Current projects

The Uniform Sucession Laws Project was an initiative of the Standing Committee of Attorneys General. The project was undertaken by the National Committee for Uniform Succession Laws, which include representatives of all Australiam jurisdictions except South Australia.

At the outset the project was divided into four stages:

wills;
family provision;
intestacy; and
administration of estates (including the resealing and recognition of interstate and foreign grants).

All four stages of the project have been completed.

The work of the National Committee was coordinated by the Queensland Law Reform Commission, which also had the primary carriage of the stages dealing with wills, family provision and the administration of estates of deceased persons.

(1) Wills

In June 1995 the Commission released an Issues Paper-The Law of Wills (WP 46). The National Committee’s final report—Consolidated Report on the Law of Wills (MP 29)—was presented to the Standing Committee of Attorneys-General in December 1997. That Report included model legislation prepared by the New South Wales Parliamentary Counsel's Office to be used as the basis for reform by individual States and Territories. The model legislation made provision for court-authorised wills for minors who understand the implications of making a will, as well as for people (including minors) who lack testamentary capacity. It also included a number of provisions to give greater effect to a testator’s intentions, and to remove some of the technical grounds on which wills have in the past been invalidated.

Legislation implementing the National Committee's recommendations has been enacted (in whole or in part) in New South Wales, the Northern Territory, Queensland, Tasmania, Victoria and Western Australia.

(2) Family provision

In June 1995 the Commission released an Issues Paper: The Law of Family Provision (WP 47). This was followed in 1997 by the National Committee’s final Report to the Standing Committee of Attorneys General on Family Provision (MP 28) and in 2004 by a Supplementary Report on Family Provision (R 58), which included model legislation prepared by the New South Wales Parliamentary Counsel’s Office.

The two main areas to which changes have been recommended concern eligibility to apply for family provision and the property out of which provision may be ordered.

Legislation in most Australian jurisdictions specifies various categories of persons who may apply for family provision. The National Committee recommended that four categories of persons should be able to apply for provision:

the husband or wife of the deceased person;
a person who was, at the time of the deceased person’s death, the de facto partner (or equivalent, as may be applicable in the enacting jurisdiction) of the deceased person;
a non-adult child of the deceased person; and
a person for whom the deceased person, having regard to certain specified criteria, had a responsibility to make provision.

The last of these categories was based on the eligibility provision of the Administration and Probate Act 1958 (Vic), where this is the sole basis on which a person’s eligibility may be established.

The National Committee also recommended the adoption of provisions, based on the Family Provision Act 1982 (NSW), to enable the court to designate certain property as part of the ‘notional estate’ of the deceased and to order that provision be made out of the property so designated.

Legislation substantially implementing the National Committee's recommendations has been enacted in New South Wales.

(3) Intestacy

The New South Wales Law Reform Commission assumed responsibility for the final stage of the project, which deals with the law in relation to intestate estates-that is, how property is distributed when a person dies without a will or a valid will.

An Issues Paper examining the law in this area was released by the New South Wales Law Reform Commission in April 2005, and the final report was completed in April 2007. That Report, Uniform Succession Laws: Intestacy (NSWLRC report 116) is available on the New South Wales Law Reform Commission's website at http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_r116toc

The main recommendations in the Report are:

Where there are no surviving issue of the intestate, the surviving spouse or partner of the intestate should be entitled to the whole of the intestate estate.
Where the intestate is survived by a spouse or partner and issue, the spouse or partner should be entitled to the whole intestate estate if all the issue are the issue of the intestate and the spouse or partner. However, if some of the issue of the intestate are from another relationship, the intestate estate should be shared among the spouse or partner and all surviving issue.
Where an intestate is survived by a spouse or partner and issue of another relationship, the spouse or partner should be entitled to:
- a statutory legacy, which should be set initially at $350,000 for all jurisdictions and adjusted to reflect changes in the Consumer Price Index;
- all the tangible personal property of the intestate except for property used exclusively for business purposes, banknotes or coins (unless part of a collection made in pursuit of a hobby or some other non-commercial purpose), property held as a pledge or other form of security, property in which the intestate invested as a hedge against inflation or adverse currency movements, such as gold bullion or uncut diamonds, and any interest in land;
- one half of the residue of the estate after he or she has received the statutory legacy (with interest) and the tangible personal property of the intestate.
In cases where the surviving spouse or partner is entitled to claim statutory legacies in more than one jurisdiction, he or she should receive legacies of a combined value that is no more than the highest statutory legacy from among the jurisdictions in which he or she is entitled.
The surviving spouse or partner should be able to elect to obtain any property in the intestate’s estate and should be able to provide satisfaction for the interest in the relevant property, first by relying on any share of the intestate estate to which he or she is entitled and then, if his or her share is insufficient to cover the value, by paying the difference from other resources available to him or her.
Where an intestate is survived by a spouse or partner and issue of another relationship, the issue of the intestate should be entitled, per stirpes, to half the residue of the estate after the surviving spouse or partner has received the statutory legacy (with interest) and the tangible personal property of the intestate.
Where an intestate is not survived by a spouse or partner, the issue of the intestate should take their share per stirpes.
Distribution to relatives of the intestate should be per stirpes in all cases.
Bona vacantia estates should vest in the relevant State or Territory.
A 30 day survivorship period should apply to all persons entitled to take on intestacy, except where the effect of the 30 day survivorship period would be that the intestate estate vests in the relevant State or Territory as bona vacantia.
Where the forfeiture rule prevents a person from sharing in the estate or where a person has disclaimed the share to which he or she is otherwise entitled, that person should be deemed to have died before the intestate.

(4) Administration of estates of deceased persons

The three main areas that were examined in relation to the administration of estates of deceased persons were:

general issues of administration—such as the appointment and removal of personal representatives, the powers, duties and liabilities of personal representatives, the vesting of property on the death of a person, the order of payment of debts in an insolvent estate, the application of assets towards the payment of debts in a solvent estate, and the payment of legacies;
the resealing of interstate and foreign grants; and
the automatic recognition of interstate grants without the need for resealing.

A Discussion Paper examining the first of these areas was released in 1999: Administration of Estates of Deceased Persons (MP 37). A further Discussion Paper examining the second and third of these areas was released in December 2001: Recognition of Interstate and Foreign Grants of Probate and Letters of Administration (WP 55).

The final report on the administration of estates of deceased persons (R65), which contains the National Committee’s recommendations in relation to the three areas outlined above, was completed in April 2009. It was presented at the April 2009 meeting of the Standing Committee of Attorneys General and was tabled in the Queensland Parliament on 7 July 2009. The Report is available on this website.

  Report R65 Volume 1 (2.74MB)
  Report R65 Volume 2 (2.59MB)
  Report R65 Volume 3 (2.61MB)
  Report R65 Volume 4 (1.06MB)

Contact: Ms Claire Riethmuller (07) 3247 4544