Should there be a legislative definition of “intestate” or “intestacy”?

ISSUE 1.2

If so, how should it be defined?

ISSUE 1.3

Should special provision be made for dealing with partially intestate estates:
(a) for the purposes of bringing into account; and/or
(b) for other purposes?

ISSUE 1.4

Is there a need for a special provision negating the statutory trusts where the personal representative takes the intestate estate beneficially?

ISSUE 1.5

How should the estate that is available for distribution be identified?

ISSUE 1.6

Is there a need for separate provision to be made for trusts for sale in relation to intestate estates?

ISSUE 2.1

What provision (if any) should be made for minors who are entitled to part or all of an intestate estate?

ISSUE 2.2

Should minors take their share of an intestate estate unconditionally (that is without having to turn 18 or marry - but subject to the property being held for them until they turn 18 or marry)?

ISSUE 2.3

If not, and the minor dies before turning 18 or marrying, should the property available for distribution be reduced by the amount spent on them before their death?

ISSUE 2.4

If a minor’s share in the intestate estate does not pass to him/her because the minor dies before reaching majority should the share pass to surviving issue of the minor?

ISSUE 2.5

What special provision, if any, should be made to accommodate minor issue of the intestate when the estate available for distribution is small?

ISSUE 2.6

What provision, if any, ought to be made with respect to the use and enjoyment by minors of chattels of the estate?

ISSUE 2.7

Should any provision be made for carrying on the business where one or more of those entitled is a minor?

ISSUE 2.8

Should any legislative provision be made to deal with situations where a person otherwise entitled to an interest in the intestate estate disclaims that interest?

ISSUE 3.1

What provision, if any, ought to be made for bigamous unions?

ISSUE 3.2

Should the meaning of de facto partner be standardised for the purposes of intestacy or should the National Committee’s draft Family Provision Bill be followed (that is, allow the definition of each jurisdiction to be applied)?

ISSUE 3.3

If there is to be a standardised meaning of “de facto partner”, how should that term be defined?

ISSUE 3.4

In any event should a special period, or periods, apply to the recognition of de facto relationships for purposes of intestacy? If so, what periods?

ISSUE 3.5

Should any restrictions be placed on the ability of a de facto partner to succeed to an intestate’s estate?

ISSUE 3.6

Is it necessary for the intestacy provisions to continue to contain an express statement that spouses are to be considered separate people?

ISSUE 3.7

If the intestate is not survived by any issue, should the surviving spouse or partner be entitled to the whole of the estate?

ISSUE 3.8

If not, who else should be entitled to a share and to how much should the surviving spouse or partner be entitled and in what proportions should the remainder of the estate be divided?

ISSUE 3.9

Should personal chattels be included in the spouse or partner’s entitlement?

ISSUE 3.10

In principle, should the estate be divided between the spouse and issue?

ISSUE 3.11

Should the surviving spouse be entitled to the intestate’s personal possessions?

ISSUE 3.12

If so, should a detailed list of chattels be included or should reference simply be made to “articles of personal or household use or adornment”?

ISSUE 3.13

If a detailed list is to be provided, what should be included in it?

ISSUE 3.14

Should a statutory legacy be retained?

ISSUE 3.15

If so, should the prescribed amount be specified in uniform legislation or left to be fixed by Regulation in each jurisdiction?

ISSUE 3.16

How much should the legacy be?

ISSUE 3.17

Should interest be paid on the surviving spouse’s statutory legacy?

ISSUE 3.18

Should the interest rate be set in uniform legislation or by regulation in each jurisdiction?

ISSUE 3.19

What is an appropriate proportion of the remaining estate to go to the surviving spouse?

ISSUE 3.20

Should the proportion alter according to the number of surviving issue? If so, how?

ISSUE 3.21

Would it be useful to distinguish dependent from non-dependent issue?

ISSUE 3.22

What provision ought to be made for situations where the intestate is survived by a spouse and a de facto partner?

ISSUE 3.23

Should special provision be made for personal chattels?

ISSUE 3.24

What provision should be made where there is more than one de facto partner?

ISSUE 4.1

How should the shared home be defined?

ISSUE 4.2

Should the spouse and the intestate have been residing in the home at the intestate’s death before the surviving spouse will be entitled?

ISSUE 4.3

Should the surviving spouse or partner be entitled to obtain the intestate’s interest in the shared home?

ISSUE 4.4

To what extent, if any, ought the intestate’s interest in the shared home be used in satisfaction of the share of the estate to which the surviving spouse or partner is entitled on distribution?

ISSUE 4.5

How should any outstanding balance be met if the value of the intestate’s interest in the shared home exceeds the value of the spouse or partner’s entitlement if there were no shared home available?

ISSUE 4.6

Should provision be made so that the spouse may require a valuation of the shared home before making an election?

ISSUE 4.7

How and when should the value of the intestate’s interest in the shared home be determined?

ISSUE 4.8

Should the value be the market value less any amount needed to discharge any mortgage, charge or other encumbrance to which the interest is subject at the date valued?

ISSUE 4.9

Should the election be required to be in writing?

ISSUE 4.10

Should the surviving spouse or partner be required to make an election within a certain time? If so, how long?

ISSUE 4.11

Should it be possible for the Court to grant an extension of time for a surviving spouse or partner to make an election? If so, when should the value of the intestate’s interest in the shared home be fixed?

ISSUE 4.12

Should personal representatives be required to give the surviving spouse or partner notice of their rights to make an election? If so, when should that notice be given?

ISSUE 4.13

To whom should the spouse’s election be given?

ISSUE 4.14

Should surviving spouses who are minors be able to make an election to acquire a shared home?

ISSUE 4.15

What provision should be made for spousal election when the spouse has a mental disability?

ISSUE 4.16

Should there be provision for the revocation of an election?

ISSUE 4.17

If there is to be a provision for the revocation of an election, whose consent should be required and should that consent be in writing?

ISSUE 4.18

What restrictions, if any, should be placed on the personal representative’s powers to dispose of the shared home?

ISSUE 4.19

Should the restriction apply if the surviving spouse is a personal representative of the intestate’s estate?

ISSUE 4.20

Should the validity of the sale of any of the intestate’s estate, by the personal representative/s, be affected by the restriction?

ISSUE 4.21

On what conditions, if any, should it be possible to dispose of the intestate’s interest in the shared home before the expiration of the period within which election may be made?

ISSUE 4.22

Should express provision be made that a surviving spouse or partner may acquire the intestate’s interest in the shared home notwithstanding any role as trustee?

ISSUE 4.23

Should the spouse’s right be restricted where the interest in the shared home is a tenancy that will determine within 2 years after the intestate’s death, or if the landlord would be entitled to determine the lease within that period?

ISSUE 4.24

Should there be any other restrictions on the spouse’s right to obtain the intestate’s interest in the shared home?

ISSUE 4.25

Should the shared home include curtilage?

ISSUE 4.26

If so, how should curtilage be defined?

ISSUE 4.27

Is it necessary to include the power to create easements or restrictions in intestacy rules?

ISSUES 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?

ISSUE 5.3

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

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?

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?

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?

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?

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?

ISSUE 5.14

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

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?

ISSUE 6.3

Should any distinction be made between relatives of the whole and half blood?

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?

ISSUE 6.7

What provision should be made for distribution to the grandparents of the intestate?

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?

ISSUE 6.11

What provision, if any, should be made for distribution to remoter next of kin?

ISSUE 6.12

If the estate of an intestate is to be held on trust for relatives who are not issue in the same manner as for issue of the intestate, is it necessary to include a separate provision to that effect?

ISSUE 7.1

Are the present provisions for the disposal of intestate estates where no relatives of the intestate are entitled to distribution under the rules of intestacy satisfactory?

ISSUE 7.2

Should uniform legislation allow persons to petition the Crown to make provision for them out of bona vacantia?

ISSUE 7.3

If so, what criteria should be used to identify the people who are entitled to apply?

ISSUE 8.1

What provisions, if any, should be made to take into account gifts given by the intestate before death to persons who are entitled to take according to the rules of intestacy?

ISSUE 8.2

What provision, if any, should be made for the taking into account of testamentary benefits received by persons who are also entitled under the rules of intestacy?

ISSUE 9.1

What provision, if any, should be made to recognise Indigenous customary marriages for purposes of intestacy?

ISSUE 9.2

Should the Northern Territory scheme for distribution on intestacy according to Indigenous customs and traditions be adopted?

ISSUE 9.3

If yes, does it require modification?

ISSUE 9.4

If no, should any separate scheme for distribution on intestacy be adopted for Indigenous people?

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?

ISSUE 10.3

Should the abolition of courtesy and right of dower be retained in any future legislative provisions relating to intestacy?

ISSUE 10.4

Is there a need to retain provisions for the construction of references to:

• any statutes of distribution;
• an heir or heir at law; or
• next of kin?
  
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