Administration and Probate (Amendment) Act 1994

Transcription

1 Section No. 10 of 1994 TABLE OF PROVISIONS 1. Purpose 2. Commencement 3. Principal Act 4. Amendments to enable Rules procedure changes 5. Insertion of Division 1A Division 1A Deposit of Wills with Registrar 5A. Will may be deposited with registrar 5B. Power to prescribe fees 5c. Delivery of wills by registrar 6. Consequential amendments to the Property Law Act Increase in amount of accrued wages etc. employer may pay without seeing probate documents 8. Insertion of section 37A 37A. Spouse may obtain intestate's interest in matrimonial home 9. Insertion of sections 50 and Date of valuation 51. Distribution if intestate leaves a spouse 10. Substitution of section Caveat may be lodged 11. Consequential amendments to change of caveat procedures 12. Amendments to the small estates provisions 13. Repeal of spent provisions and other minor amendments 14. Insertion of section 16A into the Wills Act A. Effect of divorce on will 15. Cases to which certain amendments do not apply

2 Victoria No. 10 of 1994 Administration and Probate (Amendment) Act 1994 [Assented to 3 May 1994] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is (a) to amend the Administration and Probate Act 1958 (i) to enable the making of new Supreme Court rules concerning grants of probate and letters of administration; and (ii) to enable a spouse to obtain his or her intestate partner's share in their matrimonial home; and (iii) to increase various monetary limits in that Act; and 67

3 s.2 Act No (iv) to make other changes to improve the administration of that Act; and (b) to amend the Wills Act 1958 to provide for the revocation of gifts made in wills to the divorced spouse of the will maker. 2. Commencement (1) Section 1 and this section come into operation on the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 1 July 1995, it comes into operation on that day. 3. Principal Act In this Act, the Administration and Probate Act 1958 is called the Principal Act. 4. Amendments to enable Rules procedure changes (1) In section 3 of the Principal Act (a) before "In this Act" insert "(1)"; (b) at the end of the section insert "(2) In this Act, if the context requires (a) a reference to the granting of probate or administration is to be construed as a reference to the making of an order granting probate or administration; and (b) a reference to a grant is to be construed as a reference to an order for a grant; and (c) a reference to probate is to be construed as a reference to an order for a grant of probate; and 68

4 Act No s.5 (d) a reference to administration is to be construed as a reference to an order granting letters of administration.". (2) In section 12 (3) (a) of the Principal Act, for "taken out" substitute "authenticated". (3) In section 16 (2) of the Principal Act, for "probate or letters of administration" substitute "grant". (4) In section 97 of the Principal Act (a) in sub-section (3) (i) for "made upon" substitute "attached to"; (ii) for "copy is made" substitute "copy is attached"; (b) in sub-section (5) (i) omit "by motion"; (ii) for "such motion" substitute "the application". 5. Insertion of Division IA In the Principal Act, after section 5 insert "Division 1A Deposit of Wills with Registrar 5A. Will may be deposited with registrar (1) Any person may deposit a will in the office of the registrar. (2) Any will deposited in the office of the registrar must be in a sealed envelope which has written on it (a) the testator's name and address (as they appear in the will); and (b) the name and address (as they appear in the will) of any executor; and (c) the date of the will; and (d) the name of the person depositing the will 69

5 Act No and must be accompanied by the prescribed fee. (3) No fee is payable in respect of any will deposited with the registrar if the deposit is made because a solicitor has died, or has ceased, or is about to cease, practising in Victoria. 5B. Power to prescribe fees (1) The Governor in Council may make regulations for or with respect to prescribing fees for the purposes of this Division. (2) Regulations made under sub-section (1) (a) may prescribe fees in respect of a particular class or classes of wills or will makers; and (b) may prescribe different fees in respect of different classes of wills or will makers; and (c) may authorise the registrar to waive fees in particular cases or classes of cases. 5c. Delivery of wills by registrar (1) Upon receiving an application in writing, the registrar may give any will deposited with the registrar (a) to the testator; or (b) to a solicitor or trustee company nominated by the testator; or (c) upon the death of the testator (i) to any executor named in the will or any solicitor or trustee company nominated by an executor; or 70

6 Act No s.6 (ii) to any person entitled to apply for letters of administration with the will annexed or a solicitor nominated by that person. (2) The registrar may examine any will to enable the registrar to comply with this Division. (3) The registrar must ensure that an accurate copy of every will given to a person under sub-section (1) is made and retained. (4) If there is any doubt as to whom a will should be given, the registrar, or any other person, may apply to the Court for directions as to whom the registrar should give the will. (5) The registrar may transfer any will that has been held by the registrar for more than 70 years to the Keeper of Public Records for preservation in accordance with section 7 of the Public Records Act 1973 and the provisions of this section continue to apply to the will. (6) For the purposes of sub-section (5), wills held by the Registrar-General are deemed to have been held by the registrar.". 6. Consequential amendments to the Property Law Act 1958 (1) In the Property Law Act 1958 (a) in the heading preceding section 4, omit "WILLS AND OTHER"; and (b) in section 4 (i) omit "wills and"; (ii) after "whatsoever" insert "(other than wills)"; (c) section 14 is repealed. 71

7 s.7 Act No (2) On the commencement of this section, the Registrar- General must deliver all wills deposited in the office of the Registrar-General under section 14 of the Property Law Act 1958 to the Registrar of Probates. 7. Increase in amount of accrued wages etc. employer may pay without seeing probate documents In section 32 (1) of the Principal Act (a) in paragraph (b), for "$10,000" substitute "$25,000"; (b) for "$5,000" substitute "$12,500". 8. Insertion of section 37A After section 37 of the Principal Act insert '37A. Spouse may obtain intestate's interest in matrimonial home (1) In this section "matrimonial home" means a residence which was an intestate's principal residence at the time of his or her death; "residuary estate" has the same meaning as it has in section 38 (4). (2) Despite anything to the contrary in this Act, if (a) a person dies intestate as to an interest in his or her matrimonial home; and (b) the person leaves a spouse the spouse may elect to acquire the interest at its value at the date of the intestate's death. 72

8 Act No s.8 (3) The election must be made (a) if the spouse is a personal representative within 3 months of the grant of administration; or (b) if the spouse is not a personal representative within 3 months of the spouse being given notice under sub-section (4). (4) If- (a) a person dies intestate as to an interest in his or her matrimonial home; and (b) his or her spouse is not the person's personal representative the personal representative must, within 30 days of the grant of administration, give the spouse a written notice informing the spouse of his or her rights under this section. (5) An election must be given in writing (a) if the spouse is a personal representative to the registrar; and (b) if the spouse is not a personal representative to the personal representative who sent the spouse the notice requiring the election. (6) If an intestate is also survived by a child or other issue (a) any notice under sub-section (4); and (b) any election under sub-section (5) 00- must show the sworn value of the intestate's interest in the matrimonial home at the time of the intestate's death as fixed by a valuer registered under the Valuation of Land Act

9 s.8 Act No (7) If the spouse elects to acquire the intestate's interest in the matrimonial home (a) his or her share of the residuary estate is to be reduced by the value of the interest; and (b) if the value of the interest is more than the amount of his or her share of the residuary estate, the spouse must pay the difference into the intestate's estate (i) before the distribution of the residuary estate; or (ii) within 12 months of the making of the election whichever occurs first. (8) If the spouse elects to acquire the intestate's interest in the matrimonial home, the personal representative (a) must transfer the interest to the spouse within a reasonable time (i) of receiving notice of the election; or (ii) if sub-section (7) (b) applies, of the spouse paying the amount of the difference into the estate; and (b) in any event, must transfer the interest before the distribution of the residuary estate. (9) A spouse may acquire an interest under this section even though (a) he or she is a trustee; or (b) he or she is a minor. (10) If a matrimonial home is part of a larger property and the intestate's interest in the matrimonial home cannot be severed from 74

10 Act No s.9 the intestate's interest in the larger property without subdividing that property, a reference to the matrimonial home in this section is to be read as a reference to that property. (11) Despite sub-section (10), if a matrimonial home is part of a farm, a reference to the matrimonial home in this section is to be read as a reference to the entire farm.". 9. Insertion of sections 50 and 51 For section 50 of the Principal Act substitute "50. Date of valuation In determining values for the purposes of this Division, the date of valuation is to be the date on which the value of the residuary estate within the meaning of section 38 (4) is ascertained. 51. Distribution if intestate leaves a spouse (1) The spouse of an intestate who does not leave any child (or other issue) is entitled to the intestate's residuary estate. (2) The spouse of an intestate who leaves a child (or other issue) is entitled (a) to the personal chattels of the intestate; and (p) if the intestate's residuary estate is worth not more than $100,000, to the whole of the estate; and (c) if the intestate's residuary estate is worth more than $100,000, to (i) $100,000; and (ii) interest on that amount calculated at the rate set out in sub-section (3) from the date of 75

11 s.10 Act No the death of the intestate to the date of payment of that amount; and (iii) one third of the balance of the estate. (3) The rate of interest is the rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 less 2V 2 %.". 10. Substitution of section 58 For section 58 of the Principal Act substitute "58. Caveat may be lodged Any person may lodge with the registrar in accordance with the Rules of the Supreme Court a caveat against the making of a grant.". 11. Consequential amendments to change of caveat procedures Sections 59, 60, 61, 62, 63 and 64 of the Principal Act are repealed. 12. Amendments to the small estates provisions In the Principal Act (a) in section 71 (1) (i) for "$7,500" substitute "$25,000"; (ii) for "$15,000" substitute "$50,000"; (b) in sections 71 (1), 72 (1), 73, 74, 76, 77 and 78, omit "of probates and administrations" (wherever occurring); (c) in section 72 (1), for "Registrar-General" (wherever occurring) substitute "registrar"; (d) in section 74 (i) for "$2,500" substitute "$25,000"; (ii) for "$5,000" substitute "$50,000". 76

12 Act No s Repeal of spent provisions and other minor amendments In the Principal Act (a) sections 2, 7 (3), 8 (/), 9 (3), 10 (e), 29 (6), 42 (2) and 47 (2) and the First Schedule are repealed; (b) in section 21, for "action" substitute "proceeding"; (c) in section 29 (1), omit "after the seventh day of December one thousand nine hundred and fortytwo"; (d) in section 35 (1) (a), omit "and thereupon the provisions of paragraph (9) of section fiftyseven shall apply"; and (e) in section 52 (1), for "section 50" substitute "section 51"; (/") in section 57 (3), for "action" substitute "proceeding"; (g) in section 57 (4), omit "or by rules made under section 68"; (h) in section 66 (1), for "an action" substitute "a proceeding"; (i) in section 75 (2), before "registrar" insert "a"; (/") in section 84 (4), omit "or by the rules made under section 89"; (k) in section 99A (2), for "an action" substitute "a proceeding". 14. Insertion of section 16A into the Wills Act 1958 After section 16 of the Wills Act 1958 insert '16A. Effect of divorce on will (1) The ending of a marriage revokes (a) any disposition made in a will in existence at the time the marriage ends by a testator to the testator's spouse; and 77

13 Act No (b) any appointment of the testator's spouse as an executor, trustee, advisory trustee or guardian made by the will; and (c) any grant made by the will of a power of appointment exercisable by, or in favour of, the testator's spouse. (2) For the purposes of this section, a marriage ends (a) when a decree of dissolution of the marriage becomes absolute under the Family Law Act 1975 of the Commonwealth; or (b) on the granting of a decree of nullity in respect of the marriage by the Family Court of Australia; or (c) on the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, but only if that dissolution or annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth. (3) Despite sub-section (1), the ending of a marriage does not revoke (a) the appointment of the testator's spouse as the guardian of the spouse's children or as a trustee of property left by the will upon trust for beneficiaries that include the spouse's children; or (b) the grant of a power of appointment exercisable by the testator's spouse exclusively in favour of the spouse's children. (4) With respect to the revocation of any disposition, appointment or grant by this 78

14 Act No s. 15 section, the will is to take effect as if the spouse had died before the testator. (5) This section does not apply to any disposition, appointment or grant if it appears from the terms of the will that the testator did not want the disposition, appointment or grant to be revoked on the ending of the marriage. (6) In this section "spouse" means the person who was the testator's spouse immediately before the marriage ended and includes a party to a purported or void marriage.'. 15. Cases to which certain amendments do not apply (1) The provisions of the Principal Act as amended by section 7, 8, 9,10,13 (a) or 13 (d) do not apply to a case where a person dies before the commencement of that section. (2) Section 16A of the Wills Act 1958 (as inserted by section 14) does not apply to any will made by a testator who died before the commencement of section 14. NOTES 1. Minister's second reading speech Legislative Assembly: 10 March 1994 Legislative Council: 29 March The long title for the Bill for this Act was "A Bill to amend the Administration and Probate Act 1958 and the Wills Act 1958 and for other purposes.". 3. Section headings appear in bold italics and are not part of the Act. (See Interpretation of Legislation Act 1984.) 79