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First print

New South Wales

Succession Amendment (Family Provision) Bill 2008

Explanatory noteThis explanatory note relates to this Bill as introduced into Parliament.

Overview of BillThe National Committee for Uniform Succession Laws submitted reports onproposed national uniform laws on family provisions to the Standing Committee ofAttorneys-General in December 1997 and July 2004. The New South Wales LawReform Commission Report 110 Uniform succession laws: family provision (May2005) sets out draft model provisions to implement the earlier reports. These enablea court to override the terms of a deceased person’s will or the distribution of adeceased person’s estate on intestacy if it determines it is necessary to do so to ensurethat the family and other dependants of a deceased person are adequately providedfor. The Family Provision Act 1982 of New South Wales was used as a basis for themodel provisions.The objects of this Bill are: (a) to amend the Succession Act 2006 (the 2006 Act) to enact, with some

modifications, the model provisions as a new Chapter 3 of that Act, and(b) to enable the making of regulations to control costs and advertising of legal

services in relation to such applications, and (c) to repeal the Family Provision Act 1982 (the 1982 Act), and

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(d) to make various provisions of a savings, transitional or consequential nature.

Outline of provisionsClause 1 sets out the name (also called the short title) of the proposed Act.Clause 2 provides for the commencement of the proposed Act (with the exception ofSchedule 2.1) on a day or days to be appointed by proclamation.Clause 3 is a formal provision that gives effect to the amendments to the SuccessionAct 2006 set out in Schedule 1.Clause 4 is a formal provision that gives effect to the amendments to various otherActs set out in Schedule 2.Clause 5 repeals the Family Provision Act 1982.Clause 6 provides for the repeal of the proposed Act after all the amendments madeby the proposed Act have commenced. Once the amendments have commenced theproposed Act will be spent and section 30 of the Interpretation Act 1987 providesthat the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendment of Succession Act 2006Schedule 1 [10] inserts a new Chapter 3 into the 2006 Act and makes a consequentialamendment to existing Chapter 3 to renumber it (and the sections it contains) asChapter 4 and sections 101–106, respectively. Schedule 1 [2]–[5] insert definitionsand other interpretation provisions into section 3 of the 2006 Act for the purposes ofthe new Chapter 3. A family provision order is defined as an order made by the Courtunder proposed Chapter 3 in relation to the estate or notional estate of a deceasedperson to provide from that estate for the maintenance, education or advancement inlife of an eligible person. Property is defined to include a valuable benefit. InSchaeffer v Schaeffer (1994) 36 NSWLR 315 an increase in the value of shares heldby others as a result of the conversion of a deceased’s shares to preference shares onhis or her death was found to be a valuable benefit. A definition of close personalrelationship is also included for the purposes of proposed sections 57 (f) and59 (1) (b).Schedule 1 [1] makes a consequential amendment to the long title of the 2006 Actand Schedule 1 [6], [7] and [9] make consequential amendments to sections 13, 19and 28 of the 2006 Act.

New Chapter 3 Family provisionThe new Chapter contains 4 Parts.

Part 3.1 Application of ChapterProposed section 55 is an interpretation provision describing the meaning ofadministration in the proposed Chapter.

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Proposed section 56 provides for the proposed Chapter to bind the Crown.

Part 3.2 Family provision orders

Division 1 Applications for family provision ordersProposed section 57 specifies the persons (the eligible persons) who may apply tothe Supreme Court or District Court (the Court) for a family provision order inrespect of the estate of a deceased person. The persons specified are the same as thosecurrently eligible to apply for an order under the 1982 Act. However, under the 1982Act a person who is in a domestic relationship with the deceased person (which isessentially defined as a de facto relationship or close personal relationship (other thanmarriage or a de facto relationship)) at the time of the deceased person’s death isentitled to apply as of right for a family provision order. Under proposed section 59a person in a de facto relationship will be entitled to apply as of right but a person ina close personal relationship will be able to apply only if the Court is satisfied thatthe circumstances warrant the application (see proposed section 59 (1) (b)). Howevera child of such a relationship will continue to be able to apply as of right.Proposed section 58 states when an application for a family provision order may bemade. Under section 7 of the 1982 Act, the Court may make a family provision orderonly on an application in relation to a deceased person in respect of whomadministration has been granted. Proposed section 58 (1) provides for the Chapter tocover situations where it is not necessary, in some circumstances, to seek a grant ofadministration in order to administer a deceased estate. The time limit for making anapplication for a family provision order is set by proposed section 58 (2) at not laterthan 12 months after the date of death of the deceased person. Under section16 (1) (b) of the 1982 Act, the current time limit is generally 18 months.

Division 2 Determination of applicationsProposed section 59 empowers the Court to make a family provision order for themaintenance, education or advancement in life of a person who the Court is satisfiedis an eligible person. The Court must also be satisfied that, at the time the order ismade, adequate provision is not made by the will of the deceased person or theoperation of the rules of intestacy. Proposed section 59 (3) (a) allows the Court tomake a further order for family provision in favour of an eligible person who hassuffered a detrimental change in circumstances since a previous order for provisionwas made in the person’s favour. Proposed section 59 (3) (b) allows the Court tomake a further order for family provision where the existence of certain property inan estate (or notional estate) of the deceased was not known at the time of the earlierorder, the undisclosed property would have increased the value of the estatesubstantially and the Court would not have made the previous family provision orderif the evidence had revealed the existence of that undisclosed property. Proposedsection 59 (4) allows the Court to make an order in favour of an eligible personwhose application for a family provision order was previously refused if at the timeof the refusal there was undisclosed property that would, if its existence had been



Explanatory note

known at the time of the refusal, have increased the value of the estate. Proposedsection 59 (other than section 59 (3) (b) and (4)) is based on sections 7, 8 and 9 (2)of the 1982 Act.Proposed section 60 sets out the matters the Court may have regard to indetermining whether a person is an eligible person, whether to make an order and thenature of the order.Proposed section 61 permits the Court to disregard the interests of a person who hasnot made an application for a family provision order. It is based on section 20 of the1982 Act but differs slightly from that section in that it makes it clear that theinterests of existing beneficiaries (either under the will or on intestacy) must be takeninto account even if they have not made an application for a family provision order.Proposed section 62 enables the Court to make interim family provision orders. It isbased on section 9 (5) and (6) of the 1982 Act.

Division 3 Property that may be used for family provision orders

Proposed section 63 identifies the property that may be subject to a family provisionorder. The property available is the property in the deceased’s estate. Property thathas ceased to be part of the deceased’s estate or has been distributed, either before orafter death, may also be subject to an order if it is designated by the Court as notionalestate by an order under Part 3.3 of Chapter 3. It is based on the definition of estatein section 6 (1), and section 6 (4) and (5), of the 1982 Act.Proposed section 64 empowers the making of family provision orders in respect ofproperty situated both in, and outside, New South Wales. It is based on section11 (1) (b) of the 1982 Act.

Division 4 General provisions relating to family provision orders

Proposed section 65 sets out the matters that the Court must specify in a familyprovision order and enables the Court to require provision to be made in variousways. Proposed section 65 (2) and (3) are based on section 11 (1) (a) and (d),respectively, of the 1982 Act.Proposed section 66 allows the Court to make consequential or ancillary orders togive full effect to a family provision order. It is based on section 15 (1) and 34 of the1982 Act. It also enables the making of additional consequential orders to makeadjustments that are necessary to be just and equitable to all persons affected by themaking of a family provision order.Proposed section 67 allows the Court to require an undertaking to be entered into,or security given, to restore property received under a family provision order if theorder is later revoked because the deceased person was not deceased when it wasmade. It is based on section 18 of the 1982 Act.



Explanatory note

Proposed section 68 enables a beneficiary of the estate of a deceased person toobtain an order from the Court to make periodic payments to an applicant in whosefavour a family provision order has been made.Sections 78 and 79 of the Trustee Act 1925 deal with the effect of vesting ordersrelating to the conveyance or release of property. Proposed section 69 applies thosesections to the vesting of property under proposed section 66. Proposed section 70 specifies the circumstances in which the Court may revoke orvary a family provision order. It is based on sections 19 (1)–(3) and 20 (4) of the 1982Act.Proposed section 71 provides for the variation and revocation of consequential andancillary orders and making of any necessary additional orders. It is based on section19 (4) of the 1982 Act.Proposed section 72 describes how a family provision order takes effect. It is basedon section 14 (1) of the 1982 Act.Proposed section 73 clarifies the application of Part 3.2 of Chapter 3 with respect tointerim family provision orders (proposed section 62) and property designated as partof the notional estate of a deceased person under Part 3.3 (other than section 63).

Part 3.3 Notional estate ordersNotional estate orders are orders issued by the Court which are intended to makeavailable for family provision orders assets that are no longer part of the estate of adeceased person because they have been distributed either before or after thedeceased’s death (either with or without the intention of defeating applications forfamily provision orders). Part 3.3 enables the Court in limited circumstances to makean order designating property that is not included in the estate, or has been distributedfrom the estate, as notional estate of the deceased person for the purpose of makinga family provision order under Part 3.2 in respect of the estate of the deceased person(or for the purpose of ordering that costs in the proceedings be paid from the notionalestate). Part 3.3 is based on, and essentially restates with some additions, Division 2of Part 2 of the 1982 Act.

Division 1 Relevant property transactionsProposed section 74 defines relevant property transaction for the purposes of thePart as being a transaction described in proposed section 75 or 76. Proposed section 75 provides that a person enters into a relevant propertytransaction if the person does, directly or indirectly, or omits to do, any act as a resultof which the property becomes held by another person (whether or not as a trustee),or subject to a trust and where full valuable consideration is not given to the personfor doing or not doing the act.Proposed section 76 sets out examples of relevant property transactions for thepurposes of proposed section 75.



Explanatory note

Proposed section 77 describes when a relevant property transaction is taken to haveeffect for the purposes of Chapter 3.

Division 2 When notional estate orders may be madeDivision 2 identifies the circumstances in which a notional estate order may be made.Proposed section 78 limits the circumstances in which the Court may make anotional estate order for the purpose of ordering that costs be paid from the notionalestate of a deceased person. The Court cannot order that the costs of an applicant bepaid from the notional estate of the deceased person unless the Court has made afamily provision order in favour of the applicant.Proposed section 79 allows the Court to designate as notional estate property thathas already been distributed. Unlike under proposed section 81, no specialcircumstances are required before the Court may make an order.Proposed section 80 allows the Court to designate as notional estate property thathas been transferred during the lifetime of the deceased by means of a relevantproperty transaction. Unlike under proposed section 81, no special circumstances arerequired before the Court may make an order.Proposed section 81 allows the Court to designate as notional estate property that itcould have designated as such property under other provisions of proposed Chapter3 but that has been transferred to another person. The making of such an order iswarranted only in special circumstances because of the impact of such an order onthis third person. Proposed section 81 (1) (a) (ii) makes it clear that such an order canbe made in respect of property transferred by a deceased transferee.Proposed section 82 allows the Court to designate as notional estate property thathas been transferred into the hands of a person who has subsequently died where theproperty has come into the hands of the person’s legal representative or has beendistributed from their estate. The proposed section is intended to overcome thedecision in Prince v Argue [2002] NSWSC 1217.Proposed section 83 restricts the power of the Court to make a notional estate orderunless a relevant person or estate is disadvantaged.Proposed section 84 provides for an order designating property as notional estate toprevail over any other rights or interest in the property concerned.Proposed section 85 enables the Court to make multiple notional estate orders inconnection with the same or subsequent proceedings relating to an estate.Proposed section 86 draws attention to the restrictions and protections set out inDivision 3.

Division 3 Restrictions and protections relating to notional estate orders

Proposed section 87 specifies general matters that the Court must take intoconsideration in before making a notional estate order.



Explanatory note

Proposed section 88 sets out certain powers and restrictions of a Court in relation tothe making of a notional estate order. Unlike section 28 (1) of the 1982 Act, it allowsa notional estate order to be made when the deceased person’s estate is insufficientfor any order as to costs that the Court considers should be made. Proposed section 89 specifies certain particular matters that the Court must take intoconsideration in before making a notional estate order.Proposed section 90 places restrictions on the Court’s ability to make notional estateorders out of time or for further provision.

Part 3.4 MiscellaneousProposed section 91 enables a person to obtain a grant of probate for familyprovision purposes. It is based on section 41A of the Probate and Administration Act1898. As a consequence, section 41A is repealed by Schedule 2.9 [2].Proposed section 92 allows the Court to substitute certain property for propertydesignated or proposed to be designated as notional estate of a deceased person.Proposed section 93 protects the legal representative of an estate of a deceasedperson from liability if the legal representative has distributed the estate at least 6months after the deceased person’s death and after publishing notice of the intentionto distribute.Proposed section 94 protects the legal representative of an estate of a deceasedperson from liability if the legal representative has distributed the estate so as toprovide things immediately necessary for the maintenance or education of a personentitled to make an application for a family provision order who was wholly orsubstantially dependent on the deceased person immediately before his or her death.Proposed section 95 provides for the Court’s approval of any release by a person ofhis or her rights to make an application under the proposed Act. A release that hasnot been approved by the Court has no effect.Proposed section 96 enables the Court to revoke its approval of a release.Proposed section 97 enables the Court to determine the date or time of death of aperson.Proposed section 98 provides for the mediation of applications and the making offamily provision orders with the consent of the affected parties.Proposed section 99 enables the Court to order that the costs of proceedings underChapter 3 in relation to the estate or notional estate of a deceased person be paid outof the estate or notional estate, or both, in such manner as the Court thinks fit andenables regulations to be made with respect to maximum costs.Proposed section 100 makes provision with respect to the admission in evidence ofstatements made by a deceased person during the person’s lifetime in proceedingsunder the proposed Chapter.Schedule 1 [8] substitutes section 27 (2) of the 2006 Act. Proposed section 27 (2)requires a person who wishes to make an application for an order to rectify a will toapply to the Court within 12 months after the death of the testator. At present,



Explanatory note

application must be made within 18 months after the death of the testator or suchlesser period as may be specified by a Court making an order under section 17 of theFamily Provision Act 1982. The Court has the power under section 27 (3) to extendthe period in certain circumstances.Schedule 1 [11]–[13] amend section 56 of the 2006 Act (as renumbered by Schedule1 [10] as section 102) to make it clear that rules of court may be made with respectto costs payable out of small estates and other estates and the informal proof ofcertain matters.Schedule 1 [15] updates a reference in Schedule 1 to a section renumbered bySchedule 1 [10].Schedule 1 [16] amends Schedule 1 to the 2006 Act to enable the making of savingsand transitional regulations.Schedule 1 [17] amends Schedule 1 to the 2006 Act to make various savings andtransitional provisions.Schedule 1 [18] repeals Schedules 2 and 3. The amendments contained in thoseSchedules have commenced and are spent. Schedule 1 [14] makes a consequentialamendment.

Schedule 2 Amendment of other ActsSchedule 2.2–2.16 make consequential amendments to various Acts.Schedule 2.1 amends the Conveyancing Act 1919 to restore, with effect from1 March 2008, a provision (section 36B (2)) that was inadvertently repealed on thedate of commencement of the 2006 Act. It also amends Schedule 9 to theConveyancing Act 1919 to clarify the effect of a savings provision relating to therepeal of section 36B (1) of that Act on that date.


Contents

New South Wales


First print

Page1 Name of Act 22 Commencement 23 Amendment of Succession Act 2006 No 80 24 Amendment of other Acts 25 Repeal of Family Provision Act 1982 No 160 26 Repeal of Act 2

Schedule 1 Amendment of Succession Act 2006 3Schedule 2 Amendment of other Acts 38

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No , 2008

A Bill for


New South Wales

An Act to amend the Succession Act 2006 to ensure that adequate provision is madefor members of the family of a deceased person, and certain other persons, from theestate of the deceased person; to repeal the Family Provision Act 1982; and for otherpurposes.

Succession Amendment (Family Provision) Bill 2008 Clause 1

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The Legislature of New South Wales enacts:

1 Name of ActThis Act is the Succession Amendment (Family Provision) Act 2008.

2 Commencement(1) This Act commences on a day or days to be appointed by proclamation,

except as provided by subsection (2).(2) Schedule 2.1 is taken to have commenced on 1 March 2008.

3 Amendment of Succession Act 2006 No 80The Succession Act 2006 is amended as set out in Schedule 1.

4 Amendment of other ActsThe Acts specified in Schedule 2 are amended as set out in thatSchedule.

5 Repeal of Family Provision Act 1982 No 160The Family Provision Act 1982 is repealed.

6 Repeal of Act(1) This Act is repealed on the day following the day on which all of the

provisions of this Act have commenced.(2) The repeal of this Act does not, because of the operation of section 30

of the Interpretation Act 1987, affect any amendment made by this Act.

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Schedule 1 Amendment of Succession Act 2006(Section 3)

[1] Long titleInsert “to ensure that adequate provision is made for the members of the familyof a deceased person, and certain other persons, from the estate of the deceasedperson;” after “Wales;”.

[2] Section 3 DefinitionsOmit the definition of Court from section 3 (1). Insert instead:

Court means:(a) the Supreme Court, in relation to any matter (including a

matter referred to in paragraph (b)), or(b) the District Court, in relation to a matter under Chapter 3

for which it has jurisdiction under section 134 of theDistrict Court Act 1973.

[3] Section 3 (1)Insert in alphabetical order:

administration of the estate of a deceased person is defined insection 55.close personal relationship is defined in subsection (3).costs, in relation to proceedings under this Act, means costspayable in or in relation to the proceedings, and includes fees,disbursements, expenses and remuneration.deceased person includes any person in respect of whose estateadministration has been granted.deceased transferee means a deceased transferee referred to insection 81 or 82.de facto relationship has the same meaning as it has in theProperty (Relationships) Act 1984.domestic relationship has the same meaning as it has in theProperty (Relationships) Act 1984.eligible person means a person who may make an application fora family provision order under section 57.family provision order means an order made by the Court underChapter 3 in relation to the estate or notional estate of a deceasedperson to provide from that estate for the maintenance, educationor advancement in life of an eligible person.legal representative of an estate is defined in section 55 (2).

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notional estate of a deceased person means property designatedby a notional estate order as notional estate of the deceasedperson.notional estate order means an order made by the Court underChapter 3 designating property specified in the order as notionalestate of a deceased person.property includes any valuable benefit.

[4] Section 3 (3) and (4)Insert after section 3 (2) and renumber section 3 (3) as section 3 (5):

(3) For the purposes of this Act, a close personal relationship is aclose personal relationship (other than a marriage or a de factorelationship) between two adult persons, whether or not relatedby family, who are living together, one or each of whom providesthe other with domestic support and personal care.

(4) For the purposes of subsection (3), a close personal relationshipis taken not to exist between two persons where one of themprovides the other with domestic support and personal care:(a) for fee and reward, or(b) on behalf of another person or an organisation (including a

government or government agency, a body corporate or acharitable or benevolent organisation).

[5] Section 3, noteInsert “References in headings to sections of this Act to “FPA” are referencesto the Family Provision Act 1982 as in force immediately before it wasrepealed by the Succession Amendment (Family Provision) Act 2008.” after“this Act.”.

[6] Section 13 What is the effect of divorce or an annulment on a will?Omit “the Family Provision Act 1982” from section 13 (5) (a).Insert instead “Chapter 3 of this Act”.

[7] Section 19 Information required in support of application for leaveOmit “the Family Provision Act 1982” from section 19 (2) (i).Insert instead “Chapter 3 of this Act”.

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[8] Section 27 Court may rectify a willOmit section 27 (2). Insert instead:

(2) A person who wishes to make an application for an order underthis section must apply to the Court within 12 months after thedate of the death of the testator.

[9] Section 28 Protection of personal representatives who distribute as if will had not been rectifiedOmit “under the Family Provision Act 1982” from section 28 (2) (b).Insert instead “under Chapter 3”.

[10] Chapter 3Insert after section 54 and renumber Chapter 3 as Chapter 4 and sections55–60 as sections 101–106, respectively:

Chapter 3 Family provision

Part 3.1 Application of Chapter55 Interpretation

(1) For the purposes of this Chapter, administration is granted inrespect of the estate of a deceased person if:(a) probate of the will of the deceased person is granted in

New South Wales or granted outside New South Wales butsealed in accordance with section 107 (1) of the Probateand Administration Act 1898, or

(b) letters of administration of the estate of the deceasedperson are granted in New South Wales or granted outsideNew South Wales but sealed in accordance with section107 (1) of the Probate and Administration Act 1898,whether the letters were granted with or without a willannexed and whether for general, special or limitedpurposes, or

(c) an order is made under section 18 (2) or 23 (1) of thePublic Trustee Act 1913 in respect of the estate of thedeceased person, or

(d) an election is made by the Public Trustee under section18A of the Public Trustee Act 1913 in respect of the estateof the deceased person, or

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(e) an election is made by a trustee company under section15A of the Trustee Companies Act 1964 in respect of theestate of the deceased person.

(2) For the purposes of this Chapter, the legal representative of theestate is the person to whom administration is granted.

(3) A reference in this Chapter to a person entitled to exercise apower means a person entitled to exercise a power, whether ornot the power:(a) is absolute or conditional, or(b) arises under a trust or in some other manner, or(c) is to be exercised solely by the person or by the person

together with one or more other persons (whether jointly orseverally).

(4) A reference in this Chapter to property held by a person includesproperty in relation to which the person is entitled to exercise apower of appointment or disposition in favour of himself orherself.

56 Chapter to bind Crown (cf FPA 5)

This Chapter binds the Crown in right of New South Wales and,in so far as the legislative power of the Parliament of New SouthWales permits, the Crown in all its other capacities.

Part 3.2 Family provision orders

Division 1 Applications for family provision orders57 Eligible persons (cf FPA 6 (1), definition of “eligible person”)

The following are eligible persons who may apply to the Courtfor a family provision order in respect of the estate of a deceasedperson:(a) a person who was the wife or husband of the deceased

person at the time of the deceased person’s death,(b) a person with whom the deceased person was living in a de

facto relationship at the time of the deceased person’sdeath,

(c) a child of the deceased person or, if the deceased personwas, at the time of his or her death, a party to a domesticrelationship, a person who is, for the purposes of theProperty (Relationships) Act 1984, a child of thatrelationship,

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Note. A stepchild or foster child is not a child of a domesticrelationship—see section 5 (3) of the Property (Relationships)Act 1984.

(d) a former wife or husband of the deceased person,(e) a person:

(i) who was, at any particular time, wholly or partlydependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was,at that particular time or at any other time, a memberof the household of which the deceased person wasa member,

(f) a person with whom the deceased person was living in aclose personal relationship at the time of the deceasedperson’s death.

Note. Section 60 sets out the matters that the Court may consider whendetermining whether to make a family provision order, and the nature ofany such order. An application may be made by a tutor (within themeaning of the Civil Procedure Act 2005) for an eligible person who isunder legal incapacity.

58 When an application may be made (cf FPA 16 (1) (b) and 17)

(1) An application for a family provision order may be made whetheror not administration of the estate of the deceased person hasbeen granted.Note. Administration may be granted for the purposes of an applicationfor a family provision order (see section 91).

(2) An application for a family provision order must be made notlater than 12 months after the date of the death of the deceasedperson, unless the Court otherwise orders on sufficient causebeing shown.

(3) An application is taken to be made on the day it is filed in theCourt’s registry.

Division 2 Determination of applications59 When family provision order may be made (cf FPA 7–9)

(1) The Court may, on application under Division 1, make a familyprovision order in relation to the estate of a deceased person, ifthe Court is satisfied that:(a) the person in whose favour the order is to be made is an

eligible person, and

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(b) in the case of a person who is an eligible person by reasononly of paragraph (d), (e) or (f) of the definition of eligibleperson in section 57—having regard to all thecircumstances of the case (whether past or present) thereare factors which warrant the making of the application,and

(c) at the time when the Court is considering the application,adequate provision for the proper maintenance, educationor advancement in life of the person in whose favour theorder is to be made has not been made by the will of thedeceased person, or by the operation of the intestacy rulesin relation to the estate of the deceased person, or both.

(2) The Court may make such order for provision out of the estate ofthe deceased person as the Court thinks ought to be made for themaintenance, education or advancement in life of the eligibleperson, having regard to the facts known to the Court at the timethe order is made.Note. Property that may be the subject of a family provision order is setout in Division 3. This Part applies to property, including property that isdesignated as notional estate (see section 73). Part 3.3 sets out propertythat may be designated as part of the notional estate of a deceasedperson for the purpose of making a family provision order.

(3) The Court may make a family provision order in favour of aneligible person in whose favour a family provision order haspreviously been made in relation to the same estate only if:(a) the Court is satisfied that there has been a substantial

detrimental change in the eligible person’s circumstancessince a family provision order was last made in favour ofthe person, or

(b) at the time that a family provision order was last made infavour of the eligible person:(i) the evidence about the nature and extent of the

deceased person’s estate (including any propertythat was, or could have been, designated as notionalestate of the deceased person) did not reveal theexistence of certain property (the undisclosedproperty), and

(ii) the Court would have considered the deceasedperson’s estate (including any property that was, orcould have been, designated as notional estate of thedeceased person) to be substantially greater in valueif the evidence had revealed the existence of theundisclosed property, and

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(iii) the Court would not have made the previous familyprovision order if the evidence had revealed theexistence of the undisclosed property.

(4) The Court may make a family provision order in favour of aneligible person whose application for a family provision order inrelation to the same estate was previously refused only if, at thetime of refusal, there existed all the circumstances regardingundisclosed property described in subsection (3) (b).

60 Matters to be considered by Court (cf FPA 7–9)

(1) The Court may have regard to the matters set out in subsection (2)for the purpose of determining:(a) whether the person in whose favour the order is sought to

be made (the applicant) is an eligible person, and(b) whether to make a family provision order and the nature of

any such order.(2) The following matters may be considered by the Court:

(a) any family or other relationship between the applicant andthe deceased person, including the nature and duration ofthe relationship,

(b) the nature and extent of any obligations or responsibilitiesowed by the deceased person to the applicant, to any otherperson in respect of whom an application has been madefor a family provision order or to any beneficiary of thedeceased person’s estate,

(c) the nature and extent of the deceased person’s estate(including any property that is, or could be, designated asnotional estate of the deceased person) and of anyliabilities or charges to which the estate is subject, as inexistence when the application is being considered,

(d) the financial resources (including earning capacity) andfinancial needs, both present and future, of the applicant,of any other person in respect of whom an application hasbeen made for a family provision order or of anybeneficiary of the deceased person’s estate,

(e) if the applicant is cohabiting with another person—thefinancial circumstances of the other person,

(f) any physical, intellectual or mental disability of theapplicant, any other person in respect of whom anapplication has been made for a family provision order orany beneficiary of the deceased person’s estate that is in

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existence when the application is being considered or thatmay reasonably be anticipated,

(g) the age of the applicant when the application is beingconsidered,

(h) any contribution (whether financial or otherwise) by theapplicant to the acquisition, conservation andimprovement of the estate of the deceased person or to thewelfare of the deceased person or the deceased person’sfamily, whether made before or after the deceased person’sdeath, for which adequate consideration (not including anypension or other benefit) was not received, by theapplicant,

(i) any provision made for the applicant by the deceasedperson, either during the deceased person’s lifetime ormade from the deceased person’s estate,

(j) any evidence of the testamentary intentions of thedeceased person, including evidence of statements madeby the deceased person,

(k) whether the applicant was being maintained, either whollyor partly, by the deceased person before the deceasedperson’s death and, if the Court considers it relevant, theextent to which and the basis on which the deceased persondid so,

(l) whether any other person is liable to support the applicant,(m) the character and conduct of the applicant before and after

the date of the death of the deceased person,(n) the conduct of any other person before and after the date of

the death of the deceased person,(o) any relevant Aboriginal or Torres Strait Islander

customary law,(p) any other matter the Court considers relevant, including

matters in existence at the time of the deceased person’sdeath or at the time the application is being considered.

61 Other possible applicants (cf FPA 20)

(1) In determining an application for a family provision order, theCourt may disregard the interests of any other person by or inrespect of whom an application for a family provision order maybe made (other than a beneficiary of the deceased person’s estate)but who has not made an application.

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(2) However, the Court may disregard any such interests only if:(a) notice of the application, and of the Court’s power to

disregard the interests, is served on the person concerned,in the manner and form prescribed by the regulations orrules of court, or

(b) the Court determines that service of any such notice isunnecessary, unreasonable or impracticable in thecircumstances of the case.

62 Interim family provision orders and orders restraining distribution of the estate (cf FPA 9 (5) and (6))

(1) The Court may make an interim family provision order before ithas fully considered an application for a family provision order ifit is of the opinion that no less provision than that proposed in theinterim order would be made in favour of the eligible personconcerned in the final order.

(2) After making an interim family provision order, the Court mustproceed to finally determine the application for a familyprovision order by confirming, revoking or varying the interimorder.

(3) The Court may make an order restraining the final or partialdistribution of an estate (other than a distribution under section94 (1) of this Act or section 92A of the Probate andAdministration Act 1898) pending its determination of anapplication for a family provision order.

Division 3 Property that may be used for family provision orders

63 Property that may be used for family provision orders (cf FPA 6 (1), definition of “estate”, 6 (4) and (5))

(1) A family provision order may be made in relation to the estate ofa deceased person.

(2) If the deceased person died leaving a will, the estate of thedeceased person includes property that would, on a grant ofprobate of the will, vest in the executor of the will, or would on agrant of administration with the will annexed, vest in the legalrepresentative appointed under that grant.

(3) A family provision order may not be made in relation to propertyof the estate that has been distributed by the legal representativeof the estate in compliance with the requirements of section 93,except as provided by subsection (5).

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(4) Where property of the estate of a deceased person is held by thelegal representative of that estate as trustee for a person or for acharitable or other purpose, the property is to be treated, for thepurposes of this Chapter, as not having been distributed unless itis vested in interest in that person or for that purpose.

(5) A family provision order may be made in relation to property thatis not part of the estate of a deceased person, or that has beendistributed, if it is designated as notional estate of the deceasedperson by an order under Part 3.3.

64 Orders may affect property in or outside jurisdiction (cf FPA 11 (1) (b))

A family provision order may be made in respect of propertysituated in or outside New South Wales when, or at any timeafter, the order is made, whether or not the deceased person was,at the time of death, domiciled in New South Wales.

Division 4 General provisions relating to family provision orders

65 Nature of orders (cf FPA 11 (1) (a) and (d))

(1) A family provision order must specify:(a) the person or persons for whom provision is to be made,

and(b) the amount and nature of the provision, and(c) the manner in which the provision is to be provided and the

part or parts of the estate out of which it is to be provided,and

(d) any conditions, restrictions or limitations imposed by theCourt.

(2) A family provision order may require the provision to be made inone or more of the following ways:(a) by payment of a lump sum of money,(b) by periodic payments of money,(c) by application of specified existing or future property,(d) by way of an absolute interest, or a limited interest only, in

property,(e) by way of property set aside as a class fund for the benefit

of 2 or more persons,(f) in any other manner the Court thinks fit.

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(3) If provision is to be made by payment of an amount of money, thefamily provision order may specify whether interest is payable onthe whole or any part of the amount payable for the period, and,if so, the period during which interest is payable and the rate ofthe interest.

66 Consequential and ancillary orders (cf FPA 15 (1), 34)

(1) The Court may, in addition to, or as part of, a family provisionorder, make orders for or with respect to all or any of thefollowing matters for the purpose of giving effect to the familyprovision order:(a) the transfer of property of the estate directly to the eligible

person in whose favour the order is made, or to any otherperson as trustee for that person,

(b) where property is to be held on trust, the purpose of thetrust and the way in which it is to be constituted,

(c) the appointment of a trustee of property of the estate,(d) the powers and duties of a trustee of property of the estate,

including any trustee constituted or appointed under thissection,

(e) the vesting in any person of property of the estate,(f) the exercise of a right or power to obtain property for the

estate,(g) the sale of or dealing with property of the estate,(h) the disposal of the proceeds of any sale or other realising

of property of the estate,(i) the securing, either wholly or partially, of the due

performance of an order under this Part,(j) the management of the property of the estate,(k) the execution of any necessary conveyance, document or

instrument, the production of documents of title or thedoing of such other things as the Court thinks necessary inrelation to the performance of the family provision order,

(l) any other matter the Court thinks necessary.(2) The Court may make such additional orders as it considers

necessary to adjust the interests of anyone with an interest in theproperty of the estate and to be just and equitable to all personsaffected by a family provision order.

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(3) The execution of an instrument relating to property in thenotional estate of a deceased person pursuant to an order underthis section is not liable to duty under the Duties Act 1997.

67 Undertakings to restore property (cf FPA 18)

(1) The Court may make a family provision order subject to acondition that the eligible person in whose favour the order ismade is to enter into an undertaking, or give security, that, if theorder is revoked because the deceased person was not deceasedwhen the order was made, the person will restore any propertyreceived under the order, or otherwise make restitution, inaccordance with any order of the Court made on the revocation.

(2) In this section:deceased person means the person (whether or not deceased)from whose estate a family provision order is made.

68 Payment for exoneration from liability for orders(1) The Court may, as part of a family provision order, or at any time,

on the application of a beneficiary of the estate of a deceasedperson, by order:(a) fix a periodic payment or lump sum payable by a

beneficiary of an estate affected by a family provisionorder to represent the proportion of the property in theestate affected by the family provision order that is borneby the beneficiary’s portion of the estate, and

(b) exonerate the beneficiary’s portion of the estate from anyfurther liability under the family provision order, oncondition that payment is made as directed by the Court.

(2) Without limiting subsection (1), in making any order under thissection, the Court may do any of the following:(a) specify the person to whom the payment or lump sum is to

be paid,(b) specify how any periodic payment is to be secured,(c) specify how any lump sum is to be invested for the benefit

of any proposed beneficiary.Note. Section 92 enables the Court to replace property in the estate ornotional estate of a deceased person that has been, or is proposed tobe, affected by a family provision order with property offered insubstitution for the affected property.

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69 Effect of order vesting property in estate (cf FPA 15 (2))

The provisions of sections 78 (except subsection (1)) and 79 ofthe Trustee Act 1925 apply to and in relation to an order undersection 66 for the vesting of property in a person in the same wayas they apply to and in relation to a vesting order referred to inthose provisions and, in the case of section 78 (2) of that Act, asif the provisions of section 66 and the other provisions of this Actrelating to the making of orders under this Act were contained inPart 3 of that Act.

70 Variation and revocation of family provision orders (cf FPA 19 (1)–(3) and 20 (4))

(1) A family provision order may be varied or revoked by the Courtonly in accordance with this Chapter.

(2) The Court may, by order, vary or revoke a family provision orderso as to allow provision to be made in favour of another eligibleperson wholly or partly from all or any property affected by theorder.

(3) The Court must not vary or revoke a family provision order so asto allow provision to be made in favour of another eligible personunless that person shows sufficient cause for not having appliedfor a family provision order before the order sought to be variedor revoked was made.

(4) A family provision order is revoked if the grant of administrationin respect of the estate of the deceased person is revoked orrescinded, unless the Court otherwise provides when revoking orrescinding the grant.Note. The Court may also vary a family provision order under sections62 and 92.

71 Variation and revocation of other orders (cf FPA 19 (4))

If a family provision order is varied or revoked, the Court may:(a) vary or revoke any other orders made by it as a

consequence of, or in relation to, the order to such extentas may be necessary as a result of the variation orrevocation, and

(b) make such additional orders as may be so necessary.

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72 Effect of family provision order (cf FPA 14 (1))

(1) A family provision order takes effect, unless the Court otherwiseorders, as if the provision was made:(a) in a codicil to the will of the deceased person, if the

deceased person made a will, or(b) in a will of the deceased person, if the deceased person

died intestate.(2) Without limiting subsection (1), the Court may at the time of

distribution of an estate that is insufficient to give effect to afamily provision order make such orders concerning theabatement or adjustment of distributions from the estate asbetween the person in whose favour the family provision order ismade and the other beneficiaries of the estate as it considers to bejust and equitable among the persons affected.

73 Application(1) This Part applies to interim family provision orders in the same

way as it applies to family provision orders.(2) This Part (other than section 63) applies to property designated as

part of the notional estate of a deceased person in the same wayas it applies to property that is part of the estate of a deceasedperson.

Part 3.3 Notional estate ordersNote. This Part applies where, as a result of certain property transactions, property isnot included in the estate of a deceased person or where property has been distributedfrom the estate of a deceased person. This Part enables the Court in limitedcircumstances to make an order designating property that is not included in the estate,or has been distributed from the estate, as “notional estate” of the deceased person forthe purpose of making a family provision order under Part 3.2 in respect of the estateof the deceased person (or for the purpose of ordering that costs in the proceedings bepaid from the notional estate).Property may be designated as notional estate if it is property held by, or on trust for, aperson by whom property became held (whether or not as trustee), or the object of atrust for which property became held on trust:(a) as a result of a distribution from the estate of a deceased person (see section

79), whether or not the property was the subject of the distribution, or(b) as a result of a relevant property transaction, whether or not the property was

the subject of the transaction (see section 80), or(c) as a result of a relevant property transaction entered into by a person by whom

property became held, or for whom property became held on trust, as a resultof a relevant property transaction or a distribution from the estate of a deceasedperson (see section 81), whether or not the property was the subject of therelevant property transaction.

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Property may also be designated as notional estate if it is property:(a) held by the legal representative of the estate of a person by whom property

became held as a result of a relevant property transaction or distributionreferred to in paragraphs (a)–(c) above and who has since died (known as thedeceased transferee), or

(b) held by, or on trust for, a person by whom property became held, or for theobject of a trust for which property became held on trust, as a result of adistribution from the estate of a deceased transferee,

whether or not the property was the subject of the relevant property transaction or thedistribution from the estate of the deceased person or the deceased transferee (seesection 82).Section 92 enables the Court to replace property in the estate or notional estate of adeceased person that has been, or is proposed to be, affected by a family provisionorder with property offered in substitution for the affected property.

Division 1 Relevant property transactions74 Definition

In this Part:relevant property transaction means a transaction orcircumstance affecting property and described in section 75 or76.

75 Transactions that are relevant property transactions (cf FPA 22 (1), (3) and (7))

(1) A person enters into a relevant property transaction if the persondoes, directly or indirectly, or does not do, any act that(immediately or at some later time) results in property being:(a) held by another person (whether or not as trustee), or(b) subject to a trust,and full valuable consideration is not given to the person fordoing or not doing the act.

(2) The fact that a person has entered into a relevant propertytransaction affecting property does not prevent the person frombeing taken to have entered into another relevant propertytransaction if the person subsequently does, or does not do, an actaffecting the same property the subject of the first transaction.

(3) The making of a will by a person, or the omission of a person tomake a will, does not constitute an act or omission for thepurposes of subsection (1), except in so far as it constitutes afailure to exercise a power of appointment or disposition inrelation to property that is not in the person’s estate.

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76 Examples of relevant property transactions (cf FPA 22 (4))

(1) The circumstances set out in subsection (2), subject to fullvaluable consideration not being given, constitute the basis of arelevant property transaction for the purposes of section 75.

(2) The circumstances are as follows:(a) if a person is entitled to exercise a power to appoint, or

dispose of, property that is not in the person’s estate anddoes not exercise that power before ceasing (because ofdeath or the occurrence of any other event) to be entitled todo so, with the result that the property becomes held byanother person (whether or not as trustee) or subject to atrust or another person (immediately or at some later time)becomes, or continues to be, entitled to exercise the power,

(b) if a person holds an interest in property as a joint tenant andthe person does not sever that interest before ceasing(because of death or the occurrence of any other event) tobe entitled to do so, with the result that, on the person’sdeath, the property becomes, by operation of the right ofsurvivorship, held by another person (whether or not astrustee) or subject to a trust,

(c) if a person holds an interest in property in which anotherinterest is held by another person (whether or not astrustee) or is subject to a trust, and the person is entitled toexercise a power to extinguish the other interest in theproperty and the power is not exercised before the personceases (because of death or the occurrence of any otherevent) to be so entitled with the result that the other interestin the property continues to be so held or subject to thetrust,

(d) if a person is entitled, in relation to a life assurance policyon the person’s life under which money is payable on theperson’s death or if some other event occurs to a personother than the legal representative of the person’s estate, toexercise a power:(i) to substitute a person or a trust for the person to

whom, or trust subject to which, money is payableunder the policy, or

(ii) to surrender or otherwise deal with the policy,and the person does not exercise that power before ceasing(because of death or the occurrence of any other event) tobe entitled to do so,

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(e) if a person who is a member of, or a participant in, a body(corporate or unincorporate), association, scheme, fund orplan, dies and property (immediately or at some later time)becomes held by another person (whether or not as trustee)or subject to a trust because of the person’s membership orparticipation and the person’s death or the occurrence ofany other event,

(f) if a person enters into a contract disposing of property outof the person’s estate, whether or not the disposition is totake effect before, on or after the person’s death or underthe person’s will or otherwise.

(3) Nothing in this section prevents any other act or omission fromconstituting the basis of a relevant property transaction for thepurposes of section 75.

(4) For the purposes of this Chapter, in the circumstances describedin subsection (2) (b), a person is not given full or any valuableconsideration for not severing an interest in property held as ajoint tenant merely because, by not severing that interest, theperson retains, until his or her death, the benefit of the right ofsurvivorship in respect of that property.

77 When relevant property transactions take effect (cf FPA 22 (2), (5) and (6))

(1) For the purposes of this Chapter, a relevant property transactionis taken to have effect when the property concerned becomes heldby another person or subject to a trust or as otherwise providedby this section.

(2) A relevant property transaction consisting of circumstancesdescribed in section 76 (2) (a), (c) or (d) is taken to have beenentered into immediately before, and to take effect on, theperson’s death or the occurrence of the other event resulting inthe person no longer being entitled to exercise the relevant power.

(3) A relevant property transaction consisting of circumstancesdescribed in section 76 (2) (b) or (e) is taken to have been enteredinto immediately before, and to take effect on, the person’s deathor the occurrence of the other event referred to in thoseparagraphs.

(4) A relevant property transaction that involves any kind of contractfor which valuable consideration, though not full valuableconsideration, is given for the person to enter into the transactionis taken to be entered into and take effect when the contract isentered into.

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Division 2 When notional estate orders may be made78 Notional estate order may be made only if family provision order

or certain costs orders to be made(1) The Court may make an order designating property as notional

estate only:(a) for the purposes of a family provision order to be made

under Part 3.2, or(b) for the purposes of an order that the whole or part of the

costs of proceedings in relation to the estate or notionalestate of a deceased person be paid from the notional estateof the deceased person.

Note. Section 63 (5) enables a family provision order to be made inrelation to property designated as notional estate of a deceased person.Section 99 enables the Court to order that costs be paid out of thenotional estate of a deceased person.

(2) The Court must not make an order under subsection (1) (b) for thepurposes of an order that the whole or part of an applicant’s costsbe paid from the notional estate of the deceased person unless theCourt makes or has made a family provision order in favour of theapplicant.

79 Notional estate order may be made where property of estate distributed (cf FPA 24)

The Court may, on application by an applicant for a familyprovision order or on its own motion, make a notional estateorder designating property specified in the order as notionalestate of a deceased person if the Court is satisfied that on, or asa result of, a distribution of the deceased person’s estate, property(whether or not the subject of the distribution) became held by aperson (whether or not as trustee) or subject to a trust.

80 Notional estate order may be made where estate affected by relevant property transaction (cf FPA 23)

(1) The Court may, on application by an applicant for a familyprovision order or on its own motion, make a notional estateorder designating property specified in the order as notionalestate of a deceased person if the Court is satisfied that thedeceased person entered into a relevant property transactionbefore his or her death and that the transaction is a transaction towhich this section applies.Note. The kinds of transactions that constitute relevant propertytransactions are set out in sections 75 and 76.

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(2) This section applies to the following relevant propertytransactions:(a) a transaction that took effect within 3 years before the date

of the death of the deceased person and was entered intowith the intention, wholly or partly, of denying or limitingprovision being made out of the estate of the deceasedperson for the maintenance, education or advancement inlife of any person who is entitled to apply for a familyprovision order,

(b) a transaction that took effect within one year before thedate of the death of the deceased person and was enteredinto when the deceased person had a moral obligation tomake adequate provision, by will or otherwise, for theproper maintenance, education or advancement in life ofany person who is entitled to apply for a family provisionorder which was substantially greater than any moralobligation of the deceased person to enter into thetransaction,

(c) a transaction that took effect or is to take effect on or afterthe deceased person’s death.

(3) Property may be designated as notional estate by a notional estateorder under this section if it is property that is held by, or on trustfor:(a) a person by whom property became held (whether or not

as trustee) as the result of a relevant property transaction,or

(b) the object of a trust for which property became held ontrust as the result of a relevant property transaction,

whether or not the property was the subject of the relevantproperty transaction.

81 Notional estate order may be made where estate affected by subsequent relevant property transaction (cf FPA 25)

(1) The Court may, on application by an applicant for a familyprovision order or on its own motion, make a notional estateorder designating property specified in the order as notionalestate of a deceased person if the Court is satisfied that:(a) it:

(i) has power, under this or any other section of thisChapter, to make a notional estate order designating

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property held by, or on trust for, a person (thetransferee) as notional estate of the deceasedperson, or

(ii) immediately before the date of the death of a person(the deceased transferee), had power, under this orany other section of this Chapter, to make a notionalestate order designating property held by, or on trustfor, the deceased transferee as notional estate of thedeceased person, and

(b) since the relevant property transaction or distribution thatgave rise to the power to make the order was entered intoor made, the transferee, or the deceased transferee, enteredinto a relevant property transaction, and

(c) there are special circumstances that warrant the making ofthe order.

(2) Property may be designated as notional estate by a notional estateorder under this section if it is property that is held by, or on trustfor:(a) a person by whom property became held (whether or not

as trustee) as the result of the relevant property transactionentered into by the transferee or the deceased transferee, or

(b) the object of a trust for which property became held ontrust as the result of the relevant property transactionentered into by the transferee or the deceased transferee,

whether or not the property was the subject of the relevantproperty transaction.

(3) A notional estate order may be made under this section instead ofor in addition to an order under section 79, 80 or 82.

82 Notional estate order may be made where property of deceased transferee’s estate held by legal representative or distributed(1) The Court may, on application by an applicant for a family

provision order or on its own motion, make a notional estateorder designating property specified in the order as notionalestate of a deceased person if the Court is satisfied that:(a) immediately before the date of the death of a person (the

deceased transferee), it had power, under this or any othersection of this Chapter, to make a notional estate orderdesignating property held by, or on trust for, the deceasedtransferee as notional estate of the deceased person, and

(b) the power did not arise because property became held bythe deceased transferee as trustee only, and

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(c) in the case of property referred to in subsection (2) (b),there are special circumstances that warrant the making ofthe order.

(2) The following property may be designated as notional estate by anotional estate order under this section, whether or not it was theproperty the subject of the relevant property transaction ordistribution from which the Court’s power to make such an orderarose:(a) if administration has been granted in respect of the estate

of the deceased transferee—property that is held by thelegal representative of the estate of the deceased transfereein his or her capacity as legal representative of the estate ofthe deceased transferee,

(b) if all or part of the estate of the deceased transferee hasbeen distributed—property that is held by, or on trust for:(i) a person by whom property became held (whether

or not as trustee) as the result of the distribution ofthe deceased transferee’s estate, or

(ii) the object of a trust for which property became heldon trust as the result of the distribution of thedeceased transferee’s estate.

(3) A notional estate order may be made under this section instead ofor in addition to an order under section 79, 80 or 81.Note. Administration of the estate of a deceased transferee may begranted for the purposes of being able to designate property as notionalestate under this section (see section 91).

83 Disadvantage and other matters required before order can be made (cf FPA 26)

(1) The Court must not, merely because a relevant propertytransaction has been entered into, make an order under section80, 81 or 82 unless the Court is satisfied that the relevant propertytransaction or the holding of property resulting from the relevantproperty transaction:(a) directly or indirectly disadvantaged the estate of the

principal party to the transaction or a person entitled toapply for a family provision order from the estate or, if thedeceased person was not the principal party to thetransaction, the deceased person (whether before, on orafter death), or

(b) involved the exercise by the principal party to thetransaction or any other person (whether alone or jointly orseverally with any other person) of a right, a discretion or

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a power of appointment, disposition, nomination ordirection that, if not exercised, could have resulted in abenefit to the estate of the principal party to the transactionor a person entitled to apply for a family provision orderfrom the estate or, if the deceased person was not theprincipal party to the transaction, the deceased person(whether before, on or after death), or

(c) involved the exercise by the principal party to thetransaction or any other person (whether alone or jointly orseverally with any other person) of a right, a discretion ora power of appointment, disposition, nomination ordirection that could, when the relevant propertytransaction was entered into or at a later time, have beenexercised so as to result in a benefit to the estate of theprincipal party to the transaction or a person entitled toapply for a family provision order from the estate or, if thedeceased person was not the principal party to thetransaction, the deceased person (whether before, on orafter death), or

(d) involved an omission to exercise a right, a discretion or apower of appointment, disposition, nomination ordirection that could, when the relevant propertytransaction was entered into or at a later time, have beenexercised by the principal party to the transaction or anyother person (whether alone or jointly or severally withany other person) so as to result in a benefit to the estate ofthe principal party to the transaction or a person entitled toapply for a family provision order from the estate or, if thedeceased person was not the principal party to thetransaction, the deceased person (whether before, on orafter death).

(2) In this section:principal party to the transaction, in relation to a relevantproperty transaction, means the person who, under section 75 or76, enters into the relevant property transaction.

84 Effect of notional estate order (cf FPA 29)

A person’s rights are extinguished to the extent that they areaffected by a notional estate order.

85 More than one notional estate order may be made (cf FPA 28 (3))

The Court may make one or more notional estate orders inconnection with the same proceedings for a family provision

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order, or any subsequent proceedings relating to the estate of thesame deceased person.

86 Power subject to Division 3The Court’s power to make a notional estate order under thisDivision is subject to Division 3.

Division 3 Restrictions and protections relating to notional estate orders

87 General matters that must be considered by Court (cf FPA 27 (1))

The Court must not make a notional estate order unless it hasconsidered the following:(a) the importance of not interfering with reasonable

expectations in relation to property,(b) the substantial justice and merits involved in making or

refusing to make the order,(c) any other matter it considers relevant in the circumstances.

88 Estate must not be sufficient for provision or order as to costs (cf FPA 28 (1))

The Court must not make a notional estate order unless it issatisfied that:(a) the deceased person left no estate, or(b) the deceased person’s estate is insufficient for the making

of the family provision order, or any order as to costs, thatthe Court is of the opinion should be made, or

(c) provision should not be made wholly out of the deceasedperson’s estate because there are other persons entitled toapply for family provision orders or because there arespecial circumstances.

89 Determination of property to be subject to notional estate order (cf FPA 27 (2), 28 (2) and (4))

(1) In determining what property should be designated as notionalestate of a deceased person, the Court must have regard to thefollowing:(a) the value and nature of any property:

(i) the subject of a relevant property transaction, or

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(ii) the subject of a distribution from the estate of thedeceased person or from the estate of a deceasedtransferee, or

(iii) held by the legal representative of the estate of anydeceased transferee in his or her capacity as legalrepresentative of the estate of the deceasedtransferee,

(b) the value and nature of any consideration given in arelevant property transaction,

(c) any changes in the value of property of the same nature asthe property referred to in paragraph (a), or theconsideration referred to in paragraph (b), in the time sincethe relevant property transaction was entered into, thedistribution was made, the property became held by thelegal representative of the estate of the deceased transfereeor the consideration was given,

(d) whether property of the same nature as the propertyreferred to in paragraph (a), or the consideration referred toin paragraph (b), could have been used to obtain income inthe time since the relevant property transaction wasentered into, the distribution was made, the propertybecame held by the legal representative of the estate of thedeceased transferee or the consideration was given,

(e) any other matter it considers relevant in the circumstances.(2) The Court must not designate as notional estate property that

exceeds that necessary, in the Court’s opinion, to allow theprovision that should be made, or, if the Court makes an orderthat costs be paid from the notional estate under section 99, toallow costs to be paid as ordered, or both.

(3) If, as a result of a relevant property transaction or of a distributionfrom the estate of a deceased person or from the estate of adeceased transferee, property becomes held by a person as atrustee only, the Court must not designate as notional estate anyproperty held by the person other than the property held by theperson as a trustee as a consequence of any such relevant propertytransaction or distribution.

90 Restrictions on out of time or additional applications (cf FPA 28 (5))

(1) This section applies to proceedings where:(a) an application for a family provision order is made later

than 12 months after the date of the death of the deceasedperson, or

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(b) an application for a family provision order is made inrelation to an estate that has been previously the subject ofa family provision order.

(2) The Court must not make a notional estate order in theproceedings unless:(a) it is satisfied that:

(i) the property to be designated as notional estate isproperty that was the subject of a relevant propertytransaction or of a distribution from the estate of adeceased person or from the estate of a deceasedtransferee, and

(ii) the person who holds the property holds it as a resultof the relevant property transaction or distributionas trustee only, and

(iii) the property is not vested in interest in anybeneficiary under the trust, or

(b) it is satisfied that there are other special circumstances thatjustify the making of the notional estate order.

Part 3.4 Miscellaneous91 Grant of probate or administration to enable application to be dealt

with (cf WPA 41A)

(1) This section applies if an application is made by a person for afamily provision order, or notional estate order, in respect of theestate of a deceased person, or deceased transferee, respectively,in relation to which administration has not been granted.

(2) The Court may, if it is satisfied that it is proper to do so, grantadministration in respect of the estate of the deceased person ordeceased transferee to the applicant for the purposes only ofpermitting the application concerned to be dealt with, whether ornot the deceased person or deceased transferee left property inNew South Wales.

(3) The granting of administration under the Probate andAdministration Act 1898 does not:(a) prevent the Court from granting administration under this

section, or(b) unless the Court otherwise orders, affect any previous

grant of administration under this section.(4) The provisions of the Probate and Administration Act 1898 apply

to a grant of administration under this section, and to the legal

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representative of the estate, in the same way as they apply to agrant of administration under that Act and the legal representativeof any estate for which such a grant has been made.

92 Substitution of property affected by orders or proposed orders (cf FPA 30)

(1) If the Court has made, or proposes to make, a family provisionorder affecting certain property in the estate of a deceased personor a deceased transferee, the Court may, on application by aperson who offers other property in substitution (the replacementproperty):(a) vary the family provision order by substituting the

replacement property for the property affected by theorder, or

(b) make a family provision order in respect of thereplacement property instead of the property proposed tobe affected by such an order,

as appropriate.(2) If the Court has made, or proposes to make, a notional estate

order designating certain property as notional estate, the Courtmay, on application by a person who offers other property insubstitution (the replacement property):(a) vary the notional estate order by substituting the

replacement property for the property designated asnotional estate by the order, or

(b) make a notional estate order designating the replacementproperty as notional estate instead of the property proposedto be designated as notional estate by such an order,

as appropriate.(3) The Court may vary or make an order under this section only if it

is satisfied that the replacement property can properly besubstituted for the property affected or proposed to be affected bythe family provision order, or the property designated orproposed to be designated as notional estate, as appropriate.

(4) An order varied or made under this section is taken to be an orderin respect of property of the estate or notional estate of thedeceased person for the purposes of this Chapter (except section72 (Effect of family provision order)).

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93 Protection of legal representative who distributes after giving notice (cf FPA 35 (1))

(1) The legal representative of the estate of a deceased person maydistribute the property in the estate if:(a) the property is distributed at least 6 months after the

deceased person’s death, and(b) the legal representative has given notice in the form

approved under section 17 of the Civil Procedure Act 2005that the legal representative intends to distribute theproperty in the estate after the expiration of a specifiedtime, andNote. Section 101 of this Act provides for the service of notices.

(c) the time specified in the notice is not less than 30 days afterthe notice is given, and

(d) the time specified in the notice has expired, and(e) at the time of distribution, the legal representative does not

have notice of any application or intended application fora family provision order affecting the estate of thedeceased person.

(2) A legal representative who distributes property of the estate of adeceased person is not liable in respect of that distribution to anyperson who was an applicant for a family provision orderaffecting the estate if the legal representative did not have noticeat the time of the distribution of the application and if:(a) the distribution was made in accordance with this section,

and(b) the distribution was properly made by the legal

representative.(3) For the purposes of this section, notice to the legal representative

of an application or intention to make any application under thisChapter must be in writing signed in accordance with rules for thesigning of documents by a party in proceedings under theUniform Civil Procedure Rules 2005.Note. On the enactment of this subsection, rules for the signing ofdocuments by a party in proceedings were contained in Rule 4.4 of theUniform Civil Procedure Rules 2005.

94 Protection of legal representative in other circumstances(1) A legal representative of the estate of a deceased person who

distributes property in the estate for the purpose of providingthose things immediately necessary for the maintenance oreducation of an eligible person who was wholly or substantially

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dependent on the deceased person immediately before his or herdeath is not liable for any such distribution that is properly made.

(2) Subsection (1) applies whether or not the legal representative hadnotice at the time of the distribution of any application orintended application for a family provision order affectingproperty in the estate.

(3) No person who may have made or may be entitled to make anapplication under this Chapter is entitled to bring an actionagainst the legal representative of the estate of a deceased personbecause the legal representative has distributed any part of theestate if the distribution was properly made by the legalrepresentative after the person (being of full legal capacity) hasnotified the legal representative in writing that the person either:(a) consents to the distribution, or(b) does not intend to make any application under this Chapter

that would affect the proposed distribution.(4) A legal representative of the estate of a deceased person who

receives notice of an intended application under this Chapter isnot liable in respect of a distribution of any part of the estate if thedistribution was made in compliance with section 93 (1) by thelegal representative not earlier than 12 months after the deceasedperson’s death.

(5) Subsection (4) does not apply if the legal representative receiveswritten notice that the application has been commenced in theCourt or is served with a copy of the application before makingthe distribution.

(6) For the purposes of this section, notice to the legal representativeof an application or intention to make any application under thisChapter must be in writing signed in accordance with rules for thesigning of documents by a party in proceedings under theUniform Civil Procedure Rules 2005.Note. On the enactment of this subsection, rules for the signing ofdocuments by a party in proceedings were contained in Rule 4.4 of theUniform Civil Procedure Rules 2005.

95 Release of rights under Chapter (cf FPA 31 (1)–(6))

(1) A release by a person of the person’s rights to apply for a familyprovision order has effect only if it has been approved by theCourt and to the extent that the approval has not been revoked bythe Court.

(2) Proceedings for the approval by the Court of a release of aperson’s rights to apply for a family provision order may be

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commenced before or after the date of the death of the personwhose estate may be the subject of the order.

(3) The Court may approve of a release in relation to the whole orany part of the estate or notional estate of a person.

(4) In determining an application for approval of a release, the Courtis to take into account all the circumstances of the case, includingwhether:(a) it is or was, at the time any agreement to make the release

was made, to the advantage, financially or otherwise, ofthe releasing party to make the release, and

(b) it is or was, at that time, prudent for the releasing party tomake the release, and

(c) the provisions of any agreement to make the release are orwere, at that time, fair and reasonable, and

(d) the releasing party has taken independent advice in relationto the release and, if so, has given due consideration to thatadvice.

(5) In this section:release of rights to apply for a family provision order means arelease of such rights, if any, as a person has to apply for a familyprovision order, and includes a reference to:(a) an instrument executed by the person that would be

effective as a release of those rights if approved by theCourt under this section, and

(b) an agreement to execute such an instrument.

96 Revocation of approval of release (cf FPA 31 (7)–(9))

(1) The Court may not revoke an approval of a release given by itunder section 95, except as provided by this section.

(2) The Court may revoke an approval if it is satisfied:(a) that its approval was obtained by fraud, or(b) that the release was obtained by fraud or undue influence.

(3) The Court may also revoke an approval, either wholly or partiallyin respect of specified property, if it is satisfied that all personswho would be, in the Court’s opinion, sufficiently affected by therevocation consent to the revocation.

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97 Court may determine date of death (cf FPA 6 (8))

The Court may, if the date or time of death of a person isuncertain, determine, for the purpose of giving effect to anyprovision of this Chapter, a date or time of death that the Courtthinks is reasonable for the purposes of the provision.

98 Mediation, orders with consent and costs (cf FPA 33 (1))

(1) The object of this section is to encourage the settlement byaffected parties of disputes concerning the estate of a deceasedperson.

(2) Unless the Court, for special reasons, otherwise orders, it mustrefer an application for a family provision order for mediationbefore it considers the application.

(3) The Court may make a family provision order in terms of awritten agreement (a consent order) that: (a) is produced to the Court by the affected parties in relation

to an application after mediation, or on the advice of a legalpractitioner, and

(b) indicates the parties’ consent to the making of the familyprovision order in those terms.

(4) The regulations may make provision for or with respect to thefollowing: (a) mediations and consent orders under this section,(b) regulating or prohibiting advertising concerning the

provision of legal services in connection with mediationsand other proceedings under this Chapter in relation to theestate or notional estate of a deceased person.

(5) In this section, legal services has the same meaning as in theLegal Profession Act 2004.

99 Costs (cf FPA 33 (1))

(1) The Court may order that the costs of proceedings under thisChapter in relation to the estate or notional estate of a deceasedperson (including costs in connection with mediation) be paid outof the estate or notional estate, or both, in such manner as theCourt thinks fit.Note. Section 78 sets out the circumstances in which the Court maymake a notional estate order for the purpose of ordering that costs bepaid from the notional estate of a deceased person.

(2) The regulations may make provision for or with respect to thecosts in connection with proceedings under this Chapter,

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including the fixing of the maximum costs for legal services thatmay be paid out of the estate or notional estate of a deceasedperson.

(3) This section and any regulations under this section prevail to theextent of any inconsistency with the Legal Profession Act 2004and the regulations under that Act. An assessment under that Actof any costs in respect of which provision is made by a regulationunder this section is to be made so as to give effect to thatregulation.

(4) In this section, legal services has the same meaning as in theLegal Profession Act 2004.

100 Evidence (cf FPA 32)

(1) In this section:statement includes any representation of fact whether or not inwriting.

(2) In any proceedings under this Chapter, evidence of a statementmade by a deceased person is, subject to this section, admissibleas evidence of any fact stated in it of which direct oral evidenceby the deceased person would, if the person were able to give thatevidence, be admissible.

(3) Subject to subsection (4) and unless the Court otherwise orders,where a statement was made by a deceased person during theperson’s lifetime otherwise than in a document, no evidenceother than direct testimony (including oral evidence, evidence byaffidavit and evidence taken before a commissioner or otherperson authorised to receive evidence for the purpose of theproceedings) by a person who heard or otherwise perceived thestatement being made is admissible for the purpose of proving it.

(4) Where a statement was made by a deceased person during theperson’s lifetime while giving oral evidence in a legal proceeding(being a civil or criminal proceeding or inquiry in which evidenceis or may be given, or an arbitration), the statement may beapproved in any manner authorised by the Court.

(5) Where a statement made by a deceased person during theperson’s lifetime was contained in a document, the statementmay be proved by the production of the document or, whether ornot the document is still in existence, by leave of the Court, by theproduction of a copy of the document, or of the material part ofthe document, authenticated in such manner as the Court mayapprove.

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(6) Where, under this section, a person proposes to tender, or tenders,evidence of a statement contained in a document, the Court mayrequire that any other document relating to the statement beproduced and, in default, may reject the evidence or, if it has beenreceived, exclude it.

(7) For the purpose of determining questions of admissibility of astatement under this section, the Court may draw any reasonableinference from the circumstances in which the statement wasmade or from any other circumstances, including, in the case of astatement contained in a document, the form or content of thedocument.

(8) In estimating the weight, if any, to be attached to evidence of astatement tendered for admission or admitted under this section,regard must be had to all the circumstances from which anyinference can reasonably be drawn as to the accuracy orotherwise of the statement, including: (a) the recency or otherwise, at the time when the deceased

person made the statement, of any relevant matter dealtwith in the statement, and

(b) the presence or absence of any incentive for the deceasedperson to conceal or misrepresent any relevant matter inthe statement.

(9) Subject to subsection (11), where evidence of a statement of adeceased person is admitted under this section, evidence isadmissible for the purpose of destroying or supporting thecredibility of the deceased person.

(10) Subject to subsection (11), where evidence of a statement of adeceased person is admitted under this section, evidence isadmissible for the purpose of showing that the statement isinconsistent with another statement made at any time by thedeceased person.

(11) No evidence of a matter is admissible under subsection (9) or (10)in relation to a statement of a deceased person where, if thedeceased person had been called as a witness and had denied thematter in cross-examination, evidence would not be admissible ifadduced by the cross-examining party.

(12) This section applies notwithstanding the rules against hearsayand notwithstanding that a statement is in such a form that itwould not be admissible if given as oral testimony, but does notmake admissible a statement of a deceased person which isotherwise inadmissible.

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(13) The exceptions to the rules against hearsay set out in this sectionare in addition to the exceptions to the hearsay rule set out in theEvidence Act 1995.

[11] Section 102 (as renumbered by item [10]) Rules of CourtInsert “(including the costs payable out of small estates and other estates)”after “costs” in section 102 (2) (d).

[12] Section 102 (2) (e)–(g)Insert after section 102 (2) (d) (as renumbered by item [10]):

(e) dispensing with the rules of evidence for proving anymatter that is not bona fide in dispute or in which formalproof may give rise to expense or delay,

(f) without limiting the generality of paragraph (e), permittinginformal evidence to be given of property valuations or themedical condition of the deceased or any other personsconcerned with proceedings under Chapter 3,

(g) the circumstances in which proceedings under Chapter 3 inrespect of small estates may be dealt with in the absence ofthe parties.

[13] Section 102 (4)Insert after section 102 (3) (as renumbered by item [10]):

(4) In this section:small estate means an estate the value of which is less than$750,000 or such other amount as may be prescribed by theregulations.

[14] Section 105 (as renumbered by item [10]) Amendment of other Acts and regulationOmit the section.

[15] Schedule 1 Savings, transitional and other provisionsOmit “(Section 58)”. Insert instead “(Section 104)”.

[16] Schedule 1 Insert at the end of clause 1 (1):

Succession Amendment (Family Provision) Act 2008

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[17] Schedule 1, Part 3Insert after clause 8:

Part 3 Provisions consequent on enactment of Succession Amendment (Family Provision) Act 2008

9 DefinitionsIn this Part:amending Act means the Succession Amendment (FamilyProvision) Act 2008.the 1982 Act means the Family Provision Act 1982.

10 General savings(1) Without limiting section 30 of the Interpretation Act 1987, any

act, matter or thing done or omitted to be done under a provisionof the 1982 Act and having any force or effect immediatelybefore the commencement of a provision of this Act that replacesthat provision is, on that commencement, taken to have beendone or omitted under the relevant provision of this Act.

(2) This clause does not apply:(a) to the extent that its application is inconsistent with any

other provision of this Schedule or a provision of aregulation under clause 1, or

(b) to the extent that its application would be inappropriate ina particular case.

11 Transitional provisions(1) Chapter 3, as inserted by the amending Act, applies in relation to

the estate of a person who dies on or after the commencement ofthis clause.

(2) The provisions of the 1982 Act, as in force before thecommencement of this clause, continue to apply in relation to theestate of a person who dies before the commencement of thisclause, in so far as they are not affected by the operation of thisPart.

(3) Without limiting subclause (2), the provisions of the 1982 Act, asin force immediately before the commencement of this clause,continue to have effect in relation to the determination of anapplication made before that commencement.

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(4) Section 59 (3) (b) and (4) (relating to undisclosed property)extend to an order for provision out of the estate or notional estateof a deceased person made before the commencement of thisclause.

[18] Schedules 2 and 3Omit the Schedules.

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Schedule 2 Amendment of other Acts(Section 4)

2.1 Conveyancing Act 1919 No 6[1] Section 36B

Insert after section 36A:

36B Contingent and future interests to carry the immediate incomeWhere under an instrument other than a will coming intooperation after the commencement of the Conveyancing(Amendment) Act 1930 property stands limited to a person for acontingent or future interest, or stands limited to trustees upontrust for a person whose interest is contingent or executory, suchinterest shall, subject to the statutory provisions relating toaccumulations, carry the immediate income of that property fromthe time when the instrument comes into operation, except so faras such income or any part thereof may be otherwise expresslydisposed of.

[2] Schedule 9 Savings, transitional and other provisionsOmit Part 7. Insert instead:

Part 7 Provision consequent on enactment of Succession Act 2006

13 Contingent and future testamentary giftsSection 36B (1) of this Act, as in force immediately before itsrepeal by the Succession Act 2006, continues to apply (in so faras it is not affected by the operation of Schedule 1 to theSuccession Act 2006) to a will made before that repeal as if thatsection had not been repealed.Note. Section 36B was repealed on the commencement of theSuccession Act 2006 on 1.3.2008. Schedule 1 to the Succession Act2006 provides for section 34 of that Act to apply to a will whenever madeif the testator dies on or after 1.3.2008.

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2.2 District Court Act 1973 No 9[1] Section 134 Jurisdiction in equity proceedings

Omit “an order under section 7 of the Family Provision Act 1982” from section134 (1) (c).Insert instead “a family provision order under Chapter 3 of the Succession Act2006”.

[2] Section 134 (2)Omit “the Family Provision Act 1982”.Insert instead “Chapter 3 of the Succession Act 2006”.

2.3 Duties Act 1997 No 123Section 163ZB Exempt transactionsOmit “the Family Provision Act 1982” from section 163ZB (1) (d).Insert instead “Chapter 3 of the Succession Act 2006”.

2.4 Forfeiture Act 1995 No 65Section 3 DefinitionsOmit “the Family Provision Act 1982” from the definition of benefit.Insert instead “Chapter 3 of the Succession Act 2006”.

2.5 Judges’ Pensions Act 1953 No 41Section 16 Payment of pension to legal personal representative in certain casesOmit “the Family Provision Act 1982”.Insert instead “Chapter 3 of the Succession Act 2006”.

2.6 Legal Aid Commission Act 1979 No 78Section 35 Means testOmit “the Family Provision Act 1982” from section 35 (4) (e).Insert instead “Chapter 3 of the Succession Act 2006”.

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2.7 Local Government and Other Authorities (Superannuation) Act 1927 No 35Section 17BA Payment without grant of probate etcOmit “the Family Provision Act 1982” wherever occurring from section 17BA(2) (a) and (3).Insert instead “Chapter 3 of the Succession Act 2006”.

2.8 Police Regulation (Superannuation) Act 1906 No 28Section 18B Payment without grant of probate etcOmit “the Family Provision Act 1982” wherever occurring from section 18B(2) and (3).Insert instead “Chapter 3 of the Succession Act 2006”.

2.9 Probate and Administration Act 1898 No 13[1] Section 40A Evidence or presumption of death

Omit “the Family Provision Act 1982” from section 40A (2).Insert instead “Chapter 3 of the Succession Act 2006”.

[2] Section 41A Probate or administration for purpose of Family Provision Act 1982 Omit the section.

[3] Section 42, noteInsert at the end of section 42:

Note. On grant of administration in respect of a deceased person topermit an application to be made for a family provision order, see section91 of the Succession Act 2006.

[4] Section 92 Distribution of assets after notice given by executor or administratorOmit section 92 (1). Insert instead:

(1) The executor or administrator of the estate of a testator or anintestate may distribute the assets, or any part of the assets, of thatestate among the persons entitled having regard to the claims ofbeneficiaries (including children conceived but not yet born at thedate of the death of the testator or intestate), creditors and otherpersons in respect of the assets of the estate of which the executoror administrator has notice at the time of distribution if:

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(a) the assets are distributed at least 6 months after thetestator’s or intestate’s death, and

(b) the executor or administrator has given notice in the formapproved under section 17 of the Civil Procedure Act 2005that the executor or administrator intends to distribute theassets in the estate after the expiration of a specified time,and

(c) the time specified in the notice is not less than 30 days afterthe notice is given, and

(d) the time specified in the notice has expired.

[5] Fifth Schedule Savings and transitional provisions arising from amendments to this ActInsert after Part 1:

Part 2 Provisions consequent on enactment of Succession Amendment (Family Provision) Act 2008

8 Distribution of assets after notice given by executor or administrator

Section 92 (1), as in force immediately before thecommencement of Schedule 2.9 [4] to the SuccessionAmendment (Family Provision) Act 2008, continues to apply toand in respect of the estate of testator or intestate who died beforethat commencement.

2.10 Public Authorities Superannuation Act 1985 No 41Section 58 Payment without grant of probate etcOmit “the Family Provision Act 1982” wherever occurring from section 58 (2)(a) and (3).Insert instead “Chapter 3 of the Succession Act 2006”.

2.11 State Authorities Non-contributory Superannuation Act 1987 No 212Section 31 Payment without grant of probate etcOmit “the Family Provision Act 1982” wherever occurring from section 31 (2)(a) and (3).Insert instead “Chapter 3 of the Succession Act 2006”.

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2.12 State Authorities Superannuation Act 1987 No 211Section 51 Payment without grant of probate etcOmit “the Family Provision Act 1982” wherever occurring from section 51 (2)(a) and (3).Insert instead “Chapter 3 of the Succession Act 2006”.

2.13 State Public Service Superannuation Act 1985 No 45Section 57 Payment without grant of probate etcOmit “the Family Provision Act 1982” wherever occurring from section 57 (2)(a) and (3).Insert instead “Chapter 3 of the Succession Act 2006”.

2.14 Superannuation Act 1916 No 28Section 88A Payment without grant of probate etcOmit “the Family Provision Act 1982” wherever occurring from section 88A(2) (a) and (3).Insert instead “Chapter 3 of the Succession Act 2006”.

2.15 Testator’s Family Maintenance and Guardianship of Infants Act 1916 No 41Section 1A Application of ActOmit “the Family Provision Act 1982”.Insert instead “Chapter 3 of the Succession Act 2006”.

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2.16 Transport Employees Retirement Benefits Act 1967 No 96Section 58 Payment without grant of probate etcOmit “the Family Provision Act 1982” wherever occurring from section 58 (2)(a) and (3).Insert instead “Chapter 3 of the Succession Act 2006”.

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