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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-10-20 Daily Xml
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Bills

Succession Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:20): Obtained leave and introduced a bill for an act to consolidate and amend the law relating to wills, probate and administration, the administration of deceased estates, intestacy and family provision, to repeal the Administration and Probate Act 1919, the Inheritance (Family Provision) Act 1972 and the Wills Act 1936, to make related amendments to various other acts, and for other purposes. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:21): I move:

That this bill be now read a second time.

I am pleased to introduce the Succession Bill 2022. This bill represents some of the most extensive reform to succession law in South Australia since the development of the Inheritance (Family Provision) Act in the 1970s.

The process leading to the development of this bill started in 2011 when the then Attorney-General, the Hon. John Rau, invited the South Australian Law Reform Institute to identify areas of succession law that were most in need of review, to conduct a review of each of these areas and to recommend reforms. SALRI's Advisory Board identified seven topics for review and established a Succession Law Reference Group to assist. The reports produced by SALRI between 2014 and December 2017 were:

Securities Guarantees for Letters of Administration;

State Schemes for Storing and Locating Wills;

Small Estates and Minor Succession Disputes;

South Australian Rules of Intestacy;

Management of the Affairs of a Missing Person;

Review of the Inheritance (Family Provision) Act 1972 (SA); and

Who May Inspect a Will.

I wish to place on the record an acknowledgement of the work of the former government, which introduced a version of this bill to parliament late last year before parliament was prorogued. The bill I introduce today has many common features to the previous iteration, updated to include various amendments that were filed to deal with some technical matters.

The bill enacts the recommendation from these seven SALRI reports that are legislative in nature and have been accepted by the government. Most significantly, this bill repeals the Administration and Probate Act, the Wills Act and the Inheritance (Family Provision) Act and consolidates the provisions into this one new act.

The bill also makes consequential and related amendments to the Aged and Infirm Persons' Property Act, the Guardianship and Administration Act, the Law of Property Act, the Public Trustee Act, the Supreme Court Act and the Trustee Act. Having one piece of legislation to deal with all aspects of succession law will greatly enhance usability of the legislation, particularly for laypeople, who may have to act as an executor or administrator of an estate.

For many people, the death of a family member will be the first time they ever need to deal with this legislation, and it is important to make it as easy to understand as possible. It became apparent during the drafting of the bill that many of the terms used in the legislation were significantly outdated (including a reference to the reign of King Charles II in the definition of 'will') and sometimes refer to common law concepts that no longer exist or practices that had fallen out of use many decades earlier.

The bill modernises and updates the language used, where possible, to make the legislation simpler and easier to understand. The bill reorganises the provisions that are to be consolidated from other legislation, so that the bill is set out in a logical manner.

Part 1 contains the preliminary provisions, such as the interpretation provisions; part 2 contains provisions relating to wills; part 3 deals with administration and probate; part 4 with the administration of deceased estates; part 5 with intestacy; part 6 with claims for family provision; followed by miscellaneous provisions in part 7.

As the bill is lengthy, I will provide only a short overview of each part and highlight some of the more significant changes in each part of the bill. Part 1 contains the preliminary provisions. In the definition section, some of the definitions have been modernised or simplified, where possible; for example, the definition of a will has been modernised and is based on the definition used in interstate legislation.

Part 2 contains the provisions that formerly made up the Wills Act. There were very few recommendations from SALRI that dealt with the provisions of the Wills Act, and therefore the changes to this part of the bill are focused on modernising and simplifying the language where that has been possible.

One of the SALRI recommendations that does come within this part of the bill is a new provision that gives a certain class of person the right to inspect the will of a deceased person. The classes of person include persons named in the will, beneficiaries, surviving spouses and domestic partners or former spouses and domestic partners, parents or guardians of the deceased, and persons eligible to a share of the estate under the rules of intestacy had the person died intestate. Persons with claims against the estate in law or equity can also inspect the will, but only with permission of the Supreme Court if they have a proper interest in the matter and it is appropriate for them to do so.

Part 3 of the bill contains provisions relating to the granting of administration or probate and incorporates a small number of amendments arising from the SALRI recommendations. The Supreme Court has been given the power to pass over applicants for a grant of probate or administration, to appoint another person who they consider to be appropriate, and to vary or revoke such a grant.

One of the other significant inclusions in part 3 of the bill are the provisions introducing a deemed grant model for the administration of small estates. This was a SALRI recommendation from the report on the administration of small deceased estates. These provisions allow the Public Trustee to give notice to the Registrar of Probate that they intend to administer a small estate (of a value of $100,000 or less) under the deemed grant provisions.

The Public Trustee will not have to apply for a formal grant of letters of administration and will instead be taken to have a deemed grant of administration. The Public Trustee will be required to gazette a notice that they are electing to administer an estate under the deemed grant, and also publish it on a website approved by the minister.

This will make the process for the administration of small estates by the Public Trustee simpler and less costly, which is important for small estates so that the estate does not get unnecessarily reduced by fees and costs. It will also provide an alternative process for the Public Trustee to use rather than the Public Trustee administering small estates informally.

Part 4 of the bill deals with the process of administering deceased estates and contains a number of changes recommended by SALRI. Some of the significant inclusions in part 4 give the court additional powers to hold executors and administrators to account in relation to the administration of estates.

This includes new powers to require an executor or administrator to give an undertaking to the court, as well as a wide range of powers to remedy loss if an executor or administrator failed to perform their duties. For example, the court may order the executor or administrator to pay into the estate an amount equivalent to the financial benefit obtained by the executor or administrator as a result of their failure.

The court may also order the executor or administrator to compensate persons who have suffered loss, or give any other order that the court considers appropriate. These provisions provide an important mechanism to ensure that the beneficiaries of estates can hold executors and administrators to account for failing to undertake their duties.

On SALRI's recommendation, the bill allows persons who hold small amounts of money or personal property of a deceased estate to give it directly to the surviving close family of the deceased without needing a grant of probate or administration. This will apply to money or property up to the value $15,000. This is intended to allow, for example, banks to transfer the money in a bank account belonging to the deceased to the person's surviving spouse in a much faster time frame than if a grant of probate were required. This money can often be vital for the surviving spouse's immediate day-to-day living expenses, and therefore it is important this can be done and accessed as quickly as possible.

One addition to the bill that came from stakeholder feedback is the inclusion of a provision to codify the application of assets and the payment of debts and liabilities in solvent states. There are existing provisions dealing with insolvent estates, but South Australia currently relies on the common law for solvent estates.

Reliance on the common law has meant that the rules are more complex to apply to South Australia, and a clear, codified formula will be beneficial for executors and administrators when dealing with such deceased estates. Therefore, a provision has been included at clause 83 that is based upon provisions used in the Victorian legislation.

Part 5 of the bill contains the provisions that deal with intestate estates, which is an estate where the deceased person died without a valid will. SALRI made a number of recommendations in their report on the laws of intestacy; however, a significant number of those recommendations endorsed maintaining the status quo, and therefore no legislative amendments were required to implement those recommendations.

One of the changes that was recommended was to increase the amount of the preferential legacy received by the surviving spouse of the intestate. The preferential legacy is a payment that a surviving spouse receives from the deceased estate. It has been increased from $100,000 to $120,000.

Another change is that the distribution on intestacy has had one additional degree of relatives. The grandchildren of relatives of the fourth degree, in effect the children of the first cousins of the intestate, are included in the distribution order before the estate passes to the Crown. This change has been undertaken as there was a preference expressed to SALRI during their public consultation that people would prefer their estate to pass to a more distant relative if there is one, rather than to the Crown.

There is also a catch-all provision where a person with a just and moral claim can apply to receive the estate if there are no relatives in the chain of distribution. Therefore, there is a mechanism to allow even a very distant relative to receive the estate instead of it passing to the Crown. Where there are a number of relatives in the chain of distribution, the distribution of the estate is on a per capita basis—that is, in equal portions—to the children and grandchildren of the intestate but on a per stirpes basis (inheriting a portion through your parent) in all other cases.

It has also been clarified that a spouse or domestic partner of an intestate has no entitlement to any part of the intestate's estate if they are a party to a prescribed order or agreement. The intention of these changes is to provide that spouses or domestic partners who have separated but not legally ended their relationship through divorce or removal from the relationships register, and have finalised the financial matters between them, are removed from the order of inheritance for intestate estates.

Part 6 of the bill deals with claims for family provision and contains the provisions formerly in the Inheritance (Family Provision) Act. In the feedback received by SALRI during the preparation of their report into family provision it was generally agreed that claims under the family provision act are too easy to make and not enough weight is placed on the wishes of the testator.

There are often, from the consultation, unmeritorious claims made by beneficiaries who do not need the financial support, and currently there is very little disincentive against making claims as costs are borne by the estate. Therefore, in order to rebalance the wishes of the testator with the right of beneficiaries to make a claim where they have not properly been provided for, the categories of claimants who are automatically entitled to bring a claim under the family provision sections of the bill have been narrowed.

Former spouses and domestic partners are excluded from making a claim for family provision if they have been party to a prescribed agreement or order, similar to the exclusion from the order of inheritance of intestate estates. This is to, for example, prevent long-divorced former spouses from making claims from an estate years after the marriage has ended and the financial matters were settled.

The position in relation to adult stepchildren has also been clarified. In order to be eligible to make a claim, an adult stepchild has to demonstrate that either:

they are disabled and significantly vulnerable by reason of their disability; or

they were genuinely dependent on the deceased at the time of their death; or

they cared for, or contributed to the maintenance of, the deceased immediately before their death; or

they significantly contributed to the estate of the deceased; or

assets accumulated by the stepchild's parent substantially contributed to the estate of the deceased person.

The last category of claims will ensure that adult stepchildren have a way to make a claim on their step-parent's estate where their own parent had left assets to their spouse rather than directly provide for their children at the time of their own death.

Additionally, stepchildren who are minors are entitled to make a claim if they satisfy the court that they were wholly or partly (or were legally entitled to be wholly or partly) maintained by the deceased immediately before their death. Grandchildren of the deceased person will now have to satisfy the court that either their parents died before the deceased person or that the grandchild was wholly or partly (or was legally entitled to be wholly or partly) maintained by the deceased before they will be able to make a claim.

Section 116 now provides that, when determining whether to make a family provision order, the court's primary consideration is to be the wishes of the deceased person. The court may also order a party to proceedings to give security for costs that may be awarded against the party if it appears to the court that the party's claim for family provision is made without merit or the party is unwilling to negotiate a settlement of a claim for provision. This amendment is aimed at discouraging unmeritorious claims.

Part 7 of the bill contains the miscellaneous provisions. One significant addition in this part is a provision that will codify the rules that apply when there are simultaneous deaths of spouses or domestic partners. Currently, South Australia relies on common law rules in this situation, which means the rules in South Australia are different to other Australian jurisdictions. New provisions state that where there are simultaneous deaths, any jointly-owned property will devolve in equal share to each person's estate as if they were tenants in common.

An additional provision in part 7 has been included to codify the presumption of survivorship. This provision provides that, where two or more persons have died in circumstances where it is not possible to determine the order of death, that the deaths will, for the purposes affecting title to property, be taken to have occurred in order of seniority, with the eldest being presumed to have died first.

The Succession Bill 2022 represents the culmination of a number of years of work from SALRI, the Attorney-General's Department and parliamentary counsel on these reforms. As I said at the start, I want to acknowledge the work of the former government, particularly the former Attorney-General, the Hon. Vickie Chapman, who introduced a version of this bill last year.

Following the introduction of the bill today I intend to provide time for interested stakeholders to consider this iteration of the bill and to provide any further comments they may wish. My intention is to progress the bill through this place but not at a speedy resolution, and I do not expect this bill to be passed this year. The passage of the Succession Bill will give South Australia a modern, usable piece of legislation that will have benefits for the legal profession, the courts, the Public Trustee and the general public. I commend the bill to the house and seek to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines terms used in the measure.

Part 2—Wills

Division 1—Making, alteration, revocation and revival of wills

Subdivision 1—Property that may be disposed of by will

4—All property may be disposed of by will

This clause provides that a person may dispose of all of their property by will.

Subdivision 2—Testamentary capacity

5—Will of minor

This clause provides that a minor cannot make, alter or revoke a will unless they are or have been married or the will is made in contemplation of marriage. A will made in contemplation of marriage has no effect unless the contemplated marriage is solemnised.

6—Will of minor authorised by Court

This clause empowers the Supreme Court (the Court) to authorise a will to be made, altered or revoked for a minor.

7—Will of person lacking testamentary capacity authorised by Court

This clause empowers the Court to authorise a will to be made, altered or revoked for a person who lacks testamentary capacity.

Subdivision 3—Execution and attestation of wills

8—Requirements as to writing and execution of will

This clause sets out how a will is to be made and executed.

9—Exercise of power of appointment by will

This clause sets out how a will is to be made and executed where a person holds a power of appointment exercisable by will.

10—Will of ADF member on active service

This clause allows a person on active duty as a member of the Australian Defence Force to dispose of property by a nuncupative will.

A 'nuncupative will' is a verbal will, 'depending merely on verbal evidence, being declared by the testator in extremis before a sufficient number of witnesses and afterwards reduced to writing'—Wharton's Legal Lexicon 13th edition (1925) p.603. 'The English Statute of Frauds, 29 Car. 2 c. 3 restricted nuncupative wills, except when made by mariners at sea, and soldiers in active service'.

11—Validity of will

This clause provides for a will to be valid if executed in accordance with this measure and empowers the Court to admit to probate a will that has not been executed in accordance with this measure if the Court is satisfied that it expresses the testamentary intentions of the deceased and the deceased intended the document to constitute their will. It also provides for a document not to be admitted to probate if the Court is satisfied that it expresses an intention by the deceased to revoke it.

12—Will not void by incompetency of witness

This clause provides that a will is not invalid only because a person who attests its execution is, or has become, incompetent to prove the execution of the will.

13—Gifts to attesting witness

This clause provides that a will or testamentary provision of a will is not void only because it is attested by the spouse or domestic partner of the testator or by a person who has or may acquire an interest in property subject to the will or provision.

14—Creditor attesting to be admitted as witness

This clause provides that a creditor, or spouse of domestic partner of a creditor, who attests the execution of a will by which property is charged with a debt can be admitted as a witness to prove the execution of the will or its validity or invalidity.

15—Executor to be admitted as witness

This clause provides that an executor of a will is not incompetent to be admitted as a witness to prove the execution of the will or its validity or invalidity just because they are the executor.

Subdivision 4—Alteration, revocation and revival of wills

16—Alteration of will

This clause sets out how a will may be altered.

17—Revocation of will

This clause sets out the circumstances in which a will or part of a will can be revoked.

18—Effect of marriage or registered relationship on will

This clause provides that a will is revoked by the marriage of the testator or the testator commencing a registered relationship. However, wills made on or after a certain date are not revoked if they were made in contemplation of the marriage or registered relationship.

19—Effect of end of marriage or registered relationship on will

This clause sets out the effect on a will of the end of a marriage (by divorce or annulment) or the end of a registered relationship.

20—Effect of change in testator's domicile

This clause provides that a change in a testator's domicile after a will is executed does not revoke the will or invalidate it or change its construction.

21—Revival of revoked will

This clause sets out the circumstances in which a will, or part of a will, that has been revoked is revived.

Division 2—Rectification of wills

22—Rectification of will by order of Court

This clause empowers the Court to order the rectification of a will if satisfied that it does not accurately reflect the testamentary intentions of the deceased.

Division 3—Construction of wills

23—When will takes effect

This clause provides that subject to a contrary intention appearing in a will, a will takes effect as if it had been executed immediately before the testator's death.

24—Interests in property will disposes of

This clause provides that if an interest in property disposed of by a will is disposed of before the testator's death, the will operates to dispose of the remaining interest of the testator in that property.

25—When a disposition is not to be rendered inoperative

This clause provides that no conveyance or other act made or done after the execution of a will of or relating to any real or personal property comprised in the will (except an act by which the will is revoked) prevents the operation of the will with respect to such property or interest in that property as the testator had power to dispose of by will at the time of their death.

26—General disposition of land includes leaseholds

This clause provides that subject to a contrary intention appearing in a will, a general disposition of land in a will is to be construed to include leasehold estates.

27—What general disposition of property subject to power of appointment includes

This clause provides that subject to a contrary intention appearing in a will, a general disposition of real property in a will is to be construed to include any real property which the testator has power to appoint, and operates as an execution of that power, and a general disposition of personal property in a will is to be construed to include any personal property which the testator has power to appoint and operates as an execution of that power.

28—Effect of disposition of real property without words of limitation

This clause provides that subject to a contrary intention appearing in a will, a disposition of real property by a will to a person without words of limitation is to be construed as passing the whole estate or interest in the property.

29—What a residuary disposition includes

This clause provides that subject to a contrary intention appearing in a will, if a disposition of real property or an interest in real property in a will fails or is void because the beneficiary dies during the lifetime of the testator or the disposition is contrary to law or otherwise capable of taking effect, the property or the interest in the property will be included in any residuary disposition contained in the will.

30—How requirements to survive with issue are to be construed

This clause sets out how the words 'die without issue', 'die without leaving any issue', 'have no issue' or other words in a disposition of property to a person in a will importing a want or failure of issue of the person are to be construed.

The word 'issue' is a legal term that has several meanings, in this context it means 'offspring of parents'—Wharton's Legal Lexicon (1925) p.465.

31—Disposition to children or other issue who leave issue living at testator's death does not lapse

This clause provides subject to a contrary intention appearing in a will, a disposition of property in a will to a person who is a child or other issue of the testator, and who is not determinable at the time or before the person's death, does not lapse if the person dies during the testator's lifetime leaving issue and any such issue is living at the time of the testator's death. Instead the disposition has effect as if the testator had died intestate leaving only issue of that person surviving.

32—Construction of dispositions of real property to trustee or executor

This clause provides rules for the construction of dispositions of real property by will to a trustee or executor.

33—Disposition of estates tail do not lapse

This clause provides that subject to a contrary intention appearing in a will, if a person to whom real property disposed of by will for an estate tail or an estate in quasi tail dies during the testator's lifetime leaving issue who would be heritable under the entail and any such issue are living at the time of the testator's death, the disposition does not lapse but takes effect as if the death of that person had happened immediately after the testator's death.

An 'estate tail' (or 'entail' or 'tail') (from the French verb tailler meaning to cut) is defined in Wharton's Law Lexicon (1925) p.831 as 'a freehold of inheritance, limited to a person and the heirs of his body general or special, male or female, and is the creature of the statute De Donis. The estate, if the entail be not barred, reverts to the donor or reversioner, if the donee dies without leaving descendants answering to the conditions annexed to the estate upon its creation, unless there be a limitation over to a third person on default of such descendants, when it vests in such third person or remainder-man'.

34—Effect of referring to valuation in will

This clause provides that if a will refers expressly or by implication to a valuation made or accepted for the purpose of assessing succession duty or any other form of death duty, that reference is, if the valuation contemplated by the reference is not required under the law of this State or of any other place, to be construed as if it were a reference to a valuation made by a competent valuer.

Division 4—Wills made outside the State

35—Interpretation

This clause defines terms used in Division 4.

36—Application of system of law

This clause sets out rules for determining which system of law is to be applied in the case of a will if under this measure the internal law in force in any country or place is to be applied in the case of a will, but there are in force in that country or place 2 or more systems of internal law relating to the formal validity of wills. It also contains rules for determining whether the execution of a will conforms to a particular law and rules with respect to formal requirements where a law in force outside South Australia falls to be applied in relation to a will.

37—General rule as to formal validity

This clause provides that a will executed outside South Australia is to be treated as properly executed for all purposes if its execution conformed to the internal law in force in the place where it was executed, or in the place where, at the time of its execution or of the testator's death, the testator was domiciled or had their habitual residence, or in a country of which, at either of those times, the testator was a national.

38—Additional rules as to validity

This clause sets out more rules about the validity of wills executed outside South Australia.

39—Validity of statutory wills made outside State

This clause provides that a statutory will made according to the law of the place where the deceased was resident at the time of execution will be regarded as a valid will of the deceased. A statutory will is a will executed by virtue of a statutory provision on behalf of a person who, at the time of execution, lacked testamentary capacity.

40—Operation of international wills provisions not limited by this Division

This clause provides that Division 4 does not limit the operation of Division 5.

Division 5—International wills

41—Application of Convention

This clause provides that the Annex to the Convention providing a Uniform Law on the Form of an International Will 1973 signed in Washington D.C. on 26 October 1973 has the force of law in South Australia. The text of the Annex is set out in Schedule 1 of this measure.

42—Persons authorised to act in connection with international wills

This clause authorises Australian legal practitioners and public notaries of an Australian jurisdiction (Commonwealth or a State or Territory) to act in accordance with an international will. An international will is a will made in accordance with the Annex to the Convention.

43—Witnesses to international wills

This clause provides that the conditions requisite to acting as a witness to an international will are governed by South Australian law.

44—Application of Act to international wills

This clause clarifies that the provisions of this measure that apply to wills extend to international wills.

Division 6—Deposit of and access to wills

45—Will may be deposited with Registrar

This clause allows wills to be deposited with the Registrar.

46—Delivery of wills by Registrar

This clause sets out the circumstances in which the Registrar is required to give a will deposited with the Registrar to a person, such as, for example, if the testator applies to be given the will or if the testator has died and the executor or person entitled to apply for letters of administration applies to the Registrar to be given the will.

47—Failure to retain does not affect validity of will

This clause provides that a failure of the Registrar to retain a will does not affect the will's validity.

48—Persons entitled to inspect will of deceased person

This clause sets out a list of persons who are entitled (at their own expense) to inspect or be given a copy of a will (or both) by the person who has possession or control of the will. It also requires the person who has possession or control of a will to produce it to a court if required to do so and empowers the Court to make an order requiring a will to be inspected by a person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person.

Part 3—Probate and administration

Division 1—Interpretation

49—Interpretation

This clause defines terms used in Part 3.

Division 2—Granting and revoking of probate and administration

Subdivision 1—Court's practice in testamentary jurisdiction

50—Practice of Court

This clause provides for the practice of the Court in its testamentary jurisdiction to be the same as the practice of the Court in its jurisdiction under section 5 of the Administration and Probate Act 1919 and section 18 of the Supreme Court Act 1935 immediately before the commencement of this measure.

Subdivision 2—Registrar of Probates

51—Registrar of Probates

This clause provides for the office of Registrar of Probates to continue in existence and for there to be such deputy or acting Registrars of Probate and other officers as may be necessary for the proper administration of this measure. A person is not eligible for appointment as the Registrar or an acting or deputy Registrar unless they are a legal practitioner of at least 5 years standing. A person may only be appointed as the Registrar or an acting or deputy Registrar on the recommendation of the Chief Justice and the Registrar or a deputy Registrar must not be dismissed or reduced in status except on the recommendation or with the concurrence of the Chief Justice.

52—Registrar's powers and authorities

This clause provides that the Registrar has the same powers and authorities with respect to proceedings in the Court as immediately before the commencement of this measure.

53—Exercise by Registrar of jurisdiction, powers or authorities of Court

This clause provides that the Registrar may, to the extent authorised by the Rules of Court, exercise the jurisdiction, powers and authorities of the Court whether arising under this measure or otherwise, and subject to the Rules, an appeal lies to a Judge against a judgment, determination, order, direction or decision given or made by the Registrar in the exercise of a jurisdiction, power or authority of the Court.

54—Probate of will deposited with Registrar

This clause enables an executor of a will deposited with the Registrar to apply for probate if the testator dies.

55—Registrar to obtain direction of Judge in doubtful case

This clause allows the Registrar to obtain the direction of a Judge if the Registrar has doubt in any particular case whether probate or administration should be granted or whether the Registrar should exercise a power or discretion relating to the Registrar's office. If the Registrar obtains a direction, the Registrar must act in accordance with it,

Subdivision 3—General provisions relating to granting and revoking of probate and administration

56—Grant of probate or administration to adults only

This clause prevents the grant of probate or administration to a person under the age of 18.

57—Effect of probate and administration granted interstate or overseas

This clause enables interstate grants of probate or administration to be registered by the Registrar and have the same force, effect and operation as a local grant. It also enables foreign grants of probate or administration to be sealed by the Court and have the same force, effect and operation as a local grant.

58—Provisions for evidence in case of foreign will

This clause enables probate or administration of a foreign will to be granted by the Court in non-contentious cases if the consul or consular agent for the relevant country testifies that the will is valid according to the law of that country, or evidence taken (on commission) in the relevant country is given in support of the will and of the proof of the law affecting the validity of the will.

59—Appointment of joint administrators

This clause allows administration to be granted to more than 1 person.

60—Examination of witnesses

This clause empowers the Court to call and examine persons in proceedings in respect of testamentary matters.

61—Order to produce document purporting to be testamentary

This clause empowers the Court to issue subpoenas for the production of documents being or purporting to be testamentary.

62—Caveats

This clause allows caveats against the grant of probate or administration to be lodged in the Probate Registry of the Court.

63—When persons interested in real property affected by a will are to be served with proceedings

This clause requires devisees and other persons who have or pretend to have an interest in real property affected by a will to be served with proceedings if proceedings are taken for proving the will in solemn form, revoking probate of the will on the ground of invalidity, or if the validity of the will is disputed in a contentious cause or matter. It also sets out the circumstances in which the Court can proceed without serving the persons interested in the real property with proceedings.

64—Grant of administration to duly authorised attorney

This clause provides that if a person who is entitled to be granted probate or administration is outside the State, the person may, by power of attorney, appoint the Public Trustee or a person within the State to act for them, and administration may be granted to the Public Trustee or the other person on behalf of the person who appointed them on such terms and conditions as the Court thinks fit.

65—After grant of administration no person to have power to sue as executor

This clause provides that after a grant of administration no person has power to sue or prosecute any action, or otherwise act as executor of the deceased, as to the estate comprised in or affected by the grant, until that administration has been revoked.

66—Rights of executor renouncing, not acting, or not appearing when cited, to cease as if not named in will

This clause provides that if a person renounces probate of a will of which they are appointed executor, or an executor survives the testator but dies without taking probate, or an executor is cited to take probate but does not appear to the citation, the right of that person or executor in respect of the executorship wholly ceases and the representation of the testator and administration of their estate goes, devolves and is committed in the same manner as if the person had not been appointed executor.

67—Grant of probate or administration to person other than the person otherwise entitled

This clause empowers the Court to grant probate or administration to a person other than the person otherwise entitled to probate or administration if the Court considers it appropriate for the proper administration of the deceased estate and it is in the interests of the persons who are or may be interested in the estate. It also empowers the Court to pass over a person in granting probate or administration if there are reasonable grounds for believing that the person has committed an offence relating to the deceased's death.

68—Special administration

This clause provides that if an executor or administrator is living outside the State at the expiration of 12 months from the death of a person, the Court may grant some other person special administration limited to the collection, management and distribution of the estate of the deceased. If the original executor or administrator returns to the State and the Court is satisfied that they intend to remain here until the estate has been duly administered, the Court may revoke the grant of special administration.

69—Revocation of grant of probate or administration not to prejudice legal action

This clause provides that if proceedings against an executor or administrator are commenced before the revocation of the grant of probate or administration, the Court in which the proceedings are pending may order the revocation of the probate or administration, and the grant of any probate or administration which has been made consequent on the proceedings, to be notified on the record. If proceedings are commenced against an administrator who obtained special administration, the Court in which such proceedings are pending may order the revocation of the special administration.

70—Protection to persons acting in reliance on probate or administration

This clause provides that the revocation of a grant of probate or administration does not render the executor or administrator liable for any prior act done by the executor or administrator in good faith and in reliance on the grant of probate or administration.

If a person acting in good faith and in reliance on a grant of probate or administration, deals with an asset of the estate of a deceased person, the person incurs no personal liability by so doing despite that the grant of probate or administration may subsequently prove to be invalid or be revoked. However, this clause does not affect the rights that may lie against a person to whom property has been invalidly transferred, or to whom a payment has been invalidly made, by an executor or administrator.

71—Statement of assets and liabilities to be provided with application for probate or administration

This clause requires a person who applies for the grant of probate or administration or for the sealing of any grant of probate or administration made by a court outside Australia to disclose to the Court the assets and liabilities of the deceased known to the person at the time of making the application.

If an interstate grant of probate or administration is registered under clause 57, the executor or administrator must, in accordance with the rules, disclose to the Court the assets and liabilities of the deceased person known to the executor or administrator at the time that the grant was registered (but not assets situated outside South Australia or liabilities that arose outside the State).

Also, an executor, administrator or trustee of the estate of a deceased person (being an estate in respect of which a grant of probate or administration has been made or sealed by the Court) must disclose to the Court any assets or liabilities of the deceased person (not being assets or liabilities previously disclosed under this clause) which come to the knowledge of the executor, administrator or trustee while acting in that capacity.

The clause also prohibits an executor, administrator or trustee of an estate from disposing of an asset of the estate of a deceased person in respect of which disclosure has not been made to the Court.

72—Obligation of person dealing with asset to ensure that it has been properly disclosed

This clause requires a person who deals with an asset of the estate of a deceased person that is required to be disclosed under clause 71 to satisfy themself that the asset has in fact been so disclosed.

Subdivision 4—Small estates

73—Deemed grant of probate or administration to Public Trustee for small estate

This clause enables the Public Trustee to administer a small estate without applying for a grant of probate or administration if the Public Trustee gives notice of the Public Trustee's intention to administer the estate in accordance with this clause. A small mestate is an estate not worth more than the maximum monetary value (i.e. $100,000 or such other amount as may be fixed by the Minister from time to time by notice in the Gazette or calculated in accordance with a formula or methodology determined by the Minister by notice in the Gazette from time to time). However, if in the course of administering a small estate, it is found to be worth more than 120% than the maximum monetary value, the Public Trustee must apply for a grant of probate or administration in respect of the estate.

Part 4—Administration of deceased estates

74—Interpretation

This clause defines terms used in Part 4.

75—Vesting of intestate estate on person's death

This clause provides that if a person dies wholly or partially intestate, the person's estate, in so far as it is not affected by a will, vests in the Public Trustee from the time of the person's death until administration is granted in respect of the estate. A person dies wholly intestate if they die without making a will. A person dies partially intestate if they die leaving a will that does not effectively dispose of either the whole or part of their estate (see clause 3(1)).

76—Vesting of land on person's death

This clause provides that on a person's death, any land forming part of their estate (subject to any mortgage, trust or equity affecting the land) vests in their executor(s) if disposed of by will, or in the case of undevised land (land not disposed of by will), in the Public Trustee (and any land so vested, and any proceeds of the sale of the land, are assets in the hands of the executor and are disposable and distributable for the payment of debts and liabilities of the deceased as if the land had been a chattel real forming part of the deceased's estate).

A 'chattel real' is an estate in land that has a definite duration, a period during which the estate is to endure—Wharton's Legal Lexicon (1925) p.160.

77—Vesting of intestate estate on grant of administration

This clause provides that on the grant of administration of a deceased person's estate, the estate that vested in the Public Trustee at the time of the person's death under clause 75 vests in the grantee(s) (and any land so vested and any proceeds of the sale of the land, are assets in the hands of the administrator and are disposable and distributable for the payment of debts and liabilities of the deceased as if the land had been a chattel real forming part of the deceased's estate).

78—Administrator to hold intestate property on trust

This clause provides that the administrator of an intestate estate holds the estate on trust for the persons entitled to share in the estate in accordance with Part 5. Subject to that Part, the administrator may sell, or convert into money, the whole or any part of the intestate estate.

79—Court's powers in relation to management of undevised land

This clause empowers the Court to give directions relating to the management of undevised land on the application of an executor or administrator or a person beneficially interested in the land.

80—Court may order partition of undevised land

This clause empowers the Court to appoint 1 or more arbitrators to effect a partition of undevised land if the Court is satisfied that it would be advantageous to the parties interested.

81—General duties of executors and administrators

This clause sets out the general duties of executors and administrators.

82—Power of executor or administrator to sell real property for payment of debts

This clause empowers executors and administrators to sell land forming part of a deceased estate in order to pay any debts of the estate.

83—Payment of debts and liabilities in the case of solvent estates

This clause provides that if the estate of a deceased person is sufficient to pay all its debts and liabilities, the estate will be applicable towards the discharge of debts and liabilities payable out of the estate in the order set out in that clause.

84—Mortgages and charges on land not be paid out of deceased's residuary or personal estate

This clause provides that if real property is charged with a property debt, the person beneficially entitled to that property through the deceased person is not entitled to have the debt satisfied out of other property forming part of the estate and the real property charged with the debt is primarily liable for the payment of the debt with which it is charged. This rule is subject to a contrary intention signified expressly (and by distinct reference to the money charged) in the deceased's will or a deed or other document.

85—Specialty and simple contract debts of deceased persons to stand in equal degree

This clause provides that despite any Act or law to the contrary, no debt or liability of a deceased person is entitled to priority or preference only because the debt or liability is secured or arises under a bond, deed or other instrument under seal or is otherwise made or constituted a specialty debt rather than a debt under a simple contract, and all the creditors of the person are to be treated as standing in equal degree and are to be paid accordingly out of the assets (whether legal or equitable) of the deceased person.

A 'specialty debt' is a debt secured by writing under seal—Wharton's Legal Lexicon (1925) p.807.

86—Filing of declaration that estate is insufficient to pay debts and liabilities

This clause allows an executor, administrator or creditor of a deceased person to file with the Registrar a declaration that the executor, administrator or creditor (as the case may be) believes that the estate of the deceased person is insufficient for the payment of its debts and liabilities. If such a declaration is filed, the executor or administrator must administer the deceased estate, in so far as it concerns the payment of liabilities, in the same manner (as far as practicable) as it would have been administered for the benefit of creditors under a decree of the Court.

87—Rules in insolvency administration to prevail in certain cases

This clause provides that if an estate is found insufficient to pay the debts and liabilities of the deceased or a declaration that the estate is insufficient has been filed, the same rules are to apply as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future or contingent liabilities respectively, as are in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt.

88—How estate is to be administered

This clause provides that where the Court or the Public Trustee is administering an estate, or an estate is being administered by an executor or administrator under clause 86, the executor or administrator has no right of retainer, and a creditor who has at any time obtained judgment against the executor or administrator does not, by reason of the judgment, have any priority over other creditors, and subject to this measure legal assets are to be administered in the same way as equitable assets.

89—Court may order sale of property belonging to minor

This clause empowers the Court to order the sale of any real or personal property or part of it (whether or not specifically devised or bequeathed) that belongs to a minor or to which a minor is beneficially entitled if the Court considers it for the benefit of the minor that the sale should be effected.

90—Court may give permission to postpone realisation or carry on business

This clause empowers the Court to permit an executor, administrator or trustee of a deceased person, or the Public Trustee, to postpone the realisation of the estate or trust property and carry on the business or affairs of the testator or intestate, and for that purpose to use the estate of the testator or intestate, or such portion of it as the Court directs.

91—Administrator to pay over money and deliver property to Public Trustee

This clause requires an administrator possessed of or entitled to any real or personal property in the State belonging to a person lacking legal capacity, or not resident in the State and having no duly authorised agent or attorney in the State, to pay over money and deliver property to the Public Trustee.

Subject to the provisions of any will or instrument of trust, the Public Trustee may, if satisfied that it would be advantageous to the beneficiaries, authorise the sale of any trust property not exceeding $4,000 in value to the administrator, or to the administrator jointly with any other person, despite the fact that the property has not been offered for sale by public auction or otherwise.

Subject to the provisions of any will or instrument of trust, the Public Trustee may, in the Public Trustee's discretion, realise or postpone the realisation of any property received by the Public Trustee under this clause.

92—Statement and account to be provided to Public Trustee

This clause requires an administrator to provide the Public Trustee with a statement and account, verified by the administrator by statutory declaration, of all of the estate of the deceased and of the administration of it by the administrator within 6 months after administration has been granted, or within such longer period as the Public Trustee may allow.

93—Court may order provision of statement and account

This clause empowers the Court to order an administrator of a deceased estate to provide the Public Trustee with a statement and account, verified by the administrator by statutory declaration, of all of the estate of the deceased and of the administration of it by the administrator.

94—Proceedings to compel provision of statements and account

This clause enables the Public Trustee or any person interested in the estate of a deceased person to cause an administrator who fails to provide a statement and account under clause 92, or fails to comply with an order of the Court under clause 93, to be summoned before a Judge to show cause why the administrator should not provide the statement and account to the Public Trustee immediately.

95—Public Trustee, executors, administrators and trustees may obtain judicial advice or direction

This clause requires the Public Trustee, when in difficulty or doubt, to apply to the Court for advice or direction as to any matter related to the administration of an estate or the construction of a will, deed or other document. It also allows an executor, administrator or trustee, when in difficulty or doubt, to apply to the Court for advice or direction as to any matter related to the administration of any estate or the construction of a will, deed or other document.

96—Commission may be allowed to executors, administrators and trustees

This clause empowers the Court to allow an executor, administrator or trustee, whether of the estate of a deceased person or otherwise, such commission or other remuneration out of the estate or trust property, and either periodically or otherwise, as the Court considers just and reasonable.

97—Court may require undertakings from executor or administrator

This clause empowers the Court to require an executor or administrator to give undertakings as to the manner in which the administration of a deceased estate is to be conducted or accounted, or any other matter that, in the opinion of the Court, may assist in the proper administration of a deceased estate.

98—Remedy if executor or administrator fails to perform duties etc

This clause empowers the Court to make orders against an executor or administrator if they fail to perform any duties required of them by law in the administration of a deceased estate, or they fail to comply with an undertaking as to the administration of a deceased estate or fail to comply with any direction of the Court or the Registrar as to the administration of a deceased estate. An order may be made on the application of a person aggrieved by the failure.

The Court may by order require the executor or administrator to pay into the estate of the deceased person an amount equivalent to any financial benefit the executor or administrator has obtained (whether directly or indirectly) as a result of their failure or compensate any person who has suffered loss or damage as a result of their failure (or both) and may make any other order that the Court considers appropriate to compensate persons who have suffered loss or damage as a result of the failure of the executor or administrator.

99—Payment of interest on legacies

This clause requires interest to be paid at the prescribed rate if a legacy of a specified amount under a will is not paid in full to the beneficiary of the legacy on or before the relevant date (the date fixed by the will, for the payment of the legacy or if no date is fixed by the will the first anniversary of the testator's death).

However, payment of interest on a legacy is subject to a contrary intention in the will about whether interest is payable, the time from which interest is payable, or the rate of interest payable. The clause also provides for interest to be paid at the prescribed rate if a legacy payable to a spouse from an intestate estate in accordance with Part 5 is not paid in full on or before the first anniversary of the deceased's death.

100—Payment of money and personal property without grant of probate or administration

This clause provides that a person who holds money or personal property for a deceased person of not more than $15,000 in value may, without requiring the production of a grant of probate or administration, pay the money or transfer the personal property to a surviving spouse or domestic partner or a child of the deceased.

Part 5—Intestacy

Division 1—Interpretation

101—Interpretation

This clause defines terms used in Part 5 and contains other interpretation provisions.

Division 2—Election by spouse or domestic partner to acquire interest in dwelling

102—Election by spouse or domestic partner to acquire interest in dwelling

This clause provides that if the intestate estate of an intestate who is survived by a spouse or domestic partner includes an interest in a dwelling in which the spouse or domestic partner of the intestate was residing at the date of the intestate's death, the spouse or domestic partner may elect to acquire that interest at its value as at the date of the death of the intestate.

If the spouse or domestic partner makes such an election, the amount to which they are entitled out of the intestate estate will be reduced by the value of that interest and if the value of that interest exceeds the amount to which they are entitled out of the intestate estate, they must, on making the election, pay into the intestate estate the difference between that value and the value of their interest in the intestate estate.

However, if an intestate is survived by a spouse and 1 or more domestic partners, or by no spouse but 2 or more domestic partners, and the estate includes an interest in a dwelling in which the both the spouse and 1 or more domestic partners, or two or more domestic partners, were residing at the date of the intestate's death, then, instead of the making of an election under this clause, any of those persons can apply to the Court for an order authorising the acquisition of the interest.

103—Restriction on right of spouse or domestic partner to acquire interest in dwelling

This clause requires the approval of the Court for an election to be made under clause 102 if the dwelling forms part of a building and the deceased's estate includes an interest in the whole of the building, or the dwelling forms part of a registered or registrable interest in land and the deceased estate includes an interest in the whole of that interest and part or all of the land is used for agricultural purposes, or if the dwelling forms part of a building used as a hotel, motel, boarding house or hostel at the date of the intestate's death.

The Court may not give approval unless satisfied that the acquisition of the interest in the dwelling by the spouse or domestic partner of the intestate is not likely to substantially diminish the value of the assets in the estate of the intestate or make the disposal of the assets of the intestate estate substantially more difficult.

104—Restriction on right of administrator to sell interest in dwelling

This clause prohibits an administrator from disposing of an interest in a dwelling in which the spouse or domestic partner of the intestate was residing at the time of the intestate's death unless the period for the making of an election under clause 102 has expired and no election has been made, or the dwelling has ceased to be the ordinary place of residence of the spouse or domestic partner. If an application is made to the Court for its approval to make an election, the administrator must not dispose of the interest in the dwelling pending determination of the application.

A spouse or domestic partner of an intestate may continue to reside in a dwelling in relation to which the spouse or domestic partner may make an election under clause 102 until the period within which the spouse or domestic partner may make an election has expired or if a person has by virtue of a mortgage or charge the right to enter into possession of the dwelling or to dispose of the interest—until that right is exercised (whichever occurs first).

Division 3—Rules governing distribution of intestate estates

105—General rules as to distribution of intestate estate

This clause sets out general rules as to the distribution of an intestate estate to the spouse or domestic partner of the deceased, children of the deceased and other relatives. If the intestate is not survived by any relatives the intestate estate vests in the Crown.

The clause provides for the spouse or domestic partner of an intestate to receive a preferential legacy if the deceased is survived by the spouse or domestic partner and by children and the estate is worth more than the preferential legacy, which is $120,000 if the entitlement arises during the financial year in which this clause comes into operation, or if the entitlement arises during a financial year commencing after the commencement of this clause—$120,000 or, if the Minister has, by notice in the Gazette, determined a higher amount to be the preferential legacy applying during that financial year, that higher amount.

However, if a spouse or domestic partner is entitled to a preferential legacy and to 1 or more statutory legacies, the preferential legacy is an amount equal to the highest amount fixed by way of statutory legacy under the laws of other States or Territories under which the spouse or domestic partner is entitled to a statutory legacy subject to the following qualifications: (1) amounts received by the spouse or domestic partner by way of statutory legacy under any of those laws are taken to have been paid towards satisfaction of the preferential legacy of the spouse or domestic partner, and (2) if any of those laws contain no provision corresponding to (1), no amount is payable by way of preferential legacy until the entitlements of the spouse or domestic partner under those laws are satisfied, or the spouse or domestic partner renounces their entitlements to payment, or further payment, by way of statutory legacy under those laws.

106—Division of estate if intestate is survived by spouse or domestic partner, or both

This clause sets out the entitlements of a spouse or domestic partner to the personal goods of the deceased and entitlements where a deceased person is survived by both a spouse and a domestic partner. If there is a dispute between the spouse and domestic partner as to the division of personal goods between them, the administrator may sell the goods and divide the proceeds between the spouse and domestic partner equally.

The Court may, on application by the surviving spouse or domestic partner of an intestate, make an order that the estate of the intestate be distributed between the spouse and domestic partner of the intestate in such shares as it considers just and equitable. However, if the Court considers it just and equitable to do so, the Court may make an order allocating the whole of the estate to either the surviving spouse or the domestic partner to the exclusion of the other.

107—Spouse or domestic partner not entitled to intestate estate in certain cases

This clause provides that a spouse or domestic partner of an intestate has no entitlement to any part of the intestate's estate if, immediately before the death of the intestate, an agreement or order of a prescribed kind relating to the interests in property as between the spouse or domestic partner and the intestate was in force.

108—Distribution among children and grandchildren of intestate

This clause sets out rules governing the distribution of an intestate estate, or part of an intestate estate, among the children and grandchildren of the deceased.

109—Distribution among relatives of intestate

This clause sets out rules governing the distribution of an intestate estate among the relatives, or the children of the relatives, of the deceased. The term relative is defined in clause 101 to mean a relative of the first, second, third or fourth degree. A relative of a first degree is a parent of the deceased, a relative of the second degree is a sibling of the deceased, a relative of the third degree is a grandparent of the deceased, and a relative of the fourth degree is a sibling of a parent of the deceased.

110—Intestate estate passes to Crown if no surviving beneficiaries

This clause provides that if an intestate is not survived by any person entitled to the intestate estate under this Part, the Crown is entitled to the whole of the intestate estate. However, the Minister may, on application for a waiver of the Crown's rights, waive the Crown's rights in whole or in part in favour of:

dependants of the intestate; or

any persons who have, in the Minister's opinion, a just or moral claim on the intestate; or

any person or organisation for whom the intestate might reasonably be expected to have made provision; or

the trustees for any person or organisation mentioned in a preceding paragraph; or

any other person or organisation.

Division 4—Distribution of intestate estates according to Court approved agreements

111—Court may approve distribution of intestate estate in accordance with agreement

This clause empowers the Court to order that an intestate estate, or part of an intestate estate, be distributed in accordance with the terms of an agreement approved by the Court. An application for such an order may be made by the administrator. The Court may make such an order if all persons entitled to share in the distribution of the intestate estate, or part of the intestate estate, under Division 3 are parties to the agreement and have been given notice of the application under this clause in accordance with the Rules of Court and the Court is satisfied that the terms of the agreement are, in all the circumstances, just.

Division 5—Miscellaneous

112—Value of intestate estate

This clause provides that the value of an intestate estate is to be calculated by deducting from the gross value of the estate the debts and liabilities of the deceased, funeral and testamentary expenses and the costs of administering the estate, and if the deceased is survived by a spouse or domestic partner, the value of the deceased's personal goods.

113—This Part not to affect operation of Part 6

This clause provides that Part 5 does not affect the operation of Part 6 in relation to an intestate estate.

Part 6—Family provision

114—Interpretation

This clause defines terms used in this Part.

115—Persons entitled to claim under this Part

This clause sets out the classes of relatives of the deceased entitled to claim the benefit of this Part, namely, the spouse, the domestic partner, a former spouse, a former domestic partner, a child, a step-child, a grandchild, a parent and a sibling. However, the entitlements are not absolute.

A former spouse or domestic partner of the deceased is only entitled to claim if they satisfy the Court that—

(a) they were, immediately before the death of the deceased, legally entitled to receive maintenance from the deceased; or

(b) they were not, immediately before the death of the deceased, a party to a financial agreement or property settlement of a kind prescribed by the regulations for the purposes of this clause.

A step-child of the deceased is only entitled to claim if they satisfy the Court that—

(a) they are disabled and significantly vulnerable by reason of their disability; or

(b) they were dependent on the deceased at the time of the deceased's death; or

(c) they cared for, or contributed to the maintenance of, the deceased person immediately before the person's death; or

(d) they substantially contributed to the estate of the deceased person; or

(e) assets accumulated by a parent of the step-child (other than a step-parent) substantially contributed to the estate of the deceased person.

A step-child of the deceased who is a minor is also entitled to claim if they satisfy the Court that they were maintained wholly or partly, or were legally entitled to be maintained wholly or partly, by the deceased person immediately before the person's death.

A grandchild of the deceased is only entitled to claim if they satisfy the Court that the grandchild's parents died before the deceased person or the grandchild was maintained wholly or partly, or was legally entitled to be maintained wholly or partly, by the deceased person immediately before the deceased's death.

A parent of the deceased is only entitled to claim if they satisfy the Court that—

(a) in the case of a deceased person who died in a residential facility—the parent cared for, or contributed to the maintenance of, the deceased person immediately before the person entered a residential facility; or

(b) in any other case—the parent cared for, or contributed to the maintenance of, the deceased person immediately before the person's death.

A sibling of the deceased is only entitled to claim if they satisfy the Court that—

(a) in the case of a deceased person who died in a residential facility—the sibling cared for, or contributed to the maintenance of, the deceased person immediately before the person entered the residential facility; or

(b) in any other case—the sibling cared for, or contributed to the maintenance of, the deceased person immediately before the person's death.

116—Persons entitled may obtain order for maintenance etc out of estate of deceased person

This clause provides that, subject to this Part, if—

(a) a person has died domiciled in this State or owning real or personal property in this State; and

(b) by reason of the person's testamentary dispositions, or the operation of Part 5, or both, a person entitled to claim the benefit of this Part is left without adequate provision for their proper maintenance, education or advancement in life,

the Court may, in its discretion, on application by or on behalf of a person so entitled, make an order (a family provision order) that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.

In determining whether to make a family provision order, the wishes of the deceased person is the primary consideration of the Court. The Court must have regard to—

(a) any evidence of the deceased's reasons for making the dispositions in the deceased's will (if any); and

(b) the applicant's vulnerability and dependence on the deceased; and

(c) the applicant's contribution to the estate of the deceased person; and

(d) the character and conduct of the applicant.

The Court may have regard to any other matter that the Court considers relevant.

In determining whether to make a family provision order, and the amount that a claimant should receive if a family provision order is made, the Court must take into account any government welfare payments that the claimant receives, or may be entitled to receive, and whether the making of a family provision order could worsen the claimant's financial position.

The Court may refuse to make a family provision order in favour of any person on the ground that the person's character or conduct is such as, in the opinion of the Court, to disentitle the person to the benefit of this Part, or for any other reason that the Court thinks sufficient.

117—Power to require security for costs

This clause empowers the Court to order a party to proceedings under this Part to give security for the payment of costs that may be awarded against the party if it appears to the Court that the party's claim for provision may be without merit or the party is unwilling to negotiate a settlement of a claim for provision.

118—Time within which application must be made

This clause provides that an application for a family provision order must be made within 6 months after the grant of probate or administration, but the Court may extend the time for making an application.

119—Provisions relating to family provision orders

This clause makes various provisions with respect to family provision orders, including the power of the Court to alter or rescind such orders.

120—Order to operate as will or codicil

This clause provides that, subject to this measure, every provision made by a family provision order will operate and take effect as if it had been made—

(a) if the deceased person died leaving a will—by a codicil to that will executed immediately before the person's death; or

(b) if the deceased person died intestate—by a will executed immediately before the person's death.

121—Court may fix periodic payment or lump sum

This clause provides that the Court may at any time fix a periodic payment, or lump sum, or a periodic payment and a lump sum, to be paid by any person, to represent, or in commutation of, the proportion of the sum ordered to be paid that falls on the portion of the estate to which the person is entitled, and to exonerate that portion of the estate from further liability. The Court may give incidental directions as to the payment or investment of the lump sum or the manner in which the periodic payments are to be made or secured.

122—Court may vary or discharge order

This clause provides that if the Court has ordered periodic payments, or has ordered a lump sum to be invested for the benefit of any person, the Court may inquire whether at any subsequent date the party benefitted by the order has otherwise become possessed of, or entitled to, provision for the person's proper maintenance, education and advancement, and into the adequacy of that provision, and may discharge, vary, or suspend the order, or make such other order as the Court considers just in the circumstances.

123—Mortgage or assignment of provision invalid

This clause provides that no mortgage, charge or assignment of any kind whatever of or over the provision made by an order under this Part will, unless made with the prior permission of the Court, be of any force, validity or effect.

124—Liability of administrator after distribution of estate

This clause provides that an administrator of the estate of a deceased person who has lawfully distributed the estate or any part of the estate is not liable to account for that estate or that part of the estate (as the case may be) to any person claiming the benefit of this Part, unless the administrator had notice of the claim at the time of the distribution.

Part 7—Miscellaneous

125—Person disqualified from taking interest or share in deceased estate to be treated as having predeceased testator or intestate

This clause provides that if a person is for any reason disqualified from taking their share under a will as a beneficiary or taking their share in the distribution of an intestate estate, they will be treated as having predeceased the testator or intestate (unless a contrary intention appears in the will).

126—Presumption of survivorship

This clause provides that if 2 or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths will, for all purposes affecting title to property, be taken to have occurred in order of seniority, and accordingly the younger person will be taken to have survived the elder person for a period of 1 day.

127—Devolution of jointly-owned property in case of simultaneous deaths

This clause provides that if property is owned jointly and exclusively by 2 or more persons (other than as trustees) and all of the owners of the property die within 30 days of each other or in an order that is uncertain, the property devolves as if the joint owners had, at the time of their deaths, held the property as tenants in common in equal shares.

128—Safe custody of wills and other documents

This clause provides that the Governor may, with the concurrence of the Chief Justice, by notice in the Gazette, appoint places for the safe custody, under the control of the Court, of—

(a) wills deposited with the Registrar under this measure; and

(b) wills brought into the Court for any purpose; and

(c) wills of which probate has been granted; and

(d) wills in relation to which administration (with the will annexed) has been granted; and

(e) such other documents as the Court may direct.

129—Office copies of wills or probate or administration may be obtained

This clause provides that a person may, on payment of the prescribed fee, obtain an office copy of the whole or part of a will or of any grant of probate or administration.

130—Probate to be evidence of wills concerning real property

This clause provides that the probate of a will or letters of administration with the will annexed is evidence of the due execution of the will on all questions concerning real and personal property (and the copy attached or annexed to the probate or letters of administration, purporting to be a copy of the will, is evidence of the contents of the will). The probate of a will or letters of administration is evidence of the death, and of the date of the death, of the testator or intestate.

131—Will not to be registered or admissible as evidence until proved

This clause provides that a will of a person cannot be registered or be admissible in evidence, except in criminal proceedings or on application for probate or letters of administration, until administration in respect of the estate comprised in the application for probate or letters of administration has been granted.

132—Inspection of documents in Land Titles Registration Office or General Registry Office

This clause provides that if the inspection of a deed or other document in the Land Titles Registration Office or the General Registry Office is required by the Registrar for the purposes of this measure, the Registrar-General must produce the deed or document to the Registrar or a person appointed by the Registrar to make the inspection.

133—Power of Public Trustee to move for attachment of administrator

This clause empowers the Public Trustee to institute proceedings for the attachment of an administrator if in the Public Trustee's opinion grounds exist for the attachment of an administrator and it is necessary or desirable for the purpose of protecting the interests of any person that proceedings for the attachment of the administrator be instituted.

134—Restrictions on exercise of rights of retainer and preference

This clause provides that an executor or administrator of the estate of a deceased person must not exercise a right of retainer or preference unless the executor or administrator has reasonable cause to believe, and does believe, that the assets of the estate are sufficient to satisfy its liabilities.

If a right of retainer or preference is exercised in contravention of this clause, the Court may set aside any payment of money or disposition of property that has been made in such contravention and may make any other order that may be just in the circumstances. However, this clause does not prevent an executor or administrator from exercising a right to retain assets from the estate of a deceased person if the extent to which the executor or administrator exercises that right is not such as to confer on the executor or administrator a preference over other creditors of the estate.

135—Delegation

This clause allows the Minister to delegate functions and powers of the Minister under the measure.

136—Person making false oath commits perjury

This clause provides that a person who knowingly and wilfully makes a false oath or declaration under this measure or the Rules of Court is guilty of perjury.

137—Applications to Court

This clause requires applications to the Court to be made in accordance with the Rules of Court.

138—Rules of Court

This clause empowers the Court, or any 1 or more Judges of the Court, to make Rules of Court.

139—Regulations and fee notices

This clause empowers the Governor to make regulations and empowers the Minister to prescribe fees by fees notice under the Legislation (Fees) Act 2019.

Schedule 1—Annex to Convention providing a Uniform Law on the Form of an International Will 1973

This clause sets out the text of the Annex to the Convention providing a Uniform Law on the Form of an International Will 1973.

Schedule 2—Related amendments

Part 1—Amendment of Aged and Infirm Persons' Property Act 1940

1—Amendment of section 11—Variation or rescission of protection order

This clause amends section 11 to update a cross-reference.

2—Amendment of section 31—Expenses and remuneration of manager

This clause amends section 31 to update a cross-reference.

Part 2—Amendment of Guardianship and Administration Act 1993

3—Substitution of heading to Part 4 Division 3

This clause substitutes the heading to Part 4 Division 3.

4—Insertion of Part 4 Division 3A

This clause inserts new Division 3A in Part 4.

Division 3A—Administration orders (missing persons)

48A—Administration orders (missing persons)

Proposed section 48A empowers the Court to appoint 1 or more administrators of the estate of a person if—

(a) the person is a missing person; and

(b) it is not known whether the person is alive; and

(c) all reasonable efforts have been made to locate the person; and

(d) persons residing at the place where the person was last known to reside, or relatives or friends, with whom the person would be likely to communicate, have not heard from, or of, the person for at least 90 days; and

(e) it is in the best interests of the missing person to make an administration order.

The Court must not appoint a person as an administrator of a missing person's estate unless satisfied that the person is fit and proper to act as administrator, the person is competent to administer the missing person's estate, and the appointment would not give rise to a conflict of interest.

An administration order authorises the administrator to take such action as may be necessary or desirable for the payment of the missing person's debts, the maintenance and benefit of dependants of the missing person and the care and maintenance of property of the missing person.

An application for an administration order may be made by the missing person's spouse or domestic partner, by a relative, by another person who has an interest in the missing person's estate, or by the Public Trustee.

Part 3—Amendment of Law of Property Act 1936

5—Amendment of section 114—Power of Court to sell interest of Crown in real estate

This clause deletes subsection (3) from section 114 which is made redundant by this measure.

6—Repeal of section 115

This clause deletes section 115 which is made redundant by clause 110 of this measure.

Part 4—Amendment of Public Trustee Act 1995

7—Substitution of section 52

This clause substitutes a new section.

52—Deposit of certain wills and other documents with Public Trustee

Substituted section 52 provides that the following documents made be deposited for safe custody with the Public Trustee:

(a) a will of which the Public Trustee is appointed the executor or 1 of the executors;

(b) a will prepared by a legal practitioner who has died or has ceased, or is about to cease, the practice of the law in South Australia;

(c) a will held by a legal practitioner or legal practice that was executed by a testator who cannot be located; or

(d) a settlement, declaration of trust or other instrument by 30 which a trust is declared or created concerning property of any kind where the Public Trustee is appointed the trustee or 1 of the trustees; or

(e) any other document prepared by the Public Trustee.

The Public Trustee must keep a register of wills deposited with the Public Trustee and no fee is payable for depositing a will, but a person may be charged a fee for searching for a will, recovery of a will or delivery of a will. The Public Trustee may destroy a will deposited with the Public Trustee if the testator has died and a reasonable period has elapsed during which a person might be expected to have sought access to the will.

8—Substitution of section 55

This clause substitutes a new section.

55—Regulations and fee notices

Substituted section 55 empowers the Governor to make regulations and empowers the Minister to prescribe fees by fees notice under the Legislation (Fees) Act 2019

Part 5—Amendment of Supreme Court Act 1935

9—Substitution of section 18

This clause substitutes section 18.

18—Testamentary jurisdiction

Substituted section 18 restates the Supreme Court's testamentary jurisdiction in modern language.

Part 6—Amendment of Trustee Act 1936

10—Amendment of section 91—Advice and directions of court and commission

This clause amends section 91 to update cross-references to legislation.

Schedule 3—Repeals and revocations

1—Repeal of Administration and Probate Act 1919

2—Repeal of Inheritance (Family Provision) Act 1972

3—Repeal of Wills Act 1936

4—Revocation of Administration and Probate Regulations 2009

These clauses are self-explanatory.

Schedule 4—Savings and transitional provisions

This Schedule allows proceedings commenced in the Supreme Court under an Act repealed by Schedule 3 that have not been finally determined before the designated day to be continued and completed under that Act as if this measure had not been enacted.

Debate adjourned on motion of Hon. H.M. Girolamo.

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