PART 1 PRELIMINARY

Updates and background for this project (Digest)

1.1 This definition is relevant to the provisions relating to costs in cl 29 and cl 49.

 

Court means [insert name of appropriate court for jurisdiction].

 

1.2 This provision is based on the definition of “Court” in Family Provision Act 1982 (NSW) s 6(1) but has been expressed in jurisdiction-neutral terms so that each jurisdiction can insert a provision that relates to its own applicable monetary or other jurisdictional limits.¹ For example, in New South Wales, “Court” currently means:

(a) the Supreme Court, in relation to any matter (including a matter referred to in paragraph (b)), or

(b) the District Court, in relation to a matter for which it has jurisdiction under section 134 of the District Court Act 1973.²

1.3 This provision should be read in conjunction with cl 6(1)(b), below.

1.4 There is considerable diversity in the Australian jurisdictions relating to the terms and definitions used to describe “de facto partners” and other similar terms. This provision is expressed in jurisdiction-neutral terms, allowing each jurisdiction to insert a term and definition that is consistent with its other provisions that relate to de facto relationships, including both heterosexual and same-sex partnerships.

1.5 The National Committee acknowledged that this approach will not achieve uniformity in detail between the various jurisdictions but considered that it was necessary to accommodate the existing differences in the various definitions of de facto partner.³

1.6 In New South Wales a “de facto relationship” is:

a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by family.⁴

1.7 This definition of notional estate is based on the definition of “notional estate” in Family Provision Act 1982 (NSW) s 6(1).

 

notional estate order means an order made by the Court under Part 3 designating property specified in the order as notional estate of a deceased person. person entitled to exercise a power means a person entitled to exercise a power, whether or not the power: (a) is absolute or conditional, or (b) arises under a trust or in some other manner, or (c) is to be exercised solely by the person or by the person together with one or more other persons (whether jointly or severally).

 

1.8 This definition is based on the definition of “person entitled to exercise a power” in Family Provision Act 1982 (NSW) s 6(7).

 

property includes the following: (a) real and personal property, (b) any estate or interest (whether a present, future or contingent estate or interest) in real or personal property, (c) money, (d) any cause of action for damages (including damages for personal injury), (e) any other chose in action, (f) any right with respect to property, (g) any valuable benefit.

 

1.9 This provision is based on the definition of “property” in Family Provision Act 1982 (NSW) s 6(1).

1.10 “Any valuable benefit” has been held to extend widely to “new concepts” of property, so that “the taking effect of a valuable benefit (and its) becoming held by a person can occur although there has been no change at all in the ownership of any real or personal property”.⁵ An example of a valuable benefit could be the increase in the value of shares held by others as a result of the conversion of the deceased’s shares to preference shares upon his or her death.

 

property held by a person includes property in relation to which the person is entitled to exercise a power of appointment or disposition in favour of himself or herself.

 

1.11 This definition is based on Family Provision Act 1982 (NSW) s 6(6).

 

will includes a codicil and any other testamentary disposition.

 

1.12 This formulation differs from the equivalent New South Wales provision⁶ in that it includes “any other testamentary disposition”. It is in the same terms as the National Committee’s definition of “will” in cl 4(1) of the Wills Bill 1997.⁷ This was originally based on cl 3 of the draft Wills Act 1994 (Vic).⁸

 

(2) Notes in the text of this Act do not form part of this Act.

 

4 Application of Act to deceased persons (1) This Act applies in relation to the estate of a deceased person whether or not administration of the estate has been granted. Note. Administration may be granted for the purposes of being able to apply for a family provision order (see section 42). (2) For the purposes of this Act, administration is granted in respect of the estate of a deceased person if: (a) probate of the will of the deceased person is granted in [insert name of jurisdiction] or granted outside [insert name of jurisdiction] but sealed in accordance with [insert name of appropriate provision of jurisdiction], or (b) letters of administration of the estate of the deceased person are granted in [insert name of jurisdiction] or granted outside [insert name of jurisdiction] but sealed in accordance with [insert name of appropriate provision of jurisdiction], whether the letters were granted with or without a will annexed and whether for general, special or limited purposes, or (c) an order is made under [insert references to appropriate provisions of jurisdiction relating to transfer of administration to the public trustee, election by the Public Trustee to administer small estates, administration by Public Trustee of intestate estates]. (3) For the purposes of this Act, the administrator of the estate of a deceased person is a person to whom administration of the estate has been granted or any of the following persons: (a) a person who holds the estate or any part of that estate on a trust that arises out of the will or on the intestacy of the deceased person, (b) a person who is otherwise entitled or required to administer that estate or any part of that estate.

 

1.13 Clause 4(1) departs from the New South Wales scheme in so far as it covers situations where it is not necessary, in some circumstances, to seek a grant of administration in order to administer a deceased estate.⁹ This is especially the case in Queensland where real property may, in certain circumstances, be transferred from a deceased estate without the need to produce a grant.¹⁰ In New South Wales, the Court may only make an order “on an application in relation to a deceased person in respect of whom administration has been granted”.¹¹

1.14 The definition of administration in cl 4(2) is based, with minor variations, on the definition of administration in Family Provision Act 1982 (NSW) s 6(1).

1.15 The definition of administrator in cl 4(3) is based, with some variations of no significance, on the definition of administrator in Family Provision Act 1982 (NSW) s 6(1).

 

5 Act binds Crown This Act binds the Crown, not only in right of [insert name of jurisdiction] but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

 

1.16 Only New South Wales, Queensland and the Australian Capital Territory currently have legislative provisions that effectively bind the Crown for the purposes of family provision.¹² In the other Australian jurisdictions, the Crown is bound if the relevant legislation manifests an intention to bind the Crown and this, in part, depends upon when the original provisions relating to family provision were enacted.¹³

1.17 The National Committee concluded that it was necessary to remove any doubt as to the ability of the model uniform legislation to bind the Crown.¹⁴ This was because the extension of the range of persons entitled to apply for family provision to include persons “to whom a deceased person owed a responsibility to provide maintenance, education or advancement in life”¹⁵ whether they are a member of the family of the deceased or not, means that family provision orders could potentially be made against the Crown as the recipient of the deceased estate in situations where the deceased died intestate with no eligible next of kin.¹⁶

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”)at 146

2. Family Provision Act 1982 (NSW) s 6(1).

3. 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”) at para 2.24.

4. Property (Relationships) Act 1984 (NSW) s 6(1).

5. Wentworth v Wentworth (NSW SC, No 3748/89, Bryson J, 14 June 1991, unreported) at 107. Approved Schaeffer v Schaeffer (1994) 36 NSWLR 315 at 318 (Handley JA).

6. Family Provision Act 1982 (NSW) s 6(1).

7. New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills (Report 85, 1998) Appendix A. See also Wills Act 2000 (NT) s 4.

8. NSWLRC, Report 85 at para 1.5. A slightly different formulation was ultimately adopted in Victoria: see Wills Act 1997 (Vic) s 3(2) which states, “This Act applies to a codicil or other testamentary writing in the same manner as it applies to a will”.

9. The National Committee for Uniform Succession Laws has acknowledged that a significant number of estates are administered informally across Australia: New South Wales Law Reform Commission, Uniform Succession Laws: Administration of Estates of Deceased Persons (DP 42, 1999) para 10.25.

10. See NSWLRC, DP 42 para 10.3. See also Succession Act 1981 (Qld) s 54(1); NSWLRC, DP 42 para 10.1-10.15.

11. Family Provision Act 1982 (NSW) s 7.

12. Family Provision Act 1982 (NSW) s 5; Succession Act 1981 (Qld) s 4(2); and Legislation Act 2001 (ACT) s 121(1).

13. See Bropho v State of Western Australia (1990) 171 CLR 1.

14. R 58 at para 5.10-5.14.

15. Clause 7, below.

16. See Administration Act 1903 (WA) s 14(1) Item 11; Wills, Probate and Administration Act 1898 (NSW) s 61B(7); Succession Act 1981 (Qld) Sch 2 Part 2 Item 4; Administration and Probate Act 1958 (Vic) s 55; Administration and Probate Act 1919 (SA) s 72G(e); Administration and Probate Act (NT) Sch 6 Part 4 Item 4; Administration and Probate Act 1929 (ACT) Sch 6 Part 6.2 Item 4; Administration and Probate Act 1935 (Tas) s 45.