Updates and background for this project (Digest)
THE GENERAL ORDER OF DISTRIBUTION
Qld... s 35(1A), s 37
ACT... s 49(5), s 49C(1)
NSW... s 61B(6), s 61C(3)
NT... s 66(5), s 69
SA... s 72B(1), s 72G(d); s 72J
Tas... s 44(7), s 46(3)
Vic... s 52(1)(f)
WA... s 14(1)
NZ... s 77 It 6-7, s 78(3)
Eng... s 46(1)
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6.1 When the intestate is not survived by a spouse or partner, issue or parents, each jurisdiction makes provision for the distribution of the intestate estate to the next of kin of the intestate and, in some degree, their issue. The broad order adopted by each jurisdiction is that:
- brothers and sisters of the intestate take first;
- grandparents of the intestate take next; and
- aunts and uncles of the intestate take if no one else is entitled.
This order is broadly reflective of the old Statute of Distributions which established an order whereby those next of kin in closest relationship to the intestate were entitled to take in preference to relatives of remoter degree.
ISSUE 6.1
Is the general scheme appropriate whereby the next of kin are entitled to a share of an intestate estate in the following order:
1. brothers and sisters of the intestate;
2. grandparents of the intestate; and then
3. aunts and uncles of the intestate?
ISSUE 6.2
If not, what order of distribution should be adopted?
6.2 While the above applies as a general scheme, each jurisdiction makes different provision with respect to some of the categories.
Relationships of the whole and half blood
Qld... s 34(2)
ACT... s 44(2)(b)
NSW... s 61B(6)
NT... s 61(2)(b)
SA... s 72B(2)
Tas... s 44(7)
Vic... s 52(1)(f)(vii)
WA... s 12B
NZ... s 77 It 6-7
Eng... s 46(1)(v)
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6.3 Two of the categories outlined above, namely brothers and sisters of the intestate and aunts and uncles of the intestate, require a consideration of the question of relationships of the whole and half blood. Siblings who share both parents are relatives of the whole blood and siblings who have only one parent in common are relatives of half blood.
6.4 Most jurisdictions now state that the distinction between whole and half blood is immaterial for the purposes of determining entitlement,1 so that siblings of the half blood are entitled to take together with siblings of the whole blood. (Siblings of the half blood may, therefore, now benefit by the possibility of inheriting from two family groupings instead of one.)
6.5 The distinction, however, remains in New South Wales and England. In these jurisdictions, a distinction is still drawn between brothers and sisters of the whole blood and brothers and sisters of the half blood, so that brothers and sisters of the whole blood and their issue are entitled to take before brothers and sisters of the half blood and their issue,2 and aunts and uncles of the whole blood and their issue are entitled to take before uncles and aunts of the half blood and their issue.3
6.6 The Law Reform Committee of South Australia recommended against the incorporation of such a distinction in the law of that State as:
[t]here are many families in which the half blood and the whole blood live together perfectly happily and it has been the experience of at least one member of this Committee that when distinctions between whole and the half blood have been made by will, they have been productive of great unhappiness.4
6.7 Distinctions between relatives of the whole and half blood appear to have been relevant for the purposes of identifying an heir under the English law relating to the inheritance of land under primo genitur, so that, for example, brothers of the half blood could only inherit after sisters of the whole blood, and so on.5 This and other such distinctions in the law of heirship were described in 1881 as “precious absurdities in the English law of real property”.6 There would appear to be no justification for such a distinction in the law of intestate succession today.
BROTHERS AND SISTERS OF THE INTESTATE
Qld... s 37(1)(a), s 37(2)(a), Sch 2 Part 2 It 3
ACT... s 49C(1)(a), s 49C(2)
NSW... s 61B(6)(a) and (b)
NT... s 69(1)(a), s 69(2)
SA... s 72J(b)
Tas... s 44(7)(a), s 46(3)
Vic... s 52(1)(f)(v)-(vi)
WA... s 14(1) Table It 8; s 14(3a)
NZ... s 77 It 6; s 78(3)
Eng... s 46(1)(v), s 47(3)
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6.8 Each jurisdiction provides that if the intestate is not survived by a spouse or partner, issue or parents, the brothers and sisters of the intestate who survive are entitled to take.
6.9 Some jurisdictions provide that if any brother or sister has predeceased the intestate, any surviving children of the deceased brother or sister (that is, the intestate’s nephews and nieces) can take their parent’s entitlement in equal shares.7 Remoter issue, for example, grand nephews and nieces, are, therefore, excluded. Both Queensland and Western Australia state that the intestate’s nieces and nephews take according to a per stirpes distribution.8
6.10 Victoria, however, provides that, if all the brothers and sisters have predeceased the intestate, their surviving children are entitled to take on a per capita basis.9 In Victoria, if all of these surviving nephews and nieces predecease the intestate, their children (the grand nieces and nephews of the intestate), in absence of any surviving grand parents or uncles and aunts, may be entitled to take as relatives of the fourth degree (together with cousins of the intestate) under the modified civil law distribution scheme that Victoria has retained.10
6.11 The remaining jurisdictions provide that if a sister or brother has predeceased the intestate, the surviving issue of that brother or sister are entitled to take a share.11 This means that, in some cases, grand nieces and nephews of the intestate may be entitled to take if their parents have predeceased them. In the majority of these jurisdictions the issue take according to a per stirpes distribution. South Australia, however, offers a modified form of per capita distribution whereby, if all the brothers and sisters predecease the intestate, their surviving issue are treated as if they were issue of the intestate.12
6.12 Further, the provision that spouses are to be treated as separate persons for the purposes of intestacy13 may cause problems if a person dies intestate and has nieces and nephews from different siblings and some of these nephews and nieces have married (being cousins). If those nephews and nieces predecease the intestate but are survived by children, their children will represent each of their parents and be entitled to take twice as much as they would be entitled to if only one parent were entitled.
ISSUE 6.4
What provision should be made for distribution to brothers and sisters of the intestate and their issue?
ISSUE 6.5
Where the intestate is predeceased by a brother or sister, should the share of the intestate’s estate to which the brother or sister would otherwise have been entitled be taken by:
(a) the remaining brothers and sisters in equal shares;
(b) the children of the deceased brother or sister; or
(c) the issue of the deceased brother or sister?
ISSUE 6.6
If the issue of a deceased brother or sister are to take the share of the intestate’s estate to which the brother or sister would otherwise have been entitled:
(a) should the issue take per stirpes, per capita, or according to the modified form of per capita distribution that applies in South Australia; and
(b) what account ought to be taken of the provision that spouses are to be treated as separate persons?
GRANDPARENTS OF THE INTESTATE
Qld... s 37(1)(b)
ACT... s 49C(1)(b)
NSW... s 61B(6)(c)
NT... s 69(1)(b)
SA... s 72J(c)
Tas... s 44(7)(b)
Vic... s 52(1)(f)(v)
WA... s 14(1) Table It 9
NZ... s 77 It 7
Eng... s 46(1)(v)
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6.13 Each jurisdiction provides that surviving grandparents are the next category entitled to take on intestacy. There is generally no variance in these provisions except that New Zealand has established a regime whereby the maternal and paternal families are treated separately.14 Half of the intestate estate is made available to the surviving maternal grandparents and if neither of them has survived, their half devolves to their children, that is, the maternal aunts and uncles of the intestate. Likewise, the other half of the estate is made available to the surviving paternal grandparents and if neither of them has survived, their half devolves to their children, that is, the paternal aunts and uncles of the intestate. It is only if no one from the paternal side of the family has survived that their half then goes to the maternal side, and vice versa.
AUNTS AND UNCLES OF THE INTESTATE
Qld... s 37(1)(c), s 37(2)(b)
ACT... s 49C(1)(c), s 49C(2)
NSW... s 61B(6)(d), (e)
NT... s 69(1)(c), s 69(2)
SA... s 72J(d)
Tas... s 44(7)(c), s 46(3)
Vic... s 52(1)(f)
WA... s 14(1) Table It 10; s 14(3a)
NZ... s 77 It 7
Eng... s 46(1)(v), s 47(3)
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6.14 Each jurisdiction provides that surviving aunts and uncles of the intestate are the next category of next of kin entitled to take on intestacy.
6.15 Queensland and Western Australia provide that if any aunt or uncle has predeceased the intestate, any surviving children of the deceased brother or sister (that is, the intestate’s cousins) can take their parent’s entitlement in equal shares.15 Remoter issue, for example, first cousins once removed, are, therefore, excluded from this category. In both these jurisdictions the intestate’s cousins take according to a per stirpes distribution.16
6.16 Other jurisdictions provide that if an uncle or aunt has predeceased the intestate, the surviving issue of that uncle or aunt are entitled to take a share.17 This means that, in some cases, first cousins once removed of the intestate may be entitled to take if their parents have predeceased them. In the majority of these jurisdictions the issue take according to a per stirpes distribution. South Australia, however, offers a modified form of per capita distribution whereby, if all the aunts and uncles predecease the intestate, their surviving issue are treated as if they were issue of the intestate.18
6.17 Further, the provision that spouses are to be treated as separate persons for the purposes of intestacy19 may cause problems if a person dies intestate and has cousins from different siblings and some of these cousins have married. If those cousins predecease the intestate but are survived by children, their children will represent each of their parents and be entitled to take twice as much as they would be entitled to if only one parent were entitled.
6.18 Finally, in Victoria no issue of a deceased aunt or uncle of the intestate may take in this category. However, cousins of the intestate may take as part of the next category that is entitled to distribution (relatives of the fourth degree) under the modified civil law distribution scheme that Victoria has retained.20
ISSUE 6.8
What provision should be made for distribution to aunts and uncles of the intestate and their issue?
ISSUE 6.9
Where an intestate is predeceased by an aunt or uncle, should the share of the intestate’s estate to which the aunt or uncle would otherwise have been entitled be taken by:
(a) the surviving siblings of the deceased aunt or uncle;
(b) the children of the deceased aunt or uncle; or
(c) the issue of the deceased aunt or uncle?
ISSUE 6.10
If the issue of a deceased aunt or uncle are to take the share of the intestate’s estate to which the aunt or uncle would otherwise have been entitled:
(a) should the issue take per stirpes, per capita, or according to the modified form of per capita distribution that applies in South Australia; and
(b) what account ought to be taken of the provision that spouses are to be treated as separate persons?
MORE REMOTE NEXT OF KIN
Qld...
ACT...
NSW...
NT...
SA...
Tas... s 44(7)
Vic... s 52(1)(f)
WA...
NZ...
Eng...
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6.19 Most jurisdictions make no further provision for distribution to next of kin of the intestate beyond surviving aunts and uncles of the intestate and their children or issue. However, both Tasmania and Victoria allow for further distribution, at least in part, according to the old civil law rules of distribution.
6.20 Victoria achieves this by stating that distribution shall be “among the next of kin of the intestate who are in equal degree and their representatives”.21 Because Victoria also restricts the passing of entitlements to issue after children of brothers and sisters of the intestate,22 the next category of relatives to take under the Victorian scheme after aunts and uncles of the intestate includes grand nephews and nieces of the intestate and cousins of the intestate, who are both relatives of the fourth degree.23
6.21 Tasmania, achieves this by providing that the estate “shall be held in trust for the next-of-kin of the intestate according to the civil law; but there shall be no representation in relation to persons entitled under this last provision”.24 It has been observed that this limits the remaining next of kin to a range that is “narrow and remote”:
Great grandparents, a rare phenomenon even in this day and age, may claim as kin of the third degree. Brothers and sisters of grandparents (kin of the fourth degree) and their issue may also claim. It is to be questioned whether it would not be more appropriate for the Crown to benefit rather than such kin.25
6.22 There may be benefits in putting a limit on the classes of relatives entitled. When going back through ancestors and next of kin it has been argued that it would be prudent to put a limit on the extent to which relatives must be traced. It is when cousins and remoter relatives must be found “that real difficulty and expense often arise”.26 This is particularly the case in a country “a large proportion of whose population are immigrants, or children or grandchildren of immigrants”.27 This problem will be compounded in some cases where members of some families have migrated to different countries. Although shares in the intestate’s estate may be distributed to known beneficiaries while some remain unknown, the presence of undiscovered beneficiaries would require a perpetual trust.
6.23 These difficulties were recognised by the Law Reform Commission of Tasmania, which identified the problem of having to locate all an intestate’s relatives under the current law:
Searching for, or tracing next of kin is potentially a laborious and time consuming job as there is no limitation on how many generations must be searched to find the intestate’s nearest surviving next of kin.28
6.24 If the list of distribution is too thorough and expansive it runs the risk of confusing those who must interpret the Act’s operation. Before New South Wales limited next of kin to the aunts and uncles of the intestate, it was thought that “the provisions concerning next of kin [were] almost as forbidding as is the list of persons shown at the beginning of the Prayer Book – persons whom one is not supposed to marry”.29
6.25 In 1993 the Queensland Law Reform Commission considered:
MEANING OF STATUTORY TRUST FOR ANY CLASS OF RELATIVES OTHER THAN ISSUE OF THE INTESTATE
Qld...
ACT...
NSW... s 61C(3)
NT...
SA...
Tas... s 46(3)
Vic...
WA...
NZ s 78(3)
UK... s 47(3) |
6.26 It is uncommon for jurisdictions to address specifically statutory trusts for classes of relatives other than the issue of the intestate. Such trusts will usually be covered by the provisions that deal generally with the title of the intestate estate.31
6.27 In some jurisdictions, for example, New South Wales, separate provision is, however, made so that where the estate or any part of the estate is directed to be held on statutory trust for any class of relatives other than issue of the intestate, “that estate or part shall be held in trust corresponding to the statutory trust for the issue of the intestate as if that trust were repeated with the substitution of references to the members or member of that class for references to the children or child of the intestate”.32 New Zealand makes similar provision in almost exactly the same terms,33 as do Tasmania and England, except that Tasmania and England also provide that the “provision for bringing any money or property into account” does not apply in the case of trusts for relatives other than the issue of the deceased.34
6.28 Separate provision in relation to any estate held on trust for relatives who are not issue of the intestate would appear to be unnecessary since the question of distribution to relatives other than issue is dealt with in the distribution lists.
FOOTNOTES
1. Succession Act 1981 (Qld) s 34(2); Administration Act 1903 (WA) s 12B; Administration and Probate Act 1929 (ACT) s 44(2)(b); Administration and Probate Act 1969 (NT) s 61(2)(b); Administration and Probate Act 1919 (SA) s 72B(2); Administration and Probate Act 1958 (Vic) s 52(1)(f)(vii); Administration and Probate Act 1935 (Tas) s 44(7)(a) and (c); and Administration Act 1969 (NZ) s 77 It 6 and It 7.
2. Wills, Probate and Administration Act 1898 (NSW) s 61B(6)(a) and (b); and Administration of Estates Act 1925 (Eng) s 46(1)(v).
3. Wills, Probate and Administration Act 1898 (NSW) s 61B(6)(d) and (e); Administration of Estates Act 1925 (Eng) s 46(1)(v).
4. Law Reform Committee of South Australia, Relating to the Reform of the Law on Intestacy and Wills (Report 28, 1974) at 7.
5. Inheritance Act of 1833 (3&4 William IV c 106) s 9.
6. In re Goodman’s Trusts (1881) 17 ChD 266 at 299 (James LJ).
7. Succession Act 1981 (Qld) s 37(1)(a); Administration Act 1903 (WA) s 14(1) Table It 8, s 14(3a); Administration and Probate Act 1958 (Vic) s 52(1)(f). See also 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 369-370).
8. Administration Act 1903 (WA) s 14(3a); Succession Act 1981 (Qld) s 37(2)(a).
9. Administration and Probate Act 1958 (Vic) s 52(1)(f)(vi).
10. Administration and Probate Act 1958 (Vic) s 52(1)(f). See para 6.19-6.20 below. See also 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 369-370.
11. Administration and Probate Act 1969 (NT) s 69(1)(a) and s 69(2); Administration and Probate Act 1935 (Tas) s 44(7)(a), s 46(3); Administration and Probate Act 1919 (SA) s 72J(b); Wills, Probate and Administration Act 1898 (NSW) s 61B(6)(a) and (b), s 61C(3); Administration and Probate Act 1929 (ACT) s 49C(1)(a); Administration of Estates Act 1925 (Eng) s 46(1)(v) and s 47(3); Administration Act 1969 (NZ) s 77 It 6, s 78(3).
12. Administration and Probate Act 1919 (SA) s 72J(b)(iv).
13. See para 3.19 above.
14. Administration Act 1969 (NZ) s 77 It 7.
15. Succession Act 1981 (Qld) s 37(1)(c); Administration Act 1903 (WA) s 14(1) Table It 10, s 14(3a).
16. Succession Act 1981 (Qld) s 37(2)(b); Administration Act 1903 (WA) s 14(3a).
17. Administration and Probate Act 1969 (NT) s 69(1)(c) and s 69(2); Administration and Probate Act 1935 (Tas) s 44(7)(c), s 46(3); Administration and Probate Act 1919 (SA) s 72J(d); Wills, Probate and Administration Act 1898 (NSW) s 61B(6)(d) and (e), s 61C(3); Administration and Probate Act 1929 (ACT) s 49C(1)(c); Administration of Estates Act 1925 (Eng) s 46(1)(v), s 47(3); Administration Act 1969 (NZ) s 77 It 7, s 78(3).
18. Administration and Probate Act 1919 (SA) s 72J(b)(iv).
19. See para 3.19 above.
20. Administration and Probate Act 1958 (Vic) s 52(1)(f). See para 6.19-6.20 below. See also 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 369-370.
21. Administration and Probate Act 1958 (Vic) s 52(1)(f).
22. Administration and Probate Act 1958 (Vic) s 52(1)(f)(iii).
23. 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 370.
24. Administration and Probate Act 1935 (Tas) s 44(7).
25. 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 396.
26. NSW, Parliamentary Debates (Hansard), Legislative Council, 23 November 1954, Administration of Estates Bill, Second Reading at 1811.
27. Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at 63.
28. Law Reform Commission of Tasmania, Report on Succession Rights on Intestacy (Report 43, 1985) at 14.
29. NSW, Parliamentary Debates (Hansard), Legislative Council, 23 November 1954, Administration of Estates Bill, Second Reading at 1815.
30. Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at 63.
31. As is the case in Queensland, Australian Capital Territory, Northern Territory, South Australia, Victoria and Western Australia.
32. Wills, Probate and Administration Act 1898 (NSW) s 61C(3).
33. Administration Act 1969 (NZ) s 78(3).
34. Administration and Probate Act 1935 (Tas) s 46(3); Administration of Estates Act 1925 (Eng) s 47(3).
