequitable or undesirable to pay the military estate of the deceased member in the manner provided in these Regulations, the prescribed authority shall withhold all payments until the matter has been referred to the Minister for his consideration, and the military estate of the deceased member shall, whether the deceased member left a will or not, be paid to such person or class of persons as, under all the circumstances, the Minister things equitable and desirable. (To have effect from commencement of section 13 of the Act.)

13. The Minister may appoint such officers as are in his opinion necessary for the purpose of carrying this Act into effect.

 

Printed and Published for the Government of the Commonwealth of Australia by H. J. Green, Government Printer for the State of Victoria.