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Where am I now? Lawlink > Law Reform Commission > Publications > Part 4 - Miscellaneous
Report 28 (1977) - Testator's Family Maintenance and Guardianship of Infants Act, 1916
Part 4 - Miscellaneous
4.1 The Act and the bill. The bill does not contain provisions of the kind which are found in section 5 (2A) (b) and (c), section 5 (3), section 6 (1), section 6 (3), section 9 and section 12 of the Act.
4.2 Section 5 (2A) (b) and (c) of the Act. If our recommendations concerning eligible persons are adopted,1 provisions such as section 5 (2A) (b) and (c) of the Act will cease to have practical significance: it will often be impossible to identify all the persons who are eligible persons for the purpose of securing their agreement. Moreover, the effect of the provisions is merely to preclude an application being made after the date of the agreement. In 1916, this was considered to be a desirable effect in that it might encourage an administrator to distribute the estate before the expiration of “the executor’s year”.2 Nowadays, in our experience, even an administrator with excellent intentions is seldom able to distribute within a year. We doubt that the omission of these provisions will do any harm.
4.3 Section 5 (3) of the Act. Section 5 (3) of the Act (“an application shall be deemed to be made on the day upon which the notice of motion or other process originating the application is filed”) is made unnecessary by Part 7 rule 6 (1) of the Supreme Court Rules, 1970. That rule says that “proceedings shall be commenced by the filing of the originating process”.
4.4 Section 6 (1) of the Act. We believe that a provision to the effect of section 6 (1) of the Act (contents of orders) is not needed in the Bill. As a matter of course, and under its general powers, the Court will specify all such matters as need to be specified in its orders.
4.5 Section 6 (3) of the Act. Section 6 (3) of the Act provides that a certified copy of an order for provision shall be made on the probate or letters of administration in question. Part 77 rule 30 of the Supreme Court Rules, 1970, has, in effect, prescribed the procedures to be followed in relation to certified copies of orders for provision. And, as we see it, matters of this kind arising under the new Act are better dealt with by rules of court than by the new Act itself.
4.6 Section 9 of the Act. Section 9 of the Act provides, in effect, that a person’s expectations of provision under the Act shall not be the subject of a mortgage or charge unless the permission of the Court is first obtained. The worth of this section was debated in Parliament in 1916.3 It was supported on the ground that something was needed which “would at once prevent the unscrupulous solicitor or money-lender, if they exist, from getting a charge over the expectant share of persons coming to them and asking for assistance to make an application”.4 It was said:-5 “in England they allow penniless claimants to make a bargain with a solicitor for the purpose of advancing claims; but there such a bargain is made under conditions approved by the prothonotary of the court.” Reasons of this kind do not persuade us that an equivalent of section 9 is needed in the bill. In our view, Acts such as the Legal Practitioners Act, 1898, the Money-lenders and Infants Loans Act, 1941, the Legal Assistance Act, 1943, the Legal Practitioners (Legal Aid) Act, 1970, obviate any need for obtaining the Court’s sanction to a mortgage over a potential interest in an estate. And, we see no reason why the Court should have to sanction a mortgage over an interest in property arising out of an order of the Court. The Court does not now have to approve a mortgage over an interest in property which arises out of a will or an intestacy.
4.7 Section 12 of the Act. Section 12 of the Act provides that an executor is not liable to any person claiming under the Act in respect of assets which the executor lawfully distributed before the passing of the Act. A provision equivalent to section 12 is not needed in the bill because the bill is expressed not to apply in relation to the estate of a deceased person who died before the day appointed for its commencement.6
4.8 Proposal for reform. We turn now to a proposal for reform which is put to us by one of our commentators.
4.9 “Consent jurisdiction”. The proposal reads-
There seems [to be] a case for extending the jurisdiction of the Court by consent of all interested parties. There seems to be no reason why if everybody submits to the jurisdiction an in personam order cannot be made affecting the testator’s real and personal property wheresoever situate. This would solve the problem where a deceased leaves property in three or four States and the disputants are a limited class of people so that they could agree that an application in one State would decide the whole of the T.F.M. applications.
4.10 Objection to “consent jurisdiction”. As we see it, few persons are likely to agree that an application to the New South Wales Court will decide family provision issues touching property in other States. This is so because the agreement, if made, could be dangerous in its consequences to the parties to it. In proceedings in the Court commenced in pursuance of the agreement, the Court might make an order which the courts of other States could not make. The Court may, for example, order a person to be joined as a party to the proceedings who could not be a party to like proceedings in another State. This situation might arise in 2 ways. First, where the person joined as a party is an eligible person under section 6 (1) (c) of the new Act but is not an eligible person elsewhere, or, secondly, where the person is out of time for commencing proceedings elsewhere but is within time for com-mencing proceedings in New South Wales.7 Moreover, in proceedings in New South Wales, the Court might, under section 9 of the new Act, make an order affecting property in the notional estate of the deceased person which property is beneficially owned by one of the parties to the agreement which gave jurisdiction to the Court. For these reasons, we think that a consent ‘ jurisdiction of the kind suggested in paragraph 4.9 would be rarely, if ever, invoked. We do not recommend that the proposal be implemented.
4.11 Intestacies. In this State, where a person dies without a win and is survived by a spouse and children, the spouse receives one-third of the estate of the deceased person if there are 2 or more children and one-half of the estate if there is only one child.8 We said in the Working Paper9 that we are satisfied that the entitlement of the surviv-ing spouse is inadequate. We are still of this view but we do not make any recommendation for change: the Premier, the Honourable Neville Wran, Q.C., M.L.A., has announced that amending legislation will soon be introduced. As we see it, the proposed legislation, when enacted, will cure the inadequacy.
4.12 The matrimonial home. We referred in the Working Paper10 to cases where the estate of a person who dies intestate includes an interest in a dwelling-house in which the surviving spouse was resident at the time of the death of the intestate. We asked whether the surviving spouse should be given the right to appropriate the interest in the dwelling in or towards satisfaction of his or her interest in the estate. We referred to the Second Schedule of the Intestate’s Estates Act 1952 of the United Kingdom where such a right is given.11 Few commentators expressed views on the matter but those who did favoured an affirmative answer to our question. Because, as noted in paragraph 4.12, the intestacy rules are now being reviewed by Government, we do not make any specific recommendations in relation to the matri-monial home in cases of intestacy. We believe, however, that the United Kingdom provision has much to commend it.
4.13 Uniform laws. In paragraphs 2.9.14 to 2.9.16 and 2.33.3 to 2.33.7, we refer to conflict of law problems which arise in relation to the Act and which will continue to arise in relation to the new Act. In concluding this report, we say that there is a strong case for some uniform provisions in the family provisions statutes of the Australian States and Territories which would obviate these problems. We refer, in particular, to proposals for change made in 1967 by Mr D. St L. Kelly.12 The proposals were put in the alternative. As adapted by us, they are: first, that each legislature within Australia might enact legislation providing that the jurisdiction of the Court in that place shall depend solely upon the presence there of assets forming part of the deceased person’s estate and that the Court in that place shall apply the legislation of the situs to any immovables, and the legislation of the domicile of the deceased to any movables: secondly, that each legislature within Australia might enact legislation providing that the Court of the domicile of the deceased person shall have sole jurisdiction over the whole of his estate, both movable and immovable, wherever situated, and that only the family provision legislation of the domicile of the deceased person is applicable. We do not comment on the advantages and disadvantages of these proposals. We mention them only for the purpose of expressing the view that proposals of this kind may well be fit subjects for examination by the Standing Committee of Attorneys-General.
J. H. WOOTTEN,
Chairman.
D. GRESSIER,
Commissioner.
30th June, 1977.
FOOTNOTES
1. See section 6 of the bill.
2. See N.S.W. Parliamentary Debates, Session 1916, Vol. 64, page 742.
3. N.S.W. Parliamentary Debates, Session 1916, Vol. 65 pages 1305-1308.
4. Id., page 1307.
5. Ibid.
6. The bill, section 4.
7. The limitation period of 18 months after death fixed by s. 14 of the Bill may, in practice, sometimes be longer than the limitation period fixed by the Acts of the other States (see Davern Wright Testator’s Family Maintenance in Australia and New Zealand (3rd ed.) (1974) pages 25-29).
8. See section 61A of the Wills Probate and Administration Act, 1898.
9. Paragraph 18.11.
10. Paragraph 18.13.
11. Ibid.
12. See “Testator’s Family Maintenance and the Conflict of Laws” ( 1967) 41 Australian Law Journal 382, 391-392.
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