Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Administration and Probate and Other Acts
Amendment (Succession and Related Matters)
Act 2017
No. 41 of 2017
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary 1
1 Purposes 1
2 Commencement 2
3 Principal Act 2
Part 2—Amendments relating to intestacy 3
4 Definitions 3
5 Definitions for Part I 4
6 Partner may obtain intestate's interest in shared home 4
7 Trust for sale on intestacy 4
8 Heading to Division 6 of Part I repealed 4
9 Repeal of intestacy provisions 4
10 Reference to Statutes of Distributions 4
11 New Part IA inserted 5
12 Court may make family provision order 32
13 Contents of family provision order 32
Part 3—Amendments relating to fees, commissions and other
matters 33
14 Definitions 33
15 Solvent estates—pecuniary legacies 33
16 New section 65A inserted 33
17 New sections 65B to 65E inserted 34
18 Concealment of will a misdemeanour 37
19 New sections 106 to 108 inserted 38
Part 4—Amendments relating to ademption 41
Division 1—Amendment of the Principal Act 41
20 New sections 50 and 51 inserted 41
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Division 2—Amendment of the Guardianship and Administration
Act 1986 42
21 Interest of represented person in property not to be altered by
sale or other disposition of property 42
22 New section 53A inserted 43
23 Application to the Tribunal by a creditor etc. 43
Division 3—Amendment of the Powers of Attorney Act 2014 44
24 New sections 83A and 83B inserted 44
25 New Division 7 inserted in Part 8 45
Part 5—Consequential amendment of other Acts and repeal of
amending Act 47
26 Marriage Act 1958—Abolition of husband's liability for wife's
torts and ante-nuptial contracts debts and obligations 47
27 Trustee Companies Act 1984—Trustee company to be subject
to same duties as individual 47
28 Wills Act 1997—Definitions 47
29 Wills Act 1997—New section 49A inserted 47
30 Wills Act 1997—New section 56 inserted 48
31 Repeal of amending Act 48
═══════════════
Endnotes 49
1 General information 49
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Administration and Probate and Other Acts
Amendment (Succession and Related
Matters) Act 2017 †
No. 41 of 2017
[Assented to 19 September 2017]
The Parliament of Victoria enacts:
Part 1—Preliminary
1 Purposes
The main purposes of this Act are—
(a) to amend the Administration and Probate
Act 1958 in relation to intestacy and other
matters relating to the administration of
estates, including the charging by executors
of fees and commissions; and
Victoria
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Part 1—Preliminary
Administration and Probate and Other Acts Amendment (Succession and
Related Matters) Act 2017
No. 41 of 2017
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(b) to make further provision in relation to
ademption by amending the Administration
and Probate Act 1958, the Guardianship
and Administration Act 1986 and the
Powers of Attorney Act 2014.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 November 2017, it comes into
operation on that day.
3 Principal Act
In this Act, the Administration and Probate
Act 1958 is called the Principal Act.
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Part 2—Amendments relating to intestacy
4 Definitions
(1) In section 3(1) of the Principal Act insert the
following definition—
"legacy interest rate means the rate that lies 2 per
cent above the cash rate last published by the
Reserve Bank of Australia before 1 January
in the calendar year in which interest begins
to accrue;".
(2) In section 3(1) of the Principal Act—
(a) insert the following definitions—
"aunt or uncle means a sibling of a deceased
person's parent;
cousin means a child of a deceased person's
aunt or uncle;
intestate includes a person who leaves a will
but dies intestate as to some beneficial
interest in that person's real or personal
estate;
residuary estate of an intestate means the
residue of the intestate's real and
personal estate, including—
(a) the money and any investments
representing the money arising
from any sale or conversion of the
estate under section 70H; and
(b) any part of the estate of the
intestate which—
(i) may be retained unsold; and
(ii) is not required for the
administration purposes of
the estate, for the payment
of any amount specified in
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section 70H(4)(a) or for the
setting aside of any fund
under section 70H(4)(b);";
(b) in the definition of partner, after "dies"
insert ", other than in Part IA,".
5 Definitions for Part I
(1) In section 5(1) of the Principal Act, after "In this
Part" insert "and Part IA".
(2) In section 5(1) of the Principal Act, the definition
of intestate is repealed.
6 Partner may obtain intestate's interest in shared
home
Section 37A of the Principal Act is repealed.
7 Trust for sale on intestacy
Section 38 of the Principal Act is repealed.
8 Heading to Division 6 of Part I repealed
The heading to Division 6 of Part I of the
Principal Act is repealed.
9 Repeal of intestacy provisions
Sections 50, 51, 51A, 52, 53 and 55 of the
Principal Act are repealed.
10 Reference to Statutes of Distributions
In section 56 of the Principal Act—
(a) for "the eighteenth day of December One
thousand nine hundred and twenty-nine"
substitute "18 December 1929";
(b) for "to this Division" substitute "to Part IA";
(c) for "the foregoing provisions of this
Division" substitute "Part IA".
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11 New Part IA inserted
After Part I of the Principal Act insert—
"Part IA—Intestacy
Division 1—Application and definitions
70A Application of this Part
(1) This Part applies if a person dies—
(a) without leaving a will; or
(b) leaving a will which does not
effectively dispose of the person's
estate wholly or partially.
(2) If a person dies leaving a will, this Part
applies to the part of the person's estate not
disposed of by that will subject to—
(a) the provisions of the will; and
(b) the following modifications—
(i) any requirements about bringing
property into account apply to any
beneficial interests acquired by
any issue of the deceased under
the will of the deceased;
(ii) subject to the rights and powers
of the personal representative for
the purposes of administration, the
personal representative must be a
trustee for the persons entitled
under this Part for the part of the
estate not expressly disposed of,
unless it appears by the will that
the personal representative is
intended to take that part
beneficially.
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70B Definitions for this Part
In this Part—
acquisition authorisation order means an
order of the Court under section 70U;
distribution agreement means an agreement
entered into between multiple partners
of an intestate as to the distribution of
the intestate's estate between those
partners;
distribution order means an order of the
Court under section 70ZD;
partner of an intestate means the person's
spouse, domestic partner or registered
caring partner at the time of the
intestate's death;
Note
See also definitions in section 3(1).
partner's property election means an
election by the surviving partner
of an intestate under section 70P;
partner's statutory legacy means the amount
to which a partner is entitled under
Division 3—
(a) as specified in section 70M(1); or
(b) as published from time to time by
the Minister under section 70N;
real and personal estate of an intestate
means every beneficial interest
(including rights of entry and reverter)
of the intestate in real and personal
estate which (otherwise than in right
of a power of appointment or of the
testamentary power conferred by statute
to dispose of entailed interests) the
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intestate could have disposed of by
will, if of full age and capacity;
right to elect notice means a notice under
section 70Q.
70C Survivor requirements
(1) A person is not entitled to participate in the
distribution of an intestate's estate under this
Part unless the person survives the intestate
for at least 30 days.
Note
See also section 5(2).
(2) For the purposes of this Part, a person
referred to in subsection (1) is taken to
have predeceased the intestate.
(3) This section does not apply if its application
would result in an intestate's estate passing to
the Crown under this Part.
70D Entitlement to distribution from estate in
more than one capacity
A person may be entitled to participate in
the distribution of an intestate's estate in
more than one capacity and is entitled to
take in each capacity in which the person
is entitled.
70E Rights of creditors not affected
Nothing in this Part affects the rights of any
creditor of the deceased or the rights of the
Crown in respect of duties.
70F Date of valuation
In determining values for the purposes of
this Part (other than Division 4), the date of
valuation is the date on which the value of
the residuary estate is ascertained after—
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(a) the payment of any amount specified in
section 70H(4)(a); and
(b) the setting aside of any fund sufficient
to provide for any pecuniary legacies
bequeathed by the deceased's will in
accordance with section 70H(4)(b).
70G Inter vivos gifts do not affect entitlements
The distribution of an intestate's estate is not
affected by gifts made by the intestate to
persons entitled—
(a) during the intestate's lifetime; or
(b) in the case of a partial intestacy, by
will.
Division 2—Trust for sale of intestate's
property
70H Trust for sale of intestate's estate
(1) On the death of a person intestate as to
any real or personal estate, the intestate's
estate must be held by the person's personal
representative on trust as to both real estate
(including chattels real) and personal estate.
(2) The personal representative has a
discretionary power of sale and conversion
of the intestate's estate.
(3) The personal representative has the power to
postpone any sale and conversion of the
intestate's estate under subsection (2)—
(a) for any period that the personal
representative thinks appropriate; and
(b) so that any reversionary interest is not
sold until it falls into possession, unless
the personal representative sees special
reason for the sale; and
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(c) so that, unless required for purposes of
administration owing to want of other
assets, personal chattels must not be
sold except for special reason; and
(d) pending any partner's property election
being made.
(4) Out of the net money forming part of the
intestate's estate or received from any sale
and conversion of the intestate's real and
personal estate (after payment of costs)
and out of the ready money of the intestate
(so far as not disposed of by will, if any),
the personal representative of an intestate
must—
(a) pay any funeral, testamentary
and administration expenses,
debts and other liabilities that are
properly payable under the rules
of administration in Division 5 of
Part I; and
(b) if there is any residual money
after paying the amounts identified
in paragraph (a), set aside a fund
sufficient to provide for any
pecuniary legacies bequeathed
by the deceased's will (if any).
70I Investment of estate pending distribution
(1) Pending the distribution of the whole or any
part of the estate of an intestate, the personal
representative may invest in any investments
for the time being authorised by statute for
the investment of trust money—
(a) the residue of money from any sale or
conversion under section 70H; or
(b) so much of that money as has not been
distributed.
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(2) The personal representative has discretion to
change an investment under subsection (1) to
an investment of a similar nature.
(3) After payment of rates, taxes, rent, costs
of insurance repairs and other outgoings
properly attributable to income, the income,
including net rents and profits of real estate
(including chattels real), of so much of the
deceased's estate which is not disposed of
by will (if any) or is not required for the
administration purposes required by this
Part, may be treated and applied as income
as from the death of the deceased, however
that estate is invested.
Division 3—Distribution if intestate
leaves a partner
70J Distribution if intestate leaves a partner
and no child or other issue
(1) If an intestate does not leave a child or
other issue but leaves a partner, the partner
is entitled to the whole of the intestate's
residuary estate.
(2) This section does not apply if an intestate
leaves more than one partner.
70K Distribution if intestate leaves partner and
issue of that partner
(1) If an intestate leaves a partner and a child or
other issue who is also a child or other issue
of that partner, the partner is entitled to the
whole of the intestate's residuary estate.
(2) This section does not apply if an intestate
leaves—
(a) more than one partner; or
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(b) a child or other issue who is not also a
child or other issue of the intestate's
surviving partner.
70L Distribution if intestate leaves partner and
child or issue not the child or issue of that
partner
(1) If an intestate leaves a partner and a child or
other issue who is not the child or other issue
of that partner, the partner is entitled—
(a) if the intestate's residuary estate is
worth not more than the amount of the
partner's statutory legacy, to the whole
of the estate, including the personal
chattels of the intestate; and
(b) if the intestate's residuary estate is
worth more than the amount of the
partner's statutory legacy, to—
(i) the personal chattels of the
intestate; and
(ii) the amount of the partner's
statutory legacy; and
(iii) interest on the partner's statutory
legacy calculated at the legacy
interest rate from the date of the
death of the intestate to the date
of payment of that legacy; and
(iv) one half of the balance of the
residuary estate.
(2) If subsection (1)(b) applies, any children of
the intestate are entitled to the other half of
the balance of the residuary estate, and if
more than one, in equal shares.
(3) If one or more of the intestate's children
predeceased the intestate leaving issue who
survived the intestate—
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(a) the share of the deceased child is to be
divided between that deceased child's
children; and
(b) if any of those grandchildren of the
intestate predeceased the intestate
leaving their own issue who survived
the intestate, the deceased grandchild's
share is to be divided between the
deceased grandchild's children and so
on until the entitlement is exhausted.
70M Amount of partner's statutory legacy
(1) From the commencement of this section
until subsection (2) applies, the amount of
the partner's statutory legacy is $451 909.
(2) From the financial year commencing
immediately after the commencement of
subsection (1) and for each subsequent
financial year, the amount of the partner's
statutory legacy must be calculated in
accordance with the following formula—
A × B
C
where—
A is—
(a) $451 909; or
(b) if an amount has been calculated
in accordance with this formula
and that amount is greater than
$451 909, the amount as last
calculated;
B is the All groups consumer price index
for Melbourne in original terms for the
most recent reference period in the
preceding calendar year most recently
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published by the Australian Bureau of
Statistics as at 15 June immediately
preceding the date on which the
variation is made;
C is the All groups consumer price index
for Melbourne in original terms for the
corresponding reference period one
year earlier than the reference period
referred to in B published by the
Australian Bureau of Statistics as at
15 June immediately preceding the
date on which the variation is made.
(3) If the amount of the partner's statutory
legacy has been calculated under
subsection (2) and—
(a) the amount is reduced, the reduced
amount does not take effect, except
for the purpose of the application of
the formula under this section in the
following year; or
(b) if, in the next or subsequent financial
year the amount of the partner's
statutory legacy is increased following
a reduction referred to in paragraph (a),
that amount has effect as an increase
only to the extent (if any) that—
(i) the amount of the increase
exceeds the amount of the
reduction in the previous
financial year; or
(ii) part of the reduction has not been
set off against a previous increase.
(4) For the purpose of calculating the amount of
the partner's statutory legacy in accordance
with the formula under this section—
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(a) if the amount of the variation is less
than $1000, it must be rounded to the
nearest whole $1; and
(b) if the amount of the variation is $1000
or more, it must be rounded to the
nearest whole $10.
70N Minister to publish notice of amount of
partner's statutory legacy in Government
Gazette
On or before 1 July of the financial
year commencing immediately after the
commencement of section 70M(1) and
on or before 1 July in each subsequent
financial year, the Minister must publish a
notice in the Government Gazette that states
the amount of the partner's statutory legacy
calculated in accordance with section 70M
for the following financial year.
Division 4—Partner's rights as to estate
property by election
70O Application of this Division
(1) This Division applies if an intestate does not
leave multiple partners.
(2) This Division does not apply if section 70J
or 70K apply.
70P Partner may make partner's property
election to acquire intestate's interest in
property of estate
(1) By making a partner's property election,
an intestate's partner may elect to acquire
property from the intestate's estate—
(a) at its value on the date of the intestate's
death as determined in accordance with
section 70V; or
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(b) at any other value as agreed by the
partner and all the other beneficiaries
entitled to share in the intestate's estate.
(2) A partner may acquire an interest by making
a partner's property election even if the
partner is—
(a) a personal representative or trustee; or
(b) a minor.
70Q Partner to be given right to elect notice
(1) Subject to subsection (3), within 30 days of
the grant of administration of an intestate's
estate, the personal representative must
give the partner of the intestate to whom
this Division applies a written notice
informing the partner of the partner's right
to make a partner's property election.
(2) A right to elect notice must state the
following—
(a) how the partner's property election is to
be made;
(b) the fact that the partner's property
election may be subject to the
Court's authorisation by
acquisition authorisation order
and the circumstances in which an
acquisition authorisation order is
required;
(c) that, unless the partner is the intestate's
personal representative, the right to
make the partner's property election
must be exercised within—
(i) 3 months of the date of the right to
elect notice; or
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(ii) any longer period allowed by the
Court after the date of the right to
elect notice.
Note
See section 70R for times within which election
is to be made.
(3) A right to elect notice is not required if the
partner is the personal representative of the
intestate.
70R Time for making partner's property
election
(1) A partner's property election must be
made—
(a) if the partner is a personal
representative of the intestate,
within 3 months of the grant of
administration; or
(b) if the partner is not a personal
representative of the intestate, within
3 months of the date of the right to
elect notice which has been given to
the partner; or
(c) if the Court extends the time for
making the election, by the date to
which the period for election is
extended.
(2) The Court may extend the time for making a
partner's property election—
(a) if it considers there is sufficient cause
for doing so; and
(b) whether or not the time for making the
partner's property election has passed,
but not after the administration of the
estate has been completed.
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70S How partner's property election is made
(1) An intestate's partner who makes a partner's
property election must make it in writing
identifying, with reasonable particularity, the
property of the intestate which the partner
elects to acquire.
(2) Subject to subsection (4), the partner must
give a copy of the partner's property
election—
(a) to the personal representative who sent
the partner the right to elect notice, if
the partner is not a personal
representative; and
(b) to each other person who is a personal
representative, other than the partner if
the partner is also a personal
representative; and
(c) to each beneficiary, other than the
partner, who is entitled to a share in
the intestate's estate; and
(d) to the registrar.
(3) A partner who is required by subsection (2)
to give a copy of a partner's property election
to the persons referred to in that subsection,
may apply to the Court for an order that a
copy of the election is not required to be
given to any or all of the persons specified in
that subsection.
(4) On an application under subsection (3),
the Court may order that the copy of the
partner's property election need not be given
to any or all of the persons referred to in
subsection (2) if the Court considers that
the giving of that copy of the election is
unnecessary, unreasonable or impracticable
in the circumstances of the case.
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(5) In making an order under subsection (4), the
Court may order that a copy of the partner's
property election must be given to any other
person specified by the Court in the order.
70T Revocation of partner's property election
(1) A partner may revoke a partner's property
election at any time before the property
which is the subject of the election is
transferred to the partner.
(2) A revocation under subsection (1) must—
(a) be in writing; and
(b) be given to—
(i) each of the persons referred to
in section 70S(2), subject to any
order under section 70S(4); and
(ii) any person who was given a
copy of the partner's property
election by order of the Court
under section 70S(5).
70U Court may make acquisition authorisation
order if election applies to estate property
which is part of larger aggregate
(1) A partner of an intestate who makes a
partner's property election must apply to the
Court for an acquisition authorisation order
authorising that acquisition if the property
forms part of a larger aggregate and—
(a) the acquisition could—
(i) substantially diminish the value of
the remainder of the property; or
(ii) make the administration of the
estate substantially more difficult;
or
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(b) the election is a kind requiring the
Court to determine the partner's legal or
equitable interest in the property and an
application to determine that interest
has not been heard and determined.
(2) An application for an acquisition
authorisation order must be made within a
reasonable time after the partner receives a
copy of a valuation under section 70V(2).
(3) On an application under subsection (1), the
Court—
(a) may grant an acquisition authorisation
order authorising the partner of the
intestate to acquire the property under
the partner property election; and
(b) may impose any conditions that it
considers just and equitable to address
the matters referred to in that
subsection, including determining
the partner's legal or equitable interest
in the property if not determined in
another proceeding.
Note
See also section 24 of the Supreme Court Act 1986
in relation to costs.
(4) Without limiting the conditions that the
Court may impose on an acquisition
authorisation order, the Court may impose a
condition that the partner pay compensation
to the estate in addition to consideration for
the property.
(5) The Court may refuse to make an acquisition
authorisation order if it considers that the
matters referred to in subsection (1) cannot
be adequately addressed by making the order
subject to conditions.
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70V Valuation of property which is subject of
election
(1) Subject to subsection (3), the intestate's
personal representative must obtain a
valuation of any property forming part of
the intestate's estate as at the intestate's death
from a valuer who holds the qualifications or
experience specified under section 13DA(2)
of the Valuation of Land Act 1960 if—
(a) a partner makes a partner's property
election in relation to that property; or
(b) a partner asks the personal
representative to obtain a valuation
to enable the partner to decide whether
to make a partner's property election.
(2) The personal representative must give a copy
of the valuation to—
(a) the partner; and
(b) each other beneficiary who is entitled to
a share in the intestate's estate.
(3) The requirement for a personal
representative to obtain a valuation is waived
if all the beneficiaries (including the partner)
entitled to a share in the intestate's estate
consent in writing to the requirement being
waived.
70W How price of property to be satisfied and
effect on residuary estate
(1) If a partner makes a partner's property
election to acquire property from an
intestate's estate, the price for which the
partner acquires the property (being the
valuation or other agreed amount under
section 70P) is to be satisfied—
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(a) first from money to which the partner is
entitled from the intestate's estate; and
(b) if the money referred to in
paragraph (a) is insufficient, from
money paid by the partner to the
estate on or before the date of transfer.
(2) If a partner makes a partner's property
election to acquire property from the
intestate's estate—
(a) the partner's share of the residuary
estate must be reduced by the price of
the property; and
(b) if the price of the property is more than
the amount of the partner's share of the
residuary estate, the partner must pay
the difference into the intestate's estate
before whichever of the following
occurs first—
(i) the distribution of the residuary
estate;
(ii) the end of 12 months after making
the partner's property election.
70X Timing of transfer to partner
(1) If a partner makes a partner's property
election to acquire property from an
intestate's estate, the personal
representative—
(a) must transfer the interest to the
partner—
(i) within a reasonable time
of receiving notice of the
partner's property election
under section 70S; or
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(ii) if section 70W(1)(b) applies,
within a reasonable time of the
partner paying the amount of the
difference into the estate; or
(iii) if an acquisition authorisation
order is required, within a
reasonable time after the order is
made or such other time as the
Court specifies in the order; and
(b) in any event, must transfer the property
before the distribution of the residuary
estate.
(2) Despite subsection (1), the personal
representative must not transfer the interest
to the partner if—
(a) the partner's property election is of a
kind that requires the Court to make an
acquisition authorisation order and—
(i) the acquisition authorisation order
has been refused; or
(ii) the application for an acquisition
authorisation order has been
withdrawn; or
(iii) an application for an acquisition
authorisation order has not been
made; or
(iv) an application for an acquisition
authorisation order has been made
but has not been determined; or
(b) the partner has revoked the partner's
property election.
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70Y Restriction on disposal of property from
intestate's estate
(1) This section does not apply if the partner is
entitled to the whole of the intestate's estate.
(2) The personal representative of an intestate
must not dispose of property from the
intestate's estate (except to a partner who
has made a partner's property election)
unless—
(a) the personal representative is the
partner entitled to make the election; or
(b) the time for exercising the election has
elapsed and no election has been made;
or
(c) the election is of a kind that requires
the Court to make an acquisition
authorisation order but—
(i) the acquisition authorisation order
has been refused; or
(ii) the application for an acquisition
authorisation order has been
withdrawn; or
(d) the partner has given written notice to
the personal representative that the
partner does not propose to exercise
the right to make a partner's property
election from the estate; or
(e) sale of the property is required to meet
funeral and administration expenses,
debts or other liabilities of the estate; or
(f) the property is perishable or likely to
decrease rapidly in value.
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(3) A transaction entered into in contravention
of subsection (2) is not invalid merely
because of that contravention.
Division 5—Distribution if intestate
leaves multiple partners
70Z Distribution if intestate leaves more than
one partner and no issue
If an intestate does not leave any child or
other issue but leaves more than one partner,
the partners are entitled to the whole of the
intestate's residuary estate—
(a) if there is a distribution agreement,
in shares in accordance with that
agreement; or
(b) if there is a distribution order, in
accordance with that order; or
(c) in equal shares, in accordance with
section 70ZE.
70ZA Distribution if intestate leaves more
than one partner and child or issue of
one or more of those partners
If an intestate leaves more than one partner
and a child or other issue who are also a
child or other issue of one or more of those
partners, the partners are entitled to the
whole of the intestate's residuary estate—
(a) if there is a distribution agreement, in
shares in accordance with that
agreement; or
(b) if there is a distribution order, in
accordance with that order; or
(c) in equal shares in accordance with
section 70ZE.
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70ZB Distribution if intestate leaves more than
one partner and child or issue not the
child or issue of one or more of those
partners
(1) If an intestate leaves more than one partner
and a child or other issue not a child or other
issue of any of those partners, the partners
are entitled—
(a) to share the personal chattels of the
intestate as follows—
(i) if there is a distribution
agreement, in shares in
accordance with that agreement;
or
(ii) if there is a distribution order, in
accordance with that order; or
(iii) in equal shares in accordance with
section 70ZE; and
(b) if the intestate's residuary estate is
worth not more than the amount of the
partner's statutory legacy payable if the
intestate had left only one partner, to
share the residuary estate as follows—
(i) if there is a distribution
agreement, in shares in
accordance with that agreement;
or
(ii) if there is a distribution order, in
accordance with that order; or
(iii) in equal shares in accordance with
section 70ZE; and
(c) if the intestate's residuary estate is
worth more than the amount of the
partner's statutory legacy payable if the
intestate had left only one partner, to—
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(i) the amount of the partner's
statutory legacy shared in
accordance with paragraph (b);
and
(ii) interest on that partner's statutory
legacy calculated at the legacy
interest rate from the date of the
death of the intestate to the date
of payment of that legacy; and
(iii) one half of the balance of the
residuary estate as follows—
(A) if there is a distribution
agreement, in shares in
accordance with that
agreement; or
(B) if there is a distribution
order, in accordance with
that order; or
(C) in equal shares in accordance
with section 70ZE.
(2) If subsection (1)(c)(iii) applies, any children
of the intestate are entitled to the other half
of the balance of the residuary estate, and if
more than one, in equal shares.
(3) If one or more of the intestate's children
predeceased the intestate leaving issue who
survived the intestate—
(a) the share of the deceased child is to be
divided between that deceased child's
children; and
(b) if any of those grandchildren of the
intestate predeceased the intestate
leaving their own issue who survived
the intestate, the deceased grandchild's
share is to be divided between the
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deceased grandchild's children and so
on until the entitlement is exhausted.
70ZC Distribution agreement for sharing
between more than one partner
The partners of an intestate may enter into a
written agreement for the distribution of the
intestate's residuary estate between them.
70ZD Distribution orders
(1) If an intestate leaves more than one
partner, a partner may apply to the Court
for a distribution order.
(2) Unless the Court otherwise orders, if a
personal representative has given notice
under section 70ZE(1) an application for
a distribution order must be made within
3 months after the date of the notice.
(3) On an application for a distribution order, the
Court may order—
(a) that the intestate's residuary estate be
distributed between the partners in any
way the Court considers just and
equitable; and
(b) without limiting paragraph (a), that
the whole of the residuary estate be
allocated to one of the partners to the
exclusion of the other partner or
partners.
(4) A distribution order may include any
conditions that the Court considers
appropriate.
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70ZE Distribution between multiple partners in
equal shares
(1) Subject to subsection (3), the personal
representative of an intestate who leaves
multiple partners must distribute the
residuary estate in equal shares between
the partners if the personal representative,
at the request of a partner of the intestate,
or in the personal representative's
discretion—
(a) gives each partner a written notice
stating that the personal representative
will distribute the estate equally
between the partners unless, within
3 months of the date of the notice—
(i) the partners enter into a
distribution agreement and
submit that agreement to the
personal representative; or
(ii) at least one of the partners applies
to the Court for a distribution
order; and
(b) at least 3 months have elapsed since
the notices referred to in paragraph (a)
were given and—
(i) the personal representative has not
received a distribution agreement
or notice of an application to the
Court for a distribution order; or
(ii) an application for a distribution
order has been made but the Court
has dismissed the application or
the application has been
withdrawn.
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(2) If the period specified in subsection (1)(b)
has elapsed and no distribution agreement
has been received and no distribution order
has been made, the personal representative
must distribute the intestate's residuary
estate between the multiple partners in equal
shares.
(3) If the intestate leaves more than one partner
and a child or children or other issue who
are not also the child, children or other
issue of any of the partners the residuary
estate is to be distributed in accordance with
section 70ZB.
Division 6—Distribution if intestate
leaves no partners
70ZF Application of Division
If a person dies intestate in respect of the
person's residuary estate and Divisions 3,
4 and 5 do not apply, the residuary estate
is to be distributed in accordance with the
hierarchy set out in this Division.
70ZG Distribution to children
(1) If an intestate leaves no partner but leaves a
child or children, the residuary estate is to
be distributed to the surviving child, and if
more than one, in equal shares if none of the
intestate's child or children predeceased the
intestate leaving issue of that child who
survived the intestate.
(2) If one or more of the intestate's children
predeceased the intestate leaving issue who
survived the intestate—
(a) the share of the deceased child is to be
divided between that deceased child's
children; and
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(b) if any of those grandchildren of the
intestate predeceased the intestate
leaving their own issue who survived
the intestate, the deceased grandchild's
share is to be divided between the
deceased grandchild's children and so
on until the entitlement is exhausted.
70ZH Distribution to parents
(1) If an intestate leaves more than one parent
but no partner, child or other issue, the
residuary estate must be distributed equally
between the parents.
(2) If the intestate leaves one parent but no
partner, child or other issue, the parent is
entitled to the whole residuary estate.
70ZI Distribution to siblings
(1) If an intestate leaves more than one sibling
but no partner, no child or other issue and
no parent, the residuary estate must be
distributed equally between those siblings.
(2) If the intestate leaves one sibling but no
partner, no child or other issue and no parent,
the sibling is entitled to the whole residuary
estate.
(3) If a sibling of an intestate predeceases the
intestate leaving a child who survives the
intestate, that child is entitled to the sibling's
share and, if there are 2 or more children, in
equal shares.
70ZJ Distribution to grandparents
(1) If an intestate leaves more than one
grandparent but no partner, no child or other
issue, no parent, no sibling and no issue
of a sibling, the residuary estate must be
distributed equally between the grandparents.
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(2) If the intestate leaves one grandparent but
no partner, no child or other issue, no parent,
no sibling and no issue of a sibling, the
grandparent is entitled to the whole residuary
estate.
70ZK Distribution to aunts and uncles or to
cousins by representation
(1) If an intestate leaves more than one aunt or
uncle but no partner, no child or other issue,
no parent, no sibling, no issue of a sibling
and no grandparent, the residuary estate must
be distributed equally between the aunts and
uncles.
(2) If the intestate leaves one aunt or uncle but
no partner, no child or other issue, no parent,
no sibling, no issue of a sibling and no
grandparent, the aunt or uncle is entitled to
the whole residuary estate.
(3) If an aunt or uncle of an intestate
predeceases the intestate leaving a child
who survives the intestate, that child is
entitled to the aunt or uncle's share and, if
there are 2 or more children, in equal shares.
70ZL Crown to take estate if no person entitled
If no person is entitled to the estate of an
intestate under this Part, the residuary
estate—
(a) is taken to be property that has no
owner; and
(b) passes to and belongs to the Crown.".
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12 Court may make family provision order
(1) In section 91(2)(d)(ii) of the Principal Act, for
"Division 6 of Part I" substitute "Part IA".
(2) In the note at the foot of section 91(2)(d)(ii) of the
Principal Act, for "Division 6 of Part I" substitute
"Part IA".
(3) In section 91(2)(d)(iii) of the Principal Act, for
"Division 6 of Part I" substitute "Part IA".
13 Contents of family provision order
In section 97(4)(b)(i) of the Principal Act, for
"Division 6 of Part I" substitute "Part IA".
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Part 3—Amendments relating to fees,
commissions and other matters
14 Definitions
In section 3(1) of the Principal Act insert the
following definitions—
"interested beneficiary means a beneficiary of
an estate whose entitlement to part of the
residuary estate may be affected by the
deduction of executor's remuneration from
the estate;
remuneration clause means a clause in a will
that provides for remuneration of, or a
commission or fees to be paid to, an
executor for executorial services;".
15 Solvent estates—pecuniary legacies
After section 39B(2) of the Principal Act insert—
"(3) A beneficiary entitled to a pecuniary
legacy is entitled to interest on that legacy
or any part of it that is not paid to the
beneficiary within 12 months of the date
of the deceased's death for the period that
it remains unpaid calculated after that
12 month period at the legacy interest rate.".
16 New section 65A inserted
After section 65 of the Principal Act insert—
"65A Reduction of excessive commission or fees
(1) If the Court is satisfied that the amount of
either or both of the following is excessive,
the Court may order that it be reduced or
repaid to the estate—
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(a) a commission or fee charged or retained
by an executor or administrator or
payable to an executor or administrator
under the terms of a will;
(b) any fee, cost, expense or disbursement
for which an executor or administrator
has been reimbursed or claims to be
reimbursed out of an estate.
(2) The Court may make an order under
subsection (1)—
(a) on the application of—
(i) any person interested under the
will or the estate, including any
interested beneficiary; or
(ii) any creditor; or
(b) of its own motion.
(3) This section does not apply to State
Trustees.".
17 New sections 65B to 65E inserted
At the end of Subdivision 3 of Division 7 of Part I
of the Principal Act insert—
"65B Benefits to executor under remuneration
clause
A personal representative who is an executor
of a will is not entitled to receive payment
under a remuneration clause in the will
unless—
(a) the testator gave written informed
consent to the inclusion of the
remuneration clause; and
(b) that written informed consent was
given by the testator before the will
was executed.
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65C Consent to executor's remuneration by
interested beneficiaries
(1) An executor of a will may receive fees or
commission from the assets of the estate
of the deceased person if the executor has
obtained informed consent from each
interested beneficiary and—
(a) there is no remuneration clause in the
will; or
(b) a remuneration clause in the will does
not authorise the type of remuneration
sought or taken by the executor; or
(c) a remuneration clause does not
entitle the executor to remuneration
because written informed consent
for the remuneration clause was
not obtained from the testator in
accordance with section 65B.
(2) Subsection (1) does not apply to an executor
that is a trustee company.
65D Information to be provided by an executor
to interested beneficiaries
(1) As soon as reasonably practicable, an
executor of a will who seeks to be paid
must inform each interested beneficiary
of the following—
(a) the basis on which the executor is to be
paid, being either in accordance with—
(i) a clause in the will; or
(ii) with the consent of the interested
beneficiaries under section 65C;
or
(iii) an order of the Court made under
section 65;
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(b) the method of calculation of the
payment to be made to the executor,
including whether the payment will
be—
(i) a commission or percentage of
the assets of the estate and, if so,
the applicable commission or
percentage; or
(ii) by charging fees;
(c) the estimated value of the payment to
be made to the executor;
(d) the right of any interested beneficiary to
have the payment claimed or charged
by the executor reviewed by the Court
under section 65A(2)(a)(i).
(2) If an executor of a will becomes aware that
there is likely to be a substantial change in
the amount referred to in subsection (1)(c),
the executor must inform each interested
beneficiary of the change as soon as
reasonably practicable.
(3) The information given to each interested
beneficiary under subsections (1) and (2)
must be in plain language and—
(a) in English, or in another language if the
interested beneficiary does not have
sufficient knowledge of the English
language; and
(b) verbally if an interested beneficiary is
illiterate.
(4) An executor must make reasonable efforts
to provide the information in subsection (1)
or (2) to—
(a) the parent or guardian of a minor who
is an interested beneficiary;
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(b) the guardian, administrator or attorney
of an adult who does not have legal
capacity or decision making capacity
and is an interested beneficiary.
(5) An executor who contravenes this section is
not entitled to payment from the estate of—
(a) a commission or percentage of the
assets of the estate; or
(b) fees.
(6) This section does not apply to an executor
that is a trustee company.
65E Executor may elect to charge fees instead
of commission
If a will provides for an executor to charge
commission, the executor may instead elect
to charge fees for executorial services if the
fees are—
(a) less than the amount to which the
executor would have been entitled if the
executor had not made the election; and
(b) calculated at a rate that does not take
into account any specialist professional
skills of the executor; and
(c) distinguished from any fees charged for
professional services.".
18 Concealment of will a misdemeanour
(1) In section 66(1) of the Principal Act, for "aids or
abets any person in" substitute "is involved in".
(2) At the foot of section 66(1) of the Principal Act,
insert the following note—
"Note
See sections 323 to 324C of the Crimes Act 1958 in relation
to complicity in the commission of offences.".
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19 New sections 106 to 108 inserted
At the end of Part IVA of the Principal Act
insert—
"106 Transitional provisions—Administration
and Probate and Other Acts Amendment
(Succession and Related Matters)
Act 2017
(1) The amendments made to this Act by the
Administration and Probate and Other
Acts Amendment (Succession and Related
Matters) Act 2017 apply in respect of the
estate of any person who dies on or after the
commencement of the applicable amendment
to this Act.
(2) Despite subsection (1), sections 65B, 65C
and 65D only apply to a will executed on or
after the commencement of those sections.
107 Power to resolve transitional difficulties
in proceeding—Administration and
Probate and Other Acts Amendment
(Succession and Related Matters)
Act 2017
(1) If any difficulty arises because of the
operation of the Administration and
Probate and Other Acts Amendment
(Succession and Related Matters)
Act 2017 in relation to an application
or a proceeding under this Act, the
Court may make any order it considers
appropriate to resolve the difficulty.
(2) An order made under subsection (1)—
(a) may be made on application of a party
to the application or proceeding or on
the Court's own motion; and
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(b) has effect despite any provision to
the contrary made by or under any
Act (other than the Charter of
Human Rights and Responsibilities
Act 2006).
108 Regulations dealing with transitional
matters—Administration and Probate
and Other Acts Amendment (Succession
and Related Matters) Act 2017
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters
of an application or savings nature,
arising as a result of the enactment of
the Administration and Probate and
Other Acts Amendment (Succession
and Related Matters) Act 2017,
including any repeals and amendments
made by any provision of that Act.
(2) Regulations made under this section may—
(a) have a retrospective effect to a
day on or from the date that the
Administration and Probate
and Other Acts Amendment
(Succession and Related Matters)
Act 2017 receives the Royal Assent;
(b) be of limited or general application;
(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
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(e) provide for the exemption of persons,
applications or proceedings or a class
of persons, applications or proceedings
from any of the regulations made under
this section.
(3) Regulations made under this section have
effect despite anything to the contrary—
(a) in any Act (other than the
Administration and Probate
and Other Acts Amendment
(Succession and Related
Matters) Act 2017 or the
Charter of Human Rights and
Responsibilities Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
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Part 4—Amendments relating to ademption
Division 1—Amendment of the Principal Act
20 New sections 50 and 51 inserted
After section 49 of the Principal Act insert—
"50 Court powers where exception to
ademption causes unjust advantage
or unjust disadvantage
(1) A beneficiary under a will may apply to the
Court if any beneficiary under the will gains
an unjust advantage or suffers an unjust
disadvantage by the application of—
(a) section 53 of the Guardianship and
Administration Act 1986; or
(b) section 83A of the Powers of Attorney
Act 2014.
(2) If the Court is satisfied that a beneficiary
under the will gains an unjust advantage or
suffers an unjust disadvantage, the Court
may make any order it thinks fit to remedy
the unjust advantage or unjust disadvantage,
as the case may be.
(3) Without limiting the powers of the Court, an
order under subsection (2) may direct that a
conveyance, deed or any other document be
executed or any other action be taken.
(4) In this section—
unjust advantage means an unjust or a
disproportionate advantage of a kind
not contemplated by the testator in the
will;
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unjust disadvantage means an unjust or a
disproportionate disadvantage of a kind
not contemplated by the testator in the
will.
51 Beneficiary entitled to traceable income
from sale of adeemed assets
A beneficiary under a will to whom
section 53 of the Guardianship and
Administration Act 1986 or section 83A
of the Powers of Attorney Act 2014
applies is entitled to any traceable income
or capital gain generated from the proceeds
of sale or disposal of the property referred
to in those sections to the extent that the
income or capital gain has not been applied
under the powers referred to in the applicable
section.".
Division 2—Amendment of the Guardianship
and Administration Act 1986
21 Interest of represented person in property not to be
altered by sale or other disposition of property
(1) In section 53(1) of the Guardianship and
Administration Act 1986—
(a) for "her or his heirs, executors,
administrators, next of kin, devisees,
legatees and assigns" substitute
"a beneficiary of a represented person";
(b) for "she, he or they" substitute "the person
or beneficiary".
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(2) For section 53(3) of the Guardianship and
Administration Act 1986 substitute—
"(3) An administrator is not required to keep the
proceeds of the sale or other disposition of
property under this section separate from
the represented person's other assets.".
(3) For section 53(5) of the Guardianship and
Administration Act 1986 substitute—
"(5) In this section, beneficiary of a represented
person means—
(a) a beneficiary under the will of a
represented person; or
(b) a represented person's executor; or
(c) a represented person's administrator
under the Administration and
Probate Act 1958.".
22 New section 53A inserted
After section 53 of the Guardianship and
Administration Act 1986 insert—
"53A Exception to ademption applies
regardless of testamentary capacity
Section 53 applies whether or not the
represented person has testamentary
capacity.".
23 Application to the Tribunal by a creditor etc.
After section 56(1) of the Guardianship and
Administration Act 1986 insert—
"(2) In subsection (1), next of kin in relation
to a represented person means any person
who would be entitled to the property of
the represented person or to any share of
that property under any law for the
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distribution of the property of intestates if the
represented person had died intestate.".
Division 3—Amendment of the Powers of
Attorney Act 2014
24 New sections 83A and 83B inserted
After section 83 of the Powers of Attorney
Act 2014 insert—
"83A Interest of principal in property not to
be altered by sale or other disposition of
property
(1) A principal and a beneficiary of a principal
have the same interest in any money or other
property arising from or received in respect
of any sale, mortgage, exchange, partition or
other disposition under the powers given to
an attorney under an enduring power of
attorney which have not been applied under
those powers that the principal or beneficiary
would have had in the property the subject of
the sale, mortgage, exchange, partition or
disposition if no sale, mortgage, exchange,
partition or disposition had been made.
(2) For the purposes of this section, money
arising from the compulsory acquisition or
purchase under any Act of property of a
principal is taken to be money arising from
the sale of that property under the powers
given to the attorney under the enduring
power of attorney.
(3) An attorney under an enduring power of
attorney is not required to keep the proceeds
of the sale or other disposition of property
under this section separate from the
principal's other assets.
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(4) Money received by an attorney under an
enduring power of attorney under this
section may be invested in any manner in
which trust funds may be invested under
the Trustee Act 1958.
(5) In this section, beneficiary of a principal
means—
(a) a beneficiary of a principal under a
will; or
(b) a principal's executor; or
(c) a principal's administrator under
the Administration and Probate
Act 1958.
83B Exception to ademption applies regardless
of testamentary capacity
Section 83A applies whether or not the
principal has testamentary capacity.".
25 New Division 7 inserted in Part 8
After Division 6 of Part 8 of the Powers of
Attorney Act 2014 insert—
"Division 7—Powers of VCAT with
respect to wills
134A VCAT may open will
VCAT may open and read any paper or
writing that is a will, a revoked will, a
purported will or a copy of a will of—
(a) a principal under an enduring power
of attorney who does not have
testamentary capacity; or
(b) a deceased person who, immediately
before the person died, was a principal
under an enduring power of attorney.
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134B VCAT may compel production of will
VCAT may make an order compelling a
person who has possession or control of a
will, a revoked will or a purported will of a
principal who does not have testamentary
capacity to produce that document to
VCAT—
(a) for the purposes of section 134A; or
(b) on the application of an attorney under
an enduring power of attorney.
134C VCAT may make copy of will available to
attorney
VCAT may make available to an attorney
under an enduring power of attorney a full or
redacted copy of a will, a revoked will or a
purported will of the principal if the principal
does not have testamentary capacity.".
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Part 5—Consequential amendment of other
Acts and repeal of amending Act
26 Marriage Act 1958—Abolition of husband's liability
for wife's torts and ante-nuptial contracts debts and
obligations
In section 159(3) of the Marriage Act 1958, for
"Division six of Part I" substitute "section 3(1)".
27 Trustee Companies Act 1984—Trustee company to
be subject to same duties as individual
In section 25(1) of the Trustee Companies
Act 1984, after "provided in this Act" insert
"and subject to sections 65C and 65D of the
Administration and Probate Act 1958".
28 Wills Act 1997—Definitions
In section 3(1) of the Wills Act 1997 insert the
following definition—
"remuneration clause has the same meaning as
it has in the Administration and Probate
Act 1958;".
29 Wills Act 1997—New section 49A inserted
After section 49 of the Wills Act 1997 insert—
"49A Effect of remuneration clause
A remuneration clause in a will is void
unless—
(a) the testator gave written informed
consent to the inclusion of the
remuneration clause; and
(b) that written informed consent was
given by the testator before the will
was executed.".
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30 Wills Act 1997—New section 56 inserted
At the end of Part 6 of the Wills Act 1997
insert—
"56 Transitional provision—Administration
and Probate and Other Acts Amendment
(Succession and Related Matters)
Act 2017
Section 49A only applies to a will
executed on or after the commencement
of that section.".
31 Repeal of amending Act
This Act is repealed on 1 November 2018.
Note
The repeal of this Act does not affect the continuing operation
of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Endnotes
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Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
† Minister's second reading speech—
Legislative Assembly: 23 November 2016
Legislative Council: 9 March 2017
The long title for the Bill for this Act was "A Bill for an Act to amend
the Administration and Probate Act 1958 in relation to intestacy and
other matters relating to the administration of estates, including fees and
commissions, to amend that Act, the Guardianship and Administration
Act 1986 and the Powers of Attorney Act 2014 in relation to ademption,
to consequentially amend other Acts and for other purposes."
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