Updates and background for this project (Digest)
SURVIVORSHIP AND INTESTACY
10.1 The question of survivorship, as it affects intestacy provisions, arises in two situations:
- where the intestate and someone who may be entitled to take on intestacy have both died (either in the same event or separately) but, because of the circumstances of the deaths, the order in which they died is uncertain; and
- where a person who is otherwise entitled survives the intestate but dies within a certain number of days (usually less than a month) of the intestate.
The first situation will be dealt with in the National Committee’s final report on the administration of estates of deceased persons, and will not be considered further in this Issues Paper.
Surviving the intestate by less than a month
Qld... s 35(2)
ACT...
NSW...
NT...
SA... s 72E
Tas...
Vic...
WA...
NZ...
Eng... s 46(2A)-(3)
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10.2 Both South Australia and England provide that when a spouse or partner does not survive the intestate by more than 28 days, the estate will be distributed as if the spouse or partner had not survived the intestate at all.1
10.3 Queensland, on the other hand, extends its provisions to cover all people entitled on intestacy, not just spouses or partners and states that, if the person does not survive the intestate for a period of 30 days, the estate will be dealt with as if the person had not survived the intestate.2
10.4 The Law Commission of England and Wales used an example to justify such a provision:
a case involving a married couple with no children, who had both died intestate in a car crash. The husband’s parents were prepared to proceed on the basis that it was not known which had survived, on the findings of the inquest without having evidence of a pathologist filed in the probate proceedings. However the wife’s parents were not prepared to do so and therefore the Registrar had to call for expert evidence which increased the cost of probate without altering the result. If there had been a survivorship clause in the intestacy rules this would not have been necessary.3
10.5 Provisions requiring that beneficiaries survive testators by 30 days are common in wills and were originally included in wills to avoid an accumulation of death duties in the case of simultaneous or near simultaneous deaths.4 The National Committee has previously recommended that the law of wills include a provision to the effect that beneficiaries under a will must survive the testator by 30 days unless a contrary intention appears in the will.5 There would appear to be no reason why such a provision ought not be included in the law relating to intestacy.
ISSUE 10.1
What provision, if any, should be made to deal with situations where a person otherwise entitled on intestacy dies within a month of the intestate?
ISSUE 10.2
Should any provision be limited in application to surviving spouses or partners?
ABOLITION OF COURTESY AND RIGHT OF DOWER
Qld... Intestacy Act 1877 s 28
ACT... s 48
NSW... s 52
NT... s 65
SA... s 46(3)
Tas... Conveyancing and Law of Property Act 1884 s 89
Vic... Dower Abolition Act 1880; Married Women’s Property Act 1884 s 25
WA... s 16
NZ... Married Women’s Property Act 1952 s 4
Eng... s 45(1)(b),(c)
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10.6 Estate by courtesy (or curtesy) and the right of dower both concern real property.
10.7 Estate by courtesy was a husband’s right to a life estate in all of his wife’s land on her death. The right was only exercisable if the wife’s title in the land was capable of being disposed of by her through her will, if the wife had possession of the land before her death, if she had not already disposed of the land and if no child capable of inheriting the land had been born to the marriage.
10.8 The right of dower was a wife’s right to a life estate in a third of all her husband’s land (including that which he had alienated) on his death. This right was, again only exercisable if the husband’s title in the land was capable of being disposed of by him through his will and if the husband had possession of the land before his death. Although the right could still have been exercised if a child had been born to the marriage, it could not if the dower had been “barred”.
10.9 All jurisdictions have abolished courtesy and the right of dower. The majority have included the abolition in their current provisions relating to intestacy,6 or at least administration of estates.7 Others have, however, abolished dower and courtesy in other statutes.8 There would appear to be no reason why a provision abolishing courtesy and the right of dower should be included in any future legislative provisions.
REFERENCES TO STATUTES OF DISTRIBUTION, HEIRS AND NEXT OF KIN
Qld... s 39
ACT...
NSW...
NT...
SA...
Tas...
Vic... s 56
WA...
NZ... s 80(1)
Eng... s 50(1)
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10.10 Since the Statutes of Distribution have been replaced by the current provisions relating to intestacy, some jurisdictions provide that references made to any statutes of distribution in instruments made inter vivos or in a will shall be construed as references to the current intestacy rules; and references in such an instrument or will to an heir or heir at law or next of kin of a person shall be construed, unless the context otherwise requires, as referring to the persons who would take beneficially on the intestacy of that person under the current provisions.9
10.11 Lee suggests that this is one of a number of construction provisions in the Succession Act 1981 (Qld) “designed to remedy comparatively common problems arising from inappropriate use of terminology in wills”.10
FOOTNOTES
1. Administration and Probate Act 1919 (SA) s 72E; Administration of Estates Act 1925 (Eng) s 46(2A) and s 46(3).
2. Succession Act 1981 (Qld) s 35(2).
3. England and Wales, Law Commission, Family Law: Distribution on Intestacy (Report 187, 1989) at 14.
4. New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills (Report 85, 1998) at para 6.45.
5. New South Wales Law Reform Commission, Uniform Succession Laws: The Law of Wills (Report 85, 1998) at para 6.47.
6. Administration and Probate Act 1929 (ACT) s 48; Administration and Probate Act 1969 (NT) s 65; Administration Act 1903 (WA) s 16; Administration of Estates Act 1925 (Eng) s 45(1)(c) and (d).
7. Administration and Probate Act 1919 (SA) s 46(3); Wills, Probate and Administration Act 1898 (NSW) s 52.
8. Intestacy Act 1877 (Qld) s 28; Conveyancing and Law of Property Act 1884 (Tas) s 89; Dower Abolition Act 1880 (Vic); Married Women’s Property Act 1884 (Vic) s 25; Married Women’s Property Act 1952 (NZ) s 4. On the effect of a repeal of a provision repealing the right of dower, see Marshall v Smith (1907) 4 CLR 1617; and in Queensland, see Acts Interpretation Act 1954 (Qld) s 20 whereby a repeal of the Act will not revive the interests.
9. Succession Act 1981 (Qld) s 39; Administration and Probate Act 1958 (Vic) s 56; Administration Act 1969 (NZ) s 80(1) (but not including “heir” or “heir at law”); and Administration of Estates Act 1925 (Eng) s 50(1) (but not including “heir” or “heir at law”). See the discussion on such provisions in Queensland Law Reform Commission, The Law Relating to Succession (Report 22, 1978) at 24.
10. W A Lee and A A Preece, Lee’s Manual of Queensland Succession Law (5th edition, LBC Information Services, 2001) at 173; see also 225 and 230.
