(1) In this Act— administration of the estate of a deceased person is defined in section 55.administrator has the same meaning as it has in the. Probate and Administration Act 1898 close personal relationship is defined in subsection (3).costs , in relation to proceedings under this Act, means costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration.Court means—
(a) the Supreme Court, in relation to any matter (including a matter referred to in paragraph (b)), or (b) the District Court, in relation to a matter under Chapter 3 for which it has jurisdiction under section 134 of the . District Court Act 1973 deceased person includes any person in respect of whose estate administration has been granted.deceased transferee means a deceased transferee referred to in section 81 or 82.disposition includes the following—
(a) any gift, devise or bequest of property under a will, (b) the creation by will of a power of appointment affecting property, (c) the exercise by will of a power of appointment affecting property. document —
(a) except as provided by paragraph (b)—has the same meaning that it is given by section 21 of the , and Interpretation Act 1987 (b) in Chapter 2 (other than section 8)—means any paper or material on which there is writing. domestic relationship has the same meaning as it has in the. Property (Relationships) Act 1984 eligible person means a person who may make an application for a family provision order under section 57.family provision order means an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person.intestate is defined in section 102.legal representative of an estate is defined in section 55 (2).notional estate of a deceased person means property designated by a notional estate order as notional estate of the deceased person.notional estate order means an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person.personal representative means the executor or administrator of the estate of a deceased person.property includes any valuable benefit.Registrar means a person who is—
(a) appointed in accordance with section 120 of the , and Supreme Court Act 1970 (b) nominated by the Principal Registrar of the Court for the purposes of this Act. will includes a codicil and any other testamentary disposition.Note— The contains definitions of some terms and expressions used in this Act. See, for example, the definitions of Interpretation Act 1987 minor ,land andproperty in section 21 of that Act.Note— The contains definitions and other provisions that affect the interpretation and application of this Act. Interpretation Act 1987 (2) A reference in this Act to a child or issue of any person includes a child or issue who is born after the person’s death after a period of gestation in the uterus that commenced before the person’s death and survives the person for at least 30 days after birth.
(cf WPA 7 and 9) (1) A will is not valid unless—
(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and (c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
(cf WPA 15)
(cf WPA 15A) (1) The divorce of a testator or annulment of his or her marriage revokes—
(a) a beneficial disposition to the testator’s former spouse made by a will in existence at the time of the divorce or annulment, and (b) an appointment of the testator’s former spouse as an executor, trustee, advisory trustee or guardian made by the will, and (c) a grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse.
(cf WPA 18)
(cf WPA 6A) (1) The Court may make an order authorising a minor—
(a) to make or alter a will in the specific terms approved by the Court, or (b) to revoke a will or part of a will. (2) An order under this section may be made on the application of a minor or by a person on behalf of the minor.
(cf WPA 29A)
(cf WPA 22)
(cf WPA 29) (1) This section applies if—
(a) a testator makes a disposition of property to a person, whether as an individual or as a member of a class, who is issue of the testator ( the original beneficiary ), and(b) under the will, the interest of the original beneficiary in the property does not come to an end on or before the original beneficiary’s death, and (c) the disposition is not a disposition of property to the testator’s issue, without limitation as to remoteness, and (d) the original beneficiary does not survive the testator for 30 days or, if that or another period for survival appears in the will, for the period appearing in the will.
(1) For the purposes of this Chapter, administration is granted in respect of the estate of a deceased person if—
(a) probate of the will of the deceased person is granted in New South Wales or granted outside New South Wales but sealed in accordance with section 107 (1) of the , or Probate and Administration Act 1898 (b) letters of administration of the estate of the deceased person are granted in New South Wales or granted outside New South Wales but sealed in accordance with section 107 (1) of the , whether the letters were granted with or without a will annexed and whether for general, special or limited purposes, or Probate and Administration Act 1898 (c) an order is made under section 24 or 25 of the in respect of the estate of the deceased person, or NSW Trustee and Guardian Act 2009 (d) an election is made by the NSW Trustee and Guardian under Division 1 of Part 3.2 of the in respect of the estate of the deceased person, or NSW Trustee and Guardian Act 2009 (e) an election is made by a trustee company under section 15A or 15AA of the in respect of the estate of the deceased person. Trustee Companies Act 1964
(cf FPA 16 (1) (b) and 17)
(cf FPA 7–9)
(cf FPA 9 (5) and (6))
(cf FPA 6 (1), definition of “estate”, 6 (4) and (5)) (1) A family provision order may be made in relation to the estate of a deceased person.
(cf FPA 11 (1) (a) and (d))
(cf FPA 15 (1), 34)
(cf FPA 19 (1)–(3) and 20 (4)) (1) A family provision order may be varied or revoked by the Court only in accordance with this Chapter.
(cf FPA 22 (1), (3) and (7))
(cf FPA 22 (4))
(cf FPA 22 (2), (5) and (6))
(cf FPA 23)
(cf FPA 25)
(1) The Court may, on application by an applicant for a family provision order or on its own motion, make a notional estate order designating property specified in the order as notional estate of a deceased person if the Court is satisfied that—
(a) immediately before the date of the death of a person ( the deceased transferee ), it had power, under this or any other section of this Chapter, to make a notional estate order designating property held by, or on trust for, the deceased transferee as notional estate of the deceased person, and(b) the power did not arise because property became held by the deceased transferee as trustee only, and (c) in the case of property referred to in subsection (2) (b), there are special circumstances that warrant the making of the order.
(cf FPA 27 (2), 28 (2) and (4))
(cf WPA 41A)
(cf FPA 30)
(cf FPA 35 (1))
(1) A legal representative of the estate of a deceased person who distributes property in the estate for the purpose of providing those things immediately necessary for the maintenance or education of an eligible person who was wholly or substantially dependent on the deceased person immediately before his or her death is not liable for any such distribution that is properly made. (2) Subsection (1) applies whether or not the legal representative had notice at the time of the distribution of any application or intended application for a family provision order affecting property in the estate.
(cf FPA 31 (1)–(6)) (1) A release by a person of the person’s rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court.
(cf FPA 31 (7)–(9))
(cf FPA 33 (1)) (1) The object of this section is to encourage the settlement by affected parties of disputes concerning the estate of a deceased person.
(cf FPA 33 (1))
(1) The statutory legacy for a spouse consists of—
(a) the CPI adjusted legacy, and (b) if the statutory legacy is not paid, or not paid in full, within 1 year after the intestate’s death—interest at the relevant rate on the amount outstanding from time to time (excluding interest) from the first anniversary of the intestate’s death to the date of payment of the legacy in full. (2) The CPI adjusted legacy is to be determined in accordance with the following formula—where— R represents the CPI adjusted legacy.A is $350,000.C represents the Consumer Price Index number for the last quarter for which such a number was published before the date on which the intestate died.D represents the Consumer Price Index number for the December 2005 quarter.(3) If, however, a spouse is entitled to a statutory legacy under this Act and under the law of another Australian jurisdiction or jurisdictions—
(a) the spouse’s statutory legacy is an amount equivalent to the highest amount fixed by way of statutory legacy under any of the relevant laws (including this Act), but (b) the following qualifications apply—
(i) amounts received by the spouse, by way of statutory legacy, under any of the other relevant laws are taken to have been paid towards satisfaction of the spouse’s statutory legacy under this Act, (ii) if any of the relevant laws contain no provision corresponding to subparagraph (i), no amount is payable by way of statutory legacy under this Act until the spouse’s entitlement under that law is satisfied, or the spouse renounces the spouse’s entitlement to payment, or further payment, by way of statutory legacy, under that law.
Note— In the case of an Indigenous person’s estate, this Part is subject to exclusion or modification by a distribution order under Part 4.4.
(1) A spouse is entitled to elect to acquire property from an intestate estate. (2) A spouse’s election to acquire property from an intestate estate requires the Court’s authorisation if—
(a) the property forms part of a larger aggregate, and (b) the acquisition could substantially diminish the value of the remainder of the property or make the administration of the estate substantially more difficult. Note— For example—
(a) The acquisition of a single item from a group of items might substantially diminish the value of the remainder of the group or make it substantially more difficult to dispose of the remainder of the group. (b) The acquisition of the farmhouse from a farming property might substantially diminish the value of the remainder of the farming property or make it substantially more difficult to dispose of it. (3) The Court may grant an authorisation under subsection (2) and may impose such conditions as it considers just and equitable to address the matters referred to in that subsection, including a condition that the spouse pay compensation to the estate in addition to consideration to be given for the property under this Division and a condition as to costs.
(1) A spouse’s election is made by written notice identifying, with reasonable particularity, the property the spouse elects to acquire. (2) Except as provided by subsection (3), the notice of election must be given—
(a) to each person, apart from the spouse, who is a personal representative of the intestate, and (b) to each person, apart from the spouse, who is entitled to share in the intestate estate.
(1) The price for which a spouse may elect to acquire property from the intestate estate (the exercise price ) is the market value of the property as at the date of the intestate’s death.(2) If, however, the spouse and the holder of a mortgage, charge or encumbrance over property that the spouse has elected to acquire agree to the assumption by the spouse of the liability secured by the mortgage, charge or encumbrance the exercise price is to be reduced by the amount of the liability (as at the date of transfer) secured by the mortgage, charge or encumbrance, but—
(a) the spouse takes the property subject to the mortgage, charge or encumbrance, and (b) on the transfer of the property, the liability passes to the spouse and the estate is exonerated from it.
(1) An intestate’s spouse or personal representative may apply to the Court for a distribution order.
Note— In the case of an Indigenous person’s estate, this Part is subject to exclusion or modification by a distribution order under Part 4.4.
(1) If an intestate leaves no spouse but leaves issue, the intestate’s children are entitled to the whole of the intestate estate.
(1) The personal representative of an Indigenous intestate, or a person claiming to be entitled to share in an intestate estate under the laws, customs, traditions and practices of the Indigenous community or group to which an Indigenous intestate belonged, may apply to the Court for an order for distribution of the intestate estate under this Part.
(1) The Court may, on an application under this Part, order that the intestate estate, or part of the intestate estate, be distributed in accordance with the terms of the order.
(1) Rules of Court may be made under the for or with respect to the practice and procedure to be followed in respect of proceedings under this Act and any matters incidental to, or relating to, such practice and procedure. Supreme Court Act 1970 Note— Under section 9 (2) and clause 30 of Schedule 3 to the rules may also be made under that Act. Civil Procedure Act 2005
(Section 104)