Justice Legislation Amendment (Succession and Surrogacy) Act 2014

Justice Legislation Amendment (Succession and Surrogacy) Act 2014

No. 80 of 2014

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Administration and Probate Act 1958—Family Provision

3Definitions

4New section 90A inserted

90AEligible person may apply for family provision order

5Section 91 substituted and new section 91A inserted

91Court may make family provision order

91AFactors to be considered in making family provision order

6Contents of order

7Adjustment of probate duty

8Section 99 substituted

99Time within which application may be made

9Protection of personal representative against certain claims

Part 3—Amendment of Administration and Probate Act 1958—Payment of Debts

10Definitions

11Section 39 substituted and new sections 39A and 39B inserted

39Insolvent estates—payment of debts

39ASolvent estates—payment of debts

39BSolvent estates—pecuniary legacies

12Charges on property of deceased to be paid primarily out of property charged

13Second Schedule repealed

Part 4—Amendment of Administration and Probate Act 1958—Miscellaneous Amendments

14Definitions

15New sections 31A to 31D inserted

31AProtection of payments or transfers of property without requiring the production of a grant of representation

31BThreshold amount

31CLiability of person fraudulently obtaining or retaining estate of deceased

31DPersons liable for the waste or conversion of a deceased's estate

16Payment or transfer by employer of moneys etc. held on account of deceased employee

17Liability of person fraudulently obtaining or retaining estate of deceased

18Aid of registrar or clerk in procuring a grant of probate

19Heading to section 72 inserted

20Registrar may require proof of identity

21Satisfaction as to value

22Applicants residing within 32 kilometres from Melbourne

23Registrar of probates may require further materials

24Registrar of probates need not proceed in difficult cases

25Administration of small estates

26New sections 101 to 105 inserted

101Transitional provision—family provision—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

102Transitional provision—payment of debts—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

103Transitional provision—small estates—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

104Power to resolve transitional difficulties in proceeding—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

105Regulations dealing with transitional matters—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

Part 5—Amendment of Wills Act 1997

27Wills for persons who do not have testamentary capacity authorised by the Court

28New sections 21A to 21D inserted

21AInformation which the Court may require in support of an application under section21

21BMatters of which the Court must be satisfied before making an order under section 21

21CPersons entitled to appear

21DCourt may order separate representation of person lacking testamentary capacity

29Hearing an application for an order

30Sections 23, 26, 27, 28 and 29 repealed

31New sections 53, 54 and 55 inserted

53Transitional provision—Court authorised wills—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

54Power to resolve transitional difficulties in proceeding—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

55Regulations dealing with transitional matters—Justice Legislation Amendment (Succession and Surrogacy) Act 2014

Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and Marriages Registration Act 1996

Division 1—Amendment of Status of Children Act 1974

32Interpretation

33Surrogacy arrangements—presumption as to status of child

19Surrogacy arrangements—presumption as to status of child

34New section 22A inserted

22ARegistrar of Births, Deaths and Marriages must notify Australian State or Territory registering authority of orders

35New Division 2A of Part IV inserted

Division 2A—Registration orders

29AWhat is a registration order?

29BApplication for a registration order

29CApplicant must give notice of hearing

29DSecretary of the Department of Justice has standing to appear at hearing

29ECourt may make registration order

29FCircumstances in which consent to registration order not required

29GApplication to revoke registration order

29HCourt may revoke registration order

29INotification of discharged corresponding surrogacy parentage order

36Heading to Subdivision 3 of Division 2 substituted

37Appeals

38Section 31 substituted

31Registrar of Births, Deaths and Marriages to receive copy of orders

39Access to court records

40Transitional—application of Part IV

41New Part VIII inserted

Part VIII—Transitional Provisions—Justice Legislation Amendment(Succession and Surrogacy) Act 2014

48Registration orders—application to surrogacy arrangements before commencement of Part

Division 2—Amendment of Births, Deaths and Marriages Registration Act 1996

42Heading to section 19A amended

43New section 19B inserted

19BSurrogate birth registration—corresponding surrogacy parentage orders

Part 7—Minor and Consequential Amendments to other Acts

Division 1—Amendment of Status of Children Act 1974

44Protection of executors, administrators and trustees

45Recognition of paternity

Division 2—Amendment of Trustee Companies Act 1984

46Election by trustee company to administer estate

47Statute law revision

Division 3—Amendment of Wills Act 1997

48Information which the Court may require in support of an application for leave

49Can a will be rectified?

50Beneficiaries must survive testator by 30 days

Part 8—Repeal

51Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Justice Legislation Amendment (Succession and Surrogacy) Act 2014[†]

No. 80 of 2014

[Assented to 21 October 2014]

Justice Legislation Amendment (Succession and Surrogacy) Act 2014
No. 21 of 2014

The Parliament of Victoriaenacts:

Part 8—Repeal

Justice Legislation Amendment (Succession and Surrogacy) Act 2014
No. 80 of 2014

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend theAdministration and Probate Act 1958in relation to—

(i) family provision claims; and

(ii)the rules for the payment of debts of an estate; and

(iii) the administration of small estates;and

(b)to amend thecourt authorised wills scheme in theWills Act 1997; and

(c)in relation to surrogacy—

(i) to amend the Status of Children Act 1974 to allow registration of a surrogate birth if a parentage order is made by an interstate court; and

(ii)to make related amendments to the Births, Deaths and Marriages Registration Act 1996; and

(d) to make consequential and other miscellaneous amendments to other Acts.

2Commencement

s. 2

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 July 2015, it comes into operation on that day.

______

Part 2—Amendment of Administration and Probate Act 1958—Family Provision

3Definitions

s. 3

See:
Act No.
6191.
Reprint No. 11
as at
6/5/2010
and amending
Act Nos
17/2010 and 31/2013.
LawToday:
www.
legislation.
vic.gov.au

(1)In section 90 of the Administration and Probate Act 1958, for the definition of Courtsubstitute—

"Court means the Supreme Court or the County Court;".

(2)In section 90 of the Administration and Probate Act 1958 insert the following definitions—

"disabilitymeans a disability—

(a) that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and

(b)the impairment or impairments are, or are likely to be, permanent; and

(c)the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities—

(i) communication;

(ii)social interaction;

(iii)learning;

(iv)mobility;

(v)self-care;

(vi)self-management; and

(d)the impairment or impairments affect the person's capacity for social or economic participation;

eligible person means—

(a)a person who was the spouse or domestic partner of the deceased at the time of the deceased's death;

(b)a child of the deceased, including a child adopted by the deceased who, at the time of the deceased's death, was—

(i) under the age of 18 years; or

(ii)a full-time student aged between 18 years and 25 years; or

(iii)a child with a disability;

(c)a stepchild of the deceased who, at the time of the deceased's death, was—

s. 3

(i) under the age of 18 years; or

(ii)a full-time student aged between 18 years and 25 years; or

(iii)astepchild with a disability;

(d)a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased's death, was—

(i) under the age of 18 years; or

(ii)a full-time student aged between 18 years and 25 years; or

(iii)a child with a disability;

(e) a former spouse or former domestic partner of the deceased if the person, at the time of the deceased's death—

(i) would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and

(ii)haseither—

(A)not taken those proceedings; or

(B)commenced but not finalised those proceedings; and

(iii)is now prevented from taking or finalising those proceedings because of the death of the deceased;

s. 3

(f)a child or stepchild of the deceased not referred to in paragraph (b) or (c);

(g)a person who, for a substantial period during the life of the deceased, believedthat the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d);

(h)a registered caring partner of the deceased;

(i) a grandchild of the deceased;

(j)a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g))if the child of the deceased dies withinone year of the deceased's death;

(k) a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;

family provision order means an order under section 91;".

4New section 90A inserted

s. 4

After section 90 of the Administration and Probate Act 1958insert—

"90A Eligible person may apply for family provision order

(1)Subject to subsection (2), an application for a family provision order may be made to the Court by, or on behalf of, an eligible person.

(2)An application under subsection (1) must be made—

(a)within the time specified in section 99; and

(b)otherwise in accordance with this Part and the Rules.".

5Section 91 substituted and new section 91Ainserted

For section 91 of the Administration and Probate Act 1958substitute—

"91 Court may make family provision order

(1)Despite anything to the contrary in this Act, on an application under section 90A,the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.

(2)The Court must not make a family provision order under subsection (1) unless satisfied—

(a)thatthe person is an eligible person; and

(b)in the case of a personreferred to in paragraphs (h) to (k) of the definition of eligible person, that the personwas wholly or partly dependent on the deceased for the eligible person'sproper maintenance and support; and

(c)that, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and

(d)thatthe distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by—

(i) the deceased's will (if any); or

(ii)theoperation of Division 6 of PartI; or

s. 5

Note

Division 6 of Part I contains the intestacy provisions.

(iii)both the will and the operation of Division 6 of Part I.

(3)For the purposes of subsection (2)(b), the Court must disregard any means-tested government benefits that the eligible person has received or is eligible to receive.

(4)In determining the amount of provision to be made by a family provision order, if any, the Courtmust take into account—

(a)the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and

(b) the degree to which the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person; and

(c)in the case of an eligible person referred to in paragraph (f) or (g) of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support; and

(d)in the case of aneligible person referred to in paragraphs (h) to (k) of the definition of eligible person, the degree to which the eligible person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support at the time of the deceased's death.

(5)The amount of provision made by a family provision order—

(a)must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support; and

s. 5

(b)in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of eligible person, must be proportionate to the eligible person'sdegree of dependency on the deceased for the person's proper maintenance and support at the time of the deceased's death.

91AFactors to be considered in making family provision order

(1)In making a family provision order, the Court must have regard to—

(a)the deceased's will, if any; and

(b)any evidence of the deceased's reasonsfor making the dispositions in the deceased's will (if any); and

(c)any other evidence of the deceased's intentions in relation to providing for the eligible person.

(2)In making a family provision order, the Court may have regard to the following criteria—

(a)any family or other relationship between the deceased and the eligible person, including—

(i) the nature of the relationship; and

(ii)if relevant, the length of the relationship;

(b)any obligations or responsibilities of the deceased to—

s. 5

(i) theeligible person; and

(ii)any other eligible person; and

(iii)the beneficiaries of the estate;

(c)the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;

(d)the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of—

(i) theeligible person; and

(ii)any other eligible person; and

(iii)any beneficiary of the estate;

(e)any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;

(f)the age of the eligible person;

(g)any contribution (not for adequate consideration) of the eligible person to—

(i) building up the estate; or

(ii)thewelfare of the deceased or the deceased's family;

(h)any benefits previously given by the deceased to any eligible person or to any beneficiary;

s. 5

(i) whether the eligible person was being maintained by the deceased before that deceased's death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;

(j)the liability of any other person to maintain the eligible person;

(k)the character and conduct of the eligible person or any other person;

(l)the effects a family provision order would have on the amounts received from the deceased's estate by other beneficiaries;

(m)any other matter the Court considers relevant.".

6Contents of order

s. 6

(1)Insert the following heading to section 97 of the Administration and Probate Act 1958—

"Contents of family provision order".

(2)In section 97(1) of the Administration and Probate Act 1958 for "order under this Part" substitute "family provision order".

(3)In section 97(3) of the Administration and Probate Act 1958 for "provision" substitute "a family provision order".

(4)For section 97(4) of the Administration and Probate Act 1958substitute—

"(4)Subject to this Part, a family provision order operates and takes effect—

(a)if the deceased dies leaving a will disposing of the whole or any part of the deceased's estate, as if the provision made by the family provision order had been made by the deceased by executing a codicil to that will immediately before the deceased's death; or

s. 6

(b)if the deceased dies without leaving a will—

(i) as a modification of Division 6 of Part I in respect of so much of the deceased's estate as is affected by the family provision order; and

(ii)as if the provision made by the family provision order had been made by the deceased in the deceased's will.".

(5)In section 97(5) of the Administration and Probate Act 1958, for "order making provision for any person. Notice of the application shall be served on all persons taking any benefit under the order sought to be rescinded or altered" substitute "family provision order".

(6)After section 97(5) of the Administration and Probate Act 1958insert—

"(5A) Notice of an application under subsection (5) must be served on all persons taking any benefit under the family provision order sought to be rescinded or altered.".

(7)Section 97(6) and (7) of the Administration and Probate Act 1958 are repealed.

7Adjustment of probate duty

s. 7

In section 98 of the Administration and Probate Act 1958—

(a)after "this Part" insert "by a family provision order";

(b)for "his" (wherever occurring) substitute "the deceased's".

8Section 99 substituted

For section 99 of the Administration and Probate Act 1958substitute—

"99 Time within which application may be made

(1)An application to the Court for a family provision order must be made within 6 months after the date of the grant of probate of the will or of letters of administration, as the case may be.

(2)Despite subsection (1), on application, the Court may extend the period for making an application for a family provision order if, after hearing such of the parties affected as the Court thinks necessary, the Court considers it appropriate to extend the period, including in any case where the time for making an application has already expired.

(3)An application for extension under subsection (2) must be made before the final distribution of the estate.

(4)The making of an application for extension under subsection (2) and any order of the Court in relation to the application for extension does not disturb or affect the distribution of any part of the estate made prior to the making of that application.".

9Protection of personal representative against certain claims

s. 9

(1)In section 99A(1) of the Administration and Probate Act 1958—

(a)for "his" substitute "the personal representative";

(b)for "order under this Part" substitute "family provision order";

(c)after "application under this Part" insert "for a family provision order".

(2)In section 99A(2) of the Administration and Probate Act 1958—

(a)after "this Part" insert "for a family provision order";

(b)for "his" substitute "the personal representative".

(3)For section 99A(3) and (4) of theAdministrationand Probate Act 1958substitute—

"(3) No action lies against a personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representativeafter the expiry of 6 months after the grant of probate of the will or of letters of administration (as the case may be) and either—

(a)the personal representativehas not had notice of an application for a family provision order in respect of the estate; or

(b) if the personal representative has had a notice of an intention to make an application for a family provision order in respect of the estate in accordance with subsection (4), the personal representative has not received written notice that an application for a family provision order has been made to the Court within 3 months of the receipt of that notice of an intention to make an application for a family provision order.

(4)For the purposes of this section, notice to a personal representative of an intention to make any application for a family provision order referred to in subsection (3)(b)—

s. 9