Report 116 (2007) - Uniform Succession Laws: Intestacy - Law Reform Commission : Lawlink NSW

3.1 This chapter deals with the broad issue of distribution to a surviving spouse or partner in two situations. First, where there are no surviving issue of the intestate and, secondly, where there are also surviving issue of the intestate.

3.2 In Queensland, NSW, ACT, SA, Tasmania and Victoria, the surviving spouse or partner is entitled to the whole of the intestate’s estate in the absence of surviving issue.¹

3.3 However, in WA and the NT, the surviving spouse or partner is only so entitled when the intestate has not been survived by any issue, parents nor siblings (nor the issue of siblings).² In the case of these jurisdictions, if the intestate is survived by a parent or brother or sister (or the issue of a sibling), the spouse or partner is only entitled to the whole of the intestate’s estate if its value is below a prescribed amount - $75,000 in Western Australia. If the value is greater than the prescribed amount, the spouse or partner is entitled to the threshold amount (plus interest calculated from the date of the death of the intestate until the date of payment³) and half of the intestate estate remaining.⁴ The spouse or partner’s absolute right to the personal (household) chattels⁵ remains untouched.⁶ A similar situation applied in Queensland before recommendations of the Queensland Law Reform Commission were adopted in 1997.

3.4 In New Zealand, in the absence of surviving issue, only the presence of a parent will affect the surviving spouse’s right to the whole of the estate.⁷ The rules in England still make provision for parents and siblings when the intestate is survived by a spouse or partner but no issue.⁸ However, in the United States, the Uniform Probate Code provides that a spouse is entitled to the whole estate if no descendants and no parents survive the intestate.⁹

3.5 In England in 1951, the Committee on the Law of Intestate Succession considered proposals that, in cases where the intestate was not survived by issue, the spouse should get the whole estate, to be “rather... striking”. The Committee considered that in the case of a large estate, an intestate would have wished that “close relatives, such as parents or brothers and sisters, should take some benefit from the estate, subject always to adequate provision being made for the spouse”.¹⁰ The Committee accordingly recommended a vastly increased statutory legacy be given to the surviving spouse in situations where the intestate was survived by no issue but by parents or brothers and sisters.¹¹ The Law Commission considered this question again in 1988,¹² and its recommendation in 1989, that the surviving spouse should receive the whole estate, operated to exclude other family members as well as issue of the intestate.¹³ The Law Commission’s recommendations have not been adopted.

3.6 In 1972, only Victoria and Tasmania allowed the surviving spouse, in absence of descendants, to take everything whether or not there were other surviving relatives of the intestate.¹⁴ In 1973, the Western Australian Law Reform Commission decided to follow the lead of these two jurisdictions and recommended that, in the absence of issue of the intestate, the whole estate should go to the spouse.¹⁵

3.7 In 1993, the Queensland Law Reform Commission recommended that a surviving spouse or partner should have to share only with the issue of the intestate.¹⁶ The recommendation was adopted in 1997.¹⁷

3.8 In 1974, the Ontario Law Reform Commission recommended that, when an intestate dies leaving a spouse but no issue, the surviving spouse should be entitled to the whole estate.¹⁸ The recommendation was adopted in 1978.¹⁹

3.9 In 1999, the Alberta Law Reform Institute recommended the retention of the scheme whereby the estate goes wholly to the surviving spouse or partner.²⁰

3.10 Provisions allocating part of the estate to members of the intestate’s family might have been justified in the past by the belief that it would be unreasonable that a widow, who might remarry, could carry off the whole of the intestate’s estate in preference to consanguine relatives of the intestate.²¹ In 1993, the Queensland Law Reform Commission observed that the “relatively ungenerous provisions which intestacy rules make for surviving spouses” possibly reflected such concerns, “as may the fact that a significant majority of surviving spouses are women, who have traditionally been discriminated against in succession law”.²²

3.11 Concerns about the transmission of family wealth may have some relevance in cases where the estate can be said to have been derived from the family of the intestate. An argument could be made, at least in the case of relatively younger intestates, that their parents may have supported them either directly or indirectly in the building up of any estate and it is, therefore, right that some of it revert to the family.²³ However, such intestacies will be relatively rare. Certainly not all people who die childless will die young.²⁴ If, as it has been said in Queensland, the surviving spouse “will most probably be a retired woman in the 75 to 80 year age group”,²⁵ it seems inequitable today that he or she should have to share the estate with anyone other than the issue of the intestate. Where the estate is only small, the unfairness of any forced division will be even more apparent.

3.12 Whatever views about the protection of family wealth were commonly held in the past, they are certainly not commonly held today. The argument that at least intestates with large estates would wish other close relatives to share in the estate²⁶ is not borne out by the empirical study of some wills admitted to probate in NSW in 2004.²⁷

3.13 Another argument has been made in the past that some near family, for example, elderly parents, could be dependent on the intestate.²⁸ Such an argument can be rejected on the grounds that family provision regimes now apply to intestate estates and are usually sufficiently broad to cover the dependency of near relatives.²⁹ The Ontario Law Reform Commission concluded:

3.15 One member of the NSW Parliament in 1977 observed “the plight of widows of intestate spouses, whose immediate personal tragedy has too often been compounded by their being told that they will have to share the estate with their children or, in extreme cases, with distant relatives, such as aunts and uncles of their husbands”.³³

3.16 Submissions that considered this issue were generally supportive of the position in the majority of Australian jurisdictions.³⁴

3.17 The surviving spouse or partner should get the whole of the intestate estate where there are no surviving issue.

3.18 There is no warrant for a provision that recognises family members other than the spouse or partner in situations where there are no issue who have survived the intestate. This is especially so given the availability of family provision legislation to provide for other family members who are also dependants. There is also no justification for introducing further situations where spousal shares and entitlements must be calculated.³⁵ The majority of Australian jurisdictions have abandoned such provisions.

3.19 Presently, in all jurisdictions where there is a surviving spouse and surviving issue of the intestate, the surviving spouse generally takes:

3.20 Arguably, the current arrangements are inadequate where there is a surviving partner and issue. They do not necessarily reflect the current demographic make-up of early 21st century Australia, community expectations (as evidenced by wills that are actually made, the intentions of those who do not make wills and the results of family provision applications), and other factors.

3.21 The current regime involves a degree of unwanted complexity for administrators of intestate estates. For example, questions will arise concerning valuations, and what property should be sold or distributed in satisfaction of various entitlements.³⁶ Problems may also arise where the shared home is the principal asset and there are surviving dependent children. In such cases, the surviving partner may get only a share of the home, and the remaining share is controlled by trustees.³⁷ Each child will then be entitled to his or her share of the asset upon reaching the age of 18.³⁸

3.22 The current regime may be unfair in cases where the estate consists almost entirely of the family home, especially where there has been a marriage of long standing and independent adult children have also survived the intestate. In such cases, the shared home may have to be sold to satisfy the entitlements of the surviving children. Consultations in Victoria suggested that it has been difficult in some cases to get the approvals for compromise agreements to allow the surviving partner to continue to live in the shared home.³⁹

3.23 The current schemes benefit the children of the deceased at the expense of the surviving spouse or partner. This is a product of the society in which the Statute of Distributions was enacted in England, over 330 years ago.⁴⁰

3.24 Given current life expectancies, most surviving spouses are going to be elderly and their children independent adults. This is a completely different situation to that which applied when the current regime was first established. In 1670, the average life expectancy at birth was something in the order of 38.1 years for men and 36.3 years for women.⁴¹ Those who made it to 25 years of age could expect to live, on average, until just after they turned 55.⁴² In Australia in 2001-2003 the average life expectancy at birth was 77.8 years for men and 82.8 years for women.⁴³

3.25 It can be argued that an elderly surviving spouse clearly has greater needs than relatively younger, independent, adult children.⁴⁴ The Law Commission of England and Wales suggested that “the effect of the present rules can be to transfer resources from the retired to the working population at just the time when the former need them most”.⁴⁵

3.26 As intestacy rules essentially produce a “default will”, it would be unreasonable for them to stray too far from community expectations.⁴⁶

3.27 The protection of the spouse in intestacy is seen generally as an acceptable development.⁴⁷ In fact, some have suggested that community expectations are often that everything will go to the surviving spouse.⁴⁸

3.28 Some studies (albeit conducted a number of years ago and in other common law jurisdictions) have shown that the public thinks the surviving spouse should receive a larger share of the estate than can be justified by need alone.⁴⁹ The Law Commission of England and Wales conducted a survey of members of the public which showed that 79% of respondents believed that the spouse should be entitled to the whole estate where there were dependent children of the relationship, and 72% believed that the spouse should be entitled to the whole estate where there were independent adult children of the intestate.⁵⁰

3.29 Data gathered about dispositions made in wills also tends to show that, where there is a surviving spouse and surviving children, testators give the entire estate to the surviving spouse. A survey of 548 wills proved in the NSW Probate Registry in 2004 revealed that approximately 75% of testators with a spouse and children choose to give the entire residue of their estate to their spouse, only about 2% share the residue between spouse and children, and about 19% give the residue to the children (subject to life estates in a few cases).⁵¹

3.30 These figures are supported by data from other jurisdictions. For example, data gathered from government sources in British Columbia in 1977 and 1981 showed that the deceased left everything to the surviving spouse in almost 80% of cases where the deceased was survived by both his or her spouse and at least one child.⁵²

3.31 A survey of 800 wills in Alberta in 1992 showed that, in the 260 cases where a spouse and children survived, approximately 64% gave all to the spouse, 24% shared the estate between spouse and children, and 9% gave all to the children.⁵³

3.32 In the United States, the National Conference of Commissioners on Uniform State Laws, in favouring an increased spousal share, was influenced by findings that people with smaller estates tend to give the entire estate to the surviving spouse.⁵⁴

3.33 A study of estates in Ohio published in 1970 found that, in a significant number of cases, the surviving spouse received more than his or her share of the intestate estate because the surviving issue signed over their entitlements.⁵⁵

3.34 In cases where the current intestacy rules do not make adequate provision for the surviving spouse, the surviving spouse can apply for family provision. The needs of the surviving spouse will generally be preferred over independent adult children. It can be argued that a surviving spouse should not have to apply in order to ensure adequate provision.⁵⁶ This is not only on moral grounds, but also on the practical grounds that family provision applications will delay administration, reduce the size of the estate, and cause unnecessary stress for surviving spouses.⁵⁷

3.35 Arguably, some of the current Australian regimes do not adequately take into account the surviving spouse’s contribution to the family. The surviving spouse will, in most cases, have contributed significantly to the acquisition and maintenance of the property, and the raising of the children of the relationship. Such a contribution would have been recognised, for example, if the couple had divorced under the Family Law Act 1975 (Cth), or separated under the relevant de facto relationships legislation. The Alberta Law Reform Institute has suggested that it is unfair that, after making sacrifices on behalf of their children, a parent’s “financial security in old age should be seen as less important than the financial position of the children”.⁵⁸ Other law reform agencies have made similar observations concerning the contribution of the surviving spouse to the family.⁵⁹

3.36 In determining an approach to this issue, the National Committee bears in mind the desirability of producing a clear and simple scheme of distribution. Other law reform agencies have also advocated this approach. The Alberta Law Reform Institute, for example, expressly recommended that their Intestate Succession Act should “create a clear and orderly scheme of distribution” which would promote certainty and make administration of estates easy.⁶⁰ The Manitoba Law Reform Commission aimed to simplify its legislation “for the convenience of the public and the legal profession”.⁶¹ Any scheme should also reflect the reasonable expectations of the community.⁶²

3.37 It is often suggested that shortcomings of each of the possible approaches can be resolved by way of an application for family provision. As a default regime, the scheme of distribution on intestacy should aim to reduce the number of family provision applications if possible, while still achieving its other aims. The use of family provision applications ought to be avoided for a number of reasons, including:

3.38 A number of submissions supported the retention of the current system, subject to any necessary increases in the statutory legacy.⁶³ Some of them noted that family provision applications have always been available for surviving partners who are dissatisfied with their allocation.⁶⁴

3.39 Much complexity has been caused by the need to apportion a share for the surviving spouse or partner in order to accommodate other relatives who are also entitled to take, usually the surviving issue of the intestate. A simpler plan may be for the intestate estate to devolve in its entirety to the surviving spouse or partner, regardless of the presence of other relatives.

3.40 Questions have been raised from time to time concerning the desirability of preferring the surviving spouse or partner to the issue of the intestate.

3.41 In 1967, the family law project of the Ontario Law Reform Commission proposed that everything should be given to the surviving spouse as a way of ensuring that the needs of intestate’s family are taken care of.⁶⁵ The Ontario Commission ultimately rejected this proposal in 1974.⁶⁶

3.42 In 1989, the Law Commission of England and Wales recommended that the surviving spouse should receive the whole estate no matter what other relatives remain.⁶⁷ The Commission’s view was stated as follows:

3.46 There is also some limited evidence of compromises being reached in favour of the surviving spouse or partner, at least in the case of uncomplicated estates. One Tasmanian practitioner suggested that there were few problems with the statutory legacy in his experience because, in most cases, the children of the intestate have let the surviving spouse take everything.⁸² The literature occasionally refers to the fact that families will sometimes enter such agreements,⁸³ although the actual extent of the practice is not known.

3.47 The problem of issue of another relationship. One of the chief reasons why this proposal has not proved popular in other jurisdictions is that it fails to take into account the position of children of the intestate’s other relationships.⁸⁴ Some views in consultations agreed that such outcomes do not reflect community expectations that property should ultimately devolve to issue of the intestate.⁸⁵

3.48 The basic problem is that the children would have expected, in the normal course of events, to receive something of the estate upon the death of the surviving spouse, so long as the surviving spouse was their parent.⁸⁶ Such an expectation is unlikely to be fulfilled on the death of the surviving spouse who is only a step-parent.⁸⁷ This is because people are less likely to leave anything in their wills to step-children, especially those step-children who attained their status when they were independent adults. Also, step-children are currently not recognised in any intestacy regime in Australia and only in some family provision regimes.

3.49 The English Law Commission considered that making provision for the children of earlier relationships went against the primary aim of ensuring that the surviving spouse receives adequate provision.⁸⁸ One view is that the surviving partner’s needs will remain the same regardless of the presence of children of any earlier relationships.⁸⁹ However, it can also be said that giving the whole estate to a subsequent spouse is “unfair in that children of former marriages could end up inheriting none of what was originally their parents’ property”.⁹⁰ This is especially so where the former spouse or partner has predeceased the intestate. In such cases it is possible that the surviving spouse or partner will inherit property that was substantially derived from the deceased former spouse or partner. It can be argued that the children of the former relationship would have a greater sense of entitlement to at least some of this property.⁹¹

3.50 A series of US studies conducted before 1985 revealed that respondents were prepared to give a lesser entitlement to second or subsequent spouses where there were also issue from a previous relationship than they were prepared to give to a spouse where the only surviving issue were those of that relationship.⁹² The Law Reform Commission of Tasmania also considered the situation where the intestate is survived by children of another relationship and these children cannot rely on the surviving spouse for support.⁹³

3.51 In Australia, some courts have noted community attitudes to making adequate provision for a surviving spouse when there are also children of another relationship. For the most part, at least in the case of small estates, the courts are likely to give the whole of the estate to the surviving spouse as the only way to ensure adequate provision.⁹⁴ (Although there are instances of life estates being granted in these circumstances.⁹⁵) However, in the case of larger estates, considerations may be slightly different, depending on the facts of the case, in particular the size of the estate. In 2004, Justice Nettle of the Victorian Supreme Court observed:

3.52 There is some authority for the suggestion that upon the death of the surviving partner, most would expect some part of the surplus of the estate to go to the children of the earlier relationship. This approach would leave the determination of the rights of the surviving children of the deceased to family provision proceedings following the death of the surviving spouse (on the assumption that the surviving spouse did not make adequate provision for his or her step-children). Because the definition of “child” does not always encompass “step-child”, this outcome would not currently be possible in some Australian jurisdictions and there would, therefore, be a need either:

3.53 This option involves giving greater recognition to surviving issue of other relationships. Such situations are more common now with a higher incidence of re-marriage following divorce, and of people living together in de facto relationships following the breakdown of a previous relationship.¹⁰¹

3.56 In Manitoba, the whole of the intestate estate goes to the surviving spouse or partner where the surviving issue are also issue of that relationship.¹⁰³ In cases where one or more of the issue are issue of another relationship, the share of the surviving spouse is C$50,000 or one half of the intestate estate (whichever is greater) and one half of the residue.¹⁰⁴

3.57 The Manitoba Law Reform Commission in 1985 recommended that the surviving spouse should be given a C$100,000 statutory legacy in situations where the surviving issue were also issue of the surviving spouse. However, in cases where some of the surviving issue were not issue of the surviving spouse, the Commission recommended that the surviving spouse should receive a C$50,000 statutory legacy.¹⁰⁵

3.58 Another example may be seen in Montana (a US State that has adopted the Uniform Probate Code)¹⁰⁶ where the surviving spouse is entitled to:

3.60 The English Law Commission suggested that children who were not also children of the surviving spouse could seek remedies elsewhere if they were not being adequately cared for by their step-parent,¹¹⁰ an approach which one commentator described as “oversimplistic” and as presupposing “an ability and willingness to litigate” and not taking into account “the detriment to family relationships which could result from any such application to the court”.¹¹¹ One commentator has noted that there are serious drawbacks in relying on a family provision regime in such cases, pointing to the unpredictability of outcomes and the cost of defending claims.¹¹² In one consultation, it was suggested that the law should try to avoid creating grounds for litigation between the surviving spouse and the issue of another relationship.¹¹³

3.61 A view expressed in one consultation was that a separate arrangement where the surviving issue were from another relationship would better reflect community expectations.¹¹⁴ Some submissions expressly supported such an arrangement.¹¹⁵ Others, however, vigorously rejected this and supported the current system with an increase in the statutory legacy if required.¹¹⁶

3.62 The Uniform Law Conference of Canada has observed that parties to a later relationship will generally have commenced that relationship at a relatively older age and the surviving spouse or partner is likely to have been “self-supporting” for a significant period. This arguably equalises the deceased’s obligations as between his or her issue and spouse or partner.¹¹⁷

3.63 The survey of wills in the NSW Probate registry revealed 16 estates where the testator had a surviving spouse or partner and children from another relationship. Of these, seven (43%) gave the residue all to the spouse; two (12.5%) shared the residue between spouse and children; five (31%) gave everything to the children; and two (12.5%) shared everything between their children and others, but not the spouse.¹¹⁸

3.64 Some proposals for the recognition of dependants have been raised from time to time, albeit unsuccessfully,. For example, the Law Commission for England and Wales raised the possibility of minor children receiving a greater share than adult children.¹¹⁹

3.65 The recognition of dependency was also mooted in some consultations.¹²⁰ In one consultation, it was proposed that dependency be recognised so that step-children of the intestate could be included in a distribution.¹²¹ Such an approach would be particularly desirable, for example, in cases where the step-child had been brought up alongside the children of the more recent relationship.

3.66 Some submissions rejected any approach that distinguished dependent from non-dependent issue.¹²² One submission expressly rejected the idea of making separate provision for dependent children principally on the grounds of equality and because the cut-off was seen as arbitrary.¹²³

3.67 Another option is to increase the statutory legacy to ensure that it is enough for the surviving spouse or partner to purchase a home and continue to live comfortably.

3.68 The practical result of substantially increasing the statutory legacy in most cases will be that the surviving spouse will be entitled to the whole of the estate.¹²⁴ In this context, it has been suggested that an adequate statutory legacy is to be preferred to options such as giving the whole of the estate to the surviving spouse because it recognises “that a large estate can be distributed so as to ensure that the surviving spouse’s requirements are met without disinheriting children of the marriage”.¹²⁵

3.69 Some US studies have suggested that people will support the issue receiving a share of an intestate estate where the estate is a large one.¹²⁶

3.70 While there will obviously be some estates that are so large that only a small share will be needed to ensure adequate provision for a surviving spouse, it has been argued that these should not exercise a strong influence on the final form of intestacy rules.¹²⁷ The principle reason is their comparative rarity. Another reason is that such estates will have sufficient resources to meet any family provision applications that independent adult children should decide to make.¹²⁸ In any case, even a substantial increase to the statutory legacy may not necessarily guarantee that the surviving spouse will continue to live in the family home, especially if that home is located in a market characterised by high property values.

3.71 There was some support in consultations for a substantial increase in the statutory legacy. This was particularly so in Victoria, WA and SA, where the statutory legacies ($100,000, $50,000 and $10,000 respectively) are widely regarded as too low.¹²⁹

3.72 The most recent Australian law reform agency to consider this question was the Queensland Law Reform Commission in 1993. The QLRC recommended a generous provision for the surviving spouse or partner, including the personal property of the intestate, a statutory legacy of $100,000, the matrimonial home, a sum of up to $150,000 sufficient to discharge any mortgage on the matrimonial home, and one-half of the intestate estate remaining.¹³⁰ The QLRC considered that making such provision was consistent “with the discernible policy of the courts in dealing with ‘usual’ family provision applications and of the practice of many spouses who do make wills”.¹³¹

3.73 The option of giving everything to the surviving spouse in all cases has some attractions, principally on the grounds of simplicity, and conforms with practice in the majority of testate estates. However, there is some genuine concern about the position of children of other relationships.

3.74 The National Committee considers that the surviving spouse should take everything unless the intestate is also survived by issue of another relationship. This option eliminates the need to make special arrangements for the surviving spouse or partner in most cases. The survey of 548 wills proved in the NSW Probate Registry in September 2004 revealed only 16 estates (3%) where there was a surviving spouse or partner and children of another relationship.¹³²

3.75 It is still necessary to make special provision for the surviving spouse in cases where there are issue of another relationship. Reasons for adopting this approach include:

3.76 It can be argued that only the issue of the other relationship should be entitled to a share on the basis that the children of the surviving spouse could still expect to inherit from their surviving parent. However, there was a concern about the disharmony this might cause in some families. While it is not desirable to make avoiding family provision applications an aim of intestacy law, excluding the natural children of the surviving spouse in these circumstances could well lead to an increase in family provision applications.

Table of contents

1. Succession Act 1981 (Qld) Sch 2 Pt 1 It 1(1); Wills, Probate and Administration Act 1898 (NSW) s 61B(2); Administration and Probate Act 1929 (ACT) Sch 6 Pt 6.1 It 1; Administration and Probate Act 1919 (SA) s 72G(a); Administration and Probate Act 1935 (Tas) s 44(2)(b); and Administration and Probate Act 1958 (Vic) s 51(1).

2. Administration Act 1903 (WA) s 14(1) Table It 4; and Administration and Probate Act 1969 (NT) Sch 6 Pt 1 It 3. See also Administration of Estates Act 1925 (Eng) s 46(1)(i) Table It 1.

4. Administration Act 1903 (WA) s 14(1) Table It 3; and Administration of Estates Act 1925 (Eng) s 46(1)(i) Table It 3.

6. Administration Act 1903 (WA) s 14(1) Table It 1; Administration and Probate Act 1969 (NT) s 66(2), s 67(1) and (2); and Administration of Estates Act 1925 (Eng) s 46(1)(i) Table It 3.

10. England and Wales, Report of the Committee on the Law of Intestate Succession (Cmd 8310, 1951) at 12.

11. England and Wales, Report of the Committee on the Law of Intestate Succession (Cmd 8310, 1951) at 13.

12. England and Wales, Law Commission, Distribution on Intestacy (Working Paper 108, 1988) at 49.

13. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) para 28-46.

14. See Western Australia Law Reform Committee, Distribution on Intestacy (Project No 34, Part 1, Working Paper, 1972) at 6.

15. Law Reform Commission of Western Australia, Distribution on Intestacy (Project No 34, Part 1, Report, 1973) at para 29. See also Western Australia Law Reform Committee, Distribution on Intestacy (Project No 34, Part 1, Working Paper, 1972) at 6.

16. Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at para 4.2.

18. Ontario Law Reform Commission, Family Property Law (Report on Family Law, Part 4, 1974) at 166.

19. See A H Oosterhoff, Succession Law Reform in Ontario (Canada Law Book Ltd, Toronto, 1979) at 61.

20. Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 63.

21. Law Society of Tasmania, Submission at 5. See an analogous argument in Blackborough v Davis (1701) P Wms 41 at 49; 24 ER 285 at 288.

22. Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at 36-37.

23. England and Wales, Law Commission, Distribution on Intestacy (Working Paper 108, 1988) at 49.

24. England and Wales, Law Commission, Distribution on Intestacy (Working Paper 108, 1988) at 49.

25. Queensland, Parliamentary Debates (Hansard), 20 August 1997, Succession Amendment Bill, Second Reading at 3017.

26. England and Wales, Report of the Committee on the Law of Intestate Succession (Cmd 8310, 1951) at 12.

27. J E Dekker and M V A Howard, I give, devise and bequeath: an empirical study of testators’ choice of beneficiaries (NSW Law Reform Commission Research Report 13, 2006) at para 3.8.

28. England and Wales, Report of the Committee on the Law of Intestate Succession (Cmd 8310, 1951) at 13.

29. Ontario Law Reform Commission, Family Property Law (Report on Family Law, Part 4, 1974) at 166.

30. Ontario Law Reform Commission, Family Property Law (Report on Family Law, Part 4, 1974) at 166. See also A H Oosterhoff, Succession Law Reform in Ontario (Canada Law Book Ltd, Toronto, 1979) at 62.

31. Law Reform Commission of British Columbia, Statutory Succession Rights (Report 70, 1983) at 28.

32. Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 63.

33. NSW, Parliamentary Debates (Hansard) Legislative Council, 28 November 1977, at 10325.

34. Public Trustee NSW, Submission at 4; Trustee Corporations Association of Australia, Submission at 4; Public Trustee NSW, Submission at 4; J North, Submission at 2. But see Law Society of Tasmania, Submission at 5.

36. Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 13.

40. See Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 65.

41. E A Wrigley, R S Davies, J E Oeppen, R S Scholfield, English population history from family reconstitution 1580-1837 (Cambridge University Press, 1997) at 308.

42. E A Wrigley, R S Davies, J E Oeppen, R S Scholfield, English population history from family reconstitution 1580-1837 (Cambridge University Press, 1997) at 282.

44. See Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 66; Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 11 (although the MLRC considered that their current scheme adequately met those needs).

45. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 23.

46. Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 61.

47. Sydney Consultation 1. See also S M Cretney, “Reform of intestacy: the best we can do?” (1995) 111 Law Quarterly Review 77 at 79-86.

49. See Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 61.

50. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at 29.

51. J E Dekker and M V A Howard, I give, devise and bequeath: an empirical study of testators’ choice of beneficiaries (NSW Law Reform Commission Research Report 13, 2006) at para 3.9.

52. See Law Reform Commission of British Columbia, Statutory Succession Rights (Report 70, 1983) Appendix F and Appendix G.

53. Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 190.

55. M B Sussman, J N Cates and D T Smith, The Family and Inheritance (Russell Sage Foundation, New York, 1970) at 126.

56. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 26. See also Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 60.

57. See Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 67.

58. Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 67.

59. See Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 11 (although in this case the MLRC considered that their current regime adequately took this into account).

60. Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 61.

61. Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 7.

62. Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 7 (“ensure that the law is compatible with the wishes of the average property owner as well as present social values”).

63. J North, Submission at 2; Probate Committee, Law Society of South Australia, Consultation; WA, Succession Law Implementation Committee, Consultation; Trustee Corporations Association of Australia, Submission at 5; Public Trustee NSW, Submission at 4; W V Windeyer, Submission at 3; Melbourne Consultation; Law Society of Tasmania, Submission at 5; P Worrall, Consultation.

64. Sydney Consultation 1; Public Trustee NSW, Submission at 4; Trustee Corporations Association of Australia, Submission at 5; Public Trustee NSW, Submission at 4; W V Windeyer, Submission at 3.

65. Ontario Law Reform Commission, Property Subjects (Study of the Family Law Project, 1967) Vol 3 at 580 (rev).

66. Ontario Law Reform Commission, Family Property Law (Report on Family Law, Part 4, 1974) at 165.

67. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 28-46.

68. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 33.

69. See G Miller, “Intestacy, divorce and wills” (1995) 145 New Law Journal 1693; S M Cretney, “Reform of intestacy: the best we can do?” (1995) 111 Law Quarterly Review 77 at 77.

70. England and Wales, Law Commission, Distribution on Intestacy (Working Paper 108, 1988) at para 5.5(v).

71. Ontario Law Reform Commission, Family Property Law (Report on Family Law, Part 4, 1974) at 165. See also Ontario Law Reform Commission, Property Subjects (Study of the Family Law Project, 1967) Vol 3 at 581 (rev).

72. Probate Committee, Law Society of South Australia, Consultation; Tasmania, Office of the Public Trustee, Consultation; S Samek, Consultation; Registry, Supreme Court of Tasmania, Consultation.

74. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 34.

76. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 36; Sydney Consultation 2.

77. It should be noted that in many family provision cases the interests of the surviving spouse or partner will be preferred over that of surviving adult children of the intestate.

79. Alberta Law Reform Institute, Reform of the Intestate Succession Act (Report 78, 1999) at 66.

80. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 37. See also Sydney Consultation 2; Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 13.

83. See, eg, W G Briscoe, The Law Relating to Succession Rights on Intestacy (Law Reform Commission of Tasmania, Working Paper, 1984) at para 5.19; M B Sussman, J N Cates and D T Smith, The Family and Inheritance (Russell Sage Foundation, New York, 1970) at 126-133; N Preston, “A lasting legacy” (2005) 155 New Law Journal 1594 at 1596.

84. See R Hudson, “No will to implement” (1992) 142 New Law Journal 899; R Kerridge, “Distribution on intestacy, the Law Commission’s report (1989)” [1990] Conveyancer and Property Lawyer 358.

86. See Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 11; R Kerridge, “Distribution on intestacy, the Law Commission’s report (1989)” [1990] Conveyancer and Property Lawyer 358 at 364.

87. See L W Waggoner, “The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform Probate Code” (1991) 76 Iowa Law Review 223 at 233.

88. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 42.

89. Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 17.

90. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 41. See also Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 17.

91. R Kerridge, “Distribution on intestacy, the Law Commission’s report (1989)” [1990] Conveyancer and Property Lawyer 358 at 364. See also Strojczyk v Kopycinzki [2006] NSWSC 588 at para 48.

92. See Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 18.

93. Law Reform Commission of Tasmania, Succession Rights on Intestacy (Report 43, 1985) at 13.

94. See, eg, Woolnough v Public Trustee [2005] TASSC 50 where the surviving spouse was granted the whole estate in preference to her receiving a life estate with the remainder going both to the surviving issue of the testator and the surviving spouse and to the issue of a previous marriage. See also McDougall v Roger [2006] NSWSC 484 at para 48-49.

96. McKenzie v Topp [2004] VSC 90 at para 58. See also James v Day [2004] VSC 290 and Keets v Marks [2005] VSC 172 at para 26-30; Powell v Monteath [2006] QSC 24 at para 40-46.

99. National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (Queensland Law Reform Commission Miscellaneous Paper 28, December 1997) at 20-24.

100. Family Provision Act 1969 (ACT) s 7(1)(d) and s 7(2); Family Provision Act 1970 (NT) s 7(1)(d) and s 7(2)(b); Succession Act 1981 (Qld) s 40 (definition of “child”); Inheritance (Family Provision) Act 1972 (SA) s 6(g); Testator’s Family Maintenance Act 1912 (Tas) s 2(1).

101. See Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 16; L W Waggoner, “The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform Probate Code” (1991) 76 Iowa Law Review 223.

102. Queensland Law Reform Commission, Intestacy Rules (Working Paper 37, 1992) at 14.

105. Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 15-16, 19-20.

106. Montana Code Annotated 2003 s 72-2-112. See also Uniform Probate Code s 2-102 and L W Waggoner, “The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform Probate Code” (1991) 76 Iowa Law Review 223 at 229-235.

108. Ontario Law Reform Commission, Family Property Law (Report on Family Law, Part 4, 1974) at 165.

110. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 46.

112. S M Cretney, “Reform of intestacy: the best we can do?” (1995) 111 Law Quarterly Review 77 at 97.

115. Sydney Consultation 2; Law Society of NSW, Submission at 1; Law Society of NSW, Submission at 1; K McQueenie, Consultation; K Mackie, Consultation; R Walker, Consultation.

117. Uniform Law Conference of Canada, Proceedings of the Sixty-fifth Annual Meeting (1983) at 221-222.

118. J E Dekker and M V A Howard, I give, devise and bequeath: an empirical study of testators’ choice of beneficiaries (NSW Law Reform Commission Research Report 13, 2006) at para 3.14.

119. England and Wales, Law Commission, Distribution on Intestacy (Working Paper 108, 1988) at para 5.5(vii) and para 5.8.

122. Public Trustee NSW, Submission at 5; W V Windeyer, Submission at 4; Law Society of Tasmania, Submission at 7.

124. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 30.

125. Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 13.

126. Manitoba Law Reform Commission, Intestate Succession (Report 61, 1985) at 13.

127. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 30.

128. See England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at para 30.

129. Melbourne Consultation; WA, Succession Law Implementation Committee, Consultation; Probate Committee, Law Society of SA, Consultation.

130. Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at 37-38.

131. Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at 35.

132. J E Dekker and M V A Howard, I give, devise and bequeath: an empirical study of testators’ choice of beneficiaries (NSW Law Reform Commission Research Report 13, 2006) at para 3.14.