Succession Act 1981 – 22 March 2016
Succession Act 1981 – 22 March 2016
Quick to view summary
Every adult may make a will to dispose of their property at death.
- Sections 8, 9, 33E
A will to be valid must be in writing, signed by the person making the will and two witnesses who were present at the signing.
- Section 10
A disposition to a beneficiary who witnessed the will is generally void.
- Sections 5, 11
A will can be revoked in a number of ways including by intentional destruction or by a later will.
- Section 13
Marriage or entering into a registered relationship generally revokes a will. One main exception is where the will is made in contemplation of marriage or registered relationship.
- Sections 13, 14, 14A
Divorce or termination of a registered relationship generally revokes a deposition to the former spouse/ registered partner.
- Sections 15, 15A
Schedule 3 of this Act contains the requirements for international wills (a will effective in overseas jurisdictions).
- Sections 33YA, 33YB, 33YE, Schedule 3
Upon the testator’s death, an entitled person (including beneficiaries and creditors) may request a certified copy of the will from a person in possession or control of the will on payment of reasonable expenses.
- Section 33Z
Where a person dies without a will or a will that does not dispose of property effectively, that person dies intestate and their estate is to be distributed according to Schedule 2 of this Act.
- Sections 5, 5AA, 34, 34A, 35, 38, Schedule 2
Where a person dies and adequate provision is not made for a spouse, child or dependant, an application for provision may be made to the Supreme Court (within nine months).
- Sections 5, 40, 41, 44, 49A, 72
If there is no executor or no executor willing to act, the property of the deceased on their death vests in the Public Trustee.
- Section 45
The duties of a personal representative of a deceased person include collecting and getting in the real and personal estate of the deceased and administering it according to law.
- Section 52
A personal representative who in good faith and without negligence has sought and obtained a grant is not liable for any legacy paid or asset distributed in good faith and without negligence in reliance on the grant (notwithstanding any subsequent variation).
- Section 53
An executor who intermeddled in the administration of the estate before applying for a grant of probate may renounce his or her executorship (notwithstanding his or her intermeddling).
- Section 54
The estate of a deceased is to firstly pay the debts of the deceased. Where the estate is solvent (bankruptcy does not apply), the order of payment is set out in section 59.
- Sections 5, 56, 57, 59
A parent or guardian of a child may, by will, appoint a person as a guardian of the child.
- Sections 61A, 61C, 61D, 61E, 61F, 61G
Reason for law
Highlighted practice direction
Section 5A contains the phrase ‘en ventre sa mere’. This phrase is not commonly understood by members of the public.
Section 5C: notes forming part of an Act is not common for Acts of Parliament.
Section 10 contains the word ‘solemnity’. This word is not commonly understood by members of the public.
Section 39 contains the phrase ‘inter vivos’. This phrase is not commonly understood by members of the public.
Sections 41 and 59 contain variations of the phrase ‘donation mortis causa’. This phrase is not commonly understood by members of the public.
It may be at odds with society that a third party may become an executor of an estate by virtue of section 47
Section 49 contains the word ‘hitherto’. This word is not commonly understood by members of the public.
Schedule 2 contains the phrase ‘bona vacantia’. This phrase is not commonly understood by members of the public.
It may be recommended that a provision of a will making a disposition conditional on marriage or registered relationship could be made to take effect without that condition having been fulfilled. Such dispositions in a will are likely to encourage the formation of relationships that are purely for convenience only.
- Emergency Short Term Will
- Wills: Client instruction checklist – QLD
- Wills: Initial client letter – QLD
- Wills: Facebook clause
Suggested further reading
- Family Provision in Australia – 5th Edition (2016)
- Death & Taxes: Tax Effective Estate Planning – 6th Edition (2014)
- Family Business Succession Guide – 2nd Edition (2014)
- Statutory Will Applications: A Practical Guide (2013)
- Principles of Australian Succession Law – 2nd Edition (2013)
- Hutley’s Australian Wills Precedents – 8th Edition (2013)
- Succession: Families, Property and Death – 4th Edition (2013)
- Law of Succession (2012)
- Lee’s Manual of QLD Succession Law – 7th Edition (2012)
- Australian Family Provision Law (2011)
- Mason & Handler’s Introduction to the Succession Act 2006 – The Law of Wills (2008)
- Drafting Trusts & Will Trusts in Australia (2008)
- Construction of Wills in Australia (2007)
- Mutual Wills (2000)
Not until long familiar scenes and circumstances have passed away for ever, can we know how happy we were in them, and what a blank has arisen in our lives. Rarely, until the loved has become the lost, as far as earth is concerned, do we appreciate at its true value the quiet, unobtrusive beauty of a life that is never more to make our sunshine. The light of other days has faded, and the same light can never again brighten those that are to come. Charles W. Wood (1880)
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