Succession Acts and Another Act Amendment Act of 1943 (7 Geo Vi No. 28) (Qld)

SUCCESSION. 7 GEO. VI. No. 28, 1943. Succession Acts and Another Act, Etc., Act. 127 SUCCESSION. An Act to Amend "The Succession Acts, 1867 to 7 N GE o O . . 28 V . I. 1942," and "The Public Curator Acts, 1915 SUOO TH ES E SION ACTS AND to 1942," each in certain particulars. ANOTHER AOT .AMENDMENT ACT OF [ASSENTED TO 21sT OCTOBER, 1943.] 1943. B E it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis- lative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows : - PART I.-PRELIMINARY. PART 1.- PRELIMINARY. 1 This Act may be cited as " The Succession Acts Short title. and Another Act Amendment Act of 1943." . 2. This Act is divided into Parts, as follows : - PART I.-PRELIMINARY; Parts of Act. PART Il.-AMENDMENTS OF "THE SUCCESSION ACTS, 1867 TO 1942" ; PART IIl.-AMENDMENTS OF "THE PUBLIC CURATOR ACTS, 1915 TO 1942." PART 11.- AMENDlIIENTS PART Il.-AMENDMENTS OF "THE SUCCESSION ACTS, SU~ ~ ~ ~ ~ ~ : 1867 TO 1942." ~ ~ T~ 91~ ~ : 3 (1.) This Part shall be read and construed as Construction one with *" The Succession Acts, 1867 to 1895," t" The of Part 1I. SuccessionAct of 1906," t" The Succession Act of 1906 Declaratory Act of 1919," §" The Wills (Soldiers, Sailors, and Members of the Air Force) Act of 1940," and 11" The Succession Acts Amendment Act of 1942," which Acts are herein in this Part cited as " The Succession Acts, 1867 to 1942," and collectively referred to as the Principal Act. (2.) Without prejudice to any other mode of citation, Collective the Principal Act as amended by this Part may title. collectively be cited as ~ " The Succession Acts, 1867 to 1943." * 31 v. No. 24 and amending Acts. See v. 9, pp. 7 et seq. t 6 E. 7 No. 24. See v. 9, p. 44. ~ 10 G. 5 No. 6. See v. 9, p. 45. § 4 G. 6 No. 4. See 1940 Sess. v., p. 18017. " 6 G. 6 No. 20. See 1942 Sess. v., p. 296. ~ 31 V. No. 24 and amending Acts, and this Act. See v. 9, pp. 7 et seq. (ani' above reference8.)

128 SUCCESSION. PART 11.- AM O E F N " DM T E H N E TS S1tcoessiorIA Acts a,nd Another Act, Etc., Act. 7 GEO. VI. No. 28, SUCCESSION ACTS, 1867 TO 1942." Amendment 4. Section twenty-nine of *" The Succession Act of of s. 29. 1867" is amended by inserting therein after the first paragraph thereof, the following proviso, namely :- " Provided that where there is only one such child aforesaid of the person dying intestate, the surplusage of the estate, both real and personal, of such person shall be distributed in the manner and form following, that is to say, one-half part of the said surplusage to the wife of the intestate, and the other one-half part of the said surplusage to the child of the intestate, and in case such child be then dead, such other one-half part shall be distributed among the children of such deceased child in equal shares." New s. 31A. 5. A new section (31A) is inserted after section thirty-one of *" The Succession Act of 1867," as follows :- Section 31A. "[31A.] The real and personal estate of every Further person who shall hereafter die intestate in the circum- apsrotvoisions stances hereinafter specified shall be distributed in the distribution manner following, that is to say- in intestacy in certain circum- stances. Where father and mother survive intestate. (a) Where the intestate dies leaving a father and also a mother, but no widow, or, as the case may be, no widower, and no lineal descendant, the whole surplusage of such estate shall be distributed in the manner and form following, that is to say, one-half part of the said surplusage to the father of the intestate, and one-half part of the said surplusage to the mother of the intestate; Where mother only survives intestate. Where father only survives intestate. (b) Where the intestate dies leaving a mother but no father, and no widow, or, as the case may be, no widower, and no lineal descendant, the whole surplusage of such estate shall be so distributed that the whole surplusage of such estate shall go to the mother of the intestate, absolutely and exclusively; (c) Where the intestate dies leaving a father but no mother, and no widow, or, as the case may be, no widower, and no lineal descendant, the whole surplusage of such estate shall be so * 31 V. No. 24. See v. 9, p. 7.

SUCCESSION. 129 1943. Succession Acts a,nd Another Act, Etc., Act. distributed that the whole surplusage PARTII.- AMENDMENTS OF" THE SUCCESSION ACTS, 1867 TO 1942." of such estate shall go to the father of the intestate, absolutely and exclusively; (d) Where the intestate dies leaving a widow, Where or, as the case may be, a WI' dower, but no wwiiddoowweorr father and no mother and no children and only no next -0 f - kI· n, the who I e surp I usage 0 f SUC h sinutrevsivtaetse. estate shall be so distributed that the whole thereof shall go to the widow, or, as the case may be, the widower, absolutely and exclusively." 6. (1.) A new section (31B) is inserted after section New s. 31B. (31A) ofthe Principal Act (previously inserted), as follows ;- " [31B.] (1.) If any person (hereinafter called " the Section 3IB. intestate") dies or has died without leaving a will the Provision for Court may, I"n t 1 S dI' scret'IOn, on appll'OatI'On by o'r on cilhleilgditiimn ate behalf of any child or children of the intestate born out intestacy. of lawful wedlock (as hereinafter defined) order that such provision as the Court thinks fit shall be made out of the estate of the intestate for the proper maintenance and support of any such child or children. (2.) For the purposes of this section a distributiop. of the estate of the intestate concerned under the laws in force relating to the distribution of the surplusage of the estate of a person dying intestate (herein collectively referred to as the" Statute of Distributions") shall for the purposes of this section be and be deemed to be a distribution of the estate of such intestate as if such intestate had made such a distribution of his estate under a will duly executed by him. (3.) For the purposes of this section the provisions of *" The Testator's Family Maintenance Acts, 1914 to 1943" shall, mutatis mutandis, apply and extend in respect of any such application as aforesaid and in respect of the powers, authorities, and jurisdiction of the Court thereunder, subject to the following variations, that is to say- (i.) For the definition of " child of the testator" in subsection (lA) of section three of the said Act, the following definition shall be substituted, namely;- " Child of the intestate "-The term includes- A child of the intestate, born out of lawful wedlock (and not otherwise legitimised and *5G.5No.26and7G.6No.4. Seev.9,p.136and1942Sess.v.,p.297. E

130 PAltT 11.- AMENDMENTS OF" THE SUCCESSION ACTS, 1867 TO 1942." SUCCESSION. Sucoession Acts and Another Act, Etc., Act. 7 GEO. VI. No. 28, not an adopted child as defined in para- graph (iii.) of the said subsection (lA)), and- (a) Under the age of twenty-one years at the date of the death of the intestate; and/or (b) Of or over the age of twenty-one years at the date of the death of the intestate and being a person who, during the lifetime of the intestate, has helped to build up and/or conserve the estate of the intestate: Provided that the Court before making an order in respect of such a child born out of lawful wedlock as referred to in this paragraph shall satisfy itself- (i.) That the evidence submitted to it on behalf of such child is reasonably sufficient to establish that such child is the offspring of the intestate concerned ; and (ii.) That the evidence submitted to it that such child was acknowledged or recog- nised by the intestate concerned during his or her lifetime as being his or her offspring is reasonably sufficient. (ii.) For subsection three of the said section three, the following subsection three shall be substituted, namely:- "(3.) The incidence of the payment or payments ordered shall, unless the Court otherwise directs, fall rateably upon the whole estate of the intestate (other than upon the charge upon the estate to which the widow or, as the case may be, the widower (if any) of the intestate, is entitled under section two, or three or four of *" The Succession Act Amendment Act of 1895" as amended by t" The Succession Acts and Another Act Amendment Act of 1943," or under section two of t" The Succession Act of 1906" as amended by §" The Succession Act of 1906 Declaratory Act of 1919 " and by t" The Succession Act8 * 59 V. No. 10. See v. 9, p. 43. t This Act. ~ 6 E. 7 No. 24. See v. 9, p. 44. § 10 G. 5 No .6. See v. 9, p. 45.

SUCCESSION. 131 PART II.- 1943. Succession Ac,ts and, Another Act, Etc., Act. AMENDMENTS OF" THE SUOCESSION ACTS, 1867 TO 1942." and Another Act Amendment Act of 1943") or, in cases where the authority of the Court does not extend or cannot directly or indirectly be made to extend to the whole estate, then to so much thereof as is situated in Queensland." (iii.) For the word "testator's" in subsection four of the said section three, the word" intestate's" shall be substituted; also for the word "executor" in the said subsection four the word "administrator" shall be substituted. (iv.) For the words "any legatee or devisee" in subsection five of the said section three the word/? and brackets, namely, " any person (other than the widow or widower of the intestate in respect of the charge upon the estate to which she or he is entitled under section two, or three or four of *" The Succession Act Amendment Act of 1895" as amended by t" The Succession Acts and Another Act Amendment Act of 1943" or under section two of t" The Succession Act of 1906" as amended by §" The Succession Act of 1906 Declaratory Act of 1919 " and by t" The Succession Acts and Another Act Amendment Act of 1943") sharing in the surplus of the estate under the Statute of Distributions" shall be substituted. (v.) For the word" executor" in subsection seven of the said section three the word "administrator" is substituted. (vi.) For the words" grant in Queensland of probate of the will" in subsection eight of the said section three, the words "grant in Queensland of letters of administration or of an order to administer or from the filing of an election under 11" The Public Curator Acts, 1915 to 1942" in the intestacy concerned" shall be substituted. (vii.) In subsection one of section four for the words "under the will of the testator" the words "of the intestate" are substituted; also for the words "part of the will" the words "part of the distribution in accordance with the Statute of Distributions" are substituted. * 59 V. No. 10. See v. 9, p. 43. t This Act. t 6 E. 7 No. 24; See v. 9, p. 44. § 10 G. 5 No. 6. See v. 9, p. 45. 11 6 G. 5 No. 14 and amending Acts. See v. 9, p. 627.

132 SUCCESSION. PARTII.- AMENDMENTS 01' "THE SUCCESSION ACTS, 1867 TO 1942." S1lcoession ~ ~ cts and Another Act, Etc., Act. 7 GEO. VI. No. 28, (viii.) Section five giving the power of the Court to make rules shall, mutati8 mutandi8, apply in respect of any application, order, or matters under this section: Provided that until any such rules are made, the existing Rules of Court, including Rules of Court in respect of applications, orders and matters under *" The Te8tator'8 Family Maintenance Act8, 1914 to 1943" shall, mutati8 mutandi8, extend and apply to an application, order or matter under this section." Power of Public Curator to distribute in small estates not exceeding £200. (4.) Notwithstanding anything hereinbefore contained in this section or in any other Act or law or rule or practice or process of law, where a person being a widow or widower or an unmarried person, dies or has died without leaving a will, and without leaving any lawful issue, but leaving a child or children born out of lawful wedlock (any such child being a " child of the intestate" as defined in paragraph (i.) of subsection three of this section) surviving her or him, then if the net value of the estate of such intestate does not exceed two hundred pounds the following provisions shall apply, namely:- (i.) For the purpose of the Statute of Distributions any such " child of the intestate" shall for the purpose of such Statute be and be deemed a lawful child of the intestate person; (ii.) The Public Curator, upon being satisfied that any such child is a " child of the intestate" and upon being satisfied that the evidence submitted to him on behalf of any such child is reasonably sufficient to establish that such child is the offspring of the intestate concerned and also that the evidence sub- mitted to him that such child was acknowledged or recognised by such intestate as being her or his offspring during her or his lifetime, is reasonably sufficient, shall have power, authority, and jurisdiction to distribute the estate of the intestate so that the whole surplusage of such estate' shall go to such child, and if there may be more than one of such children, to distribute such whole surplusage equally between such children; * 5 G. 5 No. 26 and 7 G. 6 No. 4. See v. 9, p. 136 and 1942 Sess. v., p.297.

SUCCESSION. ]33 PART II.- 1943. Succession Ac,ts and Another Act, Etc., Act. AYENDMEN'fS 01''' THE SUCCESSION ACTS, 1867 TO 1942." (iii.) No grant of administration shall be made by the Court in respect of any such estate as aforesaid to any person other than the Public Curator. (5.) Notwithstanding anything hereinbefore contained Where I'nth'IS sect'IOn or I,n any 0 ther Act or I aw or ru I e or practI'Ce smuorvthiveersohnelyr or process oflaw, where a child born out oflawful wedlock illegitimate (and not otherwise legitimised and not an adopted child : ~ ~ ~ t~ l~ ~ g as defined in paragraph (iii.) of subsection (lA) of section three of *" The Testator's Family Maintenance Acts, 1914 to 1943 "), and being a widow or widower or an unmarried person dies or has died without leaving a will and without leaving any issue (whether born in or out of wedlock) but leaving her or his mother surviving her or him, the following provisions shall apply, namely:- (i.) For the purposes of the Statute of Distribu- tions such mother shall be and be deemed the lawful mother of such child dying intestate and to the same extent as if such child were her offspring born in lawful wedlock; (ii.) The Public Curator upon being satisfied that the evidence submitted to him on behalf of such mother is reasonably sufficient to establish that such child dying intestate was the offspring of such mother shall have power, authority and jurisdiction to distribute the surplusage of such estate of such child dying intestate so that the whole surplusage of such estate shall go to the mother absolutely and exclusively; (iii.) No grant of administration shall be made by the Court in respect of any such estate as aforesaid to any person other than the Public Curator." (6.) For the purposes of this section the Public Application Curator shall have and may exercise all or any of h . is °e f n rPautoblriC powers, authorities, and jurisdiction under t" The Public Acts, &c. * 5 G. 5 No. 26 and 7 G. 6 No. 4. See v. 9, p. 136 and 1943 Sess. v., p.297. t 6 G. 5 No. 14 and amending Acts. See v. 9, pp. 627 et 8eq.

184 SUCCESSION. PART II.- AMOEFN"DMTHENETS Sucoession Acts and Another Act, Etc., Act. 7 GEO. VI. No. 28, SUCCESSION ACTS, 1867 TO 1942." Curator Acts, 1915 to 1943," *" The Intestacy Act of 1877" (as amended by subsequent Acts), or under any other Act or Law or Rule of Court in relation to the allowance of claims and/or the distribution of estates in intestacy, which are, mutatis mutandis, applied herein accordingly. Operation of section. (2.) The provisions of this section shall apply and extend in respect of the estate of an intestate person dying before, on, or after the passing of this Act, and where letters of administration or an order to administer is granted after the passing of this Act or an election under t" The Public Curator Acts, 1915 to §1942 " is filed after the passing of this Act: Provided that nothing in this section contained shall of itself invalidate or disturb the payment of any moneys belonging to the intestate estate of any deceased person or the distribution of the intestate estate of any such person made or partly made before the passing of this Act, such payment or distribution being lawfully so made pursuant to any law in force prior to the passing of this Act. Amendment 7. Section two of t" The Succession Act Amendment of s. 2. Act of 1895," is amended by repealing the words" five hundred," and inserting the words" one thousand" in lieu thereof. Amendment 8. Section three of t" The Succession Act Amendment of s. 3. Act of 1895," is amended by deleting the words "five hundred pounds" where such words thrice occur, and inserting in lieu thereof the words "one thousand pounds." Amendment 9. In section four of t" The Succession Act ofs.4. Amendment Act of 1895," the words "five hundred pounds" are repealed, and the words "one thousand pounds " are inserted in lieu thereof. * 41 V. No. 24 and amending Acts. See v. 9, pp. 65 et 8eq. t 6 G. 5 No. 14 and amending Acts. See v. 9 pp. 627 et Beq. :j: 59 V. No. 10. See v. 9, p. 43. § Sic in Gazette.. 8emble 1943.

SUCCESSION. 135 1943. Succession Acts and Anothet· Act, Etc., Act. A~ ~ ! lE; ; S OF" TIlE SUCCESSION ACTS, 1867 10. In the second paragraph of section two of TO 1942." *" The Succession Act of 1906" (as amended by t" The Amendment Succession Act of 1906 Declaratory Act of 1919") after :SC:!!ion the words "t" The Succession Act Amendment Act of Act of 1906." 1895," " the following words are inserted, namely:- "(as amended by §" The Succession Acts and Another Act Amendment Act of 1943 ")." 11. (1.) Except where otherwise provided in section Application six of this Act the provisions of the Principal Act as of Part IT. amended by this Part shall apply and extend in respect of the estate of an intestate person dying after the passing of this Act. (2.) The provisions of the Principal Act as amended by this Part shall be read and construed as being in addition to and without derogation from the powers, authorities, and jurisdiction of the Supreme Court in its ecclesiastical jurisdiction, or otherwise in respect to the estates of deceased persons. PART 'lII.-AMENDMENTS OF "THE PUBLIC ACTS, 1915 TO 1942." CURATOR PAllTnI.- AMENDMENTS 011''' TIlE PUBLIC CUl!.ATOR AOTS,1915 TO 1942." 12. (1.) This Part of the Act shall be read as one Construction with I!" The Public Ourator Acts, 1915 to 1942," herein of Part lIT. referred to as the Principal Act. (2.) The Principal Act and the amendments made C:Ollective by this Part may collectively be cited as "The Public tItle. Ourator Acts, 1915 to 1943." 13. Section seventy-two of the Principal Act is Amendment amended as follows :_ of s. 72. (a) After the words *" The Succession Act of 1906 " the words" or t" The Succession Act of 1906 Declaratory Act of 1919 " or §" The Succession Acts and Another Act Amendment Act of 1943 "" are inserted. ... 6 E. 7 No. 24. See v. 9, p. 44. t 10 G. 5 No. 6. See v. 9, p. 45. t 59 V. No. 10. See v. 9, p. 43. § This Act. 11 6 G. 5 No. 14 and amending Acts. See v. 9, pp. 627 et 861].

136 SUCCESSION-TRUSTEES AND EXECUTORS. PART 111.- A~ IENDMENTS OV"THE PUBIIO CURATOR ACTS, 1915 TO 1942." Public Curator Acts Amendment Ac.t. 7 Gm. VI. No. 21, (b) The words" five hundred" are repealed and the words " one thousand " are inserted in lieu thereof. o A f pPpalircta I ti T o I n . by th 1 i 4 s . PTahret pshroavlliseioxncsepotf twhheePrerinocthipearwl Aiscet parsoavmideenddeind section six of this Act apply and extend in respect of the estate of an inoostate person dying after the passing of this Act. . TRUSTEES AND EXECUTORS. 7 N GB o O . . 21 V . I. An Act to Amend " The Public Curator Acts, 1915 TBB PUBLIC CURATOR to 1942" in certain particulars. ACTS A~mNDME, T ACT OF [ASSENTED TO 23RD SEPTEMBER, 1943.] 1943. B E it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legis- lative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows :- Short title 1. (1.) This Act may be cited as "The Public : : : ' ~ trur:tiGl" Curator Act8 Amendment Act of 1943," and shall be read as one with *" The Public Curator Acts, 1915 to 1942," herein referred to as the Principal Act; tCitolell. ective be ci(t2e. ) d Tashe" P T r h in e ci P p u a b l l A ic c C t a ur n a d to t r hi A s c A ts c , t1m91a5y to co 1 ll 9 e 4 c 3 ti ." vely Amendments of the Principal Act. o[ APfmu s b . el 2 nic 1 d A m . ent sectio 2 n . 2 (1 1 . A ) oTfhethefolPloriwnicnigpalneAwct, suabssfeocltlioowns i:s-added to Curator Investment Board.] aoEdfxvceaemnrtcpaetiisnon taine " d (7 in .) thNisotswecitthiosnta, ntdhiengproavniystihoninsgofhperaeriangbreafpohre( i. c)ono- f n ajr o nwd m estthmeents sfoulblosewcitnigonmfaotuterrso, fnathmiselyse:c-tion shall not apply to the operation of par. (i.) of (i.) Any advance made or to be made by the Public sthuibssesce. ct 4 ioonf. tCwuernattyo- rounnedeorf atnhdis pAurcstuafrnotmto mthoenepyrsovsitsaionndsinogf steocttihone * 6 G. 5 No. 14, 15 G. 5 No. 3,17 G. 5 No. 26, 2 G. 6 No. 1, and 6 G. 6 No. 16. See v. 9, pp. 627 et 8eq.; 1938 Sess. v., p. 16952; 1942 Sess. v., p.301.