Report 110 (2005) - Uniform Succession Laws: Family Provision
PREFACE
Updates and background for this project (Digest) 0.1 Family provision legislation aims to ensure that the family and other dependants of a deceased person are adequately provided for. This is achieved, where a Court decides that provision ought to be made, by allowing it to override the terms of the deceased person’s will or the distribution of the deceased person’s estate upon intestacy.
0.2 The legislation relating to family provision in each Australian State and Territory has been reviewed by the National Committee on Uniform Succession Laws. The National Committee was established by the Standing Committee of Attorneys General to review the existing state laws relating to succession and to propose model national uniform laws. The New South Wales Law Reform Commission has participated in the deliberations of the National Committee following terms of reference issued by the New South Wales Attorney General. The Queensland Law Reform Commission is the coordinating agency.
0.3 The National Committee submitted a report on family provision to the Standing Committee of Attorneys General in December 1997.1 This was followed, in July 2004, by a supplementary report on family provision together with draft model provisions to implement the two reports.2 This Report is a commentary on the draft model provisions as presented to the Standing Committee in July 2004.
0.4 The National Committee decided to make the Family Provision Act 1982 (NSW) the basis for its deliberations since the New South Wales Act was “the most comprehensive and recent legislation” in the area.3 The New South Wales legislation was enacted in 1982 following recommendations framed by the New South Wales Law Reform Commission in 1977.4
0.5 In making its decisions on the draft model provisions, the National Committee took into account the following considerations:
• that all people with a strong moral claim to a share of the deceased person’s estate should be entitled to apply for provision; and
• the ability of the Courts to exercise their discretion to make appropriate decisions regarding an applicant’s entitlement to provision,5
and based the proposed scheme “on the belief that the scheme should facilitate, and the Court determine, what is “just” in all the circumstances”.6
0.6 The model provisions are simply arranged. After the preliminary provisions in Part 1, Part 2 deals with family provision orders, including:
• who may apply for family provision orders and when they may do so (Part 2 Division 1);
• what the Court must take into account in making a family provision order (Part 2 Division 2);
• what property may be the subject of a family provision order (Part 2 Division 3); and
• general and consequential matters relating to family provision orders (Part 2 Division 4).
0.7 The property that may be the subject of a family provision order identified in Part 2 Division 3 includes property that is designated by the Court as “notional estate”. Notional estate orders may be made in certain circumstances under Part 3 of the Bill in relation to property that is no longer part of the estate of the deceased person because it has already been distributed either before or after death. Part 3, therefore:
• identifies the relevant property transactions that have taken the property out of the estate (Part 3 Division 1);
• identifies the circumstances in which notional estate orders may be made in relation to property that is subject to one of these transactions (Part 3 Division 2); and
• sets out the restrictions and protections in relation to the making of notional estate orders (Part 3 Division 3).
0.8 Finally, Part 4 of the Bill sets out provisions that help to make the scheme more effective and flexible, for example:
• by offering protections to administrators who act in accordance with the Act (cl 44 and cl 45);
• by allowing parties to agree to release their rights under the Act (cl 46 and cl 47);
• by allowing beneficiaries to substitute other property for property that has been made subject to a family provision order (cl 43);
• by allowing the Court to grant probate or administration in relation to a deceased estate in order to allow a family provision order to be made (cl 42); to fix the date of death of the deceased where the date of death is uncertain (cl 48); and to make orders as to costs (cl 49); and
• by providing for the making of regulations and rules of court to assist in the operation of the Act (cl 50 and cl 51).
0.9 The commentary that follows identifies the antecedents of the provisions as recommended by the National Committee. The commentary also sets out the reasons for adopting or departing from some of these provisions.
FOOTNOTES
1. National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (Queensland Law Reform Commission, Miscellaneous Paper 28, 1997) (“MP 28”).
2. National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) (“R 58”).
3. MP 28 at 2.
4. New South Wales Law Reform Commission, Testator’s Family Maintenance and Guardianship of Infants Act 1916 (Report 28, 1977).
5. MP 28 at 2.
6. MP 28 at 2.
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