Succession Act 2006 (NSW)

Succession Act 2006 No 80 An Act to restate, with reforms, the law relating to wills in New South Wales; to ensure that adequate provision is made for the members of the family of a deceased person, and certain other persons, from the estate of the deceased person; to make provision for the distribution of intestate estates; and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act is the Succession Act 2006. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (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 as it has in the Interpretation Act 1987, and (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 Supreme Court Act 1970, and (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 Interpretation Act 1987 contains definitions of some terms and expressions used in this Act. See, for example, the definitions of minor, land and property in section 21 of that Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (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. (3) For the purposes of this Act, a close personal relationship is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (4) For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care— (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). (5) Notes included in this Act do not form part of this Act. Note— References in headings to sections of this Act to "WPA" are references to the Wills, Probate and Administration Act 1898 as in force before it was amended by this Act. References in headings to sections of this Act to "FPA" are references to the Family Provision Act 1982 as in force immediately before it was repealed by the Succession Amendment (Family Provision) Act 2008. Chapter 2 Wills Part 2.1 The making, alteration, revocation and revival of wills Division 1 Making a will 4 What property may be disposed of by will? (cf WPA 5) (1) A person may dispose by will of 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 property to which the person's personal representative becomes entitled, in the capacity of 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. 5 Minimum age for making a will (cf WPA 6 and 6B) (1) A will made by a minor is not valid. (2) Despite subsection (1)— (a) a minor may make a will in contemplation of marriage (and may alter or revoke such a 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 who has been married may revoke the whole or any part of a will made while the minor was married or in contemplation of that marriage. (3) Subsection (1) does not apply to a will made by an order under section 16 (Court may authorise minor to make, alter or revoke a will). Division 2 Executing a will 6 How should a will be executed? (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). (2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will. (3) It is not essential for a will to have an attestation clause. (4) If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section. (5) If a power is conferred on a person to make an appointment by a will that is to be executed in some particular way or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in the particular way or with the particular solemnity. (6) This section does not apply to a will made by an order under section 18 (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity). 7 Must witnesses know that they are signing a will? A will that is executed in accordance with this Act is validly executed even if one or more witnesses to the will did not know that the document he or she attested and signed was a will. Division 3 Dispensing with requirements for execution, alteration or revocation of a will 8 When may the Court dispense with the requirements for execution, alteration or revocation of wills? (cf WPA 18A) (1) This section applies to a document, or part of a document, that— (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms— (a) the deceased person's will—if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will—if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will—if the Court is satisfied that the person intended it to be a full or partial revocation of his or her 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 manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State. Division 4 Witnessing a will 9 Persons who cannot act as witnesses to wills (cf WPA 12) A person who is unable to see and attest that a testator has signed a document may not act as a witness to a will. 10 Can an interested witness benefit from a disposition under a will? (cf WPA 13) (1) This section applies if a beneficial disposition is given or made by will to a person (the interested witness) who attests the execution of the will. (2) The beneficial disposition is void to the extent that it concerns the interested witness or a person claiming under the interested witness. (3) A beneficial disposition is not void under subsection (2) 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 that consent, or (c) the Court is satisfied that the testator knew and approved of the disposition and it was given or made freely and voluntarily by the testator. Note— Consent under section 10 (3) (b) is not liable to duty. See section 65 (12A) of the Duties Act 1997. (4) In this section— beneficial disposition does not include a charge or direction for the payment of— (a) a debt, or (b) reasonable remuneration to an executor, administrator, legal practitioner or other person acting in relation to the administration of the testator's estate. Division 5 Revocation, alteration and revival of a will 11 When and how can a will be revoked? (cf WPA 16 and 17) (1) The whole or any part of a will may be revoked but only— (a) if the revocation (whether by a will or other means) is authorised by an order under section 16 or 18, or (b) by the operation of section 12 or 13, or (c) by a later will, or (d) by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act, or (e) by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it, or (f) by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it. (2) No will or part of a will may be revoked by any presumption of an intention on the ground of an alteration in circumstances. 12 Effect of marriage on a will (cf WPA 15) (1) A will is revoked by the marriage of a testator. (2) Despite subsection (1), 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 his or her death, (b) an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his or her death, (c) a will made in the exercise of a power of appointment if the property in relation to which the appointment is exercised would not pass to the executor, administrator or NSW Trustee and Guardian if the power of appointment was not exercised. (3) A will made in contemplation of a particular marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage concerned. (4) A will that is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator. 13 What is the effect of divorce or an annulment on a will? (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. (2) Subsection (1) does not apply if a contrary intention appears in the will. (3) The divorce of a testator or the annulment of his or her 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 exclusively in favour of the children of whom both the testator and the former spouse are the parents. (4) If a disposition, appointment or grant is revoked by this section, the will takes effect in respect of the revocation as if the testator's former spouse had died before the testator. (5) Nothing in this section affects— (a) any right of the former spouse of a testator to make any application under Chapter 3 of this Act, or (b) any direction, charge, trust or provision in the will of a testator for the payment of any amount in respect of a debt or liability (including any liability under a promise) of the testator to the former spouse of the testator or to the executor or the administrator of the estate of the former spouse. (6) In this section— annulment, in relation to a testator, means— (a) the annulment of the testator's marriage by the Federal Circuit and Family Court of Australia (Division 1), or (b) the annulment of the testator's marriage under a law of a place outside Australia, if the annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth. divorce means the ending of a marriage by— (a) a divorce order in relation to the marriage taking effect under the Family Law Act 1975 of the Commonwealth, or (b) a decree of nullity in respect of the marriage by the Federal Circuit and Family Court of Australia (Division 1), or (c) the dissolution of the marriage in accordance with the law of a place outside Australia, if the dissolution is recognised in Australia under the Family Law Act 1975 of the Commonwealth. spouse includes a party to a purported or void marriage. testator's former spouse means the person who was the testator's spouse immediately before the testator's marriage was ended by divorce or annulment. 14 How a will may be altered (cf WPA 18) (1) An alteration to a will after it has been executed is not effective unless the alteration— (a) is executed in the manner in which a will is required to be executed under this Part, or (b) is made by a minor by the authority of an order of the Court under section 16 and is executed in accordance with, and satisfies the requirements for such a will set out in, section 16 (5), or (c) is made for and on behalf of a person who does not have testamentary capacity by the authority of an order under section 18 and satisfies the requirements for such a will set out in section 23. (2) Subsection (1) does not apply to an alteration to a will made by or at the direction of the testator, or signed by the Registrar under section 23, 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 for execution if the signatures 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. Note— The Interpretation Act 1987 defines sign to include making a mark. 15 How a revoked will may be revived (cf WPA 19) (1) A will or part of a will that has been revoked is revived by re-execution or by execution of a will showing 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 that part of the will most recently revoked. (3) Subsection (2) does not apply if a contrary intention appears in the reviving will. (4) A will that has been revoked and is later wholly or partly revived is taken to have been executed on the day on which the will is revived. Part 2.2 Wills made or rectified under Court authorisation Division 1 Wills by minors 16 Court may authorise minor to make, alter or revoke a will (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. (3) The Court may impose such conditions on the authorisation as the Court thinks fit. (4) Before making an order under this section, the Court must be satisfied that— (a) the minor understands the nature and effect of the proposed will or alteration or revocation of the will or part of the will and the extent of the property disposed of by it, and (b) the proposed will or alteration or revocation of the will or part of the will accurately reflects the intentions of the minor, and (c) it is reasonable in all the circumstances that the order should be made. (5) A will is not validly made, altered or revoked, in whole or in part, as authorised by an order under this section unless— (a) in the case of the making or alteration of a will (in whole or in part)—the will or alteration is executed in accordance with the requirements of Part 2.1, and (b) in the case of a revocation of a will (in whole or in part)— (i) if made by a will—the will is executed in accordance with the requirements of Part 2.1, and (ii) if made by other means—is made in accordance with the requirements of the order, and (c) in addition to the requirements of Part 2.1, one of the witnesses to the making or alteration of the will under this section is the Registrar, and (d) the conditions of the authorisation (if any) are complied with. (6) A will that is authorised to be made, altered or revoked in part by an order under this section must be deposited with the Registrar under Part 2.5. (7) A failure to comply with subsection (6) does not affect the validity of the will. 17 Will made by minor 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 New South Wales, made an order authorising a minor to make the will, and (b) the will was 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. Division 2 Court authorised wills for persons who do not have testamentary capacity 18 Court may authorise a will to be made, altered or revoked for a person without testamentary capacity (1) The Court may, on application by any person, make an order authorising— (a) a will to be made or altered, in specific terms approved by the Court, on behalf of a person who lacks testamentary capacity, or (b) a will or part of a will to be revoked on behalf of a person who lacks testamentary capacity. Note— A person may only make an application for an order if the person has obtained the leave of the Court—see section 19. (2) An order under this section may authorise— (a) the making or alteration of a will that deals with the whole or part of the property of the person who lacks testamentary capacity, or (b) the alteration of part only of the will of the person. (3) The Court is not to make an order under this section unless the person in respect of whom the application is made is alive when the order is made. (4) The Court may make an order under this section on behalf of a person who is a minor and who lacks testamentary capacity. (5) In making an order, the Court may give any necessary related orders or directions. Note— The power of the Court to make orders includes a power to make orders on such terms and conditions as the Court thinks fit—see section 86 of the Civil Procedure Act 2005. The Court also has extensive powers to make directions under sections 61 and 62 of that Act. (6) A will that is authorised to be made or altered by an order under this section must be deposited with the Registrar under Part 2.5. (7) A failure to comply with subsection (6) does not affect the validity of the will. 19 Information required in support of application for leave (1) A person must obtain the leave of the Court to make an application to the Court for an order under section 18. (2) In applying for leave, the person must (unless the Court otherwise directs) give the Court the following information— (a) a written statement of the general nature of the application and the reasons for making it, (b) satisfactory evidence of the lack of testamentary capacity of the person in relation to whom an order under section 18 is sought, (c) a reasonable estimate, formed from the evidence available to the applicant, of the size and character of the estate of the person in relation to whom an order under section 18 is sought, (d) a draft of the proposed will, alteration or revocation for which the applicant is seeking the Court's approval, (e) any evidence available to the applicant of the person's wishes, (f) any evidence available to the applicant of the likelihood of the person acquiring or regaining testamentary capacity, (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, or that can be discovered with reasonable diligence, of any persons who might be entitled to claim on the intestacy of the person, (i) any evidence available to the applicant of the likelihood of an application being made under Chapter 3 of this Act in respect of the property of the person, (j) any evidence available to the applicant, or that can be discovered with reasonable diligence, of the circumstances of any person for whom provision might reasonably be expected to be made by will by the person, (k) any evidence available to the applicant of a gift for a charitable or other purpose that the person might reasonably be expected to make by will, (l) any other facts of which the applicant is aware that are relevant to the application. 20 Hearing of application for leave (1) On hearing an application for leave the Court may— (a) give leave and allow the application for leave to proceed as an application for an order under section 18, and (b) if satisfied of the matters set out in section 22, make the order. (2) Without limiting the action the Court may take in hearing an application for leave, the Court may revise the terms of any draft of the proposed will, alteration or revocation for which the Court's approval is sought. 21 Hearing an application for an order In considering an application for an order under section 18, the Court— (a) may have regard to any information given to the Court in support of the application under section 19, and (b) may inform itself of any other matter in any manner it sees fit, and (c) is not bound by the rules of evidence. 22 Court must be satisfied about certain matters The Court must refuse leave to make an application for an order under section 18 unless the Court is satisfied that— (a) there is reason to believe that the person in relation to whom the order is sought is, or is reasonably likely to be, incapable of making a will, and (b) the proposed will, alteration or revocation is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity, and (c) it is or may be appropriate for the order to be made, and (d) the applicant for leave is an appropriate person to make the application, and (e) adequate steps have been taken to allow representation, as the Court considers appropriate, of persons with a legitimate interest in the application, including persons who have reason to expect a gift or benefit from the estate of the person in relation to whom the order is sought. 23 Execution of will made under order (1) A will that is made or altered by an order under section 18 is properly executed if— (a) it is in writing, and (b) it is signed by the Registrar and sealed with the seal of the Court. (2) A will may be signed by the Registrar for the purposes of subsection (1) (b) even after the death of the person in relation to whom the order was made. 24 Retention of will (1) Despite section 52 (Delivery of wills by Registrar), a will deposited with the Registrar in accordance with this Part may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless— (a) the Court has made an order under section 18 authorising the revocation of the whole of the will, or (b) the person has acquired or regained testamentary capacity. (2) On being presented with a copy of an order under section 18 authorising the revocation of the whole of a will, the Registrar must withdraw the will from deposit. 25 Separate representation of person lacking testamentary capacity If it appears to the Court that the person who lacks testamentary capacity should be separately represented in proceedings under this Division, the Court may order that the person be separately represented, and may also make such orders as it considers necessary to secure that representation. 26 Recognition of statutory wills (1) A statutory will made according to the law of the place where the deceased was resident at the time of the execution of the will is to be regarded as a valid will of the deceased. (2) In this section— statutory will means a will executed by virtue of a provision of an Act of New South Wales or other place on behalf of a person who, at the time of execution, lacked testamentary capacity. Division 3 Rectification of wills by Court 27 Court may rectify a will (cf WPA 29A) (1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied 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) A person who wishes to make an application for an order under this section must apply to the Court within 12 months after the date of the death of the testator. (3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if— (a) the Court considers it necessary, and (b) the final distribution of the estate has not been made. 28 Protection of personal representatives who distribute as if will had not been rectified (cf WPA 29A) (1) This section applies if— (a) a will is rectified under section 27, and (b) a personal representative made a distribution to a beneficiary as if the will had not been rectified. (2) A personal representative is not liable if— (a) the distribution was made under section 92A (Personal representatives may make maintenance distributions within 30 days) of the Probate and Administration Act 1898, or (b) the distribution was made at least 6 months after the date of the death of the testator and at the time of making the distribution the personal representative was not aware of an application in respect of the estate having been made under section 27 or under Chapter 3, and the personal representative has complied with the requirements of section 92 (Distribution of assets after notice given by executor or administrator) of the Probate and Administration Act 1898. Part 2.3 Construction of wills Division 1 General rules about construction of wills 29 What interest in property does a will dispose of? (cf WPA 20) If— (a) a testator has made a will disposing of property, and (b) after the making of the will and before his or her death, the testator disposes of an interest in that property, the will operates to dispose of any remaining interest the testator has in the property. 30 When a will takes effect (cf WPA 21) (1) A will takes effect, with respect to the property disposed of by the will, as if it had been executed immediately before the death of the testator. (2) This section does not apply if a contrary intention appears in the will. 31 Effect of failure of a disposition (cf WPA 22) (1) If, and to the extent that, a disposition of property under a will is ineffective wholly or in part, the will takes effect as if the property or undisposed part of the property were part of the residuary estate of the testator. (2) This section 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. 32 Use of extrinsic evidence to construe wills (1) In proceedings to construe a will, evidence (including evidence of the testator's intention) is admissible to assist in the interpretation of the language used in the will if the language makes the will or any part of the will— (a) meaningless, or