Queensland: Succession Act 1981 (Qld)

Succession Act 1981 An Act to consolidate and amend the law of succession and the administration of estates of deceased persons and for related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Succession Act 1981. 2 [Repealed] 3 [Repealed] 4 Application (1) Save where otherwise expressly provided, this Act applies in the case of deaths occurring after the commencement of this Act. (2) This Act binds the Crown not only in right of the State but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. 5 Definitions In this Act— adopted child means, in relation to any person, a child that is adopted by such person or by such person and another person jointly, in accordance with the law of the State or Territory, or country, where the adoption takes place, as in force at the date of the adoption. annulment see section 15. country means any place or group of places having its own law of nationality, including Australia and its Territories. court means the Supreme Court or a judge thereof. debts include funeral, testamentary and administration expenses, debts and other liabilities payable out of the estate of a deceased person. disposition means a disposition by will and includes the following— (a) a gift, devise or bequest of property by 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. divorce see section 15. document— (a) for part 2, other than section 18, means any paper or material on which there is writing; or (b) for section 18, see the Acts Interpretation Act 1954, schedule 1. grant means grant of probate of the will or letters of administration of the estate of a deceased person and includes the grant of an order to administer and the filing of an election to administer such an estate. income includes rents and profits. internal law, for part 2, in relation to a place, means the law that would apply if no question of the law in force in any other place arose. interpret means to render orally into another language one person's words for other persons at the time the words are uttered or immediately thereafter. intestate means a person who dies and either does not leave a will, or leaves a will but does not dispose effectively by will of the whole or part of his or her property. pecuniary legacy includes an annuity, a general legacy, a demonstrative legacy, so far as it is not discharged out of the designated property, and any other general direction by the testator for the payment of money including all duties relating to the estate or property of a deceased person free from which any devise, bequest or payment is made to take effect. personal representative means the executor, original or by representation, or administrator of a deceased person. public trustee means the public trustee constituted by the Public Trustee Act 1978. registrar, for part 2, means a registrar or deputy registrar of the Supreme Court. residuary estate in part 3 has the meaning given to it by section 34 and in part 5, division 2, the meaning given to it by section 55. spouse see section 5AA. stepchild for part 4, see section 40A. translate means to render in writing or by any other means of record a text from one language to another language. trustee includes— (a) any person who immediately before l July 1973, was a trustee of the settlement or in any way a trustee under the Settled Land Act 1886 and who, if that Act had not been repealed, would be such a trustee; and (b) a statutory trustee within the meaning of the Trusts Act 1973. will includes a codicil and any other testamentary disposition. 5AA Who is a person's spouse (1) Generally, a person's spouse is the person's— (a) husband or wife; or (b) de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA; or (c) civil partner, as defined in the AIA, schedule 1. (2) However, a person is a spouse of a deceased person only if, on the deceased's death— (a) the person was the deceased's husband or wife; or (b) the following applied to the person— (i) the person was the deceased's de facto partner, as defined in the AIA, section 32DA; (ii) the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased's death; or (ba) the person was the deceased's civil partner; or (c) for part 4, the person was— (i) a person mentioned in paragraph (a), (b) or (ba); or (ii) the deceased's dependant former husband or wife or civil partner.a (3) Subsection (2) applies— (a) despite the AIA, section 32DA(6) and schedule 1, definition spouse; and (b) whether the deceased died testate or intestate. (4) In this section— dependent former husband or wife or civil partner, of a deceased person, means— (a) a person who— (i) was divorced by or from the deceased at any time, whether before or after the commencement of this Act; and (ii) had not remarried or entered into a civil partnership with another person before the deceased's death; and (iii) was on the deceased's death receiving, or entitled to receive, maintenance from the deceased; or (b) a person who— (i) was in a civil partnership with the deceased that was terminated under the Civil Partnerships Act 2011, section 19; and (ii) had not married or entered into another civil partnership before the deceased's death; and (iii) was on the deceased's death receiving, or entitled to receive, maintenance from the deceased. 5A Reference to child or issue of a person A reference in this Act to a child or issue of any person includes a child or issue en ventre sa mere at the death, provided such child or issue is born alive and remains alive for a period of 30 days. 5B Reference to estate of deceased person A reference in this Act to the estate of a deceased person includes property over which the deceased exercises or is entitled to exercise a general power of appointment by will. 5C Notes in text A note in the text of this Act is part of the Act. 6 Jurisdiction (1) Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect. (2) The court may in its discretion grant probate of the will or letters of administration of the estate of a deceased person notwithstanding that the deceased person left no estate in Queensland or elsewhere or that the person to whom the grant is made is not resident or domiciled in Queensland. (3) A grant may be made to such person and subject to such provisions, including conditions or limitations, as the court may think fit. (4) Without restricting the generality of subsections (1) to (3) the court has jurisdiction to make, for the more convenient administration of any property comprised in the estate of a deceased person, any order which it has jurisdiction to make in relation to the administration of trust property under the provisions of the Trusts Act 1973. (5) This section applies whether the death has occurred before or after the commencement of this Act. Part 2 Wills Division 1 Application of part 2 7 Application of pt 2 Subject to section 76, this part applies only to a will of a person who dies after the commencement of this section. Division 2 Making a will 8 Property that may be disposed of by will (1) A person may dispose by will of any property to which the person is entitled at the time of the person's death. (2) Subsection (1) applies whether or not the entitlement existed at the date of the making of the will. (3) A person may dispose by will of any property to which the person's personal representative becomes entitled, in the person's capacity as personal representative, after the person's death. (4) Subsection (3) applies whether or not the entitlement existed at the time of the person's death. (5) A person may not dispose by will of property of which the person is trustee at the time of the person's death. 9 Minimum age for making a will (1) A will made by a minor is not valid. (2) However— (a) a minor may make a will in contemplation of marriage, and may alter or revoke the will, but the will is of no effect if the marriage contemplated does not take place; and (b) a minor who is married may make, alter or revoke a will; and (c) a minor whose marriage has ended, whether by divorce, annulment or death of the minor's spouse, may revoke part or all of a will made— (i) in contemplation of the marriage; or (ii) while the person was married. (3) Subsection (1) does not apply to a will— (a) made under an order made under section 19; or (b) mentioned in section 33X. 10 How a will must be executed (1) This section sets out the way a will must be executed. (2) A will must be— (a) in writing; and (b) signed by— (i) the testator; or (ii) someone else, in the presence of and at the direction of the testator. (3) The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time. (4) At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other. (5) However, none of the witnesses need to know that the document attested and signed is a will. (6) The signatures need not be at the foot of the will. (7) The signature of the testator must be made with the intention of executing the will. (8) The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will. (9) A will need not have an attestation clause. (10) A person who can not see and attest that a testator has signed a document may not act as a witness to a will. (11) If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section. (12) If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity. (13) This section does not apply to a will made under an order under section 21. 11 When an interested witness may benefit from a disposition (1) This section applies if a disposition of property is made by a will to a person (the interested witness) who attests the execution of the will. (2) The disposition is void to the extent it concerns the interested witness or a person claiming under the interested witness. (3) However, subsection (2) does not apply if— (a) at least 2 of the people who attested the execution of the will are not interested witnesses; or (b) all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give the consent; or (c) the court is satisfied that the testator knew and approved of the disposition and it was made freely and voluntarily by the testator. (4) In this section— disposition of property does not include a charge or direction for the payment of— (a) a debt; or (b) appropriate remuneration to an executor, administrator, legal practitioner or other person for acting in relation to the administration of the testator's estate. 12 When an interpreter may benefit from a disposition (1) This section applies if— (a) for the purposes of making a will the services of a person (an interpreter) are used to interpret or translate from or to a language understood by the testator; and (b) a disposition of property is made by the will to the interpreter. (2) The disposition is void to the extent it concerns the interpreter or a person claiming under the interpreter. (3) However, subsection (2) does not apply if— (a) all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give the consent; or (b) the court is satisfied that the testator knew and approved of the disposition and it was made freely and voluntarily by the testator. (4) In this section— disposition of property does not include a charge or direction for the payment of appropriate remuneration for being an interpreter for the testator in relation to the will. Division 3 Revoking, altering or reviving a will 13 How a will may be revoked A will or part of a will may be revoked only— (a) under section 14, 14A, 15, 15A or 15B; or (b) by a will or other instrument made under an order under section 19 or 21; or (c) by a later will; or (d) by a document that— (i) declares an intention to revoke the will or part; and (ii) is executed in the way in which a will is required to be executed under this part; or (e) by the testator, or someone in the testator's presence and at the testator's direction— (i) burning, tearing or otherwise destroying the will with the intention of the testator to revoke it; or (ii) writing on the will, or dealing with the will, in a way that satisfies the court, from the state of the will, that the testator intended to revoke it. 14 Effect of marriage on a will (1) A will is revoked by the marriage of the testator. Note— For wills made before the commencement of section 7 as inserted by the Succession Amendment Act 2006, see section 76(2) and (3). (2) However, the following are not revoked by the marriage of the testator— (a) a disposition to the person to whom the testator is married at the time of the testator's death; (b) an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of the testator's death; (c) a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the testator or to an administrator of any estate of the testator if the power of appointment were not exercised. (3) Also— (a) a will made in contemplation of a marriage, whether or not that contemplation is stated in the will, is not revoked by the solemnisation of the marriage contemplated; and (b) a will that is stated to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator. 14A Effect of civil partnership on a will (1) A will is revoked by the testator entering into a civil partnership. (2) However, the following are not revoked by the testator entering into a civil partnership— (a) a disposition to the person with whom the testator is in a civil partnership at the time of the testator's death; (b) an appointment as executor, trustee, advisory trustee or guardian of the person with whom the testator is in a civil partnership at the time of the testator's death; (c) a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the testator or to an administrator of any estate of the testator if the power of appointment were not exercised. (3) Also— (a) a will made in contemplation of a civil partnership, whether or not that contemplation is stated in the will, is not revoked by the registration of the civil partnership contemplated; and (b) a will that is stated to be made in contemplation of a civil partnership generally is not revoked by the registration of a civil partnership of the testator. 15 Effect of divorce or annulment on a will (1) A testator's divorce or the annulment of a testator's marriage revokes— (a) a disposition to the testator's former spouse made by a will in existence when the divorce or annulment happens; and (b) an appointment, made by the will, of the former spouse as an executor, trustee, advisory trustee or guardian; and (c) any grant, made by the will, of a power of appointment exercisable by, or in favour of, the testator's former spouse. Note— For wills made before the commencement of section 7 as inserted by the Succession Amendment Act 2006, see section 76(4) and (5). (2) However, a testator's divorce or the annulment of a testator's marriage does not revoke— (a) the appointment of the testator's former spouse as trustee of property left by the will on trust for beneficiaries that include the former spouse's children; or (b) the grant of a power of appointment exercisable by the testator's former spouse only in favour of children of whom both the testator and the former spouse are parents. (3) Subsection (1) does not apply if a contrary intention appears in the will. (4) If a disposition, appointment or grant is revoked by this section, the will takes effect as if the former spouse had died before the testator. (5) In this section— annulment, in relation to a testator, means— (a) the granting of a decree of nullity in relation to the testator's marriage by the Family Court of Australia; or (b) the annulment of the testator's marriage under the law of a place outside Australia, if the annulment is recognised in Australia under the Family Law Act 1975 (Cwlth). divorce, in relation to a testator, means— (a) the taking effect of a divorce order for the testator under the Family Law Act 1975 (Cwlth); or (b) the dissolution of the testator's marriage under the law of a place outside Australia, if the dissolution is recognised in Australia under the Family Law Act 1975 (Cwlth). former spouse, in relation to a testator, means the person who was the spouse of the testator immediately before the divorce or annulment. spouse includes a party to a purported or void marriage. 15A Effect of end of civil partnership on a will (1) The termination of a testator's civil partnership or the finding that a testator's civil partnership is void revokes— (a) a disposition to the testator's former civil partner made by a will in existence when the termination happens or the finding is made; and (b) an appointment, made by the will, of the former civil partner as an executor, trustee, advisory trustee or guardian; and (c) any grant, made by the will, of a power of appointment exercisable by, or in favour of, the testator's former civil partner. (2) However, the termination of a testator's civil partnership or the finding that a testator's civil partnership is void does not revoke— (a) the appointment of the testator's former civil partner as trustee of property left by the will on trust for beneficiaries that include the former civil partner's children; or (b) the grant of a power of appointment exercisable by the testator's former civil partner only in favour of children of whom both the testator and the former civil partner are parents. (3) Subsection (1) does not apply if a contrary intention appears in the will. (4) If a disposition, appointment or grant is revoked by this section, the will takes effect as if the former civil partner had died before the testator. (5) In this section— civil partner includes a party to a purported or void civil partnership. finding means finding by a court. former civil partner, in relation to a testator, means the person who was the civil partner of the testator immediately before the termination of the testator's civil partnership or the finding that the civil partnership is void. termination, of a civil partnership, means termination under the Civil Partnerships Act 2011, section 19. void means void under the Civil Partnerships Act 2011, section 30. 15B Effect of end of de facto relationship on a will (1) The ending of a testator's de facto relationship revokes— (a) a disposition to the testator's former de facto partner made by a will in existence when the relationship ends; and (b) an appointment, made by the will, of the former de facto partner as an executor, trustee, advisory trustee or guardian; and (c) any grant, made by the will, of a power of appointment exercisable by, or in favour of, the testator's former de facto partner. (2) However, the ending of a testator's de facto relationship does not revoke— (a) the appointment of the testator's former de facto partner as trustee of property left by the will on trust for beneficiaries that include the former de facto partner's children; or (b) the grant of a power of appointment exercisable by the testator's former de facto partner only in favour of children of whom both the testator and the former de facto partner are parents. (3) Subsection (1) does not apply if a contrary intention appears in the will. (4) If a disposition, appointment or grant is revoked by this section, the will takes effect as if the former de facto partner had died before the testator. (5) In this section— former de facto partner, in relation to a testator, means the person who was the de facto partner of the testator immediately before the ending of the testator's de facto relationship. 16 How a will may be altered (1) An alteration to a will after it has been executed is not effective unless the alteration— (a) is executed in the way a will is required to be executed under this part; or (b) is authorised by an order under section 19 and is executed under section 20; or (c) is authorised by an order under section 21 and is executed under section 26. (2) Subsection (1) does not apply to an alteration to a will made by, or at the direction of, the testator if the words or effect of the will are no longer apparent because of the alteration. (3) If a will is altered, it is sufficient compliance with the requirements under this section for execution of the alteration, if the signature of the testator and of the witnesses to the alteration are made— (a) in the margin or on some other part of the will beside, near or otherwise relating to the alteration; or (b) as authentication of a memorandum referring to the alteration and written on the will. 17 How a revoked will may be revived (1) A will or part of a will that has been revoked is revived by re-execution or by execution of a will that shows an intention to revive the will or part. (2) A revival of a will that was partly revoked and later revoked as to the balance only revives the part of the will most recently revoked. (3) Subsection (2) does not apply if a contrary intention appears in the document that revives the will. (4) A will that has been revoked and is later entirely or partly revived is taken to have been executed on the day on which the will is revived. Division 4 Powers of court Subdivision 1 Execution requirements 18 Court may dispense with execution requirements for will, alteration or revocation (1) This section applies to a document, or a part of a document, that— (a) purports to state the testamentary intentions of a deceased person; and (b) has not been executed under this part. (2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person's will, an alteration to the person's will or a full or partial revocation of the person's will. (3) In making a decision under subsection (2), the court may, in addition to the document or part, have regard to— (a) any evidence relating to the way in which the document or part was executed; and (b) any evidence of the person's testamentary intentions, including evidence of statements made by the person. (4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2). (5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State. Subdivision 2 Minors 19 Court may authorise minor to make, alter or revoke a will (1) The court may make an order authorising a minor to— (a) make or alter a will in the terms stated by the court; or (b) revoke a will or part of a will. (2) A minor, or a person on behalf of a minor, may apply for an order under subsection (1). (3) The court may make the order only if the court— (a) is satisfied that the minor understands the nature and effect of the proposed will, alteration or revocation and the extent of any property disposed of under the proposed will or alteration; and (b) is satisfied that the proposed will, alteration or revocation accurately reflects the intentions of the minor; and (c) is satisfied that it is reasonable in all the circumstances that the order be made; and (d) has approved the proposed will, alteration or revocation. (4) The court may make the order on the conditions it considers appropriate. (5) To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property. 20 Execution of will or other instrument made under order A will or other instrument made under an order under section 19 is not valid unless the following requirements are satisfied— (a) for a will—the will is executed under this part; (b) for another instrument—the other instrument is executed in the way a will is required to be executed under this part; (c) 1 of the witnesses attesting the will or other instrument is the registrar; (d) the conditions of the order, if any, are complied with. Note— For the holding of the will or other instrument by the registrar, see subdivision 4. Subdivision 3 Persons without testamentary capacity 21 Court may authorise a will to be made, altered or revoked for person without testamentary capacity (1) The court may, on application, make an order authorising— (a) a will to be made or altered, in the terms stated by the court, on behalf of a person without testamentary capacity; or (b) a will or part of a will to be revoked on behalf of a person without testamentary capacity. (2) The court may make the order only if— (a) the person to whom the order relates (the relevant person) lacks testamentary capacity and is alive when the order is made; and (b) the court is satisfied— (i) the applicant is the appropriate person to make the application; and (ii) adequate steps have been taken to allow representation of other persons with a proper interest in the application, including persons who have reason to expect a gift or benefit from the estate of the relevant person; and (iii) the proposed will, alteration or revocation is or may be a will, alteration or revocation the relevant person would make if the person had testamentary capacity; and (c) the court approves the proposed will, alteration or revocation. (3) For the order, the court may make or give any necessary related orders or directions. (4) The court may make the order on the conditions the court considers appropriate. (5) The court may order that costs in relation to the application be paid out of the relevant person's assets. (6) To remove any doubt, it is declared that an order under this section does not make, alter or revoke a will or dispose of any property. (7) In this section— person without testamentary capacity includes a minor. 22 [Repealed] 23 Information required by court in support of application for order under s 21 An application for the making of an order under section 21 in relation to a person must be accompanied by the following information— (a) the reasons for making the application; (b) evidence of the lack of testamentary capacity of the person; (c) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity; (d) an estimate, formed from the evidence available to the applicant, of the size and character of the person's estate; (e) a draft of the proposed will, alteration or revocation in relation to which the order is sought; (f) any evidence available to the applicant of the person's wishes; (g) any evidence available to the applicant of the terms of any will previously made by the person; (h) any evidence available to the applicant of the likelihood of an application being made under section 41 in relation to the person; (i) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to give by will; (j) any evidence available to the applicant of the circumstances of a person for whom provision might reasonably be expected to be made by a will by the person in relation to whom the order is sought; (k) any evidence available to the applicant of any persons who might be entitled to claim on intestacy; (l) any other facts of which the applicant is aware that are relevant to the application. 24 [Repealed] 25 Hearing an application for an order under s 21 On the hearing of an application for an order under section 21, the court— (a) may have regard to any information given to the court under section 23; and (b) may inform itself of any other matter relating to the application in any way it considers appropriate; and (c) is not bound by the rules of evidence. 26 Execution of will or other instrument made under order (1) A will or other instrument made under an order under section 21 is properly executed if the will or other instrument— (a) is in writing; and (b) is signed by the registrar, and stamped with the court's seal, within— (i) 14 days of the order being made; or (ii) another period stated by the court. Note— For the holding of the will or other instrument by the registrar, see subdivision 4. (2) To remove any doubt, it is declared that the will or other instrument may be signed by the registrar, and stamped with the court's seal, even if the person in relation to whom the order was made has died. 27 Validity of will or other instrument made under order (1) A will made under an order under section 21 has the same effect for all purposes as if— (a) the person without testamentary capacity were capable of making a valid will; and (b) the person executed the will under section 10. (2) An instrument, revoking a will or part of a will, made under an order under section 21 has the same effect for all purposes as if— (a) the person were capable of validly revoking a will or part of a will; and (b) the person executed the instrument under section 13(d)(ii). (3) An instrument, altering a will, made under an order under section 21 has the same effect for all purposes as if— (a) the person were capable of making a valid alteration of a will; and (b) the person executed the instrument under section 16(1)(a). 28 Relationship with Guardianship and Administration Act 2000 and Powers of Attorney Act 1998 Nothing in the Guardianship and Administration Act 2000 or the Powers of Attorney Act 1998 prevents a person from making an application for an order under section 21. Subdivision 4 Particular wills held by registrar 29 Registrar to hold will or other instrument made under order under s 19 (1) A will or other instrument made under an order under section 19 must be held by the registrar. (2) The registrar may stop holding the will or other instrument only if— (a) the testator is at least 18 years and has testamentary capacity; or (b) the court makes an order— (i) under section 19 authorising the minor to revoke the will; or (ii) under section 21 authorising the will to be revoked; or (c) the will or other instrument is given to a person under section 32. (3) A failure to comply with subsection (1) or (2) does not affect the validity of the will or other instrument. 30 Registrar to hold will or other instrument made under order under s 21 (1) A will or other instrument made under an order under section 21 must be held by the registrar. (2) The registrar may stop holding the will or other instrument only if— (a) the person on whose behalf the will or other instrument has been made (the relevant person) has acquired or regained testamentary capacity; or (b) the court makes an order— (i) under section 19 authorising the relevant person to revoke the will; or (ii) under section 21 authorising the will to be revoked; or (c) the will or other instrument is given to a person under section 32. (3) A failure to comply with subsection (1) or (2) does not affect the validity of the will or other instrument. 31 Envelope required for will held by registrar (1) A will or other instrument held by the registrar under section 29 or 30 must be in a sealed envelope that has written on it— (a) the name and address of the minor or other person without testamentary capacity as they appear on the will or other instrument; and (b) the name and address, as they appear on the will, of any executor; and (c) the date of the will or other instrument; and (d) for a will or other instrument held under section 30—the name of the person who applied for the order under section 21. (2) The registrar may examine the will or other instrument to enable the registrar to comply with this subdivision. 32 Delivery of will or other instrument if testator has died (1) This section applies if— (a) a will or other instrument is held by the registrar under section 29 or 30; and (b) the minor or other person without testamentary capacity has died. (2) An executor named in the will, an executor by representation or a person entitled to apply for letters of administration with the will, may apply in writing to the registrar to be given the will or other instrument. (3) On receiving the application, the registrar must give the will or other instrument to— (a) the applicant; or (b) any legal practitioner or trustee company nominated by the applicant; or (c) the public trustee, if nominated by the applicant. (4) If there is doubt about the person to whom the will or other instrument should be given, the registrar or anyone else may apply to the court for directions. (5) The registrar must make an accurate copy of each will or other instrument given to a person under subsection (3) and hold the copy. (6) In this section— trustee company see the Trustee Companies Act 1968, section 4. Subdivision 5 Rectification 33 Court may rectify a will (1) The court may make an order to rectify a will to carry out the intentions of the testator if the court is satisfied that the will does not carry out the testator's intentions because— (a) a clerical error was made; or (b) the will does not give effect to the testator's instructions. (2) An application for an order to rectify a will may only be made within 6 months after the date of death of the testator. (3) However, the court may, at any time, extend the time for making an application under subsection (2) if— (a) the court considers it appropriate; and (b) the final distribution of the estate has not been made. (4) If the court makes an order to rectify a will, the court may direct that a certified copy of the order be attached to the will. (5) If the court gives a direction under subsection (4), the court must hold the will until the certified copy is attached to it. 33A Protection of personal representatives who distribute as if the will had not been rectified (1) This section applies if— (a) a will is rectified under section 33; and (b) a personal representative makes a distribution to a beneficiary as if the will had not been rectified. (2) The personal representative is not liable if the distribution is made under section 49A. (3) The personal representative is also not liable if the distribution is made not earlier than 6 months after the testator's death and without notice of either of the following— (a) an application, or intended application, for an order to rectify the will; (b) an application, or intended application, under section 41(1) or 42 in relation to the testator. (4) If the personal representative receives notice of an application or intended application mentioned in subsection (3) (a relevant application), the personal representative is not liable if— (a) the distribution is made not earlier than 9 months after the testator's death; and (b) the personal representative has not— (i) received notice that a relevant application has been started in the court; or (ii) been served with a copy of a relevant application. (5) For subsections (3) and (4), a notice in relation to an application or intended application must be in writing signed by the applicant or the applicant's legal practitioner. Division 5 Interpretation of wills 33B Beneficiaries must survive testator for 30 days (1) If a disposition of property is made to a person who dies within 30 days after the testator's death, the will takes effect as if the person had died immediately before the testator. (2) Subsection (1) does not apply if a contrary intention appears in the will. (3) A general requirement or condition that a beneficiary survive the testator is not a contrary intention. 33C Use of evidence to interpret a will (1) In a proceeding to interpret a will, evidence, including evidence of the testator's intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it— (a) meaningless; or (b) ambiguous on the face of the will; or (c) ambiguous in the light of surrounding circumstances. (2) However, evidence of the testator's intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c). (3) This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will. 33D Effect of a change in testator's domicile The interpretation of a will is not changed by a change in the testator's domicile after the testator has executed the will. 33E When a will takes effect (1) A will takes effect, in relation to the property disposed of by the will, as if it had been executed immediately before the testator's death. (2) Subsection (1) does not apply if a contrary intention appears in the will. 33F Will operates to dispose of remaining interest in property if part interest disposed of before death (1) This section applies if— (a) a testator has made a will disposing of property; and (b) after the making of the will and before the testator's death, the testator disposes of an interest in the property. (2) The will operates to dispose of any remaining interest the testator has in the property. 33G Effect of a failure of a disposition of property (1) If a disposition of property by a will is fully or partly ineffective, the will takes effect as if the property were part of the residuary estate of the testator. (2) Subsection (1) does not apply if a contrary intention appears in the will. (3) In this section— disposition of property does not include the exercise of a power of appointment. 33H Income of contingent, future or deferred disposition of property A contingent, future or deferred disposition of property, whether specific or residuary, includes any intermediate income of the property that has not been disposed of by the will. 33I What a general disposition of land includes (1) A general disposition of land, or of land in a particular area, includes leasehold land, whether or not the testator owns freehold land. (2) Subsection (1) does not apply if a contrary intention appears in the will. 33J What a general disposition of property includes (1) A general disposition of all of the testator's property— (a) includes any property over which the testator has a general power of appointment exercisable by will; and (b) operates as an exercise of the power of appointment. (2) A general disposition of all of the testator's property of a particular description— (a) includes any property of that description over which the testator has a general power of appointment exercisable by will; and (b) operates as an exercise of the power of appointment. (3) A general disposition of the residue of the testator's property— (a) includes any property over which the testator has a general power of appointment exercisable by will; and (b) operates as an exercise of the power of appointment. (4) A general disposition of the residue of the testator's property of a particular description— (a) includes any property of that description over which the testator has a general power of appointment exercisable by will; and (b) operates as an exercise of the power of appointment. (5) Subsection (1), (2), (3) or (4) does not apply if a contrary intention appears in the will. 33K Effect of a disposition of real property without words of limitation (1) A disposition of real property to a person without words of limitation passes the whole estate or interest of the testator in the property to the person. (2) Subsection (1) does not apply if a contrary intention appears in the will. 33L How dispositions of property to issue operate (1) A disposition of property to a person's issue, without limitation as to remoteness, must be distributed to the person's issue in the same way as the person's estate would be distributed if the person had died intestate leaving only issue surviving. (2) Subsection (1) does not apply if a contrary intention appears in the will. 33M How requirements to survive with issue are interpreted (1) This section applies if there is a disposition of property to a person that, apart from this section, would be interpreted to mean that the disposition fails if there is an indefinite failure of issue of the person. (2) The disposition must be interpreted to mean that the disposition fails if there is a want or a failure of issue of the person either in the person's lifetime or at the person's death. (3) This section does not apply if a contrary intention appears in the will, other than if the result would be to cause a failure of the disposition. 33N Dispositions not to fail because issue have died before testator (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 (an original beneficiary); and (b) under the will, the interest of the original beneficiary in the property does not come to an end at 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. (2) The issue of the original beneficiary who survive the testator for 30 days take the original beneficiary's share of the property in place of the original beneficiary as if the original beneficiary had died intestate leaving only issue surviving. (3) Subsection (2) does not apply if— (a) the original beneficiary did not fulfil a condition imposed on the original beneficiary in the will; or (b) a contrary intention appears in the will. (4) A general requirement or condition that issue survive the testator or reach a specified age does not show a contrary intention for subsection (3)(b). (5) A disposition of property to issue as joint tenants does not, of itself, show a contrary intention for subsection (3)(b). 33O Disposition of real estate or personal estate may include both in particular case (1) A disposition of all, or the residue, of the estate of a testator that refers only to the real estate of the testator, or only to the personal estate of the testator, must be interpreted as referring to both the real and personal estate of the testator. (2) Subsection (1) does not apply if a contrary intention appears in the will. 33P Disposition of fractional part in particular case (1) If a part of a disposition in fractional parts of all, or the residue, of the testator's estate fails, the part that fails passes to the part that does not fail and, if there is more than 1 part that does not fail, to all those parts proportionately. (2) Subsection (1) does not apply if a contrary intention appears in the will. 33Q Dispositions to unincorporated associations of persons (1) Each of the following dispositions of property has effect as a disposition in augmentation of the general funds of the association to which the disposition is made— (a) a disposition to an unincorporated association of persons that is not a charity; (b) a disposition to or on trust for the aims, objects or purposes of an unincorporated association of persons that is not a charity; (c) a disposition to or on trust for the present and future members of an unincorporated association of persons that is not a charity. (2) Property, a disposition of which is, or has effect under subsection (1) as, a disposition in augmentation of the general funds of an unincorporated association, must be— (a) paid into the general fund of the association; or (b) transferred to the association; or (c) sold or otherwise disposed of on behalf of the association, with the proceeds being paid into the general fund of the association. (3) If the personal representative pays an amount to an unincorporated association under a disposition, the receipt of the treasurer or a similar officer of the association (however described) is an absolute discharge for the payment. (4) If the personal representative transfers property to an unincorporated association under a disposition, the transfer of the property to a person nominated in writing by any 2 persons holding the offices of president, chairperson, treasurer or secretary of the association, or similar officers of the association (however described), is an absolute discharge to the personal representative for the transfer of the property. (5) Subsections (3) and (4) do not— (a) limit the way an absolute discharge may otherwise be obtained in accordance with the will; or (b) apply if a contrary intention appears in the will. (6) It is not an objection to the validity of a disposition to an unincorporated association of persons that— (a) a list of persons who were members of the association at the time of the testator's death can not be compiled; or (b) the members of the association may not divide assets of the association beneficially among themselves. 33R When a person may delegate power to dispose of property by a will A power or a trust, created by will, to dispose of property is not void on the ground that it is a delegation of the testator's power to make a will, if the same power or trust would be valid if made by the testator, by instrument, in the testator's lifetime. 33S Effect of reference to valuation in will (1) This section applies if— (a) there is an express or implied requirement in a will that a valuation of property be made or accepted for a purpose; and (b) either— (i) the will does not provide a method of valuation; or (ii) the method of valuation is not provided for by the law of Queensland or another place. (2) The reference in the will to the valuation must be interpreted, to the extent the method of valuation is not provided for as mentioned in subsection (1)(b)(i) or (ii), as if the reference were a reference to a valuation of the property as at the date of the testator's death made by a competent valuer. (3) Subsection (2) does not apply if a contrary intention appears in the will. Division 6 Wills with a foreign connection 33T Wills that are taken to be properly executed (1) A will is taken to be properly executed if its execution is in accordance with the internal law in force in the place— (a) where it was executed; or (b) that was the testator's domicile or habitual residence, either at the time the will was executed or at the time of the testator's death; or (c) of which the testator was a national, either at the time the will was executed or at the time of the testator's death. (2) The following wills are also taken to be properly executed— (a) a will executed on board a vessel or aircraft and in accordance with the internal law in force in the place with which the vessel or aircraft was most closely connected having regard to its registration and other relevant circumstances; (b) a will, to the extent it disposes of immovable property, executed in accordance with the internal law in force in the place where the property is situated; (c) a will, to the extent it exercises a power of appointment, executed in accordance with the law governing the essential validity of the power; (d) a will to the extent it revokes— (i) a will, or a provision of a will, that has been executed under this part; or (ii) a will, or a provision of a will, that is taken by this section to be properly executed; if the later will has been executed in accordance with a law under which the earlier will or provision would be taken to be validly executed. (3) A will to which this section applies is not improperly executed to the extent it exercises a power of appointment only because it has not been executed in the particular way or with the particular solemnity required by the instrument creating the power. Example of subsection (3)— A will to which this section applies exercises a power of appointment. The instrument creating the power requires the instrument exercising the power to be witnessed by a notary public. The will, to the extent it exercises the power, is not improperly executed only because the will is not witnessed by a notary public. 33U Deciding system of law to apply if more than 1 system of internal law (1) This section applies if— (a) the internal law of a place must be applied under section 33T; and (b) there is more than 1 system of internal law, in force in the place, relating to the formal validity of wills. (2) The system of internal law to be applied under section 33T is decided as follows— (a) if there is a rule in force throughout the place that states which system applies to the will, the rule must be followed; (b) otherwise, the system is that with which the testator was most closely connected— (i) if the matter is to be decided by reference to circumstances prevailing at the testator's death—at the time of the testator's death; or (ii) otherwise—at the time the will was executed. 33V Formal requirements at time of execution apply (1) In deciding, for the purpose of section 33T, whether a will has been executed in accordance with a particular law, regard must be had to the formal requirements of the particular law at the time the will was executed. (2) However, regard may be had to a later change of the particular law affecting wills executed at the time the relevant will was executed, if the change enables the relevant will to be treated as properly executed. 33W Matters that are taken to be formal requirements (1) This section applies if a particular law of a place outside Queensland is to be applied to a will, whether or not for the purpose of section 33T. (2) The following requirements of the particular law are taken to be formal requirements only— (a) a requirement that special formalities be complied with by particular testators; (b) a requirement that the witnesses to the execution of a will have particular qualifications. (3) Subsection (2) applies despite any contrary rule of the particular law. 33X Will by minor made under an order of a foreign court (1) A will of a deceased person that is a court authorised will for a minor is a valid will. (2) A will is a court authorised will for a minor if— (a) a court, in a place outside Queensland, made an order authorising a minor to make the will; and (b) the will is executed according to the law of the place relating to wills of minors; and (c) the minor was a resident in the place at the time the will was executed. 33Y Recognition of statutory wills made by non-Queensland resident (1) A statutory will made under the law of the place outside Queensland where a deceased person was resident at the time the statutory will was executed is a valid will of the person. (2) In this section— statutory will means a will executed in accordance with a statutory provision on behalf of a person who, at the time the will was executed, did not have testamentary capacity. Division 6A International wills 33YA Definitions for div 6A In this division— convention means the Convention providing a Uniform Law on the Form of an International Will 1973 signed in Washington on 26 October 1973. international will means a will made in accordance with the requirements of the annex to the convention. 33YB Application of Convention (1) The annex to the convention has the force of law in this jurisdiction. (2) A copy of the annex to the convention is set out in schedule 3. 33YC Persons authorised to act in connection with international wills (1) In this division, the following persons are authorised to act in connection with an international will— (a) an Australian legal practitioner; (b) a public notary of a State; (c) a person authorised to act in connection with an international will under a law of a convention country. (2) In this section— Australian legal practitioner see the Legal Profession Act 2007, section 6. convention country means a country, other than Australia and its Territories, that is a party to the convention. 33YD Witnesses to international wills The conditions for acting as a witness to an international will are governed by the law of this jurisdiction. Note— For the relevant provisions of this Act, see sections 10 (How a will must be executed) and 11 (When an interested witness may benefit from a disposition). 33YE Application of Act to international wills To avoid doubt, it is declared that the provisions of this Act that apply to wills extend to international wills. Division 7 Miscellaneous 33Z Persons entitled to inspect a will or to obtain a copy of a will (1) A person who has possession or control of a will of a deceased testator must, if asked, do either or both of the following— (a) allow an entitled person to inspect the will; (b) give an entitled person a certified copy of the will on payment of the person's reasonable expenses of giving the certified copy. (2) If a will of a deceased testator has been lost, stolen or destroyed, a person who has possession or control of a copy of the will must, if asked, do either or both of the following— (a) allow an entitled person to inspect the copy; (b) give an entitled person a certified copy of the copy on payment of the person's reasonable expenses of giving the certified copy. (3) A person who has possession or control of a will, or a copy of a will, of a deceased person must produce it in court if the court requires it. (4) In this section— certified copy— (a) of a will—means a copy of the will that has a statement on it, signed by the person giving the copy, that the copy is a true copy of the will; or (b) of a copy of a will—means a copy of the copy of the will that has a statement on it, signed by the person giving the copy, that the copy is a true copy of what it purports to be. entitled person, in relation to a will, means— (a) a person mentioned in the will, whether as beneficiary or not and whether named or not; or (b) a person mentioned in any earlier will of the testator as a beneficiary and whether named or not; or (c) a spouse, parent or issue of the testator; or (d) a person who would be entitled to a share of the estate of the testator if the testator had died intestate; or (e) a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if the testator had died intestate; or (f) a creditor or other person who has a claim at law or in equity against the estate; or (g) a person who may apply for an order under section 41. parent see section 61A. will includes— (a) a purported will or revoked will; and (b) a part of a will, purported will or revoked will. Part 3 Distribution on intestacy Division 1 Interpretation 34 Interpretation (1) In this part— building see section 34B(2). household chattels see section 34A. interest, in an intestate's shared home, see section 34B(3). residuary estate in relation to an intestate means— (a) in the case of an intestate who leaves a will—the property of the intestate that is not effectively disposed of by the will; or (b) in any other case—the property of the intestate, which is available for distribution after payment thereout of all such debts as are properly payable thereout. shared home see section 34B(1). transfer value see section 34B(4). (2) For the purposes of this part, in ascertaining relationship it is immaterial whether the relationship is of the whole blood or of the half-blood. (3) The provisions of this part shall be subject to the provisions of an order made under and in accordance with the provisions of part 4 and shall be applied accordingly. 34A Meaning of household chattels (1) Household chattels means all furniture, curtains, drapes, carpets, linen, china, glassware, ornaments, domestic appliances and utensils, garden appliances, utensils and effects and other chattels of ordinary household use or decoration, liquors, wines, consumable stores and domestic animals owned by the intestate immediately before the intestate's death. (2) Household chattels does not include a motor vehicle, boat, aircraft, racing animal, original painting or other original work of art, trophy, clothing, jewellery, or other chattel of a personal nature. (3) A thing is taken to be owned by the intestate even if— (a) it is owned subject to a security interest under the Personal Property Securities Act 2009 (Cwlth); or (b) the intestate only held an interest in the thing as hirer under a hire purchase agreement within the meaning of the Hire-purchase Act 1959, section 2(1) or a corresponding provision of a law of another State or the Commonwealth. (4) This definition applies for the purposes of applying schedule 2 under this part. 34B Meaning of shared home and related definitions (1) A shared home means a building, or part of a building, designed to be used solely or principally as a separate residence for 1 family or person. (2) A building includes a caravan and a manufactured home. (3) An interest, in an intestate's shared home, means— (a) an interest registered or registrable under an Act that is or includes a shared home; or (b) if the shared home is a caravan—an interest in the caravan; or (c) if the shared home is a manufactured home—an interest in the manufactured home and any interest in a site agreement for the site on which the manufactured home is positioned. (4) The transfer value, of an intestate's interest in a shared home, means the market value of the interest at the date of the intestate's death, less the amount (if any) needed to discharge any mortgage, charge, encumbrance or lien to which the interest may be subject at the time of transfer. (5) In this section— caravan see the Residential Tenancies and Rooming Accommodation Act 2008, section 7. manufactured home see the Manufactured Homes (Residential Parks) Act 2003, section 10. site see the Manufactured Homes (Residential Parks) Act 2003, section 13. site agreement see the Manufactured Homes (Residential Parks) Act 2003, section 14. Division 2 Distribution rules 35 Distribution of residuary estate on intestacy (1) Subject to subsection (2) and division 3, the person or persons entitled to take an interest in the residuary estate of an intestate, and the interest in that estate which that person is or those persons are entitled to take shall be ascertained by reference to sched