Succession Act 1981 (Qld)

Succession Act 1981

An Act to consolidate and amend the law of succession and the administration of estates of deceased persons and for related purposes

Part 1    Preliminary

1   Short title

This Act may be cited as the Succession Act 1981.

2   [Repealed]

3   [Repealed]

4   Application

(1)Save where otherwise expressly provided, this Act applies in the case of deaths occurring after the commencement of this Act.

(2)This Act binds the Crown not only in right of the State but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

5   Definitions

In this Act—

adopted child means, in relation to any person, a child that is adopted by such person or by such person and another person jointly, in accordance with the law of the State or Territory, or country, where the adoption takes place, as in force at the date of the adoption.

annulment see section 15.

country means any place or group of places having its own law of nationality, including Australia and its Territories.

court means the Supreme Court or a judge thereof.

debts include funeral, testamentary and administration expenses, debts and other liabilities payable out of the estate of a deceased person.

de facto spouse ...

disposition means a disposition by will and includes the following—

(a)a gift, devise or bequest of property by a will;

(b)the creation by will of a power of appointment affecting property;

(c)the exercise by will of a power of appointment affecting property.

divorce see section 15.

document—

(a)for part 2, other than section 18, means any paper or material on which there is writing; or

(b)for section 18, see the Acts Interpretation Act 1954, schedule 1.

grant means grant of probate of the will or letters of administration of the estate of a deceased person and includes the grant of an order to administer and the filing of an election to administer such an estate.

income includes rents and profits.

internal law, for part 2, in relation to a place, means the law that would apply if no question of the law in force in any other place arose.

interpret means to render orally into another language one person’s words for other persons at the time the words are uttered or immediately thereafter.

intestate means a person who dies and either does not leave a will, or leaves a will but does not dispose effectively by will of the whole or part of his or her property.

pecuniary legacy includes an annuity, a general legacy, a demonstrative legacy, so far as it is not discharged out of the designated property, and any other general direction by the testator for the payment of money including all duties relating to the estate or property of a deceased person free from which any devise, bequest or payment is made to take effect.

personal representative means the executor, original or by representation, or administrator of a deceased person.

property ...

public trustee means the public trustee constituted by the Public Trustee Act 1978.

registrar, for part 2, means a registrar or deputy registrar of the Supreme Court.

residuary estate in part 3 has the meaning given to it by section 34 and in part 5, division 2, the meaning given to it by section 55.

spouse see section 5AA.

stepchild for part 4, see section 40A.

translate means to render in writing or by any other means of record a text from one language to another language.

trustee includes—

(a)any person who immediately before l July 1973, was a trustee of the settlement or in any way a trustee under the Settled Land Act 1886 and who, if that Act had not been repealed, would be such a trustee; and

(b)a statutory trustee within the meaning of the Trusts Act 1973.

will includes a codicil and any other testamentary disposition.

5AA   Who is a person’s spouse

(1)Generally, a person’s spouse is the person’s—

(a)husband or wife; or

(b)de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA; or

(c)civil partner, as defined in the AIA, schedule 1.

(2)However, a person is a spouse of a deceased person only if, on the deceased’s death—

(a)the person was the deceased’s husband or wife; or

(b)the following applied to the person—

(i)the person was the deceased’s de facto partner, as defined in the AIA, section 32DA;

(ii)the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death; or

(ba)the person was the deceased’s civil partner; or

(c)for part 4, the person was—

(i)a person mentioned in paragraph (a), (b) or (ba); or

(ii)the deceased’s dependant former husband or wife or civil partner.a

(3)Subsection (2) applies—

(a)despite the AIA, section 32DA(6) and schedule 1, definition spouse; and

(b)whether the deceased died testate or intestate.

(4)In this section—

dependent former husband or wife or civil partner, of a deceased person, means—

(a)a person who—

(i)was divorced by or from the deceased at any time, whether before or after the commencement of this Act; and

(ii)had not remarried or entered into a civil partnership with another person before the deceased’s death; and

(iii)was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased; or

(b)a person who—

(i)was in a civil partnership with the deceased that was terminated under the Civil Partnerships Act 2011, section 19; and

(ii)had not married or entered into another civil partnership before the deceased’s death; and

(iii)was on the deceased’s death receiving, or entitled to receive, maintenance from the deceased.

5A   Reference to child or issue of a person

A reference in this Act to a child or issue of any person includes a child or issue en ventre sa mere at the death, provided such child or issue is born alive and remains alive for a period of 30 days.

5B   Reference to estate of deceased person

A reference in this Act to the estate of a deceased person includes property over which the deceased exercises or is entitled to exercise a general power of appointment by will.

5C   Notes in text

A note in the text of this Act is part of the Act.

6   Jurisdiction

(1)Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.

(2)The court may in its discretion grant probate of the will or letters of administration of the estate of a deceased person notwithstanding that the deceased person left no estate in Queensland or elsewhere or that the person to whom the grant is made is not resident or domiciled in Queensland.

(3)A grant may be made to such person and subject to such provisions, including conditions or limitations, as the court may think fit.

(4)Without restricting the generality of subsections (1) to (3) the court has jurisdiction to make, for the more convenient administration of any property comprised in the estate of a deceased person, any order which it has jurisdiction to make in relation to the administration of trust property under the provisions of the Trusts Act 1973.

(5)This section applies whether the death has occurred before or after the commencement of this Act.

Part 2    Wills

Division 1 Application of part 2

7   Application of pt 2

Subject to section 76, this part applies only to a will of a person who dies after the commencement of this section.

Division 2 Making a will

8   Property that may be disposed of by will

(1)A person may dispose by will of any property to which the person is entitled at the time of the person’s death.

(2)Subsection (1) applies whether or not the entitlement existed at the date of the making of the will.

(3)A person may dispose by will of any property to which the person’s personal representative becomes entitled, in the person’s capacity as personal representative, after the person’s death.

(4)Subsection (3) applies whether or not the entitlement existed at the time of the person’s death.

(5)A person may not dispose by will of property of which the person is trustee at the time of the person’s death.

9   Minimum age for making a will

(1)A will made by a minor is not valid.

(2)However—

(a)a minor may make a will in contemplation of marriage, and may alter or revoke the will, but the will is of no effect if the marriage contemplated does not take place; and

(b)a minor who is married may make, alter or revoke a will; and

(c)a minor whose marriage has ended, whether by divorce, annulment or death of the minor’s spouse, may revoke part or all of a will made—

(i)in contemplation of the marriage; or

(ii)while the person was married.

(3)Subsection (1) does not apply to a will—

(a)made under an order made under section 19; or

(b)mentioned in section 33X.

10   How a will must be executed

(1)This section sets out the way a will must be executed.

(2)A will must be—

(a)in writing; and

(b)signed by—

(i)the testator; or

(ii)someone else, in the presence of and at the direction of the testator.

(3)The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

(4)At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.

(5)However, none of the witnesses need to know that the document attested and signed is a will.

(6)The signatures need not be at the foot of the will.

(7)The signature of the testator must be made with the intention of executing the will.

(8)The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.

(9)A will need not have an attestation clause.

(10)A person who can not see and attest that a testator has signed a document may not act as a witness to a will.

(11)If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section.

(12)If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity.

(13)This section does not apply to a will made under an order under section 21.

11   When an interested witness may benefit from a disposition

(1)This section applies if a disposition of property is made by a will to a person (the interested witness) who attests the execution of the will.

(2)The disposition is void to the extent it concerns the interested witness or a person claiming under the interested witness.

(3)However, subsection (2) does not apply if—

(a)at least 2 of the people who attested the execution of the will are not interested witnesses; or

(b)all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give the consent; or

(c)the court is satisfied that the testator knew and approved of the disposition and it was made freely and voluntarily by the testator.

(4)In this section—

disposition of property does not include a charge or direction for the payment of—

(a)a debt; or

(b)appropriate remuneration to an executor, administrator, legal practitioner or other person for acting in relation to the administration of the testator’s estate.

12   When an interpreter may benefit from a disposition

(1)This section applies if—

(a)for the purposes of making a will the services of a person (an interpreter) are used to interpret or translate from or to a language understood by the testator; and

(b)a disposition of property is made by the will to the interpreter.

(2)The disposition is void to the extent it concerns the interpreter or a person claiming under the interpreter.

(3)However, subsection (2) does not apply if—

(a)all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give the consent; or

(b)the court is satisfied that the testator knew and approved of the disposition and it was made freely and voluntarily by the testator.

(4)In this section—

disposition of property does not include a charge or direction for the payment of appropriate remuneration for being an interpreter for the testator in relation to the will.

Division 3 Revoking, altering or reviving a will

13   How a will may be revoked

A will or part of a will may be revoked only—

(a)under section 14, 14A, 15, 15A or 15B; or

(b)by a will or other instrument made under an order under section 19 or 21; or

(c)by a later will; or

(d)by a document that—

(i)declares an intention to revoke the will or part; and

(ii)is executed in the way in which a will is required to be executed under this part; or

(e)by the testator, or someone in the testator’s presence and at the testator’s direction—

(i)burning, tearing or otherwise destroying the will with the intention of the testator to revoke it; or

(ii)writing on the will, or dealing with the will, in a way that satisfies the court, from the state of the will, that the testator intended to revoke it.

14   Effect of marriage on a will

(1)A will is revoked by the marriage of the testator.

Note—

For wills made before the commencement of section 7 as inserted by the Succession Amendment Act 2006, see section 76(2) and (3).

(2)However, the following are not revoked by the marriage of the testator—

(a)a disposition to the person to whom the testator is married at the time of the testator’s death;

(b)an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of the testator’s death;

(c)a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the testator or to an administrator of any estate of the testator if the power of appointment were not exercised.

(3)Also—

(a)a will made in contemplation of a marriage, whether or not that contemplation is stated in the will, is not revoked by the solemnisation of the marriage contemplated; and

(b)a will that is stated to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.

14A   Effect of civil partnership on a will

(1)A will is revoked by the testator entering into a civil partnership.

(2)However, the following are not revoked by the testator entering into a civil partnership—

(a)a disposition to the person with whom the testator is in a civil partnership at the time of the testator’s death;

(b)an appointment as executor, trustee, advisory trustee or guardian of the person with whom the testator is in a civil partnership at the time of the testator’s death;

(c)a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the testator or to an administrator of any estate of the testator if the power of appointment were not exercised.

(3)Also—

(a)a will made in contemplation of a civil partnership, whether or not that contemplation is stated in the will, is not revoked by the registration of the civil partnership contemplated; and

(b)a will that is stated to be made in contemplation of a civil partnership generally is not revoked by the registration of a civil partnership of the testator.

15   Effect of divorce or annulment on a will

(1)A testator’s divorce or the annulment of a testator’s marriage revokes—

(a)a disposition to the testator’s former spouse made by a will in existence when the divorce or annulment happens; and

(b)an appointment, made by the will, of the former spouse as an executor, trustee, advisory trustee or guardian; and

(c)any grant, made by the will, of a power of appointment exercisable by, or in favour of, the testator’s former spouse.

Note—

For wills made before the commencement of section 7 as inserted by the Succession Amendment Act 2006, see section 76(4) and (5).

(2)However, a testator’s divorce or the annulment of a testator’s marriage does not revoke—

(a)the appointment of the testator’s former spouse as trustee of property left by the will on trust for beneficiaries that include the former spouse’s children; or

(b)the grant of a power of appointment exercisable by the testator’s former spouse only in favour of children of whom both the testator and the former spouse are parents.

(3)Subsection (1) does not apply if a contrary intention appears in the will.

(4)If a disposition, appointment or grant is revoked by this section, the will takes effect as if the former spouse had died before the testator.

(5)In this section—

annulment, in relation to a testator, means—

(a)the granting of a decree of nullity in relation to the testator’s marriage by the Family Court of Australia; or

(b)the annulment of the testator’s marriage under the law of a place outside Australia, if the annulment is recognised in Australia under the Family Law Act 1975 (Cwlth).

divorce, in relation to a testator, means—

(a)the taking effect of a divorce order for the testator under the Family Law Act 1975 (Cwlth); or

(b)the dissolution of the testator’s marriage under the law of a place outside Australia, if the dissolution is recognised in Australia under the Family Law Act 1975 (Cwlth).

former spouse, in relation to a testator, means the person who was the spouse of the testator immediately before the divorce or annulment.

spouse includes a party to a purported or void marriage.

15A   Effect of end of civil partnership on a will

(1)The termination of a testator’s civil partnership or the finding that a testator’s civil partnership is void revokes—

(a)a disposition to the testator’s former civil partner made by a will in existence when the termination happens or the finding is made; and

(b)an appointment, made by the will, of the former civil partner as an executor, trustee, advisory trustee or guardian; and

(c)any grant, made by the will, of a power of appointment exercisable by, or in favour of, the testator’s former civil partner.

(2)However, the termination of a testator’s civil partnership or the finding that a testator’s civil partnership is void does not revoke—

(a)the appointment of the testator’s former civil partner as trustee of property left by the will on trust for beneficiaries that include the former civil partner’s children; or

(b)the grant of a power of appointment exercisable by the testator’s former civil partner only in favour of children of whom both the testator and the former civil partner are parents.

(3)Subsection (1) does not apply if a contrary intention appears in the will.

(4)If a disposition, appointment or grant is revoked by this section, the will takes effect as if the former civil partner had died before the testator.

(5)In this section—

civil partner includes a party to a purported or void civil partnership.

finding means finding by a court.

former civil partner, in relation to a testator, means the person who was the civil partner of the testator immediately before the termination of the testator’s civil partnership or the finding that the civil partnership is void.

termination, of a civil partnership, means termination under the Civil Partnerships Act 2011, section 19.

void means void under the Civil Partnerships Act 2011, section 30.

15B   Effect of end of de facto relationship on a will

(1)The ending of a testator’s de facto relationship revokes—

(a)a disposition to the testator’s former de facto partner made by a will in existence when the relationship ends; and

(b)an appointment, made by the will, of the former de facto partner as an executor, trustee, advisory trustee or guardian; and

(c)any grant, made by the will, of a power of appointment exercisable by, or in favour of, the testator’s former de facto partner.

(2)However, the ending of a testator’s de facto relationship does not revoke—

(a)the appointment of the testator’s former de facto partner as trustee of property left by the will on trust for beneficiaries that include the former de facto partner’s children; or

(b)the grant of a power of appointment exercisable by the testator’s former de facto partner only in favour of children of whom both the testator and the former de facto partner are parents.

(3)Subsection (1) does not apply if a contrary intention appears in the will.

(4)If a disposition, appointment or grant is revoked by this section, the will takes effect as if the former de facto partner had died before the testator.

(5)In this section—

former de facto partner, in relation to a testator, means the person who was the de facto partner of the testator immediately before the ending of the testator’s de facto relationship.

16   How a will may be altered

(1)An alteration to a will after it has been executed is not effective unless the alteration—

(a)is executed in the way a will is required to be executed under this part; or

(b)is authorised by an order under section 19 and is executed under section 20; or

(c)is authorised by an order under section 21 and is executed under section 26.

(2)Subsection (1) does not apply to an alteration to a will made by, or at the direction of, the testator if the words or effect of the will are no longer apparent because of the alteration.

(3)If a will is altered, it is sufficient compliance with the requirements under this section for execution of the alteration, if the signature of the testator and of the witnesses to the alteration are made—

(a)in the margin or on some other part of the will beside, near or otherwise relating to the alteration; or

(b)as authentication of a memorandum referring to the alteration and written on the will.

17   How a revoked will may be revived

(1)A will or part of a will that has been revoked is revived by re-execution or by execution of a will that shows an intention to revive the will or part.

(2)A revival of a will that was partly revoked and later revoked as to the balance only revives the part of the will most recently revoked.

(3)Subsection (2) does not apply if a contrary intention appears in the document that revives the will.

(4)A will that has been revoked and is later entirely or partly revived is taken to have been executed on the day on which the will is revived.

Division 4 Powers of court

Subdivision 1 Execution requirements

18   Court may dispense with execution requirements for will, alteration or revocation

(1)This section applies to a document, or a part of a document, that—

(a)purports to state the testamentary intentions of a deceased person; and

(b)has not been executed under this part.

(2)The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.

(3)In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—

(a)any evidence relating to the way in which the document or part was executed; and

(b)any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

(4)Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).

(5)This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.

Subdivision 2 Minors

19   Court may authorise minor to make, alter or revoke a will

(1)The court may make an order authorising a minor to—

(a)make or alter a will in the terms stated by the court; or

(b)revoke a will or part of a will.

(2)A minor, or a person on behalf of a minor, may apply for an order under subsection (1).

(3)The court may make the order only if the court—

(a)is satisfied that the minor understands the nature and effect of the proposed will, alteration or revocation and the extent of any property disposed of under the proposed will or alteration; and

(b)is satisfied that the proposed will, alteration or revocation accurately reflects the intentions of the minor; and

(c)is satisfied that it is reasonable in all the circumstances that the order be made; and

(d)has approved the proposed will, alteration or revocation.

(4)The court may make the order on the conditions it considers appropriate.

(5)To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property.

20   Execution of will or other instrument made under order

A will or other instrument made under an order under section 19 is not valid unless the following requirements are satisfied—

(a)for a will—the will is executed under this part;

(b)for another instrument—the other instrument is executed in the way a will is required to be executed under this part;

(c)1 of the witnesses attesting the will or other instrument is the registrar;

(d)the conditions of the order, if any, are complied with.

Note—

For the holding of the will or other instrument by the registrar, see subdivision 4.

Subdivision 3 Persons without testamentary capacity

21   Court may authorise a will to be made, altered or revoked for person without testamentary capacity

(1)The court may, on application, make an order authorising—

(a)a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or

(b)a will or part of a will to be revoked on behalf of a person without testamentary capacity.

(2)The court may make the order only if—

(a)the person to whom the order relates (the relevant person) lacks testamentary capacity and is alive when the order is made; and

(b)the court is satisfied—

(i)the applicant is the appropriate person to make the application; and

(ii)adequate steps have been taken to allow representation of other persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the relevant person; and

(iii)the proposed will, alteration or revocation is or may be a will, alteration or revocation the relevant person would make if the person had testamentary capacity; and

(c)the court approves the proposed will, alteration or revocation.

(3)For the order, the court may make or give any necessary related orders or directions.

(4)The court may make the order on the conditions the court considers appropriate.

(5)The court may order that costs in relation to the application be paid out of the relevant person’s assets.

(6)To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property.

(7)In this section—

person without testamentary capacity includes a minor.

22   [Repealed]

23   Information required by court in support of application for order under s 21

An application for the making of an order under section 21 in relation to a person must be accompanied by the following information—

(a)the reasons for making the application;

(b)evidence of the lack of testamentary capacity of the person;

(c)any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity;

(d)an estimate, formed from the evidence available to the applicant, of the size and character of the person’s estate;

(e)a draft of the proposed will, alteration or revocation in relation to which the order is sought;

(f)any evidence available to the applicant of the person’s wishes;

(g)any evidence available to the applicant of the terms of any will previously made by the person;

(h)any evidence available to the applicant of the likelihood of an application being made under section 41 in relation to the person;

(i)any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to give by will;

(j)any evidence available to the applicant of the circumstances of a person for whom provision might reasonably be expected to be made by a will by the person in relation to whom the order is sought;

(k)any evidence available to the applicant of any persons who might be entitled to claim on intestacy;

(l)any other facts of which the applicant is aware that are relevant to the application.

24   [Repealed]

25   Hearing an application for an order under s 21

On the hearing of an application for an order under section 21, the court—

(a)may have regard to any information given to the court under section 23; and

(b)may inform itself of any other matter relating to the application in any way it considers appropriate; and

(c)is not bound by the rules of evidence.

26   Execution of will or other instrument made under order

(1)A will or other instrument made under an order under section 21 is properly executed if the will or other instrument—

(a)is in writing; and

(b)is signed by the registrar, and stamped with the court’s seal, within—

(i)14 days of the order being made; or

(ii)another period stated by the court.

Note—

For the holding of the will or other instrument by the registrar, see subdivision 4.

(2)To remove any doubt, it is declared that the will or other instrument may be signed by the registrar, and stamped with the court’s seal, even if the person in relation to whom the order was made has died.

27   Validity of will or other instrument made under order

(1)A will made under an order under section 21 has the same effect for all purposes as if—

(a)the person without testamentary capacity were capable of making a valid will; and

(b)the person executed the will under section 10.

(2)An instrument, revoking a will or part of a will, made under an order under section 21 has the same effect for all purposes as if—

(a)the person were capable of validly revoking a will or part of a will; and

(b)the person executed the instrument under section 13(d)(ii).

(3)An instrument, altering a will, made under an order under section 21 has the same effect for all purposes as if—

(a)the person were capable of making a valid alteration of a will; and

(b)the person executed the instrument under section 16(1)(a).

28   Relationship with Guardianship and Administration Act 2000 and Powers of Attorney Act 1998

Nothing in the Guardianship and Administration Act 2000 or the Powers of Attorney Act 1998 prevents a person from making an application for an order under section 21.

Subdivision 4 Particular wills held by registrar

29   Registrar to hold will or other instrument made under order under s 19

(1)A will or other instrument made under an order under section 19 must be held by the registrar.

(2)The registrar may stop holding the will or other instrument only if—

(a)the testator is at least 18 years and has testamentary capacity; or

(b)the court makes an order—

(i)under section 19 authorising the minor to revoke the will; or

(ii)under section 21 authorising the will to be revoked; or

(c)the will or other instrument is given to a person under section 32.

(3)A failure to comply with subsection (1) or (2) does not affect the validity of the will or other instrument.

30   Registrar to hold will or other instrument made under order under s 21

(1)A will or other instrument made under an order under section 21 must be held by the registrar.

(2)The registrar may stop holding the will or other instrument only if—

(a)the person on whose behalf the will or other instrument has been made (the relevant person) has acquired or regained testamentary capacity; or

(b)the court makes an order—

(i)under section 19 authorising the relevant person to revoke the will; or

(ii)under section 21 authorising the will to be revoked; or

(c)the will or other instrument is given to a person under section 32.

(3)A failure to comply with subsection (1) or (2) does not affect the validity of the will or other instrument.

31   Envelope required for will held by registrar

(1)A will or other instrument held by the registrar under section 29 or 30 must be in a sealed envelope that has written on it—

(a)the name and address of the minor or other person without testamentary capacity as they appear on the will or other instrument; and

(b)the name and address, as they appear on the will, of any executor; and

(c)the date of the will or other instrument; and

(d)for a will or other instrument held under section 30—the name of the person who applied for the order under section 21.

(2)The registrar may examine the will or other instrument to enable the registrar to comply with this subdivision.

32   Delivery of will or other instrument if testator has died

(1)This section applies if—

(a)a will or other instrument is held by the registrar under section 29 or 30; and

(b)the minor or other person without testamentary capacity has died.

(2)An executor named in the will, an executor by representation or a person entitled to apply for letters of administration with the will, may apply in writing to the registrar to be given the will or other instrument.

(3)On receiving the application, the registrar must give the will or other instrument to—

(a)the applicant; or

(b)any legal practitioner or trustee company nominated by the applicant; or

(c)the public trustee, if nominated by the applicant.

(4)If there is doubt about the person to whom the will or other instrument should be given, the registrar or anyone else may apply to the court for directions.

(5)The registrar must make an accurate copy of each will or other instrument given to a person under subsection (3) and hold the copy.

(6)In this section—

trustee company see the Trustee Companies Act 1968, section 4.

Subdivision 5 Rectification

33   Court may rectify a will

(1)The court may make an order to rectify a will to carry out the intentions of the testator if the court is satisfied that the will does not carry out the testator’s intentions because—

(a)a clerical error was made; or

(b)the will does not give effect to the testator’s instructions.

(2)An application for an order to rectify a will may only be made within 6 months after the date of death of the testator.

(3)However, the court may, at any time, extend the time for making an application under subsection (2) if—

(a)the court considers it appropriate; and

(b)the final distribution of the estate has not been made.

(4)If the court makes an order to rectify a will, the court may direct that a certified copy of the order be attached to the will.

(5)If the court gives a direction under subsection (4), the court must hold the will until the certified copy is attached to it.

33A   Protection of personal representatives who distribute as if the will had not been rectified

(1)This section applies if—

(a)a will is rectified under section 33; and

(b)a personal representative makes a distribution to a beneficiary as if the will had not been rectified.

(2)The personal representative is not liable if the distribution is made under section 49A.

(3)The personal representative is also not liable if the distribution is made not earlier than 6 months after the testator’s death and without notice of either of the following—

(a)an application, or intended application, for an order to rectify the will;

(b)an application, or intended application, under section 41(1) or 42 in relation to the testator.

(4)If the personal representative receives notice of an application or intended application mentioned in subsection (3) (a relevant application), the personal representative is not liable if—

(a)the distribution is made not earlier than 9 months after the testator’s death; and

(b)the personal representative has not—

(i)received notice that a relevant application has been started in the court; or

(ii)been served with a copy of a relevant application.

(5)For subsections (3) and (4), a notice in relation to an application or intended application must be in writing signed by the applicant or the applicant’s legal practitioner.

Division 5 Interpretation of wills

33B   Beneficiaries must survive testator for 30 days

(1)If a disposition of property is made to a person who dies within 30 days after the testator’s death, the will takes effect as if the person had died immediately before the testator.

(2)Subsection (1) does not apply if a contrary intention appears in the will.

(3)A general requirement or condition that a beneficiary survive the testator is not a contrary intention.

33C   Use of evidence to interpret a will

(1)In a proceeding to interpret a will, evidence, including evidence of the testator’s intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it—

(a)meaningless; or

(b)ambiguous on the face of the will; or

(c)ambiguous in the light of surrounding circumstances.

(2)However, evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c).

(3)This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will.

33D   Effect of a change in testator’s domicile

The interpretation of a will is not changed by a change in the testator’s domicile after the testator has executed the will.

33E   When a will takes effect

(1)A will takes effect, in relation to the property disposed of by the will, as if it had been executed immediately before the testator’s death.

(2)Subsection (1) does not apply if a contrary intention appears in the will.

33F   Will operates to dispose of remaining interest in property if part interest disposed of before death

(1)This section applies if—

(a)a testator has made a will disposing of property; and

(b)after the making of the will and before the testator’s death, the testator disposes of an interest in the property.

(2)The will operates to dispose of any remaining interest the testator has in the property.

33G   Effect of a failure of a disposition of property

(1)If a disposition of property by a will is fully or partly ineffective, the will takes effect as if the property were part of the residuary estate of the testator.

(2)Subsection (1) does not apply if a contrary intention appears in the will.

(3)In this section—

disposition of property does not include the exercise of a power of appointment.

33H   Income of contingent, future or deferred disposition of property

A contingent, future or deferred disposition of property, whether specific or residuary, includes any intermediate income of the property that has not been disposed of by the will.

33I   What a general disposition of land includes

(1)A general disposition of land, or of land in a particular area, includes leasehold land, whether or not the testator owns freehold land.

(2)Subsection (1) does not apply if a contrary intention appears in the will.

33J   What a general disposition of property includes

(1)A general disposition of all of the testator’s property—

(a)includes any property over which the testator has a general power of appointment exercisable by will; and

(b)operates as an exercise of the power of appointment.

(2)A general disposition of all of the testator’s property of a particular description—

(a)includes any property of that description over which the testator has a general power of appointment exercisable by will; and

(b)operates as an exercise of the power of appointment.

(3)A general disposition of the residue of the testator’s property—

(a)includes any property over which the testator has a general power of appointment exercisable by will; and

(b)operates as an exercise of the power of appointment.

(4)A general disposition of the residue of the testator’s property of a particular description—

(a)includes any property of that description over which the testator has a general power of appointment exercisable by will; and

(b)operates as an exercise of the power of appointment.

(5)Subsection (1), (2), (3) or (4) does not apply if a contrary intention appears in the will.

33K   Effect of a disposition of real property without words of limitation

(1)A disposition of real property to a person without words of limitation passes the whole estate or interest of the testator in the property to the person.

(2)Subsection (1) does not apply if a contrary intention appears in the will.

33L   How dispositions of property to issue operate

(1)A disposition of property to a person’s issue, without limitation as to remoteness, must be distributed to the person’s issue in the same way as the person’s estate would be distributed if the person had died intestate leaving only issue surviving.

(2)Subsection (1) does not apply if a contrary intention appears in the will.

33M   How requirements to survive with issue are interpreted

(1)This section applies if there is a disposition of property to a person that, apart from this section, would be interpreted to mean that the disposition fails if there is an indefinite failure of issue of the person.

(2)The disposition must be interpreted to mean that the disposition fails if there is a want or a failure of issue of the person either in the person’s lifetime or at the person’s death.

(3)This section does not apply if a contrary intention appears in the will, other than if the result would be to cause a failure of the disposition.

33N   Dispositions not to fail because issue have died before testator

(1)This section applies if—

(a)a testator makes a disposition of property to a person, whether as an individual or as a member of a class, who is issue of the testator (an original beneficiary); and

(b)under the will, the interest of the original beneficiary in the property does not come to an end at or before the original beneficiary’s death; and

(c)the disposition is not a disposition of property to the testator’s issue, without limitation as to remoteness; and

(d)the original beneficiary does not survive the testator for 30 days.

(2)The issue of the original beneficiary who survive the testator for 30 days take the original beneficiary’s share of the property in place of the original beneficiary as if the original beneficiary had died intestate leaving only issue surviving.

(3)Subsection (2) does not apply if—

(a)the original beneficiary did not fulfil a condition imposed on the original beneficiary in the will; or

(b)a contrary intention appears in the will.

(4)A general requirement or condition that issue survive the testator or reach a specified age does not show a contrary intention for subsection (3)(b).

(5)A disposition of property to issue as joint tenants does not, of itself, show a contrary intention for subsection (3)(b).

33O   Disposition of real estate or personal estate may include both in particular case

(1)A disposition of all, or the residue, of the estate of a testator that refers only to the real estate of the testator, or only to the personal estate of the testator, must be interpreted as referring to both the real and personal estate of the testator.

(2)Subsection (1) does not apply if a contrary intention appears in the will.

33P   Disposition of fractional part in particular case

(1)If a part of a disposition in fractional parts of all, or the residue, of the testator’s estate fails, the part that fails passes to the part that does not fail and, if there is more than 1 part that does not fail, to all those parts proportionately.

(2)Subsection (1) does not apply if a contrary intention appears in the will.

33Q   Dispositions to unincorporated associations of persons

(1)Each of the following dispositions of property has effect as a disposition in augmentation of the general funds of the association to which the disposition is made—

(a)a disposition to an unincorporated association of persons that is not a charity;

(b)a disposition to or on trust for the aims, objects or purposes of an unincorporated association of persons that is not a charity;

(c)a disposition to or on trust for the present and future members of an unincorporated association of persons that is not a charity.

(2)Property, a disposition of which is, or has effect under subsection (1) as, a disposition in augmentation of the general funds of an unincorporated association, must be—

(a)paid into the general fund of the association; or

(b)transferred to the association; or

(c)sold or otherwise disposed of on behalf of the association, with the proceeds being paid into the general fund of the association.

(3)If the personal representative pays an amount to an unincorporated association under a disposition, the receipt of the treasurer or a similar officer of the association (however described) is an absolute discharge for the payment.

(4)If the personal representative transfers property to an unincorporated association under a disposition, the transfer of the property to a person nominated in writing by any 2 persons holding the offices of president, chairperson, treasurer or secretary of the association, or similar officers of the association (however described), is an absolute discharge to the personal representative for the transfer of the property.

(5)Subsections (3) and (4) do not—

(a)limit the way an absolute discharge may otherwise be obtained in accordance with the will; or

(b)apply if a contrary intention appears in the will.

(6)It is not an objection to the validity of a disposition to an unincorporated association of persons that—

(a)a list of persons who were members of the association at the time of the testator’s death can not be compiled; or

(b)the members of the association may not divide assets of the association beneficially among themselves.

33R   When a person may delegate power to dispose of property by a will

A power or a trust, created by will, to dispose of property is not void on the ground that it is a delegation of the testator’s power to make a will, if the same power or trust would be valid if made by the testator, by instrument, in the testator’s lifetime.

33S   Effect of reference to valuation in will

(1)This section applies if—

(a)there is an express or implied requirement in a will that a valuation of property be made or accepted for a purpose; and

(b)either—

(i)the will does not provide a method of valuation; or

(ii)the method of valuation is not provided for by the law of Queensland or another place.

(2)The reference in the will to the valuation must be interpreted, to the extent the method of valuation is not provided for as mentioned in subsection (1)(b)(i) or (ii), as if the reference were a reference to a valuation of the property as at the date of the testator’s death made by a competent valuer.

(3)Subsection (2) does not apply if a contrary intention appears in the will.

Division 6 Wills with a foreign connection

33T   Wills that are taken to be properly executed

(1)A will is taken to be properly executed if its execution is in accordance with the internal law in force in the place—

(a)where it was executed; or

(b)that was the testator’s domicile or habitual residence, either at the time the will was executed or at the time of the testator’s death; or

(c)of which the testator was a national, either at the time the will was executed or at the time of the testator’s death.

(2)The following wills are also taken to be properly executed—

(a)a will executed on board a vessel or aircraft and in accordance with the internal law in force in the place with which the vessel or aircraft was most closely connected having regard to its registration and other relevant circumstances;

(b)a will, to the extent it disposes of immovable property, executed in accordance with the internal law in force in the place where the property is situated;

(c)a will, to the extent it exercises a power of appointment, executed in accordance with the law governing the essential validity of the power;

(d)a will to the extent it revokes—

(i)a will, or a provision of a will, that has been executed under this part; or

(ii)a will, or a provision of a will, that is taken by this section to be properly executed;

      if the later will has been executed in accordance with a law under which the earlier will or provision would be taken to be validly executed.

(3)A will to which this section applies is not improperly executed to the extent it exercises a power of appointment only because it has not been executed in the particular way or with the particular solemnity required by the instrument creating the power.

Example of subsection (3)—

A will to which this section applies exercises a power of appointment. The instrument creating the power requires the instrument exercising the power to be witnessed by a notary public. The will, to the extent it exercises the power, is not improperly executed only because the will is not witnessed by a notary public.

33U   Deciding system of law to apply if more than 1 system of internal law

(1)This section applies if—

(a)the internal law of a place must be applied under section 33T; and

(b)there is more than 1 system of internal law, in force in the place, relating to the formal validity of wills.

(2)The system of internal law to be applied under section 33T is decided as follows—

(a)if there is a rule in force throughout the place that states which system applies to the will, the rule must be followed;

(b)otherwise, the system is that with which the testator was most closely connected—

(i)if the matter is to be decided by reference to circumstances prevailing at the testator’s death—at the time of the testator’s death; or

(ii)otherwise—at the time the will was executed.

33V   Formal requirements at time of execution apply

(1)In deciding, for the purpose of section 33T, whether a will has been executed in accordance with a particular law, regard must be had to the formal requirements of the particular law at the time the will was executed.

(2)However, regard may be had to a later change of the particular law affecting wills executed at the time the relevant will was executed, if the change enables the relevant will to be treated as properly executed.

33W   Matters that are taken to be formal requirements

(1)This section applies if a particular law of a place outside Queensland is to be applied to a will, whether or not for the purpose of section 33T.

(2)The following requirements of the particular law are taken to be formal requirements only—

(a)a requirement that special formalities be complied with by particular testators;

(b)a requirement that the witnesses to the execution of a will have particular qualifications.

(3)Subsection (2) applies despite any contrary rule of the particular law.

33X   Will by minor made under an order of a foreign court

(1)A will of a deceased person that is a court authorised will for a minor is a valid will.

(2)A will is a court authorised will for a minor if—

(a)a court, in a place outside Queensland, made an order authorising a minor to make the will; and

(b)the will is executed according to the law of the place relating to wills of minors; and

(c)the minor was a resident in the place at the time the will was executed.

33Y   Recognition of statutory wills made by non-Queensland resident

(1)A statutory will made under the law of the place outside Queensland where a deceased person was resident at the time the statutory will was executed is a valid will of the person.

(2)In this section—

statutory will means a will executed in accordance with a statutory provision on behalf of a person who, at the time the will was executed, did not have testamentary capacity.

Division 6A International wills

33YA   Definitions for div 6A

In this division—

convention means the Convention providing a Uniform Law on the Form of an International Will 1973 signed in Washington on 26 October 1973.

international will means a will made in accordance with the requirements of the annex to the convention.

33YB   Application of Convention

(1)The annex to the convention has the force of law in this jurisdiction.

(2)A copy of the annex to the convention is set out in schedule 3.

33YC   Persons authorised to act in connection with international wills

(1)In this division, the following persons are authorised to act in connection with an international will—

(a)an Australian legal practitioner;

(b)a public notary of a State;

(c)a person authorised to act in connection with an international will under a law of a convention country.

(2)In this section—

Australian legal practitioner see the Legal Profession Act 2007, section 6.

convention country means a country, other than Australia and its Territories, that is a party to the convention.

33YD   Witnesses to international wills

The conditions for acting as a witness to an international will are governed by the law of this jurisdiction.

Note—

For the relevant provisions of this Act, see sections 10 (How a will must be executed) and 11 (When an interested witness may benefit from a disposition).

33YE   Application of Act to international wills

To avoid doubt, it is declared that the provisions of this Act that apply to wills extend to international wills.

Division 7 Miscellaneous

33Z   Persons entitled to inspect a will or to obtain a copy of a will

(1)A person who has possession or control of a will of a deceased testator must, if asked, do either or both of the following—

(a)allow an entitled person to inspect the will;

(b)give an entitled person a certified copy of the will on payment of the person’s reasonable expenses of giving the certified copy.

(2)If a will of a deceased testator has been lost, stolen or destroyed, a person who has possession or control of a copy of the will must, if asked, do either or both of the following—

(a)allow an entitled person to inspect the copy;

(b)give an entitled person a certified copy of the copy on payment of the person’s reasonable expenses of giving the certified copy.

(3)A person who has possession or control of a will, or a copy of a will, of a deceased person must produce it in court if the court requires it.

(4)In this section—

certified copy—

(a)of a will—means a copy of the will that has a statement on it, signed by the person giving the copy, that the copy is a true copy of the will; or

(b)of a copy of a will—means a copy of the copy of the will that has a statement on it, signed by the person giving the copy, that the copy is a true copy of what it purports to be.

entitled person, in relation to a will, means—

(a)a person mentioned in the will, whether as beneficiary or not and whether named or not; or

(b)a person mentioned in any earlier will of the testator as a beneficiary and whether named or not; or

(c)a spouse, parent or issue of the testator; or

(d)a person who would be entitled to a share of the estate of the testator if the testator had died intestate; or

(e)a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if the testator had died intestate; or

(f)a creditor or other person who has a claim at law or in equity against the estate; or

(g)a person who may apply for an order under section 41.

parent see section 61A.

will includes—

(a)a purported will or revoked will; and

(b)a part of a will, purported will or revoked will.

Part 3    Distribution on intestacy

Division 1 Interpretation

34   Interpretation

(1)In this part—

building see section 34B(2).

household chattels see section 34A.

interest, in an intestate’s shared home, see section 34B(3).

matrimonial home ...

residuary estate in relation to an intestate means—

(a)in the case of an intestate who leaves a will—the property of the intestate that is not effectively disposed of by the will; or

(b)in any other case—the property of the intestate, which is available for distribution after payment thereout of all such debts as are properly payable thereout.

shared home see section 34B(1).

transfer value see section 34B(4).

(2)For the purposes of this part, in ascertaining relationship it is immaterial whether the relationship is of the whole blood or of the half-blood.

(3)The provisions of this part shall be subject to the provisions of an order made under and in accordance with the provisions of part 4 and shall be applied accordingly.

34A   Meaning of household chattels

(1)Household chattels means all furniture, curtains, drapes, carpets, linen, china, glassware, ornaments, domestic appliances and utensils, garden appliances, utensils and effects and other chattels of ordinary household use or decoration, liquors, wines, consumable stores and domestic animals owned by the intestate immediately before the intestate’s death.

(2)Household chattels does not include a motor vehicle, boat, aircraft, racing animal, original painting or other original work of art, trophy, clothing, jewellery, or other chattel of a personal nature.

(3)A thing is taken to be owned by the intestate even if—

(a)it is owned subject to a security interest under the Personal Property Securities Act 2009 (Cwlth); or

(b)the intestate only held an interest in the thing as hirer under a hire purchase agreement within the meaning of the Hire-purchase Act 1959, section 2(1) or a corresponding provision of a law of another State or the Commonwealth.

(4)This definition applies for the purposes of applying schedule 2 under this part.

34B   Meaning of shared home and related definitions

(1)A shared home means a building, or part of a building, designed to be used solely or principally as a separate residence for 1 family or person.

(2)A building includes a caravan and a manufactured home.

(3)An interest, in an intestate’s shared home, means—

(a)an interest registered or registrable under an Act that is or includes a shared home; or

(b)if the shared home is a caravan—an interest in the caravan; or

(c)if the shared home is a manufactured home—an interest in the manufactured home and any interest in a site agreement for the site on which the manufactured home is positioned.

(4)The transfer value, of an intestate’s interest in a shared home, means the market value of the interest at the date of the intestate’s death, less the amount (if any) needed to discharge any mortgage, charge, encumbrance or lien to which the interest may be subject at the time of transfer.

(5)In this section—

caravan see the Residential Tenancies and Rooming Accommodation Act 2008, section 7.

manufactured home see the Manufactured Homes (Residential Parks) Act 2003, section 10.

site see the Manufactured Homes (Residential Parks) Act 2003, section 13.

site agreement see the Manufactured Homes (Residential Parks) Act 2003, section 14.

Division 2 Distribution rules

35   Distribution of residuary estate on intestacy

(1)Subject to subsection (2) and division 3, the person or persons entitled to take an interest in the residuary estate of an intestate, and the interest in that estate which that person is or those persons are entitled to take shall be ascertained by reference to schedule 2 according to the facts and circumstances existing in relation to the intestate.

(1A)For the purposes of this Act—

(a)the brothers and sisters of the intestate; and

(b)the grandparents of the intestate; and

(c)the brothers and sisters of a parent of the intestate; and

(d)the children of any brothers or sisters of an intestate who predecease the intestate; and

(e)the children of any brothers or sisters of a parent of an intestate who predecease the intestate;

are the next of kin of the intestate.

(2)Where a person entitled to take any part of the residuary estate of an intestate under this part does not survive the intestate for a period of 30 days that part of the residuary estate shall be treated as if that person had died before the intestate.

36   Distribution of entitlement if more than 1 spouse

(1)If more than 1 spouse of an intestate are entitled to the whole or a part of the intestate’s residuary estate, the entitlement is to be distributed between them—

(a)in accordance with a written agreement between the spouses about distributing the entitlement between them (a distribution agreement); or

(b)in accordance with an order made under this section distributing the entitlement between the spouses (a distribution order); or

(c)in equal shares as decided by the personal representative, if, at the time of distribution—

(i)the spouses have been given a notice under subsection (3) and 3 months have passed since the last of the notices was given; and

(ii)the personal representative has no notice of a distribution agreement; and

(iii)the personal representative—

(A)has no notice of an application for a distribution order; or

(B)has been notified in writing by the spouses that the personal representative may distribute their entitlement equally even though an application for a distribution order has previously been made; or

(C)has a copy of an order of the court striking out or discontinuing an application for a distribution order.

(2)However, for a distribution under subsection (1)(c), if the intestate is survived by issue, the entitlement under schedule 2 to the $150,000 must be distributed in equal shares.

(3)The personal representative may give the spouses a notice stating the personal representative may be entitled to distribute any entitlement of the spouses equally if they do not, within 3 months after the notice is given—

(a)enter into a written agreement about distributing the entitlement between them and give the personal representative written notice of the agreement; or

(b)apply to the court for an order distributing the entitlement between them and give the personal representative written notice of the application.

(4)If any of the spouses asks the personal representative to give the notices that may be given under subsection (3), the personal representative must give the notices (including a notice to that person) as soon as practicable.

(5)An intestate’s spouse or personal representative may apply to the court for a distribution order.

(6)However, an application for a distribution order may not be made if there is a distribution agreement or distribution of the entitlement has commenced under subsection (1)(c).

(7)The court may order that the entitlement be distributed in the way it considers is just and equitable.

(8)In deciding what is just and equitable, no assumption is to be made in favour of an equal distribution as a starting point or otherwise.

(9)If the court considers it is just and equitable, it may order that an entitlement be distributed solely to 1 of the spouses.

(10)A distribution order may include conditions.

(11)Nothing in this section requires a personal representative to distribute an entitlement at a time that would preclude the operation of section 44(3) in relation to the distribution.

(12)To prevent any doubt, it is declared that the Trusts Act 1973, section 67(3) does not authorise a personal representative to distribute an entitlement of the spouses before the time the personal representative becomes entitled to distribute the entitlement under subsection (1).

36A   Distribution of issue’s entitlement

(1)In this section—

survive means survive the intestate.

(2)If an intestate’s issue are entitled to the whole or a part of the intestate’s residuary estate, the entitlement is to be distributed among the issue as set out in this section.

(3)If the intestate had only 1 child and the child survived, the child takes.

(4)If the intestate had 2 or more children, all of whom survived, the children take in equal shares.

(5)If the intestate had 2 or more children, of whom some survived and the remainder did not survive and did not leave surviving issue, the surviving children take in equal shares.

(6)If subsections (3) to (5) do not apply, the entitlement is divided into as many equal shares as the intestate had children who survived or who did not survive but left surviving issue.

(7)The equal shares are then taken as follows—

(a)the intestate’s surviving children (if any) take 1 share each;

(b)for each child of the intestate who did not survive but left surviving issue—1 share is taken by representation by the child’s surviving issue.

37   Distribution of next of kin’s entitlement

(1)Where, by virtue of this Act, the next of kin of an intestate are entitled to the residuary estate of the intestate, the persons entitled to that residuary estate shall be ascertained in accordance with the following paragraphs—

(a)the brothers and sisters of the intestate who survived the intestate, and the children of a brother or sister of the intestate who died before the intestate, being children who survived the intestate, are entitled to the residuary estate of the intestate;

(b)if the intestate is not survived by any persons entitled to the residuary estate under paragraph (a) but is survived by 1 or more of his or her grandparents—the grandparent is entitled to the residuary estate of the intestate, or the grandparents are entitled to the residuary estate in equal shares, as the case requires;

(c)if the intestate is not survived by any persons entitled to the residuary estate under paragraphs (a) and (b)—the uncles and aunts of the intestate who survived the intestate and the children of an uncle or aunt who died before the intestate, being children who survived the intestate, are entitled to the residuary estate of the intestate.

(2)The residuary estate of an intestate shall be divided amongst—

(a)the brothers and sisters of the intestate and the children of those brothers or sisters who died before the intestate, in the same manner as the residuary estate would have been divided amongst those persons, if the brothers and sisters had been children of the intestate and the children of a brother or sister who died before the intestate had been children of a child of the intestate who died before the intestate; or

(b)the uncles and aunts of the intestate and the children of those uncles or aunts who died before the intestate, in the same manner as the residuary estate would have been divided amongst those persons if the uncles and aunts had been children of the intestate and the children of an uncle or aunt who died before the intestate had been children of a child of the intestate who died before the intestate.

(3)However, the said residuary estate of the intestate shall not be divided amongst the issue of a brother or sister or of an uncle or aunt who died before the intestate more remote than the children of any such brother or sister, uncle or aunt.

38   Partial intestacies

The executor of the will of an intestate shall hold, subject to the executor’s rights and powers for the purposes of administration, the residuary estate of an intestate on trust for the persons entitled to it.

39   Construction of documents—references to statutes of distribution—meaning of ‘heir’

References to any statutes of distribution in an instrument inter vivos made or in a will coming into operation after the commencement of this Act shall be construed as references to this part; and references in such an instrument or will to an heir or heir at law or next of kin of a person shall be construed, unless the context otherwise requires, as referring to the persons who would take beneficially on the intestacy of that person under the provisions of this part.

Division 3 Provisions about shared home

39A   Election by spouse to acquire shared home

(1)This section applies if—

(a)an intestate has an interest in a shared home that is not effectively disposed of by a will (whether or not the intestate leaves a will); and

(b)at the time of the intestate’s death, the intestate’s spouse (the resident) ordinarily resided in the shared home.

(2)Subject to section 39B, the resident may, by written notice, elect to acquire the intestate’s interest in the shared home at transfer value.

(3)The election must be made—

(a)if the resident is a personal representative—within 3 months after the resident’s appointment as personal representative; or

(b)if the resident is not a personal representative—within 3 months after the personal representative gives the resident a written notice stating that—

(i)if the resident wants to acquire the intestate’s interest in the shared home, the resident must elect to do so in accordance with this section within 3 months after the notice is given; and

(ii)in certain circumstances, the resident must first obtain an order of the court under section 39B allowing the election to be made.

(4)The election must be given—

(a)if the resident is not a personal representative—to the personal representative; or

(b)if the resident is a joint personal representative—to each other personal representative; or

(c)if the resident is the sole personal representative—to the registrar of the court.

(5)To enable the resident to decide whether to make an election, the resident may ask the personal representative to obtain a valuation of the intestate’s interest in the shared home from a registered valuer and give a copy of it to the resident.

(6)The personal representative must promptly comply with the request.

(7)An election may only be revoked with the personal representative’s written consent.

39B   Restriction on right to elect to acquire shared home

(1)This section applies if, apart from this section, an intestate’s spouse (the resident) would be entitled to make an election under section 39A to acquire the intestate’s interest in a shared home and—

(a)the shared home forms part of a building, and the deceased’s estate includes an interest in the whole of the building; or

(b)the shared home forms part of a registered or registrable interest in land and—

(i)the deceased’s estate includes an interest in the whole of that interest; and

(ii)part or all of the land is used for agricultural purposes; or

(c)the shared home forms part of a building used as a hotel, motel, boarding house or hostel at the date of the intestate’s death; or

(d)part of the shared home was used for purposes other than domestic purposes at the date of the intestate’s death.

(2)The resident may make an election under section 39A only if the court makes an order allowing the election to be made.

(3)The resident may apply to the court for the order.

(4)The application must be made—

(a)if the resident is a personal representative—within 3 months after the resident’s appointment as personal representative; or

(b)if the resident is not a personal representative—within 3 months after the resident is given the notice mentioned in section 39A(3)(b).

(5)The court may make the order only if it is satisfied the resident’s acquisition of the intestate’s interest in the shared home is not likely to—

(a)substantially diminish the value of the assets in the deceased’s estate; or

(b)make disposal of the assets substantially more difficult.

(6)If the court makes an order allowing an election to be made, the time for making the election under section 39A is extended until 1 month after the order is made.

39C   Acquisition of shared home under election

(1)This section applies if a spouse (the resident) makes an election under section 39A to acquire an intestate’s interest in a shared home at transfer value.

(2)On payment of the transfer value adjusted on an equitable basis to apportion any outgoings paid or payable, or rent or other amount received, that are ordinarily adjusted on sale, the resident is entitled to transfer of the intestate’s interest.

(3)However—

(a)before payment of the transfer value, the transfer documentation must be properly stamped under the Duties Act 2001 at the resident’s expense; and

(b)the resident is not entitled to a discharge of any mortgage, charge, encumbrance or lien over the intestate’s interest in the shared home.

(3A)Subsection (3)(a) has effect despite the Duties Act 2001, section 17(2).

(4)At the resident’s option, money that may at the time of transfer be distributed to the resident from the deceased’s estate (whether under a will or on intestacy) may be set off to reduce the amount of the transfer value.

(5)A resident may acquire an intestate’s interest in a shared home under this section even if the resident is a personal representative of the intestate.

(6)If production of a document or other assistance by a person (other than the resident or personal representative) is necessary to effect the acquisition, the person must, at the personal representative’s request, give the assistance on payment of the person’s reasonable costs and outlays by the personal representative.

39D   Personal representative not to dispose of intestate’s interest in shared home pending election or if election made

(1)This section applies if a spouse is entitled to make an election under section 39A to acquire an intestate’s interest in a shared home.

(2)The personal representative must not sell or otherwise dispose of the intestate’s interest in the shared home—

(a)if the time within which the election may be made has not ended; or

(b)contrary to an election under section 39A.

(3)However, subsection (2) does not prevent an intestate’s interest in the shared home being disposed of as a last resort to pay a liability of the intestate.

(4)A disposal of the intestate’s interest in the shared home in contravention of subsection (2) does not affect the validity of the disposal.

Part 4    Family provision

40   Definitions for pt 4

In this part—

child means, in relation to a deceased person, any child, stepchild or adopted child of that person.

dependant means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being—

(a)a parent of that deceased person; or

(b)the parent of a surviving child under the age of 18 years of that deceased person; or

(c)a person under the age of 18 years.

spouse ...

40A   Meaning of stepchild

(1)A person is a stepchild of a deceased person for this part if—

(a)the person is the child of a spouse of the deceased person; and

(b)a relationship of stepchild and step-parent between the person and the deceased person did not stop under subsection (2).

(2)The relationship of stepchild and step-parent stops on—

(a)the divorce of the deceased person and the stepchild’s parent; or

(b)the termination of the civil partnership between the deceased person and the stepchild’s parent; or

(c)the ending of the de facto relationship between the deceased person and the stepchild’s parent.

(3)To remove any doubt, it is declared that the relationship of stepchild and step-parent does not stop merely because—

(a)the stepchild’s parent died before the deceased person, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died; or

(b)the deceased person remarried, entered into a civil partnership or formed a de facto relationship after the death of the stepchild’s parent, if the marriage, civil partnership or de facto relationship between the deceased person and the parent subsisted when the parent died.

(4)In this section—

termination, of a civil partnership, means termination under the Civil Partnerships Act 2011, section 14(1)(b) or 19.

41   Estate of deceased person liable for maintenance

(1)If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.

(1A)However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person’s death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant.

(2)The court may—

(a)attach such conditions to the order as it thinks fit; or

(b)if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or

(c)refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as make such refusal reasonable.

(3)The incidence of the payment or payments ordered shall, unless the court otherwise directs, fall rateably upon the whole estate of the deceased person or upon so much thereof as is or may be made directly or indirectly subject to the jurisdiction of the court.

(4)The court may, by such order or any subsequent order, exonerate any part of the estate of the deceased person from the incidence of the order, after hearing such of the parties as may be affected by such exoneration as it thinks necessary, and may for that purpose direct the personal representative to represent, or appoint any person to represent, any such party.

(5)The court may at any time fix a periodic payment or lump sum to be paid by any beneficiary in the estate, to represent, or in commutation of, such proportion of the sum ordered to be paid as falls upon the portion of the estate in which the beneficiary is interested, and exonerate such portion from further liability, and direct in what manner such periodic payment shall be secured, and to whom such lump sum shall be paid, and in what manner it shall be invested for the benefit of the person to whom the commuted payment was payable.

(6)Where an application has been filed on behalf of any person it may be treated by the court as, and, so far as regards the question of limitation, shall be deemed to be, an application on behalf of all persons who might apply.

(7)The personal representative or the public trustee or the chief executive of the department in which the Child Protection Act 1999 is administered, or any person acting as the litigation guardian of a person under a legal incapacity, may apply on behalf of a person under a legal incapacity in any case where such person might apply, or may apply to the court for advice or directions as to whether the person ought so to apply; and, in the latter case, the court may treat such application as an application on behalf of such person for the purpose of avoiding the effect of limitation.

(8)Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.

(9)A person who, if a declaration of paternity were made upon the person’s application under the provisions of the Status of Children Act 1978, would be entitled to make an application under this part may make an application under this part but such application shall not be proceeded with until the person has obtained a declaration of paternity under that Act; and the court may give such directions and act as it thinks fit to facilitate the making and determination of all necessary applications on behalf of that person under that Act and this part.

(10)Upon any order being made, the portion of the estate comprised therein or affected thereby shall be held subject to the provisions of the order.

(11)No mortgage, charge or assignment of any kind whatsoever of or over such provision, made before the order is made, shall be of any force, validity or effect, and no such mortgage, charge or assignment made after the order is made shall be of any force, validity or effect unless made with the permission of the court.

(12)Where any sum of money or other property is received by any person as a donatio mortis causa made by the deceased person that sum of money or that other property shall be treated for the purposes of this part as part of the estate of the deceased; but this subsection shall not render any person liable for having paid that sum or transferred that other property in order to give effect to that donatio mortis causa.

42   Court may vary order

(1)Where (whether before or after the commencement of this Act) the court has ordered a periodical payment or has ordered any part of an estate or a lump sum to be invested for the benefit of any person, it may from time to time on the application of any person inquire whether any party deriving benefit under the order is still living or has become possessed of or entitled to provision for the party’s proper maintenance or support and into the adequacy of the provision, or whether the provision made by the order for any such party remains adequate, and may increase or reduce the provision so made or discharge, vary or suspend the order, or make such other order as is just in the circumstances.

(b)to whom letters of administration have been granted solely by reason of the personal representative being a creditor and who, in good faith and at such a time pays the debt of another person who is a creditor of the estate;

shall not, if it subsequently appears that the estate is insolvent, be liable to account to a creditor of the same degree as the paid creditor for the sum so paid.

59   Payment of debts in the case of solvent estates

(1)Where the estate of a deceased person is solvent the estate shall, subject to this Act, be applicable towards the discharge of the debts payable thereout in the following order, namely—

class 1—property specifically appropriated devised or bequeathed (either by a specific or general description) for the payment of debts; and property charged with, or devised or bequeathed (either by a specific or general description) subject to a charge for the payment of debts;

class 2—property comprising the residuary estate of the deceased including property in respect of which any residuary disposition operates as the execution of a general power of appointment;

class 3—property specifically devised or bequeathed including property specifically appointed under a general power of appointment and any legacy charged on property so devised bequeathed or appointed;

class 4—donationes mortis causa.

(2)Property within each class as aforesaid shall be applied in the discharge of the debts and, where applicable, the payment of pecuniary legacies rateably according to value; and where a legacy is charged on a specific property the legacy and the property shall be applied rateably.

(3)The order in which the estate is applicable towards the discharge of debts and the incidence of rateability as between different properties within each class may be varied by a contrary or other intention signified by the will, but a contrary or other intention is not signified by a general direction, charge or trust for the payment of debts or of all the debts of the testator out of the testator’s estate or out of the testator’s residuary estate or by a gift of any such estate after or subject to the payment of debts.

60   Payment of pecuniary legacies

Subject to a contrary or other intention signified by the will—

(a)pecuniary legacies shall be paid out of the property comprised in class 2 referred to in section 59 after the discharge of the debts or such part thereof as are payable out of that property; and

(b)to the extent to which the property comprised in class 2 referred to in section 59 is insufficient the pecuniary legacies shall abate proportionately.

61   Payments of debts on property mortgaged or charged

(1)Where a person dies possessed of, or entitled to, or under a general power of appointment by will disposes of, an interest in property, which at the time of his or her death is charged with the payment of any debt, whether by way of mortgage, charge or otherwise, legal or equitable (including a lien for unpaid purchase money), and the deceased has not by will signified a contrary or other intention, the interest so charged shall, as between the different persons claiming through the deceased, be primarily liable for the payment of the debt; and every part of the said interest, according to its value, shall bear a proportionate part of the charge of the whole thereof.

(2)A contrary or other intention is not signified by a general direction, charge or trust for the payment of debts or of all the debts of the testator out of the testator’s estate or out of the testator’s residuary estate or by a gift of any such estate after or subject to the payment of debts.

Part 5A    Testamentary appointment of guardians of children

Division 1 Preliminary

61A   Definitions for pt 5A

In this part—

child means an individual under 18 years who is not, and has never been, married.

guardian, of a child, does not include a person who has guardianship of the child, under another Act, in the person’s capacity as the chief executive of a department of government of the Commonwealth or a State or as a Minister of the Commonwealth or a State.

parent, of a child—

(a)includes—

(i)for an Aboriginal child—a person who, under Aboriginal tradition, is regarded as a parent of the child; and

(ii)for a Torres Strait Islander child—a person who, under Island custom, is regarded as a parent of the child; but

(b)does not include a parent whose parental responsibility for the child has been ended by—

(i)a decision or order of a federal court or a court of a State; or

(ii)a decision or order of another court that has effect in Queensland.

testamentary guardian, of a child, means a person who is a guardian of the child under an appointment by will.

61B   Application of pt 5A

(1)This part applies to a child—

(a)whether the child was born in Queensland or elsewhere; and

(b)whether the child was born before or after the commencement of this part.

(2)This part applies to an appointment made by will whether the will was made before or after the commencement of this part.

Division 2 Appointment of testamentary guardian

61C   Appointment of guardian by will

(1)A parent or guardian of a child may, by will, appoint a person as a guardian of the child.

(2)The appointment is of no effect if the appointor is not a parent or guardian of the child immediately before the appointor’s death.

61D   When the appointment takes effect

(1)This section provides for when an appointment by will of a person as a guardian of a child takes effect.

(2)If the appointor is not survived by a parent of the child, the appointment takes effect on the appointor’s death.

(3)If the appointor is survived by 1 or more parents of the child, the appointment takes effect as follows—

(a)if the will shows that the appointor intended the appointment to take effect on the appointor’s death, the appointment takes effect on the appointor’s death;

(b)otherwise, the appointment takes effect on the death of the last surviving parent.

61E   Effect of appointment

(1)A testamentary guardian of a child has all the powers, rights and responsibilities, for making decisions about the long-term care, welfare and development of the child, that are ordinarily vested in a guardian.

Examples of matters concerned with a child’s long term care, welfare and development—

the child’s education and religious upbringing

(2)The appointment of a person as testamentary guardian of a child gives the person daily care authority for the child if and only if—

(a)the child has no surviving parent; and

(b)no-one else has daily care authority for the child (however described) under a decision or order of a federal court or a court of a State.

(3)In this section—

daily care authority, for a child, means—

(a)the right to have the child’s daily care; and

(b)the right and responsibility to make decisions about the child’s daily care.

61F   Testamentary guardian to act jointly with other guardians

(1)This section applies to a testamentary guardian of a child if the child has 1 or more other guardians.

(2)The testamentary guardian must discharge his or her rights and responsibilities, and exercise his or her powers, as testamentary guardian of the child jointly with the other guardian or guardians.

Division 3 Applications to the Supreme Court

61G   Application by testamentary guardian

(1)This section applies to a person appointed as a testamentary guardian of a child if the appointor has died and the appointment has not taken effect.

(2)The person may apply to the Supreme Court for an order that the appointment take effect immediately.

61H   Application by parent

(1)This section applies to a parent of a child if a person has been appointed as a testamentary guardian of the child and the appointment has taken effect.

(2)The parent may apply to the Supreme Court for an order that the appointment be revoked, suspended until the parent’s death or suspended for another period stated in the application.

61I   Supreme Court decision on application

On receiving an application under this division, the Supreme Court may make the orders it considers appropriate.

61J   Supreme Court’s powers not limited

This division does not limit the powers of the Supreme Court under another law.

62   [Repealed]

63   [Repealed]

64   [Repealed]

Part 6    Miscellaneous

65   Presumption of survivorship

Subject to this Act, where 2 or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder for a period of 1 day.

66   Survival of actions

(1)Subject to the provisions of this section and with the exception of causes of action for defamation or seduction, on the death of any person after the 15 October 1940 all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate.

(2)Where a cause of action survives pursuant to subsection (1) for the benefit of the estate of a deceased person, the damages recoverable in any action brought—

(a)shall not include damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life; and

(b)shall not include exemplary damages; and

(c)in the case of a breach of promise to marry—shall be limited to damages in respect of such damages as flow from the breach of promise to marry; and

(d)where the death has been caused by the act or omission which gives rise to the cause of action—shall be calculated without reference to—

(i)loss or gain to the estate consequent upon the death save that a sum in respect of funeral expenses may be included; or

(ii)future probable earnings of the deceased had the deceased survived.

(2A)Despite subsection (2)(a), damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life, may be recovered if—

(a)the cause of action related to personal injury resulting from a dust-related condition; and

(b)the deceased person commenced a proceeding in relation to the cause of action before the deceased person died; and

(c)the deceased person died as a result of the dust-related condition or the dust-related condition was a contributing factor to the deceased person’s death.

(2B)To remove any doubt, it is declared that personal injury resulting from a dust-related condition does not include personal injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

(3)Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this section, to have been subsisting against that person before his or her death such cause of action in respect of that act or omission as would have subsisted if that person had died after the damage was suffered.

(4)The rights conferred by this section for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Civil Proceedings Act 2011, part 10 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under those Acts as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).

(5)Nothing in this section enables any proceedings to be taken which had ceased to be maintainable before the commencement of this Act.

(6)An action which survives pursuant to subsection (1) against the estate of a deceased person may be brought against any beneficiary to whom any part of the estate has been distributed as well as against the personal representatives.

(7)Where an action is brought against a beneficiary to whom a part of the estate has been distributed that beneficiary is entitled to contribution from any beneficiary to whom a distribution has been made, being a beneficiary ranking in equal degree with himself or herself for the payment of the debts of the deceased, and to an indemnity from any beneficiary to whom a distribution has been made, being a beneficiary ranking in lower degree than himself or herself for the payment of the debts of the deceased, and the beneficiary may join any such beneficiary as a party to the action brought against him or her.

(8)Where an action is brought against a beneficiary (including a beneficiary who has been joined as aforesaid) whether in respect of an action which has survived against the estate or for contribution or indemnity, the beneficiary may plead equitable defences and if the beneficiary has received the distribution made to the beneficiary in good faith and has so altered the beneficiary’s position in reliance on the propriety of the distribution that, in the opinion of the court, it would be inequitable to enforce the action, the court may make such order as it thinks fit.

(9)In no case may a judgment against a beneficiary exceed the amount of the distribution made to the beneficiary.

(10)In this section—

dust-related condition see the Civil Liability Act 2003, schedule 2.

personal injury includes disease.

67   [Repealed]

68   Commission

The court may authorise the payment of such remuneration or commission to the personal representative for his or her services as personal representative as it thinks fit, and may attach such conditions to the payment thereof as it thinks fit.

69   The registrar

Subject to this Act the registrar of the Supreme Court is invested with and shall and may exercise with reference to proceedings in the court under this Act all such powers and authorities as may be conferred on the registrar from time to time by the court and by the rules of court and otherwise all such powers and authorities as the registrar exercised before the passing of this Act.

70   Practice

The practice of the court shall, except where otherwise provided in or under this or any other Act or by rules of court for the time being in force, be regulated so far as the circumstances of the case will admit by the practice of the court before the passing of this Act.

71   [Repealed]

72   Service

In any case where any person desires to effect within a prescribed time service of any proceedings against, or of any notice or other document required or permitted to be served in respect of the estate of a deceased person and that person is uncertain as to the person upon whom service should be effected the court may, if application for directions is made to it within the time prescribed for service, direct the mode of service in that case and, if it thinks fit, allow an extension of the time within which service may be effected.

Part 7    Transitional provisions

Division 1 Transitional provision for Succession Amendment Act 1997

73   Application of amendments made by Succession Amendment Act 1997

To prevent any doubt, it is declared that the amendments of this Act made by the Succession Amendment Act 1997 do not apply to the estate of a person who died before the commencement of the amendments.

Division 2 Transitional provision for Discrimination Law Amendment Act 2002

74   Application of amendments made by Discrimination Law Amendment Act 2002

The amendments of this Act and the Acts Interpretation Act 1954 made by the Discrimination Law Amendment Act 2002 do not apply in relation to this Act for—

(a)a will executed before the amendments commenced; or

(b)the estate of a person who died before the amendments commenced.

Division 3 Transitional provision for Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005

75   Application of amendment made by Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005

Section 66, as amended by the Civil Liability (Dust Diseases) and Other Legislation Amendment Act 2005, applies in relation to all proceedings surviving for the benefit of a deceased person’s estate whether commenced before or after the commencement of this section unless judgment has been given in the proceeding or the proceeding has otherwise ended.

Division 4 Transitional provision for Succession Amendment Act 2006

76   Transitional provision for Succession Amendment Act 2006

(1)The repeal of old section 16 does not affect the validity of a will made under that section.

(2)Old section 17 continues to apply to a will made before the commencement in relation to a marriage solemnised before the commencement.

(3)New section 14 applies to a will made before the commencement in relation to a marriage solemnised on or after the commencement.

(4)Old section 18 continues to apply to a will made before the commencement in relation to a divorce or annulment that happens before the commencement.

(5)New section 15 applies to a will made before the commencement in relation to a divorce or annulment that happens on or after the commencement.

(6)For the purposes of subsections (2) and (4), section 5 as in force immediately before the commencement applies.

(7)For the purposes of subsections (3) and (5), section 5 as amended by the Succession Amendment Act 2006 applies.

(8)New section 33Z applies to a will regardless of when the testator died.

(9)In this section—

commencement means the commencement of section 7 as inserted by the Succession Amendment Act 2006.

new section 14 means section 14 as inserted by the Succession Amendment Act 2006.

new section 15 means section 15 as inserted by the Succession Amendment Act 2006.

new section 33Z means section 33Z as inserted by the Succession Amendment Act 2006.

old section 16 means section 16 as in force immediately before the commencement.

old section 17 means section 17 as in force immediately before the commencement.

old section 18 means section 18 as in force immediately before the commencement.

Division 5 Transitional provisions for Justice and Other Legislation Amendment Act 2020

77   Definitions for division

In this division—

amending Act means the Justice and Other Legislation Amendment Act 2020.

former, for a provision of this Act, means the provision as in force from time to time before the commencement.

78   Particular applications in relation to persons without testamentary capacity

Former part 2, division 4, subdivision 3 continues to apply in relation to the following applications as if the amending Act had not been enacted—

(a)an application for leave made under former section 22, but not decided, before the commencement;

(b)an application for an order under section 21 made, but not decided, before the commencement;

(c)an application for an order under section 21 made after the commencement, if leave to make the application was given—

(i)before the commencement; or

(ii)for an application mentioned in paragraph (a).

79   Execution of wills and other instruments made under existing orders

(1)Former section 26(1) continues to apply in relation to a will or other instrument made under an existing order as if the amending Act had not been enacted.

(2)In this section—

existing order means an order made under section 21 before the commencement.

Schedule 2 Distribution of residuary estate on intestacy

sections 35 to 37

Part 1    Intestate survived by spouse

Circumstance	Way in which the intestate’s residuary estate is to be distributed
1  If the intestate is not survived by issue	1  If there is only 1 surviving spouse, the spouse is entitled to the whole of the residuary estate.
2  If there is more than 1 surviving spouse, they are entitled to the whole of the residuary estate in accordance with section 36. [a]
2  If the intestate is survived by issue	1  If there is only 1 surviving spouse, the spouse is entitled to—
(a)  $150,000 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 more than 1 surviving spouse, they are entitled, in accordance with section 36, to—
(a)  $150,000 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.
3  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 any spouse

Circumstance	Way in which the intestate’s residuary estate is to be distributed
1  Where the intestate is survived by issue	The issue are entitled to the whole of the residuary estate in accordance with section 36A.
2  Where the intestate is not survived by issue but is survived by a parent or both parents	The parent is entitled to the whole of the residuary estate or, if both parents survive the intestate, the parents are entitled to the whole of the residuary estate in equal shares.
3  Where the intestate is not survived by issue or by a parent but is survived by next of kin	The next of kin are entitled to the residuary estate in accordance with section 37.
4  Where the intestate is not survived by issue, by a parent or by next of kin	The residuary estate shall be deemed to be bona vacantia and the Crown is entitled to it.

Schedule 3 Annex to Convention providing a Uniform Law on the Form of an International Will 1973

section 33YB

ANNEX
UNIFORM LAW ON THE FORM OF AN INTERNATIONAL WILL

Article 1

1. A will shall be valid as regards form, irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will complying with the provisions set out in Articles 2 to 5 hereinafter.
2. The invalidity of the will as an international will shall not affect its formal validity as a will of another kind.

Article 2

This law shall not apply to the form of testamentary dispositions made by two or more persons in one instrument.

Article 3

1. The will shall be made in writing.
2. It need not be written by the testator himself.
3. It may be written in any language, by hand or by any other means.

Article 4

1. The testator shall declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof.
2. The testator need not inform the witnesses, or the authorized person, of the contents of the will.

Article 5

1. In the presence of the witnesses and of the authorized person, the testator shall sign the will or, if he has previously signed it, shall acknowledge his signature.
2. When the testator is unable to sign, he shall indicate the reason therefor to the authorized person who shall make note of this on the will. Moreover, the testator may be authorized by the law under which the authorized person was designated to direct another person to sign on his behalf.
3. The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.

Article 6

1. The signatures shall be placed at the end of the will.
2. If the will consists of several sheets, each sheet shall be signed by the testator or, if he is unable to sign, by the person signing on his behalf or, if there is no such person, by the authorized person. In addition, each sheet shall be numbered.

Article 7

1. The date of the will shall be the date of its signature by the authorized person.
2. This date shall be noted at the end of the will by the authorized person.

Article 8

In the absence of any mandatory rule pertaining to the safekeeping of the will, the authorized person shall ask the testator whether he wishes to make a declaration concerning the safekeeping of his will. If so and at the express request of the testator the place where he intends to have his will kept shall be mentioned in the certificate provided for in Article 9.

Article 9

The authorized person shall attach to the will a certificate in the form prescribed in Article 10 establishing that the obligations of this law have been complied with.

Article 10

The certificate drawn up by the authorized person shall be in the following form or in a substantially similar form:

CERTIFICATE

(Convention of October 26, 1973)

1. I, .................................................. (name, address and capacity), a person authorized to act in connection with international wills

2. Certify that on .......................... (date) at .......................... (place)

3. (testator).................................................. (name, address, date and place of birth) in my presence and that of the witnesses

4.(a).................................................. (name, address, date and place of birth)

(b).................................................. (name, address, date and place of birth)

has declared that the attached document is his will and that he knows the contents thereof.

5. I furthermore certify that:

6.(a) in my presence and in that of the witnesses

(1) the testator has signed the will or has acknowledged his signature previously affixed.

*(2) following a declaration of the testator stating that he was unable to sign his will for the following reason.......................................................................

—I have mentioned this declaration on the will

*—the signature has been affixed by....................... (name, address)

7.(b) the witnesses and I have signed the will;

8.*(c) each page of the will has been signed by ............................. and numbered;

9.(d) I have satisfied myself as to the identity of the testator and of the witnesses as designated above;

10.(e) the witnesses met the conditions requisite to act as such according to the law under which I am acting;

11.*(f) the testator has requested me to include the following statement concerning the safekeeping of his will:.................................................................................

12. PLACE

13. DATE

14. SIGNATURE and, if necessary, SEAL

Article 11

The authorized person shall keep a copy of the certificate and deliver another to the testator.

Article 12

In the absence of evidence to the contrary, the certificate of the authorized person shall be conclusive of the formal validity of the instrument as a will under this Law.

Article 13

The absence or irregularity of a certificate shall not affect the formal validity of a will under this Law.

Article 14

The international will shall be subject to the ordinary rules of revocation of wills.

Article 15

In interpreting and applying the provisions of this law, regard shall be had to its international origin and to the need for uniformity in its interpretation.

______________________

*To be completed if appropriate