• Who are issue?
• Distribution per stirpes
• Distribution to issue and parents of the intestate
• Statutory trust in favour of issue of the intestate

5.1 The primary purpose of this chapter is to deal with situations where the intestate’s estate must be distributed to the issue of the intestate or to the parents of the intestate. In each case determinations must be made about parentage. The basic principles relating to the issue of an intestate also applies equally to the issue of remoter next-of-kin. Distribution to remoter next-of-kin is dealt with in the next chapter.

WHO ARE ISSUE?

5.2 The issue of a person are that person’s lineal descendants. That is, they are the person’s children, grandchildren, great grandchildren, and so on. In most cases, there will be no difficulty establishing the relevant relationship. Children who are adopted will be treated as children of their adopting parents and, at the same time, cease to be children of their natural parents.¹ Further, the fact that a person’s parents were not married to each other will not affect whether a person will be identified as issue in the distribution of an intestate estate.² In a few cases, however, parentage will be established by presumption.

Presumptions of parentage

 

Qld... Status of Children Act 1978 s 18A-18E ACT... s 49E; Parentage Act 2004 s 7-11 NSW... Status of Children Act 1996 s 9-14 NT... Status of Children Act 1979 s 4, s 4A, s 5, Part 3A, s 9-9B SA... Family Relationships Act 1975 s 7, s 8, s 10c, s 10d Tas... Status of Children Act 1974 s 5, s 8-s 8C, Part 3 Vic... Status of Children Act 1974 s 3, s 5, s 7, s 8, Part 2 WA... s 12A NZ... Status of Children Act 1969 s 5, s 7, s 8 Eng...

 

5.3 Presumptions of parentage may arise from a number of circumstances depending on the relevant provisions in each jurisdiction. Parentage may be presumed from:

• marriage;³
• cohabitation when the parents are not married;⁴
• use of artificial fertilisation procedures;⁵
• birth registration;⁶
• court findings;⁷ and
• acknowledgement of paternity.⁸

5.4 In the Australian Capital Territory, any presumption arising from registration will only operate in intestacy if the registration takes place before the death of the intestate.

5.5 In Western Australia and Victoria, in circumstances where parents are entitled to a benefit on the intestacy of a child,¹⁰ the presumption must be admitted by, or established against, the parent in the lifetime of their child (the intestate).¹¹

ISSUE 5.1

Should the definition of issue be included in the uniform legislation or should it be left to other enactments in the individual jurisdictions?


ISSUE 5.2

Should any special provisions be made in uniform legislation in relation to presumptions of parentage?

5.6 With the exception of the spouse of an intestate, a person related only by marriage is not entitled to share in the estate of the intestate.¹² Stepchildren of the intestate, therefore, are not entitled to a share in the intestate’s estate.¹³ It was therefore the case, before the introduction of adequate family provision legislation, that:

if a man accepted full responsibility for his wife’s children by a previous marriage without a formal adoption, those children had no rights against his estate.¹⁴

5.8 However, there are other considerations to be taken into account. First, if step children were to be entitled in intestacy to take upon the death of a spouse of one natural parent, those step children could not only potentially be beneficiaries under each natural parent’s will, or entitled to take upon their intestacy, but also potentially entitled to a share of any new spouse of the other natural parent upon intestacy. This could be perceived, in some cases, as a form of “double dipping”. Secondly, it is possible that a step parent may be estranged from or never even have met their step child, especially if the marriage has taken place once the step child has become an adult.

5.9 Any approach to limit the category of step children to those who are dependent upon the step parent, or who are under 18 years of age, would be undesirable as arbitrary and perhaps requiring investigations as to whether the step children were in fact dependent upon the step parent. If there is a dependency, it is appropriately addressed in an application for family provision rather than allowing it to confuse unnecessarily distributions upon intestacy.

5.10 This is recognised in some jurisdictions in so far as stepchildren may now bring proceedings for family provision.¹⁶ The National Committee’s proposed Family Provision Bill 2004 expressly states that a non-adult child of the deceased, for the purposes of automatic eligibility for family provision, “does not include a step-child of the deceased person”,¹⁷ but leaves a step-child, whether under the age of 18, or not, to apply as a person to whom the deceased person “owed a responsibility to provide maintenance, education or advancement in life”.¹⁸

5.11 If the more general approach of allowing the whole estate of an intestate to go to the surviving spouse even when there are issue surviving, were to be adopted,¹⁹ the step children of the deceased would continue to be cared for by the surviving spouse (that is, their natural parent) and, if their natural parent were to die first, they could always make a family provision application if the surviving spouse (their step parent) refused to support them adequately. On the other hand it could be argued that such a provision could operate unfairly even for adult children when the natural parent dies first and the estate passes to the step parent and then ultimately to the step parent’s family by either will or intestacy to the exclusion of the step children who might otherwise have had an interest in their natural parent’s estate.

5.12 The Law Reform Commission of Tasmania mentioned the situation where the intestate is survived by children of a previous relationship and where the existing children cannot rely on the surviving spouse for support.²⁰

ISSUE 5.3

Are there any circumstances when stepchildren should be entitled to an issue’s share in intestacy?

 

Qld... Status of Children Act 1978 s 14A, s 15 ACT... Parentage Act 2004 s 11 NSW... Status of Children Act 1996 s 14 NT... Status of Children Act 1979 Part 3A SA... Family Relationships Act 1975 s 10a, s 10c, s 10d Tas... Status of Children Act 1974 Part 3 Vic... Status of Children Act 1974 s 10A, s 10D, s 10E WA... s 12A(2a); Artificial Conception Act 1985 s 3, s 5, s 6, s 6A NZ... Status of Children Act 1969 Part 2 Eng... Human Fertilisation and Embryology Act 1990 s 27-29

 

5.13 When a child is artificially conceived the child’s mother and her husband are presumed to be the parents of the child.²¹ Paternity will not be imposed unless the procedure was conducted with the husband’s consent.²² The couple need not be married; it is sufficient that they be living together on a bona fide domestic basis.

5.14 In three jurisdictions the law expressly applies to heterosexual and same-sex couples alike.²³ In the latter case, the law can only apply to lesbian relationships.

5.15 Situations of surrogacy may also need to be taken into account, where a woman carries a child to term, on behalf of another woman, under an arrangement made before the child’s birth which sees the assignment of her parental rights to that woman and the father.²⁴

5.16 The law can experience difficulty in responding to such recent practices.²⁵ As with artificial conception, it would seem preferable for the intestacy provision to adopt a general approach, leaving the specifics to each jurisdiction.

ISSUE 5.4

What provision, if any, ought to be made for artificially conceived children in the context of intestacy?


ISSUE 5.5

Should provision be made for surrogacy in the context of intestacy?

 

Qld... Status of Children Act 1978 s 18A(2) ACT... Parentage Act 2004 s 7(2) NSW... Status of Children Act 1996 s 9(2) NT... Status of Children Act 1979 s 4A(2) SA... Family Relationships Act 1975 s 8 Tas... Status of Children Act 1974 s 5(2) Vic... Status of Children Act 1974 s 5 WA... NZ... Status of Children Act 1969 s 5(1) Eng... s 55(2)

 

5.17 A child en ventre sa mere is a child that, although conceived or implanted in its mother’s womb, has not yet been born at the death of its father. References to a child or issue living at the death of any person include children or issue en ventre sa mere at the death. Children will be presumed to be the issue of the intestate husband if the wife gives birth within a period ranging from ten months²⁶ to forty-four weeks²⁷ after the husband’s death (in the absence of evidence to the contrary). No time limit is specified in Western Australia or England.²⁸ The importance of providing a time limit is, traditionally, to ensure that the issue is indeed that of the intestate. As administration of the estate traditionally ceased a year after the death, this presumption should not produce undue administrative difficulty, as children en ventre sa mere will have been born within that year.²⁹

ISSUE 5.6

Should children en ventre sa mere continue to be treated as issue for the purposes of intestacy?


ISSUE 5.7

If so, should model legislation impose a time period within which the child must be born following the death of the intestate?

5.18 Advances in human artificial reproductive technology have rendered current provisions for children en ventre sa mere inadequate to deal with all the possible situations where a child of the deceased is born after the deceased’s death. We are here considering situations where, for example, the sperm of the deceased has been frozen and inseminated after his death (posthumous or post mortem conception) or where insemination has already taken place before death but the resulting zygote or embryo is frozen and only placed in the womb after death.

5.19 An example of such a situation may be found in a 1996 Tasmanian case in which a husband died intestate leaving two frozen embryos which had been produced by him and his wife as part of an in vitro fertilisation program. The deceased was survived by his wife and four children. The embryos were fertilised ova that had been frozen before they began to divide into cells (zygotes). The questions before the Court were whether the zygotes were living issue at the date of the intestate’s death, and whether they became issue on being born alive. The judge held that zygotes were not actually living at the date of the deceased’s death. The rights that attach to the unborn zygotes are contingent on being born alive. The Court held that a zygote would become a child of the deceased on being born alive. No reason could be seen for differentiating between zygotes and children en ventre sa mere.³⁰

5.20 In 1986 the New South Wales Law Reform Commission considered the question of posthumous conception in so far as it affected the rules of distribution on intestacy.³¹ The Commission noted the practical difficulty that could arise where the deceased parent’s estate was either wholly or partly distributed after the date of conception or birth of the artificially conceived child. It therefore recommended that any child so conceived should not be entitled to participate in the distribution of the deceased parent’s estate. It was considered that this would remove the need for the personal representative to enquire into the “possibility of the subsequent birth of persons who... will be regarded as children of the deceased”.³² The Commission, however, also recommended that any children born as a result of such procedures should be entitled to make an application for family provision on the basis that the complexity of such an application (involving tracing to beneficiaries) was outweighed by the rarity of such cases.

5.21 A United Kingdom Committee of Inquiry into Human Fertilisation and Embryology which reported in 1984 recommended that any child born by artificial conception who was not in utero at the date of death of its father should be “disregarded for the purposes of succession to and inheritance from the latter”.³³ The Committee also considered that posthumous conception was a practice that ought to be “actively discouraged”.

5.22 The Ontario Law Reform Commission, on the other hand, preferred to give the posthumously conceived child, so far as possible, the same rights of inheritance as though the child were conceived in the deceased’s lifetime. The Commission did not consider it practical to allow for the postponement of distribution or the upsetting of distributions already made but instead recommended that:

a posthumously conceived child of a husband should be entitled to inheritance rights in respect of any undistributed estate once the child is born or is en ventre sa mere, as if the child were conceived while the husband was alive.³⁴

Directions under the Western Australian Act state that no consent given by a gamete provider may include a consent for the posthumous use of the gametes. A person must not knowingly use gametes in an artificial fertilisation procedure after the death of the gamete provider. The South Australian Code of Practice states that a licensee must dispose of an embryo that is kept in storage for future use of a couple if either member of the couple dies, unless the storage consent specifies how an embryo is to be dealt with or disposed of in the event of death, in which case the licensee must deal with the embryo or dispose of it in accordance with those conditions.³⁶

5.25 It may, however, be preferable to adopt the simple approach of disregarding for the purposes of intestate succession any child born by means of artificial reproductive technologies where the child was not en ventre sa mere at the death of the intestate. Alternatively, the giving of the whole of the intestate estate to the surviving spouse or partner will, in the normal course of events, ensure that the interests of a child so born are adequately provided for.

ISSUE 5.8

Should special provision be made, in the context of intestacy, to deal with children who have been born following delayed conception or gestation?


ISSUE 5.9

If so, on what conditions should the interests of children so born be recognised?

 

Qld... s 36A ACT... s 49B NSW... s 61C NT... s 68 SA... s 72I Tas... s 46(1)(a), s 46(3) Vic... s 52(1) WA... s 14(2b) NZ... s 78 Eng... s 47

 

5.26 If a person or persons within a group of those who are entitled to take in an intestate distribution dies, their descendants (subject to certain limitations discussed below) are entitled to take the share that they would have taken. There are two ways in which the distribution to descendants can be managed. The distribution can be either per stirpes (by stock) or per capita (by head). Intestate distribution is generally per stirpes.

5.27 Per stirpes distribution means that the entitlement of descendants will be determined by the entitlement of those who have predeceased them and would otherwise have been entitled to take. For example, the grandchildren of an intestate will only take proportionately among themselves the share that their deceased parent would have taken if he or she were alive.

5.28 On the other hand per capita distribution gives each person entitled to take an equal share regardless of the degree of their descent. For example, the grandchildren of an intestate whose parent has predeceased the intestate will take in equal shares together with the other surviving children of the intestate.

5.29 All jurisdictions in Australia, except for South Australia, provide for distribution per stirpes. South Australia has adopted a modified form of stirpital distribution. If distribution is to be made to the next of kin, and the intestate is not survived by a sibling, aunt nor uncle,³⁸ but is survived by issue of such a relative, the intestate estate devolves upon that issue, as if the issue were issue of the intestate. Distribution is then per capita.³⁹

5.30 In Victoria, while distribution is generally per stirpes, an exception is made where the intestate’s nieces and nephews are entitled, and all of the intestate’s siblings are dead. The nieces and nephews will take equal shares, rather than the share to which their parent would have been entitled.⁴⁰

5.31 An argument in support of per capita distribution could be made on the grounds that if all of one generation have predeceased the intestate, there would appear to be no valid reason why some of their children should receive less if they are from a family with more siblings than some of the others. Such an approach is fair in the context of distribution lists which limit entitlement to the children of deceased siblings, aunts and uncles and do not allow for further descent. A similar argument could be made in support of per capita distribution in cases where an intestate is predeceased by all of his or her children and is survived by grandchildren (who are either all living or have died without issue).

5.32 Although the Queensland Law Reform Commission originally supported the South Australian practice, it reconsidered its view after the Public Trustee of Queensland raised concerns about the practicalities, rather than the justice, of the proposition. The example was given of a man who died intestate at a very great age leaving four grandchildren who were the issue of himself and his current wife. He had, however, had a child to a wife he had married, and subsequently divorced, early in his life. He did not keep in touch with his first wife and child and, on the intestate’s death, it was not known whether this child was alive or had produced grandchildren. Unless this is ascertained distribution per capita cannot be made.⁴¹ The mixed per stirpes/per capita distribution which operated in Queensland from 1982 was accordingly abandoned in 1998.⁴²

ISSUE 5.10

Should per stirpes distribution apply in all cases?


ISSUE 5.11

If not, in what circumstances should per capita distribution be applied?

Intestate leaves issue but no partner

 

Qld... s 35, s 36A, Sch 2 Pt 2 It 1 ACT... s 49(1), s 49B, Sch 6, Pt 6.2, It 1 NSW... s 61B(1),(4), s 61C NT... s 66(1), s 68; Sch 6 Pt 4 It 1 SA... s 72G(c), s 72I Tas... s 44(5), s 46(1) Vic... s 52(1)(f) WA... s 14(1) Table It 5; s 14(2a), (2b) NZ... s 77 It 4, s 78(1), (2) Eng... s 46(1)(ii)

 

5.33 Where an intestate has been survived by issue but not by a partner, all the jurisdictions provide means for, at least part of, the intestate’s estate to flow to the intestate’s issue or to be divided amongst the issue where more than one survive.

5.34 The method of dividing the estate between the issue of the intestate is determined on a per stirpes basis so that if an intestate’s child has predeceased the intestate, but is survived by issue of his or her own, then such issue will be entitled to the share of the intestate’s estate that the intestate’s issue (their father or mother) would have been entitled to, and so on.

Intestate leaves no partner and no issue but leaves a parent or parents

 

Qld... s 35(1); Sch 2 Pt 2 It 2 ACT... s 49(1); Sch 6, Pt 6.2, It 2 NSW... s 61B(1),(5) NT... s 66(1); Sch 6 Pt 4 It 2 SA... s 72B(1), s 72G(d), s 72J(a) Tas... s 44(6) Vic... s 52(1)(b)-(ea) WA... s 14(1) Table It 6 and It 7 NZ... s 77 It 5 Eng... s 46(1)(iii),(iv), s 47(3)

 

5.35 If the intestate is not survived by a spouse or de facto partner, nor by any issue, all jurisdictions provide that the intestate’s surviving parent, or parents, will be entitled to the intestate’s estate. It is commonly the case that the surviving parent is entitled to the whole of the intestate’s estate unless both parents survive, in which case the estate is to be divided equally between them.⁴³ However, in Western Australia, if the intestate dies without spouse or partner and without issue, but leaves a parent or parents and brothers and/or sisters and/or children of a deceased brother or sister, the surviving parents are entitled to the first $6,000 of the estate and, in relation to any amount in excess of the first $6,000, the parents will be entitled to half of the remaining estate (in equal shares if both parents survive) and the surviving brothers and sisters or the children of deceased brothers and sisters will be entitled to the other half.⁴⁴

ISSUE 5.12

If the intestate dies without spouse or partner and without issue, should the parents of the intestate be entitled to the estate?


ISSUE 5.13

If so, should surviving parents be solely entitled to distribution? And if not, what other next of kin should be entitled to share with them in the estate and in what proportions?

 

Qld... ACT... NSW... s 61C(1)-(2) NT... SA... Tas... s 46(1)-(2) Vic... WA... NZ... s 78(1)-(2) Eng... s 47(1)-(2)

 

5.36 Most jurisdictions do not specifically address statutory trusts for issue of the intestate. The establishment of such trusts is included in their general provisions. That is, they provide, generally, for the estate to be held on trust for those entitled.⁴⁵ The separate provisions outlined here may, therefore, be unnecessary.

5.37 In some jurisdictions, trusts in favour of issue of the intestate are specified to be held for any child, or if there are more than one, for any child in equal shares, living at the intestate’s death.⁴⁶

5.38 These trusts are also held for all issue living at the intestate’s death, of any child of the intestate who has predeceased the intestate. No issue can take whose parent is living at the intestate’s death and is capable of so taking.⁴⁷

5.39 Such issue take according to their stocks, in equal shares if more than one, the share their parent would have taken if he or she had been alive at the intestate’s death.⁴⁸ This distribution is per stirpes.⁴⁹

5.40 Except for New South Wales, where a trust in favour of issue fails “by reason of no child or other issue attaining an absolutely vested interest” the intestate estate is held as though “the intestate had died without leaving issue living” at his or her death.

ISSUE 5.14

Does special provision need to be made for statutory trusts in favour of issue of the intestate?

1. Adoption of Children Act 1964 (Qld) s 28(1); Adoption Act 1993 (ACT) s 43; Adoption Act 2000 (NSW) s 95; Adoption of Children Act 1994 (NT) s 45; Adoption Act 1988 (SA) s 9; Adoption Act 1988 (Tas) s 50; Adoption Act 1984 (Vic) s 53(1); Adoption Act 1994 (WA) s 75; Adoption Act 1955 (NZ) s 16(2); Adoption Act 1976 (Eng) s 39.

2. Status of Children Act 1978 (Qld) s 3(1); Parentage Act 2004 (ACT) s 38(2); Status of Children Act 1979 (NT) s 4; Status of Children Act 1996 (NSW) s 5(1); Family Relationships Act 1975 (SA) s 6(1); Status of Children Act 1974 (Tas) s 3(1); Status of Children Act 1974 (Vic) s 3; Administration Act 1903 (WA) s 12A; Family Law Reform Act 1987 (Eng) s 1(1); Status of Children Act 1969 (NZ) s 3(1).

3. Status of Children Act 1996 (NSW) s 9; Parentage Act 2004 (ACT) s 7; Status of Children Act 1978 (Qld) s 18A; Status of Children Act 1974 (Tas) s 5; Family Relationships Act 1975 (SA) s 8; Status of Children Act 1974 (Vic) s 5; Status of Children Act 1979 (NT) s 4A; Status of Children Act 1969 (NZ) s 5(1); s 7(1)(a). See also Family Law Act 1975 (Cth) s 69P; Family Court Act 1997 (WA) s 188.

4. Parentage Act 2004 (ACT) s 8; Status of Children Act 1996 (NSW) s 10; Status of Children Act 1978 (Qld) s 18E; Status of Children Act 1974 (Tas) s 8; Status of Children Act 1979 (NT) s 5. See also Family Law Act 1975 (Cth) s 69Q; Family Court Act 1997 (WA) s 189.

5. Parentage Act 2004 (ACT) s 11; Status of Children Act 1996 (NSW) s 14; Status of Children Act 1974 (Tas) Part 3; Status of Children Act 1974 (Vic) Part 2; Family Relationships Act 1975 (SA) s 10c, s 10d; Status of Children Act 1979 (NT) Part 3A. See para 5.13-5.16 below.

6. Status of Children Act 1978 (Qld) s 18B; Status of Children Act 1974 (Tas) s 8A; Status of Children Act 1979 (NT) s 9; Status of Children Act 1996 (NSW) s 11; Parentage Act 2004 (ACT) s 9; Status of Children Act 1974 (Vic) s 8(1); Status of Children Act 1969 (NZ) s 8(1). See also Family Law Act 1975 (Cth) s 69R; Family Court Act 1997 (WA) s 190.

7. Status of Children Act 1978 (Qld) s 18C; Status of Children Act 1974 (Tas) s 8B; Status of Children Act 1979 (NT) s 9B; Status of Children Act 1996 (NSW) s 12; Parentage Act 2004 (ACT) s 10; Status of Children Act 1969 (NZ) s 8(3); Family Relationships Act 1975 (SA) s 7(c). See also Family Law Act 1975 (Cth) s 69S; Family Court Act 1997 (WA) s 191. Court findings are rules of law rather than presumptions.

8. Status of Children Act 1996 (NSW) s 13; Status of Children Act 1978 (Qld) s 18D; Status of Children Act 1979 (NT) s 9A; Family Relationships Act 1975 (SA) s 7(b); Status of Children Act 1974 (Tas) s 8C; Status of Children Act 1974 (Vic) s 8(2); and Status of Children Act 1969 (NZ) s 7(1)(b). See also Family Law Act 1975 (Cth) s 69T; Family Court Act 1997 (WA) s 192.

9. Family Law Act 1975 (Cth) s 69P-s 69T. See also Family Court Act 1997 (WA) s 188-192.

10. Para 5.35 below.

11. Administration Act 1903 (WA) s 12A(2); and Status of Children Act 1974 (Vic) s 7(1)(b). See also Status of Children Act 1969 (NZ) s 7(1)(b).

12. S Toller, The Law of Executors and Administrators (3rd ed, J Butterworth and Son, London, 1814) at 385.

13. Re Leach (deceased) [1985] 2 All ER 754 at 759.

14. Re Leach (deceased) [1985] 2 All ER 754 at 759. See also K Mackie, “Stepchildren and Succession” (1997) 16 University of Tasmania Law Review 22 at 23. A child adopted by a husband and wife is, in the event of divorce and the wife remarrying, a stepchild of the wife’s second husband: Re O’Malley (dec’d) [1981] Qd R 202.

15. K Mackie, “Stepchildren and Succession” (1997) 16 University of Tasmania Law Review 22 at 23.

16. Status of Children Act 1978 (Qld) s 40, s 40A; Family Provision Act 1969 (ACT) s 7; Family Provision Act 1970 (NT) s 7; Testator’s Family Maintenance Act 1912 (Tas) s 2(1) paragraph (b) to the definition of “child”, s 3A; and Family Protection Act 1955 (NZ) s 3. See R F Atherton and P Vines, Succession: Families, Property and Death: Text and Cases (2nd ed, LexisNexis Butterworths, Australia, 2003) at 74.

17. Family Provision Bill 2004 cl 6(2) in National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) Appendix 2.

18. Family Provision Bill 2004 cl 7(1) in National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) Appendix 2.

19. See para 3.28-3.35 and Issue 3.10.

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

21. Family Provision Act 1969 (ACT) s 11; Status of Children Act 1996 (NSW) s 14; Status of Children Act 1974 (Tas) Part 3; Status of Children Act 1974 (Vic) Part 2; Family Relationships Act 1975 (SA) s 10c, s 10d; and Status of Children Act 1969 (NZ) s 18. See also Family Law Act 1975 (Cth) s 60H.

22. Status of Children Act 1978 (Qld) s 15(2); Status of Children Act 1979 (NT) s 5D; Status of Children Act 1974 (Vic) s 10C(2); Status of Children Act 1996 (NSW) s 14(1)(a); Family Provision Act 1969 (ACT) s 11(4); Status of Children Act 1974 (Tas) s 10C(1); Artificial Conception Act 1985 (WA) s 6; Status of Children Act 1969 (NZ) s 18(1)(c); and Human Fertilisation and Embryology Act 1990 (Eng) s 28(2)(b). The requirement of consent may lead to confusion since it would seem that a man will not be the child’s father if he does not consent to his wife undergoing the procedure.

23. Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1979 (NT) s 5DA; and Artificial Conception Act 1985 (WA) s 6A.

24. R F Atherton and P Vines, Succession: Families, Property and Death: Text and Cases (2nd ed, LexisNexis Butterworths, Australia, 2003) at 56.

25. See the comments by Bryson J concerning the making of an adoption order in relation to a child who had been born as the result of a surrogacy arrangement: Re A and B (2000) 26 Fam LR 317 at 321.

26. Family Relationships Act 1975 (SA) s 8; Status of Children Act 1974 (Vic) s 5; Status of Children Act 1969 (NZ) s 5(1).

27. Status of Children Act 1978 (Qld) s 18A(2); Status of Children Act 1996 (NSW) s 9(2); Status of Children Act 1974 (Tas) s 5(2)(b); Status of Children Act 1979 (NT) s 4A(2); and Family Provision Act 1969 (ACT) s 7.

28. See Administration of Estates Act 1925 (Eng) s 55(2).

29. I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, Law Book Company, Sydney, 1989) at 419.

30. Re the Estate of the Late K (1996) 5 Tas R 365 (Slicer J). See also D Clark, “En ventre sa frigidaire: Zygotes as children” (1996) Alternative Law Journal 165.

31. New South Wales Law Reform Commission, Artificial Conception: Human Artificial Insemination (Report 49, 1986) at para 12.6-12.12

32. New South Wales Law Reform Commission, Artificial Conception: Human Artificial Insemination (Report 49, 1986) at para 12.9.

33. United Kingdom, Department of Health and Social Security, Report of the Committee of Inquiry into Human Fertilisation and Embryology (Cmnd 9314, 1984) at para 10.9.

34. Ontario Law Reform Commission, Human Artificial Reproduction and Related Matters (Report, 1985) vol 2 at 182.

35. Infertility Treatment Act 1995 (Vic) s 8, s 12.

36. New South Wales Department of Health, Review of the Human Tissue Act 1983 - Discussion Paper: Assisted Reproductive Technologies (1998) at para 6.5.

37. Human Fertilisation and Embryology (Deceased Fathers) Act 2003 (UK) s 1.

38. Administration and Probate Act 1919 (SA) s 72J(d)(iv).

39. Estate of Hughes (1985) 38 SASR 5 at 11 (Bollen J).

40. Administration and Probate Act 1958 (Vic) s 52(1)(f)(vi).

41. Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at 56-57.

42. Succession Amendment Act 1997 (Qld). See also W A Lee and A A Preece, Lee’s Manual of Queensland Succession Law (5th edition, LBC Information Services, 2001) at para 1205.

43. Succession Act 1981 (Qld) Sch 2 Pt 2 It 2; Administration and Probate Act 1929 (ACT) Sch 6 Pt 6.2 It 2; Wills, Probate and Administration Act 1898 (NSW) s 61B(5); Administration and Probate Act 1969 (NT) Sch 6 Pt 4 It 2; Administration and Probate Act 1919 (SA) s 72J(a); Administration and Probate Act 1935 (Tas) s 44(6); Administration and Probate Act 1958 (Vic) s 52(1)(b)-(ea); Administration Act 1903 (WA) s 14(1) Table It 7; Administration Act 1969 (NZ) s 77 It 5; and Administration of Estates Act 1925 (Eng) s 46(1)(iii) and (iv).

44. Administration Act 1903 (WA) s 14(1) Table It 6.

45. See para 1.16.

46. Wills, Probate and Administration Act 1898 (NSW) s 61C(1); Administration and Probate Act 1935 (Tas) s 46(1); Administration Act 1969 (NZ) s 78(1)(a); and Administration of Estates Act 1925 (Eng) s 47(1)(i).

47. Wills, Probate and Administration Act 1898 (NSW) s 61C(1)(b); Administration and Probate Act 1935 (Tas) s 46(1)(a); Administration Act 1969 (NZ) s 78(1)(a) and Administration of Estates Act 1925 (Eng) s 47(1)(i).

48. Wills, Probate and Administration Act 1898 (NSW) s 61C(2); Administration and Probate Act 1935 (Tas) s 46(1)(a); Administration Act 1969 (NZ) s 78(1)(a); and Administration of Estates Act 1925 (Eng) s 47(1)(i).

49. See para 5.26-5.32 above.