A BILL FOR

An Act to amend the Wills, Probate and Administration Act 1898, with respect to succession to real and personal property on intestacy.

BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:-

Short title.

1. This Act may be cited as the “Wills Probate and Administration (De Facto Relationships) Amendment Act, 1983”.

Commencement.

2. (1) Sections 1 and 2 shall commence on the date of assent to this Act.

(2) Except as provided by subsection (1), this Act shall commence on the day appointed and notified under section 2(2) of the De Facto Relationships Act, 1983.

Amendment of Act No.13, 1898.

3. The Wills, Probate and Administration Act, 1898, is amended in the manner set forth in Schedule 1.

Application of Act.

4. The amendments made to the Wills, Probate and Administration Act, 1898, by this Act shall not apply in respect of the estate of a person who died wholly or partially intestate before the date of assent to this Act and any such estate shall be distributed in accordance with the enactments and rules of law in force at the death of that person.

SCHEDULE 1. (Sec 3.)

AMENDMENTS TO THE WILLS, PROBATE AND ADMINISTRATION ACT, 1898.

(1) Section 1 -

Before the matter relating to Division I of Part II insert-

DIVISION IA- - Preliminary - s.32G.

(2) Part II, Division 1A -

Before Division 1, insert-

DIVISION 1A- Preliminary.

Interpretation: Pt.II.

32G. (1) In this Part, except in so far as the context or subject-matter otherwise indicates or requires -

“de facto husband”, in relation to a woman dying wholly or partially intestate, means a man who, at the time of death of the woman -

(a) was the sole partner in a de facto relationship with the woman, and

(b) was not a partner in any other de facto relationship;

“de facto relationship” means the relationship of a man and a woman living together as husband and wife on a bona fide domestic basis although not married to each other,

“de facto wife”, in relation to a man dying wholly or partially intestate, means a woman who, at the time of death of the man -

(a) was the sole partner in a de facto relationship with the man; and

(b) was not a partner in any other de facto relationship.

(2) In this Part except in so far as the context or subject-matter otherwise indicates or requires, a reference to a husband or wife of an intestate includes a reference to a person who, at the time of death of the intestate, was the de facto husband or de facto wife of the intestate.

(3) Section 61A(2), definitions of “interest”, “matrimonial home” -

After “the surviving husband or wife of the intestate” wherever occurring, insert “for whom part of the estate of the intestate is required to be held in trust under section 6 1B(3), (3A) or (3B)”.

(4) (a) Section 61 B(3) -

Omit “husband and wife”, insert instead “husband or wife”.

(b) Section 61 B(3A), (3B) -

After section 61 B(3), insert-

(3A) Notwithstanding subsections (2) and (3), if the intestate leaves a husband or wife and a de facto husband or de facto wife, the whole or, as the case maybe, such part of the estate of the intestate as is required to be held in trust for the husband or wife of the intestate shall be held in trust for -

(a) where the de facto husband or de facto wife was the de facto husband or de facto wife of the intestate for a continuous period of not less than 2 years prior to the death of the intestate and, the intestate did not during the whole or any part of that period, live with another person to whom he or she was married-the de facto husband or de facto wife; or

(b) in any other case - the husband or wife.

(3B) Notwithstanding subsection (3), if the intestate leaves a de facto husband or de facto wife and also leaves issue but no husband or wife, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a husband or wife, be required to be held in trust for the husband or wife of the intestate shall be held in trust for -

(a) where the de facto husband or de facto wife was the de facto husband or de facto wife of the intestate for a continuous period of not less than 2 years prior to the death of the intestate - the de facto husband or de facto wife;

(b) in any other case -


(i) except as provided by subparagraph (ii) - the issue as if the intestate left no husband or wife; or

(ii) where the intestate leaves no issue being children of the intestate or where such of the issue as are children of the intestate are issue also of the de facto husband or de facto wife - the de facto husband or de facto wife.

(c) Section 61 B(9)-

Omit “two”, insert instead “separate”.

(d) Section 61B(12)-

Omit “the husband or wife” where firstly occurring, insert instead “a husband or wife”.

(e) Section 61 B(3)-

Omit “the surviving husband or wife”, insert instead “a surviving husband or wife”.

(5) Section 61 D(2)-

At the end of section 61 D, insert-

(2) A reference in subsection (1) to the husband or wife of an intestate is, where the intestate dies leaving a husband or wife and a de facto husband or de facto wife, a reference to the husband or wife or de facto husband or de facto wife for whom part of the estate is required to be held in trust under section 61 B(3), (3A) or (3B).