List of recommendations

Updates and background for this project (Digest)

Recommendation 1

A domestic partnership (or equivalent) should be one recognised as such under the relevant law of the jurisdiction if:

(a) it has been in existence for two years;

(b) a child has been born to the relationship; or

(c) it has been registered under a law of the jurisdiction that deals with the registration of domestic partnerships.

There should be no provision stating that spouses should be treated as separate persons.

Recommendation 3

The surviving spouse or partner should be entitled to the whole of the intestate estate where there are no surviving issue of the intestate.

Where the intestate is survived by a spouse or partner and issue, the spouse or partner should be entitled to the whole intestate estate except in cases where some of the issue are issue of the intestate from another relationship. In cases where some of the issue are issue of the intestate from another relationship, the intestate estate should be shared between the surviving spouse and all surviving issue.

Recommendation 5

Where the intestate is survived by a spouse or partner and issue from another relationship, the spouse or partner should be entitled to all of the tangible personal property of the intestate except for:

(a) property used exclusively for business purposes;

(b) banknotes or coins, unless they are part of a collection made in pursuit of a hobby or some other non-commercial purpose;

(c) property held as a pledge or other form of security;

(d) property in which the intestate invested as a hedge against inflation or adverse currency movements, such as gold bullion or uncut diamonds; and

(e) any interest in land.

Where an intestate is survived by a spouse or partner and issue of another relationship, the spouse or partner should be entitled to a statutory legacy.

The statutory legacy should be set at $350,000 for all jurisdictions.

The amount of the statutory legacy should be adjusted to reflect changes in the Consumer Price Index between 1 January 2006 and 1 January in the year of the death of the intestate. The spouse or partner should also be entitled to interest in addition to the legacy, with the interest calculated in accordance with the provisions that will apply to general legacies, namely 2% above the last cash rate published by the Reserve Bank of Australia before 1 January in the calendar year in which interest begins to accrue.

In cases where the surviving spouse or partner is entitled to claim statutory legacies in more than one jurisdiction, he or she should receive legacies of a combined value that is no more than the highest statutory legacy from among the jurisdictions in which he or she is entitled.

Where an intestate is survived by a spouse or partner and issue of another relationship, the spouse or partner should be entitled to one-half of the residue of the intestate estate after he or she has received the personal effects of the intestate and the statutory legacy (with interest). The issue of the intestate should be entitled to the remaining half-share per stirpes.

Recommendation 9

The surviving spouse or partner should be able to elect to obtain any property in the intestate’s estate.

Anyone (who is not the surviving spouse or partner) who seeks to apply for letters of administration or distribute an intestate estate must give the surviving spouse or partner written notice advising of his or her right to make an election before they apply or distribute (as the case may be). The notice should indicate the requirements for exercising the right to election including relevant time limits.

Where the surviving spouse or partner is not one of the personal representatives of the intestate, he or she should give notice of his or her election to the people who gave the notice advising of the right and to the issue of the intestate.

Where the surviving spouse or partner is one of the personal representatives of the intestate, he or she should give notice to the other personal representatives and to the issue of the intestate.

The surviving spouse or partner should give notice of his or her election in writing.

Where the surviving spouse or partner is not one of the personal representatives of the intestate, he or she must elect to obtain the relevant property within three months of receiving notice of the right of election.

Where the surviving spouse or partner is one of the personal representatives of the intestate, he or she must elect to obtain the relevant property within three months of applying for the letters of administration or of commencing the distribution of the estate as the case may be.

The court should have the power to extend this period when it considers it proper to do so for any reason affecting the administration or distribution of the estate, including when a question of the existence, or nature, of a person’s interest in the intestate estate had not been determined when administration of the estate was first granted or the distribution first commenced.

A requirement or consent made or given concerning election by a surviving spouse who is a minor should be as valid and effective as it would be if the spouse had attained majority.

The surviving spouse or partner should be able to revoke his or her election at any time before the transfer of the relevant property without the need for consent by any other person.

The spouse or partner should be able to require that the personal representative obtain a valuation of the relevant property from a qualified valuer.

When the spouse wishes to obtain property that is subject to a charge (being a mortgage, other charge, encumbrance or lien) at the time of the transfer and the holder of that charge agrees to the spouse assuming the liability, the value of the interest in the relevant property should be the market value of the property, less any amount needed to discharge the liability and, on the transfer of the property, the liability should pass to the spouse and the estate be exonerated from it.

The value should be the value calculated at the death of the intestate.

The valuer who determines the value of the property should be defined according to the appropriate professional regulation scheme in force in each jurisdiction.

The surviving spouse or partner should be able to provide satisfaction for the interest in the relevant property, first by relying on any share of the intestate estate to which they are entitled and, then, if his or her share is insufficient to cover the value, by paying the difference from other resources that are available to him or her.

The surviving issue or personal representative should be able to apply to the court to restrict the surviving spouse or partner’s right to elect to acquire any property in the estate in situations where the acquisition would be likely to diminish the assets of the intestate or make the administration of the estate substantially more difficult.

The personal representatives should not sell or otherwise dispose of the property in the estate when:

(a) the surviving spouse or partner’s election is pending; or

(b) the surviving spouse or partner has elected to acquire the interest,

except where:

(c) the proceeds of such a sale are needed as a last resort to satisfy any of the intestate’s liabilities;

(d) the property is perishable or likely to decrease rapidly in value;

(e) the surviving spouse or partner is also the sole personal representative of the estate;

(f) the election requires the court’s authorisation and an application of the surviving spouse or partner to acquire the relevant property has been refused or the application has been withdrawn; or

(g) the surviving spouse or partner has notified the personal representatives in writing that he or she will not elect to obtain any property.

These restrictions should not affect the validity of the sale of any of the intestate’s estate.

Where the spouse or partner is a trustee, express provision should be made that he or she may acquire property from the estate notwithstanding his or her role as trustee.

Recommendation 23

Where there is more than one spouse or partner and no descendants of the intestate, or descendants who are also descendants of the surviving spouses and/or partners, each spouse should be entitled to share in the estate.

Where there is more than one spouse or partner and descendants of the intestate from at least one other relationship:

(a) each spouse or partner should be entitled to a statutory legacy (rateably if there are insufficient funds) and a share of half the residue of the estate; and

(b) each child (or representative) of the intestate should be entitled to an equal share of the remaining half.

The Queensland provisions for distributing an intestate estate where there are multiple spouses and/or partners should be adopted.

Recommendation 24

Persons conceived before the death of the intestate but born after should inherit as if they had been born in the intestate’s lifetime.

The model laws should make it clear that persons born after the death of the intestate must have been in the uterus of their mother before the death of the intestate in order to gain any entitlement on intestacy.

Step-children of the intestate should not be recognised for the purposes of intestacy.

Where a person has been adopted, the previous family relationships should have no recognition for the purposes of intestacy.

Recommendation 28

Distribution to relatives of the intestate should be per stirpes in all cases.

Persons entitled to take in more than one capacity ought to be entitled to take in each capacity.

The distinction between siblings who have one parent in common and those who have both parents in common should be immaterial for determining entitlements on intestacy.

Recommendation 31

Where an intestate is not survived by a spouse or partner, the issue of the intestate should take their share per stirpes.

Where an intestate is not survived by a spouse or partner, or issue, the surviving parents should be entitled to take in equal shares.

Where an intestate is not survived by a spouse or partner, or issue or parents, the brothers and sisters should be entitled to take.

The issue of deceased brothers and sisters should be entitled to take, by representation, their deceased parent’s share of the intestate’s estate.

Where an intestate is not survived by a spouse or partner, or issue, or parents, or brothers and sisters, the surviving grandparents should be entitled to take in equal shares.

Where an intestate is not survived by a spouse or partner, or issue, or parents, or brothers and sisters, or grandparents, the aunts and uncles should be entitled to take.

The children of deceased aunts and uncles should be entitled to take, by representation, their deceased parent’s share of the intestate’s estate.

No further categories of relative should be entitled beyond the children of deceased aunts and uncles.

Recommendation 38

Bona vacantia estates should vest in the relevant State or Territory.

The responsible Minister should have the discretion, upon application, to make provision out of bona vacantia estates for people in the following classes:

(a) any dependants of the intestate;

(b) any persons having in the opinion of the Minister a just or moral claim to the grant of the property;

(c) any persons or organisations for whom the intestate might reasonably be expected to have made provision;

(d) the trustees of any person as mentioned in paragraphs (a) to (c);

(e) any other organisation or person.

Recommendation 40

A 30-day survivorship period should apply to all persons entitled to take on intestacy.

A 30-day survivorship period should apply to persons born after the death of the intestate but who were en ventre sa mere at that death.

The 30-day survivorship period should not apply where the effect would be that the intestate estate passes to the Crown as bona vacantia.

Recommendation 41

A minor’s share in an intestate estate should not be contingent but vest immediately.

Where the forfeiture rule prevents a person from sharing in the intestate estate or where a person has disclaimed the share to which he or she is otherwise entitled, that person should be deemed to have died before the intestate.

Recommendation 43

There should be no provisions that take account of benefits given during the intestate’s lifetime.

There should be no provisions that account for benefits received under the intestate’s will.

Recommendation 45

A person who claims to be entitled to take an interest in an Indigenous person’s intestate estate under the customs and traditions of the community or group to which the Indigenous intestate belonged or a personal representative may apply to the Court for an order for distribution of the estate. A plan of distribution of the estate, prepared in accordance with the traditions of the community or group to which the Indigenous person belonged, must accompany the application.

An application must be made within 12 months of the grant of administration. The Court may extend this time subject to any conditions it thinks fit, whether or not the 12 months has expired. No application will be allowed after the intestate estate has been fully distributed according to law.

The Court:

(a) may order that the intestate estate (or part thereof) be distributed in a specified manner;

(b) must, in making an order, take into account the traditions of the community or group to which the intestate belonged and the plan of distribution;

(c) must not make any order for distribution unless it is satisfied that it would, in all the circumstances, be just.

The Court order may include property which the personal representative distributed within the 12 month period before he or she had notice of any application. The Court will not disturb any distribution if it was made for the purposes of providing for the maintenance, education or advancement in life of a person who was totally or partially dependent on the intestate immediately before his or her death.

Recommendation 46

An “intestate” should be defined as a person who dies and either does not leave a will, or leaves a will but does not dispose effectively by will of the whole or part of his or her property.

There should not be a provision relating to beneficially interested personal representatives.