Wills, Probate and Administration (De Facto Relationships) Amendment Act 1984 (NSW)

WILLS, PROBATE AND ADMINISTRATION {DE FACTO

RELATIONSHIPS) AMENDMENT ACT, 1984, No. 159

Jgctu ÔUtf)

ANNO TRICESiMO TERTIO

ELIZABETHS H BEGINS

Act No. 159, 1984.

An Act to amend the Wills, Probate and Administration Act, 1898, with respect to succession to real and personal property on intestacy. [Assented to, 12th December, 1984,]

2   A ct N o. 159

Wills, Prohafc and AdniUiisiration {De h a d o Rehuionships) Am oidnien t 1984

I5F it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of tlie Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows: —

Short title.

1.           This Act may be cited as the “Wills, Probate and Administration (De

Factci Relationships) Amendment Act, 1984”.

Commencement.

2.      (1) Sections 1 and 2 shall commence on the date of assent to this Act.

(2) Except as provided by subsection (1), this Act shall commence

on the day appointed and notified under section 2 (2) of the De Facto

Relationships Act, 1984.

Amendment of Act No. 13, 1898.

3. The Wills, Probate and Administration Act. 1898. is amended in the

manner set forth in Schedule 1.

Application of Act.

4. The amendments made to the Wills, Probate and Administration Act,

1898, by this Act shall not apply to or in respect of the estate of a person who died wholly or partially intestate before the day appointetl and notified under section 2 (2) of the De Facto Relationships Act, 1984, and any such estate shall be distributed in accorcLince with the enactments and rules of law in force at the death of that person.

Wills. ProhiUc and Adminis i rat inn (De I 'dclo Rchnion.sh'ips) A im'iulnwiit !9H4

SCHEDULE 1.

(Sec. 3.)

A mkni)iM[;n rs l o the W i l es , F robai e and A dminis i ration A c t , 1898.

( 1 ) Section I —

Omit the .section, insert instead: —

Short title.

1. This Act may be cited as the “Wills, Probate and Adminis­

tration Act, I898“’

(2) Part II, Division 1a—

Before Division 1, insert;—

D ivision 1 a .— Preliminary.

Interpretation.

32fi. ( 1 ) In this Part, except in so far as the context or subject-

matter otherwise indicates or requires—

“de facto husband”, in relation to a woman dying wholly or partially intestate, means a man who, at the time of death of the woman—

(a) was the sole partner in a de facto relationship with

■ the woman; and

(b) was not a partner in any other de facto relationship; “de facto relationshi[i” means the relationship of a man and a woman living together as husband and wife on a bona fide domestic basis although not married to each other;

“de facto wife", in relation to a man dying wholly or partially intestate, means a wiiman who, at the time of death of the man—

(a) was the side partner in a de facto relationship with the man; and

4   A ct N o. 159

Wills, ProhdW anil Ailininisiraiion {Da lac lo Rclanonships) Amciuhneni 1984

SCHEDULE 1 — continued.

A mhndnhM S lo mi- Wii i s, P rohatk and A dministration A( t , 1K98—

continued.

(b) was not a partner in any other de facto relationship.

(2) In this Part, except in so far as the context or siibiect- mattcr otherwise indicates or requires, a reference to a husband or wife >if an intestate includes a rel’erence to a person who, at tlie time of death of the intestate, was the de facto husband or de facto wife of the intestate.

(3) Section 61a (2), delinitions of “interest", “matriinonial home"—•

After “the survaving husband or wife of the intestate" wherever occurring, insert “for whom part of the estate of the intestate is required to be held in trust under section 6 In (3), ( 3 a ) or {3n)“.

(4) (a) Section 6 Ib ( 3 a ), (3n) —

After section 61b (3), insert: —

( 3 a ) Notwithstanding subsections (2) and (3), if the intestate leaves a husband or wife and a de facto husband or de facto wife, the whole or, as the case may be, such part of the estate of the intestate as is required to be held in trust for the husband or wife of the intestate shall be held in trust for—

(a) where the de facto husband or de facto wife was the de facto husband or de facto wife of the intestate for a continuous jieriod of not less than 2 years prior to the death of the intestate and the intestate did mU, during the whole or any pan of that period, live with the person to whom he or she was married—the de facto husbami or de facto wife; or

(b ) in any other case—the husband or wife.

Wills, Pruhiiu' ami Administration (Dc P'acto Kelationships) A m endm ent 1984

SCHEDULE -continued.

A m e n d m e n t s lo i h e Wii es. P robam- and A dministration A c t , 1898-

continued.

( 3 b ) Notwithstanding subsection ( 3 ) , if the intestate leaves

a de lacto husband or de facto wife and also leaves issue but no husband or wife, the whole or. as the case may be, such part of the estate of the intestate as would, if the intestate had left a husband or wife, be required to be held in trust for the husband or wife of the intestate shall be held in trust for—

(a) where the de facto husband or de facto wife was the de facto husband or de facto wife of the intestate for a continuous period of not less than 2 years prior to the death of the intestate—the de facto husband or de facto wife; or

(b) in any other case—

(i)   except as provided by subparagraph (ii)—the issue as if the intestate left no husband or wife; or

(ii)   where the intestate leaves no issue being children of the intestate or where such of the issue as are children of the intestate are issue also of the de facto husband or de facto wife—the de facto husband or de facto wife.

{b ) Section 61b (9 ) —

Omit “two", insert instead “separate”.

(c) Section 6 1 b ( 12) —

Omit “the husband or wife” where firstly occurring, in.sert instead

“a husband or wife”.

( d ) Section 61 u (13) —

Omit “the surviving husband or wife”, insert instead “a surviving husband or wife”.

5   A ct N o. 159

WiUs, I’rohatc and Adminisiration {l)c Fado Rcdationships) Anu/ndmcni 1984

SCHEDULE \— continued.

A M H N D M tN T S TO 1 HE WILLS, P r OBA I L AND ADMINISTRATION Ac I , 189X---

continued.

(5) Section 611) (2) —

At t h e e n d o f s e c t i o n 6 I d , i n s e r t : —

(2) A reference in subsection ( 1 ) to the husband or wife of an

intestate is, where the intestate dies leaving a husband or wife and a de facto husband or de facto wife, a reference to the husband or wife or de facto husband or de facto wife for whom part of the estate is required to be held in trust under section 61b (3), (3a ) or (3b).