Table of contents
Updates and background for this project (Digest)
1. Introduction
BACKGROUND
Testate and intestate succession
When intestacy occurs
Incidence of intestacy
Characteristics of intestates and their estates
Transmission of property by other means
AIM OF INTESTACY RULES
Carrying out the presumed intentions of the intestate
Simplicity, clarity and certainty
Meeting the needs of family members
Provision for deserving family members
Interaction with family provision regimes
THIS REFERENCE
Work of the National Committee for Uniform Succession Laws
Issues Paper 26
Submissions and consultations
Research Report 13
OUTLINE OF THIS REPORT
Spouses and partners
The parent-child relationship
Distribution to next of kin
Bona vacantia
General aspects of distribution
Accounting for benefits received
Indigenous people
Miscellaneous provisions
2. Spouse or partner – preliminary issues
INTRODUCTION
WHO IS A SPOUSE OR PARTNER?
Spouses
Domestic partnerships
SPOUSES TO BE TREATED AS SEPARATE PERSONS
National Committee’s conclusion
3. Spouse or partner – general distribution
SURVIVING SPOUSE BUT NO SURVIVING ISSUE
Law reform developments
Arguments for and against
Submissions
National Committee’s conclusion
SURVIVING SPOUSE AND SURVIVING ISSUE
Problems with the current position
Possible approaches
Recognition of dependency
National Committee’s conclusion
4. Spouse or partner – special provisions
PERSONAL EFFECTS OF THE INTESTATE
Definition of effects
Law reform developments
Submissions and consultations
National Committee’s conclusion
THE STATUTORY LEGACY
Justification of the statutory legacy
The amount of the statutory legacy
National Committee’s conclusion
STATUTORY LEGACY AND CONFLICT OF LAWS
National Committee’s conclusion
APPORTIONING THE RESIDUE BETWEEN SURVIVING PARTNER AND ISSUE
Law reform developments
Submissions and consultations
National Committee’s conclusion
5. Spouse or partner – election to obtain any property
THE RIGHT TO THE SHARED HOME
Current provisions
General arguments
Alternative approaches
A NEW APPROACH
THE SPOUSE OR PARTNER’S ENTITLEMENT
Election
Revocation
Valuing the intestate’s interest in the relevant property
Satisfying the value of the interest
Restrictions on the right to acquire property
National Committee’s conclusion
POWER OF THE PERSONAL REPRESENTATIVE TO DISPOSE OF PROPERTY
The current law
National Committee’s conclusion
Where the spouse is a trustee
6. Multiple partners
INTESTATE LEAVES A SPOUSE AND A DE FACTO PARTNER
Distribution in Queensland
Distribution in other Australian jurisdictions
INTESTATE LEAVES MORE THAN ONE PARTNER
BIGAMOUS UNIONS
PERSONAL EFFECTS
SUBMISSIONS AND CONSULTATIONS
NATIONAL COMMITTEE’S CONCLUSION
Where there are also surviving issue
7. The parent – child relationship
ESTABLISHING PARENTAGE
Presumptions of parentage
National Committee’s conclusion
CHILDREN NOT YET BORN (EN VENTRE SA MERE)
Rights of children not yet born
Presumptions of parentage
Delayed conception and suspended gestation
STEP-CHILDREN
Arguments for and against
Law Reform developments
Submissions and consultations
National Committee’s conclusion
STEP-PARENT ADOPTIONS
Law reform developments
Arguments for and against
National Committee’s conclusion
8. Next of kin – preliminary issues
PER STIRPES OR PER CAPITA DISTRIBUTION?
Current Australian provisions
Law reform developments
Arguments for and against
Submissions and consultations
National Committee’s conclusion
PERSONS ENTITLED IN MORE THAN ONE CAPACITY
Law reform developments
Submissions
RELATIONSHIPS BETWEEN SIBLINGS
Law reform developments
Submissions and consultations
The National Committee’s view
9. Next of kin – general order of distribution
ISSUE
PARENTS
BROTHERS AND SISTERS
DESCENDANTS OF BROTHERS AND SISTERS
National Committee’s conclusion
MATERNAL AND PATERNAL BRANCHES OF THE FAMILY
National Committee’s conclusion
GRANDPARENTS
AUNTS AND UNCLES
SETTING A LIMIT
Should there be a limit?
What should the limit be?
The National Committee’s conclusion
10. Bona vacantia
WHERE SHOULD IT GO?
Distribution to charities
Submissions and consultations
National Committee’s conclusion
HOW SHOULD IT BE DISTRIBUTED?
DISCRETIONARY DISTRIBUTION
Circumstances in which distribution may be made
Criteria for assessment of claims
Corporate claimants
National Committee’s conclusion
11. Survivorship
APPLICATION OF SURVIVORSHIP CLAUSES TO INTESTACY
Law reform developments
Arguments for and against
LENGTH OF TIME
PREVENTING BONA VACANTIA
APPLICATION TO CHILDREN EN VENTRE SA MERE
SUBMISSIONS AND CONSULTATIONS
NATIONAL COMMITTEE’S CONCLUSION
12. Vesting of entitlements
VESTING OF MINORS’ SHARES
Contingent vesting
Absolute vesting
Law reform developments
Arguments for and against
Submissions and consultations
National Committee’s conclusion
Trusts for minors’ shares
INHERITANCE BY REPRESENTATION AND THE “PREDECEASE” REQUIREMENT
Disclaimed interests
Forfeiture
National Committee’s conclusion
13. Accounting for benefits received
BENEFITS RECEIVED BEFORE DEATH
Origin of the rules
Current provisions
Arguments for and against
Law reform developments
Submissions and consultations
National Committee’s conclusion
TESTAMENTARY BENEFITS
Law reform developments
Arguments for and against
Submissions and consultations
National Committee’s conclusion
SUPERANNUATION ASSETS
14. Indigenous people
INDIGENOUS KINSHIP
INCIDENCE OF INTESTACY AMONG INDIGENOUS PEOPLE
CURRENT PROVISIONS
Recognition of customary marriage
Additional/separate distribution regimes
POSSIBLE APPROACHES
Make no special provision
Leave regulation to each jurisdiction
Make special provision for identifying Indigenous kinship structures
NATIONAL COMMITTEE’S CONCLUSION
15. Miscellaneous provisions
LEGISLATIVE DEFINITION OF “INTESTATE”
BENEFICIALLY INTERESTED PERSONAL REPRESENTATIVE
REFERENCES TO STATUTES OF DISTRIBUTION, HEIRS AND NEXT OF KIN
National Committee’s conclusion
ABOLITION OF COURTESY AND RIGHT OF DOWER
National Committee’s conclusion
APPENDICES
TABLES
BIBLIOGRAPHY
