Wills & Succession Notes

DEATH
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Introduction:
Succession is that body of law relating to the devolution of property on death.

Succession may be either
1. TESTAMENTARY, that is where the deceased leaves a will or
2. INTESTATE SUCCESSION, where the deceased fails dispose some or all of their property by will.
Death gives rise to 3 areas of law:
Succession:
Procedural i.e. Registration.

Coronial
Succession
Litigious
Contesting validity of wills.

Construction of wills.
Administration disputes.
Family Provision.
Non-Litigious
Drafting wills.
Administration of estates.
Fundamental Terms:
Will:
A document properly executed by a person having testamentary capacity containing that persons post mortem
wishes and which has not been revoked. Formerly the term referred only to the testamentary disposition of land.
Testament:
Old term for a will relating only to chattels.
Codicil:
A will that alters or adds to an existing will.
Testator:
A person who makes a will. Formerly the term referred only to a male person and the term testatrix was used to
refer to a female person.
Intestacy:
Death without leaving a valid will that disposes of all of the deceaseds property. A partial intestacy arises where
there is a will but the will fails dispose of all of the deceaseds property.
Probate:
A grant made by a court exercising a probate jurisdiction certifying the validity of the will and authorising the
executor to administer the estate, i.e. gives legal force to the will.
Letters of Administration:
Legal Personal Representative:
A grant made by a court exercising a probate jurisdiction authorising the administrator

to administer the estate usually of a person dying intestate.
An executor or an administrator.
Testamentary Freedom v Forced Inheritance:

There are two main themes in the law of succession as to how property should be disposed of upon death. Different jurisdictions
have tended to adopt one or the other depending upon whether their historical roots lay in common law or civil law, although in
some jurisdictions there may be a blend of the two.
1.
COMMON LAW dominant theme in succession law in the last 200 years is testamentary freedom. However the Family
Provision legislation has impact here.
2.
CIVIL LAW many jurisdictions have total or partial forced inheritance. These jurisdictions are based in Roman law notions
of filial duties. Note also community property, which is generally not subject to succession.
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Historical Background:
Anglo-Saxon
Cwide early form of will. All property except that requiring Royal consent could be left by will. No
or little formalities.
1066
Norman conquest-introduction of feudalism-wills of chattels only. Land passes to the heir-at-law.

Distinction in law between succession to chattels and succession to land remains until 1837.
14th Century
Restrictions on leaving of chattels; 1/3 by will, 1/3 to the church, 1/3 to spouse, begin to disappear. As
land cannot be devised by will, rise of the Use an early form of trust is recognised in equity.
Ecclesiastical courts administer testaments and intestacy of chattels under what is known as Canon Law.
1535
27 Hen VIII c10 Statute of Uses, abolishes the Use. Unpopular.
1532-1536
Canon or Ecclesiastical Law is taken away from Rome and placed under the jurisdiction of the King.
This law, which included the testamentary disposition of chattels, started to become a branch of English
domestic law.
1540
32 Hen VIII c1 Statute of Wills, allows wills of all land held in socage tenure and 2/3 of land held in
military tenure. Writing required.
1660
12 Car c24 Military tenures abolished upon the restoration so all land could be left by will.
1670
22 & 23 Car II c10 Statute of Distributions, provides for distribution of chattels upon intestacy.
1677
29 Car II c3 Statute of Frauds, wills of land required to be in writing, signed by testator, and have 3 or 4
witnesses.
1833
3 & 4 Will IV c106 Inheritance Act, abolishes primogeniture so land passes on intestacy in the same
manner as chattels. Adopted in NSW in 1862 by Langs Act.
1837
7 Will IV & 1 Vic c26 Wills Act, provides for common form of will for both chattels and realty.
Adopted in NSW by 3 Vic No.5 from 1 January 1840.
1857
20 & 21 Vic c77 Probate Act, creates a court of probate and removes the administration of estates from
the Ecclesiastical courts. Land and personalty are now administered in the same way. Adopted in NSW
by Probate Act 1890.
1898
Wills, Probate and Administration Act 1898 (NSW) consolidates 3 Vic No.5 and the Probate Act 1890.
1916
Testators Family Maintenance and Guardianship of Infants Act 1916 (NSW) enabled the court to make
provision for spouses and children where a testator failed to make proper provision in their will.
Replaced by Family Provision Act 1982 (NSW) which broadened the categories of persons who could
seek provision.
1977
Children (Equality of Status) Act 1976 (NSW) all children are treated as the child of their parents
irrespective of whether the parents are married at the childs birth. Thus rights of inheritance not
dependant on birth in lawful wedlock.
1978
Wills, Probate and Administration (Amendment) Act 1977 (NSW) introduces the present rules on
intestate succession.
1984
Artificial Conception Act 1984 (NSW) introduces presumptions relating to children conceived as a result
of various fertilisation procedures.
1985
Wills, Probate and Administration (De facto Relationships) Amendment Act 1984 (NSW) allows de facto
spouses to inherit on intestacy subject to some restrictions. Definition of de facto relationship broadened
in 1999 to include same sex couples: Property (Relationships) Amendment Act 1999 (NSW).
1989
Wills, Probate and Administration (Amendment) Act 1989 (NSW) allows dispensation of formalities,
s.18A; rectification, s.29A; abolishes requirement that a will must be signed at the foot of the page, s.8
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repealed; abolishes privileged testators, s.10 repealed; modifies witness beneficiary rule, s.13; permits
revocation on divorce, s.15A.
1996
Forfeiture Act 1995 (NSW) provided that a person unlawfully killing another in circumstances not
amounting to murder may seek from the court a modification of the rule that prevents such person
inheriting from their victim.
1998
Status of Children Act 1996 (NSW) consolidates the law relating to ex nuptial and artificially conceived
children.
2006
Succession Act 2006 (NSW) (Commenced 1 March 2008) enacted as part of the Uniform Succession
Project to reform the law relating to wills. This Act repeals the remaining first 40 sections of the Wills,
Probate and Administration Act 1898. The 1898 Act is renamed the Probate and Administration Act
1898.
2008
Succession Amendment (Family Provision) Act 2008 (NSW) (Commenced 1 March 2009). This Act
repeals the Family Provision Act 1982 and re-enacts its provisions as part of the Succession Act 2006.
2009
Succession Amendment (Intestacy) Act 2009 (NSW) (Assented to 9 June 2009 and commenced 1 March
2010). This Act repeals Part 2 Division 2A of the Probate and Administration Act 1898 (NSW) and
inserts a new Chapter 4 in to the Succession Act 2006 (NSW) dealing with intestate succession.
2010
Relationships Register Act 2010 (NSW) (Commenced on 1 July 2010). This Act allows for persons in a
registered relationship to be regarded as spouses.
2010
Surrogacy Act 2010 (NSW) (Assented to 16 November 2010 and commenced 1 March 2011). This Act
allows the court to make parenting orders where there is a surrogacy agreement.
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Death Formalities:
A person who dies in NSW must have their death registered; s.36, Births Deaths and Marriages Act 1995.
(1) If a person dies in the State, the death must be registered under this Act.
(2) If a court orders the registration of a death, the death must be registered under this Act.
(3) If a person dies:
(a) in an aircraft during a flight to an airport in the State, or
(b) on a ship during a voyage to a port in the State,
the death may be registered under this Act.
(4) If a person who is domiciled or ordinarily resident in the State dies outside the Commonwealth, or a person dies outside the
Commonwealth leaving property in the State, the death may be registered under this Act.
(5) However, the Registrar is not obliged to register a death under subsection (3) or (4) if the death is registered under a
corresponding law.
(6) If a child is stillborn, the child's death is not to be registered under this Part.
(7) This section is subject to section 38.
Notes
1. The power to order registration of death may be exercised by courts of this State and also by courts of other States and the
Commonwealth (see section 37).
2. i.e. the foetal death. A stillbirth is registered as a birth but not as a death.
A death cannot be registered without a certificate from a medical practitioner under s.39, or a certificate from the coroner under
s.101 of the Coroners Act 2009; see s.38, Births Deaths and Marriages Act 1995.
A certificate under s.39 cannot be given unless the medical practitioner has seen the deceased within 6 months of death; otherwise
the death must be reported to the coroner; s.39 of the Coroners Act 2009. All suspicious deaths must be reported to the coroner and
are referred to as reportable deaths; s.35. Section 35 provides:
(1) This section applies to any person who has reasonable grounds to believe that a death or suspected death of another person:
(a) is a reportable death or occurred in circumstances that would be examinable under Division 2 of Part 3.2, and
(b) has not been reported in accordance with subsection (2).
(2) A person to whom this section applies must report the death or suspected death concerned to a police officer, a coroner or an
assistant coroner as soon as possible after becoming aware of the grounds referred to in subsection (1).
Maximum penalty (subsection (2)): 10 penalty units.
(3) A police officer to whom a death or suspected death is reported under this section is required to report the death or suspected death
to a coroner or assistant coroner as soon as possible after the report is made.
(4) An assistant coroner to whom a death or suspected death is reported under this section is required to report the death or suspected
death to a coroner as soon as possible after the report is made.
(5) A coroner to whom a death or suspected death is reported under this section is required to inform the State Coroner of the report as
soon as practicable after the report is made.
A reportable death is defined in section 6 as:
(1) For the purposes of this Act, a persons death is a reportable death if the death occurs in any of the following circumstances:
(a) the person died a violent or unnatural death,
(b) the person died a sudden death the cause of which is unknown,
(c) the person died under suspicious or unusual circumstances,
(d) the person died in circumstances where the person had not been attended by a medical practitioner during the period of 6
months immediately before the persons death,
(e) the person died in circumstances where the persons death was not the reasonably expected outcome of a health-related
procedure carried out in relation to the person,
(f) the person died while in or temporarily absent from a declared mental health facility within the meaning of the Mental Health
Act 2007 and while the person was a resident at the facility for the purpose of receiving care, treatment or assistance.
(2) A reference to a medical practitioner in subsection (1) includes a reference to a person authorised to practise as a medical
practitioner under a law of another State or a Territory.
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(3) In this section:

health-related procedure means a medical, surgical, dental or other health-related procedure (including the administration of an
anaesthetic, sedative or other drug), but does not include any procedure of a kind prescribed by the regulations as being an
excluded procedure.
Pursuant to s.21 a coroner has jurisdiction to hold an inquest if the coroner deems it appropriate;
(1) A coroner has jurisdiction to hold an inquest concerning the death or suspected death of a person if it appears to the coroner that:
(a) the persons death is (or there is reasonable cause to suspect that the persons death is) a reportable death, or
(b) a medical practitioner has not given (or there is reasonable cause to suspect that a medical practitioner has not given) a
certificate as to the cause of death.
(2) The reference to a medical practitioner in subsection (1) (b) includes, if it appears to the coroner that the death or suspected death
occurred at a place outside the State, a reference to a person entitled under the law in force in that place to issue a certificate as to
the cause of death.
This jurisdiction does not depend on whether the death has in fact been reported; s.20. However pursuant to s.27 of the Coroners
Act there are circumstances where an inquest must be held.
(1) An inquest concerning the death or suspected death of a person is required to be held in any of the following circumstances:
(a) if it appears to the coroner concerned that the person died or might have died as a result of homicide (not including suicide),
(b) if the jurisdiction to hold the inquest arises under section 23,
(c) if it appears to the coroner concerned that:
(i) it has not been sufficiently disclosed whether the person has died, or
(ii) the persons identity and the date and place of the persons death have not been sufficiently disclosed,
(c) if it appears to the coroner concerned that the manner and cause of the persons death have not been sufficiently disclosed
(unless the case is one in which an inquest has been suspended or continued under section 78).
(2) An inquest is not required to be held under this section if it appears to the coroner concerned that an inquest or other official
inquiry concerning the death or suspected death has been held, or is to be held, outside the State.
A body cannot be buried or cremated except in accordance with s.100 of the Coroners Act which provides:
(1) A person must not bury or cremate human remains, or place human remains in a mausoleum or other permanent resting place, or
cause the remains to be so buried, cremated or placed, unless:
(a) the person has been given, or has in his or her possession, an appropriate disposal authorisation for the disposal of the
remains, or
(b) the disposal of the remains is otherwise authorised by the regulations.
Maximum penalty: 50 penalty units.
(2) A person must not deliver or hand over human remains for anatomical or medical research, or remove human remains (other than
cremated remains) from the State, or cause such remains to be so delivered, handed over or removed, unless:
(a) an appropriate disposal authorisation for the disposal of the remains has been issued, or
(b) the disposal of the remains is otherwise authorised by the regulations.
(3) An appropriate disposal authorisation is:
(a) in relation to the disposal of the remains of a deceased person (other than a stillborn child)any of the following documents:
(i) a notice given by a medical practitioner for the purpose of section 39 of the Births, Deaths and Marriages Registration
Act 1995 relating to the deceased person,
(ii) an order made by a coroner under section 101 authorising the disposal of the remains,
(iii) a certificate issued under section 51 of the Births, Deaths and Marriages Registration Act 1995 that relates to the
deceased person, or
(b) in relation to the disposal of the remains of a stillborn childany of the following documents:
(i) a certificate or notice given by a medical practitioner for the purpose of section 12 (3) of the Births, Deaths and
Marriages Registration Act 1995 relating to the stillborn child,
(ii) an order made by a coroner under section 101 authorising the disposal of the remains.
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Thus in order to bury or cremate the deceased the person arranging the burial must either possess a certificate issued by a medical
practitioner under s 39 of the Births, Deaths and Marriages Registration Act or an order of a corner under s.101 of the Coroners Act
or a certificate under s 51 of the Births, Deaths and Marriages Registration Act.
Death Presumptions:
Definition: DEATH is defined for the purposes of the law of New South Wales in s.33 of the Human Tissue Act 1983 as:
33. For the purposes of the law of New South Wales, a person has died when there has occurred:
(a) irreversible cessation of all function of the person's brain; or
(b) irreversible cessation of circulation of blood in the person's body.
NB: this definition applies only where there is a body. It applies for the purposes of all law in New South Wales and not just the
Human Tissue Act. Consider the position of a brain dead person on life support?
Death must at common law be proved as a question of fact either directly where there is a body or indirectly as a matter of
implication from known circumstantial evidence.
A person wishing to prove an entitlement founded upon a person having survived another person must, at common law, prove that
fact; Wing v Angrave (1860) 8 HL Cas 183; 11 ER 397. So in Re Dolling [1956] VLR 535, it was held at 537 that, [b]efore a
legatee is entitled to share in the estate of a testator he must show that he has survived the testator, and so must those who claim
through the legatee.
ABSENCE:
Where there is no body death can be presumed. Section 40A of the Probate and Administration Act 1898 allows probate to be
granted upon a presumption of death.
Where a person is not heard from for a period of 7 years by those persons who would be expected to have had communication with
that person then a court may presume that person dead; Axon v Axon (1937) 59 CLR 395 at 404-405 per Dixon J. This period may
be less depending on the circumstances of disappearance; Re: Matthews [1898] P 17 such as the case of an elderly person who
disappears but these are often cases where death may be inferred from surrounding circumstances rather than presumed.
It does not matter that the person is a fugitive from justice or cuts themselves off from relatives, if the 7 years has expired and no
one has heard of the whereabouts of the person then the court can apply the presumption; Grieve v Registrar General (SCNSW, 3
April 1997, Young J, Unreported). However, if the objective circumstances reveal a reason why such persons might not have heard
from the missing person then the court may not apply the presumption.
Cases based on the presumption of death must be distinguished from cases where the court is able to infer death in the absence of a
body from the circumstances of disappearance; Re: Smith (1975) 6 ALR 123, (aircraft disappearing over water).
Once the presumption is made if the deceased turns up then probate / administration must be revoked for want of jurisdiction;
s.40C and Ex parte Keegan (1907) 7 SR (NSW) 565.
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Order of Death and Survivorship

At common law the order of death had to be proved by evidence. Difficulties arose in cases of simultaneous deaths e.g. plane
crash etc.
Section 35, Conveyancing Act 1919 : Younger deemed to survive the elder.
In all cases where two or more persons have died under circumstances rendering it uncertain which of them survived, the
deaths shall for all purposes affecting the title to any property be presumed to have taken place in order of seniority (position),
and the younger be deemed to have survived the elder.
WHEN IT APPLIES:
This section applies if the order of death cannot be established by evidence. It must be uncertain on the evidence as to in which
order 2 or more persons died; Re Plaister; Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547.
Relationship s.35 and the Presumption of Death:
See Halbert v Mynar [1981] 2 NSWLR 659.
1.
The 7 year rule means that death is presumed to have occurred at sometime during previous 7 years. Thus actual time of death
must be proved in order to show that a legatee has survived the testator; Re Dolling [1956] VLR 535. See Geddes p.314.
2.
Section 35 turns on under circumstances rendering it uncertain which of them survived." Thus the circumstances of death
must be known but these circumstances must render it uncertain which order the persons died. Whereas if the 7 year
presumption applied then the circumstances of death are unknown. Therefore s.35 and the 7 year rule cannot be used together
to determine if a legatee has survived the testator.
3.
There is no requirement in section 35 that the circumstances of each death must be the same. All that is required is that the
circumstances of each death be known and that these circumstances render it uncertain which order the persons died; Hickman
v Peacey [1945] AC 304 at 314-315.
SURVIVORSHIP
The Succession Act 2006 in section 35 makes special provision with respect to beneficiaries of a will who die within 30 days of the
death of the testator. In such a case the beneficiary, unless a contrary intention is shown in the will, is presumed to have died
immediately before the testator. Section 35 applies only where the deceased dies leaving a will made after 1 March 2008.
Further section 107 of the Succession Act requires a person to survive the deceased by 30 days in order to be able to inherit where
the deceased dies intestate. This section applies only where the deceased dies intestate on or after 1 March 2010.
The Act does not alter the operation of section 35 of the Conveyancing Act 1919 but in some situations it removes in a practical
sense the consequences of determining the precise order of death.
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Death Disposal of the Body:

OWNERSHIP:
A corpse cannot own property; Haynes Case (1614) 12 Co Rep 113; 77 ER 1389. Thus the coffin belongs to the person who
acquired it for burial, usually the executor (person appointed by testator[creator of will] to carry out terms of their will).
No property in a corpse including any part of a corpse; Doodeward v Spence (1908) 6 CLR 406.
1. The act of stealing a corpse is a trespass to the land in which it is buried; per Higgins J at 414.
2. A corpse becomes part of the land in which it is buried.
3. Some proprietary rights may be acquired where a person performs work or skill on a corpse; per Griffith CJ and Barton J.
4. Possession of a corpse is only lawful for the purpose of immediate burial.
5. At common law any interference with a corpse even for dissection for medical purposes is a criminal offence; R v Lynn (1788)
2 TR 733; 100 ER 394; 1 RR 607. See also Reg 69 of the Public Health Regulation 2012 (NSW). Thus special legislation is
required authorising organ donation; Human Tissue Act 1983 ss.23-24 and medical research; Anatomy Act 1977 ss.8-8A. Due
to the sensitive nature of these matters for the relatives of the deceased recent legislative controls have been introduced by the
Human Tissue and Anatomy Legislation Amendment Act 2003.
Haynes Case (1614)

FACTS: Person stole from 7 bodies, a winding sheet
REASONING: Whether he could be charged with larceny? Prove taking away someones property without their consent? So
were they the dead persons property?
HELD: Ends up being owned by at the time of your death the person that requires them. The coffin isnt owned to the deceased
same as the clothes you have on. So if theyre buried with their favourite jewellery it is no longer theirs.
R v Lynn (1788)
Interference with a corpse even for dissection for medical purposes is a criminal offence
Deceased doesnt own any property
Isnt larceny but judges aid if you do it, youll be punished for it.
Doodeward v Spence (1908
FACTS:
Woman gave birth to a baby with two heads (Siamese twins). The Dr was given possession and preserved the heads in a jar. The
Dr died.
NSW thought it was an offence and took possession of the jar.
P brought civil pursuit to gain ownership of jars. Conversion: Bring this to get damages. Have to prove there was an
interference with your proprietary right.
If you dont have ownership conversion will collapse
P couldnt have had any ownership, so case was doomed to fail
HC: ISSUE: whether non-suit was correctly granted. Which is possible if there was absolute no ownership with body.
No one can own your body, you cant own your body when dead as well. BUT people have duties and rights with respect to it.
This has to be non-proprietary right. So cant be subject to larceny as no one owns it.
Exception: When it is for purposes for example medical students rights to hold dead bodies for teaching purposes Anatomy Act
s19.
It is not unlawful if body possesses attributes of such a nature that is preservation may afford valuable or interesting
information.
When body isnt awaiting burial: Exception: No property awaiting burial, but if isnt awaiting burial and is for purposes of skill
or work, he requires a right of possession to the body not awaiting burial.
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ORGAN DONATION:
REGENERATIVE TISSUE (issue that, after injury or removal, is replaced in the body of a living person by natural processes of
growth or repair.s4) may only be removed from an adult person with that person's consent and then only for the purposes of
transplantation or for other therapeutic, medical or scientific purposes; section 7 of the Human Tissue Act 1983.
NON-REGENERATIVE TISSUE may only be removed from an adult person with that person's consent and then only for the
purposes of transplantation; section 8 of the Human Tissue Act 1983.
Tissue and includes blood, ova and semen, and foetal tissue; section 4 (2A) of the Human Tissue Act 1983.
CONSENT: A person over 16 years may consent in writing to the removal of blood from their body for a therapeutic purpose or
for the transfusion in to a person other than themselves; section 19 of the Human Tissue Act 1983.
Nothing in the Human Tissue Act authorises the removal of semen for the purposes of the artificial insemination of a woman
from a comatose person where that person has not previously consented or authorised another to consent on his behalf; MAW v
Western Sydney Area Health Service (2000) 49 NSWLR 231 at 244. But where a person is deceased then this may be possible
provided the requirements of section 23(3) of the Human Tissue Act as amended by Human Tissue and Anatomy Legislation
Amendment Act 2003 are satisfied as set out below.
The court cannot use the parens patriae jurisdiction that it has over disabled persons to authorise the removal of semen for the
purposes of the artificial insemination of a woman even of the spouse of the disabled person as this will not preserve the life of,
safeguard, secure or promote, or prevent the duration in the physical or mental health of the disabled person; MAW v Western
Sydney Area Health Service (2000) 49 NSWLR 231 at 242.
TISSUE CAN BE REMOVED: Where the body of the deceased person is at hospital and that person has during their lifetime
consented to the removal of tissue from their body after death for the purposes of transplantation to the body of a living person
or for other therapeutic medical or scientific purposes and the consent has not been revoked then the tissue may be removed;
section 23 (1). Where there is no consent the next of kin may consent if the deceased has not during their lifetime expressed
objection; section 23 (3).
where the body is not at a hospital section 24 of the Human Tissue Act 1983.
(1) If the body of a deceased person (other than a deceased child) is at a place other than a hospital, the removal of tissue from
the body of the deceased person for the purpose of its transplantation to the body of a living person, or its use for other
therapeutic purposes or for medical purposes or scientific purposes, is authorised if:
(a) the deceased person had, during the persons lifetime, given his or her consent in writing to the removal of tissue from the
persons body for that purpose, and
(b) the consent had not been revoked
Transplantation includes the artificial insemination of semen; section 4 (3) and artificial insemination refers to fertilization
outside of the womb for the purpose of implanting in the woman or another woman; section 4 (1). This includes IVF treatments
and surrogacy.
Section 23 of the Human Tissue Act allows a designated officer of a hospital to permit the removal of tissue from the body of a
deceased person at the hospital if satisfied that the deceased consented in writing during his or her lifetime; s.23(1). Even
where there is no evidence of the written consent of the deceased if the designated officer is satisfied from enquiries that the
deceased had not in their lifetime expressed objection and the next of kin consent in writing then the tissue may be removed;
s.23(3).
REMOVAL OF TISSUE pursuant s.23 is only for the purpose of transplantation to the body of a living person or for some
therapeutic, medical or scientific purpose. Removal of semen for possible later use may be regarded as a medical purpose;
Edwards; Re Estate of Edwards (2011) 81 NSWLR 198 at [32]. Also Y v Austin Health (2005) 13 VR 363 at [39].
The absolute proposition that there can be no property in a corpse has been confined in recent times to corpses awaiting burial.
It has been accepted that where any form of dissection or preservation has been applied to a tissue sample then it is capable of
being regarded as property; AB v Leeds Teaching Hospital NHS Trust [2004] EWHC 644. Doodeward v Spence has not been
followed by the English Court of Appeal in Yearwood v North Bristol NHS Trust [2010] QB 1 at least in respect to semen the
subject of an action in negligence.
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Edwards; Re Estate of Edwards (2011) 81 NSWLR 198 at [86]-[91] R A Hulme J held that the EXTRACTION OF SEMEN BY
MEDICAL PRACTITIONERS AT THE REQUEST OF THE WIDOW constituted the performance of work or skill upon a part
of the body such that it was capable of forming property that enabled the widow to assert a right to possession. However in
Queensland a different view has prevailed that there is nothing in the common law that would authorise a court making an order
of this kind: In the matter of Gray [2001] 2 Qd R 35 and Baker v State of Queensland [2003] QSC 2; c.f. Re Denman [2004] 2
Qd R 595.
Edwards; Re Estate of Edwards (2011

Possession of her late husbands sperm
It gets granted for her to take possession but she cant use it for reproduction reasons and cant take outside of NSW
AB v Leeds Teaching Hospital NHS Trust [2004]
claims for psychiatric injury brought by parents of children who had died. Body parts had been taken during post mortems and
not returned.
The plaintiffs relied upon their duty to bury as conferring a right to possess the body, including all its parts, for the purpose of
burial. The defendants claimed that there was at least a right of the hospitals and pathologists to possess organs on which work
and skill had been carried out.
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BURIAL EXECUTOR: (will)

The executor has the right to the custody and possession of the body for the purpose of burial; Williams v Williams (1882) 20 Ch D
659 at 665 per Kay LJ. Thus an action will lie at the suit of the executor to recover the body but only for this purpose. See also
Dobson v North Tyneside Health Authority [1997] 1 WLR 596 at 600.
The TESTATORS WISHES AS TO THE FUNERAL etc are not binding on the executor at common law, as the testator has no
property in his/her own body. However, if a deceased leaves written instructions that his/her body is not to be cremated then these
are binding on the executor; see Reg 77 of the Public Health Regulation 2012 (NSW) which provides:
No cremation against dead persons wishes
(1) A person must not cremate the body of a dead person if the person is aware that the proposed cremation would be contrary to a
written direction left by the dead person.
(2) A person must not cremate the body of a dead person otherwise than in accordance with any written direction left by the dead
person about the particular method of cremation that was or was not to be used.
The Public Health Regulation 2012 makes numerous provisions with respect to the burial, cremation and handling of corpses. The
most relevant of these is Reg 66:
Burials in certain areas prohibited
(1) A person must not place a body in any grave or vault unless that grave or vault is located:
(a) in a public cemetery, or
(b) in a private cemetery or other place approved for that purpose by a local government authority, or
(c) on private land, where the area of landholding is 5 hectares or more and the location has been approved for that
purpose by a local government authority, or
(d) on land reserved under the National Parks and Wildlife Act 1974 or acquired under Part 11 of that Act, where the
location has been approved for that purpose by:
(i) a person or body (including a local council, trust board or board of management within the meaning of that
Act) in which the care, control and management of the land is vested, or
(ii) if no such person or body has been vested with the care, control and management of the landthe DirectorGeneral of the Department of Premier and Cabinet.
(2) A person must not bury a body in or on any land if to do so would make likely the contamination of a drinking water supply or a
domestic water supply.
Williams v Williams (1882)
Sent a bill to the executors and took them to court as wouldnt pay She can only do this if she has legal right
Restitutionary Right: to reimburse yourself with burial costs
although there is no property in a dead body the executors have such a right of possession that they may obtain a peremptory
mandamus against the gaoler [jailer] who was lawfully in possession of the body of the man while alive to have the dead body
delivered up to them. Accordingly the law in this country is clear, that after the death of a man, his executors have a right to the
custody and possession of this body (although they have no property in it) until it is properly buried.
It follows that no man cannot by will dispose of his dead body. If there be no property in a dead body it is impossible that by
will or any other instrument the body can be disposed of. I asked for any authority in conflict with these cases, but none was
produced. I have referred to the books of the greatest authority to the question, and I believe there is no authority in the least
degree in conflict with these cases.
A man cannot by his will dispose your body. So cant direct what happens when erre dead
Who has right to do with dead body when burring it is the executor. They have the right to determine your burial, your direction
is simply a direction
Page 12 of 34
BURIAL NO EXECUTOR: (no will)

The Next of Kin has the right to bury and if none the person whose house the deceased dies in. A person who expends money on the
burial of another has a restitutionary right to recover that expenditure from the estate of the deceased; Smith v Tamworth City
Council (1997) 41 NSWLR 680 at 693-694.
The right to bury a child belongs to the BLOOD PARENTS over foster parents or carers; Warner v Levitt (SCNSW, 23 August
1994, Brownie J, unreported).
A DE FACTO SPOUSE has a higher right to burial than other relatives of the deceased; Burnes v Richards (SCNSW, 6 October
1993, Cohen J, unreported) and Brown v Tulloch (SCNSW, 18 October 1992, Waddell CJ in Eq, unreported).
NB: see Young Js 15 points in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693-694.
1. The executor has the right to bury.
2. The testator cannot dictate what will happen to his/her body.
3. The executor should consult with the relatives but is not bound to do so.
4. If there is no executor then the person with the highest right to administration has the right to bury. This is said to be the
'common or usual' approach and may be departed from where cultural religious or spiritual considerations apply; Jones v Dodd
(1999) 73 SASR 328 at [46]. These factors may take on greater weight in circumstances where there is unlikely to be any
application for administration; at [50-51]. However the 'common or usual' approach will only be departed from in an extremely
rare case; Burrows v Cramley [2002] WASC 47 at [27]. See also Roma v Ketchup [2009] QSC 442.
5. The surviving spouse or de facto is preferred to the children as administrator. However where there has been a short marriage
and the deceased has had a greater long term connection to the place where his children wished to bury then these wishes may
prevail; Laing v Laing [2014] QSC 194.
6. If two or more persons have an equal right to bury then the practicalities of an urgent burial prevail (win). This will particularly
be the case where the deceased is an infant child and there is no prospect of administration being applied for; AB v CD [2007]
NSWSC 1474. In the case of a child where the parents both have an equal right to bury but are in dispute, the court may favour
the parent with the closest bond with the child; AB v CD [2007] NSWSC 1474 and Joseph v Dunn [2007] WASC 238.
7. If no competent person, then householder of dwelling in which deceased dies has the right to bury.
8. Cremation and burial are equivalent.
9. A person who expends money on the burial of another has a restitutionary right to recover that expenditure from the estate of
the deceased; Michael Zannetides v Tracey Spence [2013] NSWSC 2032.
10. A right of burial is not an easement but an irrevocable licence over the body in the ground.
11. A cemetery authority can make reasonable by-laws for the maintenance and appearance of a headstone; Crown Lands (General
Reserves) By Law 2006 (NSW), clause 25. NB: This clause will be repealed upon the commencement of the Cemeteries and
Crematoria Act 2013 and replaced by regulations to be made under s.106.
12. Subject to the by-laws the holder of the right to bury has power to decide the appearance and headstone of the grave. The right
to bury and the rights attached to it relating to headstones etc. are not lost merely because the holder of the right to bury has
authorised another to arrange the funeral; Escott v Brikha [2000] NSWSC 458. In this case the court declared a person to be the
holder of the right to bury thus allowing them to alter the wording on the headstone.
13. The reasonable cost of a reasonable headstone is recoverable from the deceaseds estate; Michael Zannetides v Tracey
Spence [2013] NSWSC 2032.
14. The holder of the right to bury cannot exclude friends and relatives from expressing their affection for the deceased in an
appropriate manner such as placing flowers on the grave etc. NB a cemetery authority has the power to regulate this aspect in
terms of vases etc. that can be placed near graves; Crown Lands (General Reserves) By Law 2006 (NSW) clause 26. NB: This
clause will be repealed upon the commencement of the Cemeteries and Crematoria Act 2013 and replaced by regulations to be
made under s.106.
15. After the death of the executor or administrator, the right to control the grave passes to the legal personal representative of the
deceased and not the legal personal representative of the holder of the right to bury.
Wanted grave rights transferred to them. Made no mention of natural parents who aid for burial of David. Did natural parents
have rights?
Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273.

Situation where a son had buried his mother in a grave which his aunt claimed to be hers. I held that once a body had been
buried, it was not to be disturbed. Once an interment took place in a grave site with the permission of the cemetery authority
then there was an irrevocable licence, so far as that body was concerned, for it to remain, at least until the natural process of
dissolution.
Page 13 of 34
Calma v Sesar:
Martin J in the Supreme Court of the D Northern Territory had to consider a dispute between the plaintiff mother and the
defendant father of an adult son. The deceased died in a Darwin hospital. The mother was living in Alice Springs and the father
in Port Hedland, Western Australia. It could be seen that each of the claimants had equal rights as next of-kin. Martin J said (at
452) that: The body of the deceased was in Darwin and proper arrangements had been made for burial here. There was no good
reason in law why that should not be done and no good reason in law why the removal of the body from the Territory and burial
in Western Australia was to be preferred.
Brown v Tullock (1992) 7 BPR 15101.
That was a dispute between a de facto wife and a brother of the deceased. The coroner indicated that he intended to release the
body to the de facto wife. She intended to bury the body at Little Hartley. The brother wished to inter the body at Lithgow with
the rest of his family. The site at Lithgow had actually been purchased by the deceased for his own interment. The de facto wife
said that before his death the deceased told her he wanted to be buried at Little Hartley.
HELD: The judge found that as the de facto wife was likely to be the sole beneficiary and must be granted administration, she
had the right to choose. The mere fact that the plaintiff might become administrator appears to be irrelevant. However, as the de
facto wife she would be given priority over the deceased's brother
Burnes v Richards (1993) 7 BPR 15104
Plaintiffs were the daughter and sister of the deceased, the first defendant was the person who claimed to have been the
deceased's de facto husband for the last seventeen years. His claim was disputed. The plaintiffs wanted to bury the body in
Griffith in the family grave, the defendant wished to have the funeral in a village near Condobolin. The hospital intended to
hand the body to the Aboriginal Funeral Service on behalf of the plaintiffs, but, by mistake, handed it to a funeral director
retained by the defendant.
Warner v Levitt (1994) 7 BPR 15110. [right to burry]
The decision does seem to adopt two propositions which are questionable:
(a) that the right of possession of a dead D body runs with the duty to dispose of it; and
(b) that if an executor has to pay for the burial, he or she has the right to choose the burial place. Nonetheless, the decision is in
accordance with the principles I have abstracted earlier.
Adoptive parents have the right NOT natural parents (doesnt matter that they paid). Adoption is different to foster, it
cancels the right of naural parents legal rights in relation to law.
It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of
burying the deceased's body. Where there is no executor named, and the deceased leaves an estate, the person entitled to
administration is usually the person who is responsible for the burial of the body and for the payment of the funeral
expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of
administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, In
the Estate of Slattery (1909) 9 SR (NSW) 577; 26 WN (NSW) 116, the person with the largest interest will normally be the
person who is the one expected to bury the body.
Where the deceased does not leave any estate, then it would seem that the duty is still on the person under whose roof the
deceased dies to arrange the burial, though if it can be said that there is a legal duty on another person to bury the body, then
that other person will be subject to a restitutionary action at the suit of the householder who arranges the burial. The first part of
the proposition I have just enunciated is supported by the decision of the Full Court of the King's Bench in R v Stewart.
Page 14 of 34
RIGHTS WITH RESPECT TO GRAVES

A right to bury must be distinguished from the right to bury a person in a particular plot by reason of the acquisition of that right
from the trustee controlling a cemetery and is capable of being regarded as a species of property; Rutherford v Wallace [1999]
NSWCA 299.
If a person buys a plots for their burial it doesnt mean that the executor needs to bury them there
However this species of property even if granted in perpetuity can in certain circumstances be reacquired. Thus an unused burial
plot can be reacquired by a cemetery authority after 50 years; Crown Lands (General Reserves) By Law 2006 (NSW) clauses 34 and
35. NB: These clauses will be repealed upon the commencement of the Cemeteries and Crematoria Act 2013 and replaced by Part
4.
The Cemeteries and Crematoria Act 2013 received Royal Assent on 27 November 2013. The Act commenced on 24 October 2014
except as to Part 4 which is not yet in force but will upon commencement make significant changes to rights with respect to
gravesites.
The Cemeteries and Crematoria Act has two main purposes; (1) to regulate the internment industry (cemetery operators, funeral
directors and funeral funds) and (2) to regulate and control rights with respect to graves.
Section 47 creates two types of exclusive rights to internment in a burial site:
1. a perpetual interment right
2. a renewable interment right
A renewable internment right is defined s.54 as a right that may be granted in respect of cremated remains for an initial term not
exceeding 99 years and in respect of human remains that have not been cremated for an initial term not exceeding 25 years from the
date the right is granted. Note that the date the right is granted is not the same date as the date of burial.
A cemetery operator need not grant a right for the maximum period of 99 years or 25 years respectively and may grant the initial
term for a much shorter period. The right may be renewed pursuant to s.54(3) for periods not exceeding 5 years upon the payment
of the prescribed fee provided the initial period and any period of renewal does not exceed 99 years.
A cemetery operator may reuse (re-grant) the site and remove any memorial (subject to heritage requirements) after 2 years from the
expiry of a renewable internment right; s.55. However the site may not be reused if human remains have been buried in the site for
not less than 25 years; s.55(6).
No internment right is required for the scattering of cremated remains; s.62.
Internment rights may be left by will; s.49 or may pass on intestacy; s.50. The right may be held by two persons jointly and will
pass to the survivor on the death of one of those persons; s.51. The right may be transferred from one person to another but a
cemetery operator may refuse transfer if it appears that transfer would tend to create a monopoly or encourage dealing in interment
rights; s.60.
A perpetual internment right may be revoked by the cemetery operator if it is not exercised within 50 years after it is granted; s.52.
Allied to this area is the question of who is liable for funeral expenses and what is the status of gifts in wills for the erection and
maintenance of graves.
The executor or the person entitled to administration who orders the funeral of the deceased is entitled to be reimbursed the
reasonable costs of the funeral. What is reasonable is determined according to the "degree and quality", "rank and
circumstances" of the deceased; see Mullick v Mullick (1829) 1 Knapp 245; 12 ER 312 where a court will pay regard to cultural
factors.
If a third person ordered the funeral then that person is entitled to be reimbursed from the executor or administrator providing
that person is holding assets of the deceased.
A person who orders and extravagant funeral is personally liable to the undertaker and can only recover what are regarded as
reasonable costs of the funeral.
Page 15 of 34
A trust in the will for the maintenance of the testator's grave will not be valid as a private trust if the trust is in perpetuity, unless
it can be regarded as a charitable trust; Pedulla v Nasti (1990) 20 NSWLR 720. That is as part of the fabric or ornament of a
church.
There are a number of what are described as anomalous cases permitting trusts for the maintenance of graves provided that they
can be limited to 21 years; see Pedulla v Nasti (1990) 20 NSWLR 720.
Page 16 of 34
INTESTATE
SUCCESSION
Page 17 of 34
Applicable Law: Statute
Post 01/03/2010 - Succession Act 2006 (NSW)

Probate and Administration Act 1898 ss 61A to s 61F include persons dying on or after 01/01/1978 and before 01/03/2010.The
new Chapter 4 will apply to persons dying intestate on or after 1 March 2010.
s102 of the Succession Act: Intestacy occurs when the deceased fails to disperse all property by a valid gift or will. Two
common types:
1. TOTAL INTESTACY: failure to dispose of entire estate
2. PARTIAL INTESTACY: is the failure of
a. to include all property in a valid will
b. a special gift or
c. a residual gift (Any property you havent thought of or fail gift (where it fails) says it will be given to person x)
s103 of the Succession Act An entitlement to the whole estate means the net estate, i.e. the rules apply after payment of all such
funeral and administration expenses, debts and other liabilities. If theres no money left after these are paid for then
beneficiaries receive nothing.
LEAVING PEOPLE OUT OF WILLS:
INTESTACY OCCURS WHEN:
If the testator says that certain of the next-of-kin are to take nothing from his property as to which he may die intestate,
that is by implication a gift of such property to the other next-of-kin Muri v Archdall 1918
What is the testators intention when making the statement brother George not have a penny? If he contemplates on the
will that he might die intestate then a statement that one of his next of kin is not in effect
a declaration that my next of kin is not to benefit (without disposition to others of the entire estate) is not sufficient
However, may in some circumstances amount to a gift by implication to the next person in line after the next of kin where
the testator contemplates dying intestate. A gift in a will to my remaining relatives has been construed to mean those
who would take on intestacy; Application of Marais [2009] NSWSC 206.
If your real intention is to dispose all property by will but one of your gifts fail. Then intestacy and the person you didnt
want to get property will get it anyways due to intestacy.. Merely gibing reasons why you dont want someone to get things
isnt sufficient, you need an intestacy disposition. It all comes down to what their intention is. Muri v Archdall 1918
Page 18 of 34
Survivorship: 30 DAY RULE
There can be no distribution to person unless they survive the intestate; s108(1) Succession Act 2006.
s107 Succession Act 2006 Survive is defined as:
s.107(1)(a) Born before the intestates death and live at least 30 days thereafter; or;
s107(1)(b). Born after the intestates death where gestation in the uterus commenced before death and live at least 30 days
after the intestates death; (excludes frozen embryo)
Section 107 Succession Act 2006 removes problems associated with simultaneous death situations that are sometimes
associated with accidents or disasters.
Where a next of kin dies close in time to the intestate it is first necessary to determine the order of death either by fact or
under the statutory rule in s.35 of the Conveyancing Act 1919
and second if the next of kin is found to have lived longer than the intestate to then determine if they have lived for at least
the 30 day period.
S107, Brings the law relating to intestate succession in to align with the position in respect of a will where there is a
statutory period of survivorship of 30 days; see s.35 of the Succession Act.
S107 also removes doubt that existed under the previous law as to whether a frozen embryo conceived in the lifetime of the
intestate but not implanted in the womb and born may years after the death could be regarded as a next of kin Re Estate of
the Late K and Re the Administration and Probate Act 1935: Ex Parte the Public Trustee [1996] TASSC 24.
Now the embryo must be implanted before death, be born alive and live for at least 30 days after the intestates death.
If last surviving next of kin survives 20 days then it will be reduced to 20 days instead of 30 days s107 (2) Succession Act 2006
EXAMPLE:
Deceased man dies and a woman is carrying his child, the child may take intestacy providing the child survives the 30 days
after birth. This will not cover where you are dealing with frozen embryo.
Page 19 of 34
Entitlements: Spouse
WHO IS A SPOUSE?
PURPOSES FOR EXAM: Living together = de facto and if they arent then theyre not a de facto.
s104 Succession Act: SPOUSE - of the for the purpose of the intestacy rules a spouse is defined as:
A person married to the intestate or;
A party to a domestic partnership with the intestate immediately before death
s105 A domestic partnership: is a relationship between the intestate and another person that is a registered relationship, or
interstate registered relationship, within the meaning of the Relationships Register Act 2010 , or a de facto relationship that:
(a) has been in existence for a continuous period of 2 years, or
(b) has resulted in the birth of a child.
For the relationship to be in existence for a continuous period of at least 2 years, the period relates to a continuous period of
2 years or more that occurs immediately prior to the death of the intestate; Sadiq v NSW Trustee & Guardian [2015]
NSWSC 716 at [190].
s16 of the Relationships Register Act 2010 states a registered relationship is a relationship or an interstate registered
relationship
s21C(2) and (3) of the Interpretation Act 1987 Defines a de facto relationship
(2) Meaning of de facto relationship For the purposes of any Act or instrument, a person is in a de facto relationship with
another person if:
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family.
A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship
or interstate registered relationship with someone else.
(3) Determination of relationship as a couple: In determining whether 2 persons have a relationship as a couple for the
purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the
following matters that are relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
The above definition applies to same sex relationships. The requirement that the parties live together as a couple would
seem to exclude polygamous relationships. The deceased can be married but cannot have another de facto spouse and the
de facto partner can be married but cannot have another de facto partner, but see Sadiq v NSW Trustee & Guardian [2015]
NSWSC 716 at [199].
Richardson v Kidd [2002] NSWSC 306 at [19] Whether a de facto relationship exists is a question of fact
NOTE: S21C APPLIES TO SAME SEX
Page 20 of 34
As to the limitations of the definition of de facto relationship in section 21C, Hallen J in Sadiq v NSW Trustee & Guardian [2015]
NSWSC 716 at [201] stated:
The circumstances listed in s 21C(3) of the Interpretation Act do not state what has been described as the essence of a
de facto relationship, which is to be found in the phrase as a couple. Thus, once the physical, or factual, aspects, of the
relationship have been examined, whether a mental ingredient also existed should be considered. That ingredient involves
some commitment, by each of the parties, to their relationship. It need not necessarily be a commitment intended to last
forever, or indefinitely. Nor need it be a commitment to a long-term relationship. But it should, at least, be a mutual
commitment for the foreseeable future. Ultimately, the court must consider the nature of their union, whether there was a
merger of two individual lives into life as a couple. The search is for such a relationship, as it existed at the date of death,
and which had manifested such characteristics for at least two years prior thereto. If two people do not live together as a
couple they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation
concerning the various matters listed.
Also in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [214], Hallen J stated what was not a de facto relationship:
Such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a
sexual relationship, and who sleep over at one anothers house; and also from the relationship of two people, who share a
house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one
provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does
not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or
courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual
commitment to a shared life. It is also different from simple companionship.
SPOUSE AND NO CHILDREN:
s.111Spouse takes the whole estate. .
.ISSUE means natural offspring of the deceased i.e. children, grandchildren and their issue.
s112: Where all the children are the intestate and the spouse (nuclear family a mum and dad), then the spouse takes whole
estate and children get nothing;.
S113: Where not all the children are of the intestate and the spouse then section 113 provides that the spouse takes:
(a) s101 THE INTESTATES PERSONAL EFFECTS (house hold goods);
(b) s106 STATUTORY LEGACY (R=AxCD);
(c) s113 Half of the remainder of the estate (if any);.
(see below)
SPOUSE AND CHILDREN:
EG: if the deceased was unfaithful and had a fling with another person who has a child and who is born and survives 30
days, then the property will be divided between the spouses children and the flings child/children.
What ends a spousal relationship is divorce (not separated), so your former spouse who has children and his de-facto spouse
has children, this will arguably be divided between all of the children.
Next step is to work out who will get what (make note of blended families for exam)
(a) s101 PERSONAL EFFECTS
Personal property thats tangible/personal property of intestate except

Property used exclusively for business. E.g. plumbers car
Coins and notes unless part of a private collection;
Property held as security;
Bullion etc. held for investment that is not also held for household or personal use or decoration.
Land.
Shares
Superannuation
Bank account
E.g. If they die leaving money somewhere e.g. back of pillow they dont belong to the spouse so they go into the estate as a
whole. This is unless its for a hobby such as coin collection
Page 21 of 34
E.g. Artwork collection and it is held in a vault it wont be personal effects but if it is instead hanging in the house it wil be
personal as its hanging up for enjoyment and household
Whether an item was of a personal nature depended on the purpose for which it was owned. Antique clocks were probably part
of household furniture; Re Crispins Will Trusts [1975] Ch 245,
However, a coin or stamp collection was not ordinarily part of the household; Re: Reynolds Will Trusts [1966] 1WLR 19.
Much depended on whether an objective or subjective (personal) view was taken.
(b) s106 STATUTORY LEGACY:
S106. = CPI adjusted legacy + interest (RBA cash rate (as at the previous 1 January) + 2%, if not paid within 1 year of death);
R = A x C D = __ (e.g. R 350.000 x C 107.8 D 83.8 $448,895.68)

R is CPI adjusted legacy (look below)
A is $350,000
C is the Consumer Price Index number for the last quarter for which such a number was published before the date on which
the intestate died
D is the Consumer Price Index number for the December 2005 quarter.
The CPI weighted average of eight capital cities:

Year
Quarter
Intestate died between
CPI
2005
2009
2010
December
December
March
June
September
December
March
June
September
December
March
June
September
December
March
June
September
December
March
June
September
December
March
June
1 March and 31 March 2010

1 April and 30 June 2010
1 July and 30 September 2010
1 October and 31 December 2010
83.8
94.3
95.2
95.8
96.5
96.9
98.3
99.2
99.8
99.8
99.9
100.4
101.8
102.0
102.4
102.8
104.0
104.8
105.4
105.9
106.4
106.6
106.8
107.5
2011
2012
2013
2014
2015
CPI Adjusted
Legacy
$393,854.42
$397,613.37
$400,119.33
$403,042.96
$404,713.60
$410,560.86
$414,319.81
$416,825.78
$416,825.78
$417,243.44
$419,331.75
$425,179.00
$426,014.32
$427,684.96
$429,355.61
$434,367.54
$437,708.83
$440,214.80
$442,303.10
$444,391.41
$445,226.73
$446,062.05
$448,895.68
(c) s113 ONE-HALF OF THE REMAINDER (IF ANY) OF THE INTESTATE ESTATE
Once the personal effects and the statutory legacy are removed from the estate then remainder is halved with one share to the
spouse and other being shared between the children; see s127(2).
Page 22 of 34
Where death occurred before 1 March 2010 then under the previous law if the value of the estate (less household chattels) is
less than the prescribed amount then the spouse takes the whole estate; s63B(3).
The prescribed amount is $200,000 from 1 September 2003. See s61A(2) Probate and Administration Act 1898.
Where the deceased died before 1 September 2003 but after 1 September 1993 the amount was $150,000.
If the value of the estate (less household chattels) is greater than the prescribed amount then the spouse receives:
1. Household Chattels.
2. Prescribed Amount.
3. of the estate (less household chattels and prescribed amount).
The residue (remainder) of the estate is held in statutory trust for the issue of the deceased. Note the distinction in s61B
between trust and statutory trust; see s.61C.
CHILDREN AND NO SPOUSE:
The children take the whole estate; s127(1).
If there is only one child then he or she takes the whole estate, otherwise it is distributed in equal shares between the children;
s127(3). Here there is no change from the previous law.
Where a child has died before the intestate leaving issue who survive the intestate, the childs children take in equal shares the
presumptive share the deceased child would have taken had they lived and so on until the share is exhausted; s.127(4).
Presumptive share means the entitlement the relative would have had if they survived the intestate; s101.
The presumptive share is distributed by way of a per stirpes distribution. This means that the share of a deceased child is
divided equally between those of the childs children who survive the intestate (their grandparent). This process continues until
the issue of the intestate are exhausted; s.127(4).
The whole estate passes to the intestates parents in equal shares; s.128(2).
But if only one parent surviving then wholly to that parent; s.128(1). .
In this situation Brothers and Sisters (no distinction is made between whole and half-blood) take in equal shares if they survive
the intestate; s.129(1).
Under the previous law brothers and sisters of the full blood took precedence over brothers and sisters of the half blood.
If a brother or sister does not survive the intestate but leaves children (or if applicable more remoter) issue who do then a
presumptive share passes to the children of the deceased brother or sister and so on until the share is exhausted; s.129(3).
NO ISSUE AND NO SPOUSE: Parents
NO ISSUE, NO SPOUSE AND NO PARENTS: Brother/Sisters
NO ISSUE, NO SPOUSE, NO PARENTS AND NO BROTHERS OR SISTERS OR ISSUE OF ANY

DECEASED BROTHER OR SISTER: Grandparents
Grandparents in equal shares if more than one surviving otherwise the surviving grandparent; s.130. .
NO ISSUE, NO SPOUSE, NO PARENTS, NO BROTHERS OR SISTERS OR ISSUE OF ANY

DECEASED BROTHER OR SISTER AND NO GRANDPARENTS: Aunts/uncles
Aunts and Uncles (no distinction is made between whole and half-blood) in equal shares if more than one surviving; s.131.
If an Aunt or Uncle fails to survive the intestate leaving a child who survives the intestate that child (i.e. a first cousin) may take
their deceased parents presumptive share. This does not apply to more remote issue of the Aunt or Uncle; s.131(3).
Page 23 of 34
Under the previous law an Uncle or Aunt of the full blood took precedence over an Uncle or Aunt of the half blood. Further the
child of an Uncle or Aunt, i.e. a cousin of the intestate could not take under the previous law.
Firstt cousins can but second cousins (cousins kid) cannot take your intestacy
NOTE: IF ALL OF THE ABOVE ARE DECEASED THE CROWN TAKES THE WHOLE OF THE
ESTATE S 136 BONA VACANTIA (look below)
Bona Vacantia:
Definition: Means vacant goods and is the name given to ownerless property, which by law passes to the Crown.
In default of all of the above the Crown (referred to as the State) takes the whole of the estate, s.136.
This appears to be a statutory right to take the property and any rights attached to it rather than a bona vacantia; Brown v New
South Wales Trustee and Guardian [2012] NSWCA 431 at [112].
Bona vacantia referred to the property vesting in the Crown because it became ownerless; Dyke v Walford (1846) 5 Moore
PC 434; 13 ER 557.
HOWEVER: The Minister may waiver the States entitlement and give the whole or part of the estate absolutely or upon
conditions to;
Dependants of the intestate;
Persons with a moral claim upon the intestate;
Organisations or persons whom the intestate might have been expected to make provision.
An application for the exercise of the Ministers discretion is to be made in writing to the Crown Solicitor; s.137.
In this respect the law is the same as previously, but that the discretion in the Crown to distribute is more clearly defined.
Page 24 of 34
Multiple Spouses:
Under the previous law relating to intestate succession where a deceased left a lawful spouse and a de facto spouse then a
determination had to be made as to who was to be entitled to the spouses share.
The Wills Probate and Administration (De Facto Relationships) Amendment Act 1984 inserted subsections 3A and 3B into
s.61B. These applied to the estates of persons dying after 1 July 1985 and before 1 March 2010.
SPOUSE AND DE FACTO SPOUSE (3A)

1. If de facto relationship existed for 2 continuous years prior to death; and
2. Intestate did not live with legal spouse during any part of that period; then
3. De facto spouse takes share legal spouse would have taken.
DE FACTO SPOUSE AND ISSUE BUT NO LEGAL SPOUSE (3B)
1. If de facto relationship existed for 2 continuous years prior to death then the de facto spouse takes spouses share.
2. If de facto relationship existed for less than 2 years prior to death, then;
Where the only children are children of the relationship then the de facto spouse takes spouses share.
Where the only issue are grandchildren or remoter issue then the de facto spouse takes spouses share.
Where the children are not children of the de facto relationship then the de facto spouse cannot take.
In all other cases a reference to a spouse included a reference to a de facto spouse; s.32G(2).
From 1 March 2010 where the deceased dies leaving more than one spouse - Part 4.2 Division 3 of the Succession Act applies
where the intestate leaves a person with whom they are married and a person with whom they are in a de facto relationship.
Where there are no issue or the only issue are issue of a spouse then the whole estate is to be shared between the spouses as set
out in ss.122 and 123 succession act.
Where there are issue who are not issue of a surviving spouse then the personal effects, statutory legacy and half remainder
must be shared as set out in s.124.
The share of each spouse is to be determined as follows:

The spouses agree and enter a distribution agreement; or
A spouse or the legal personal representative applies to the Court for a distribution order; or
If 3 months elapse after service of a notice by the legal personal representative the spouses have done nothing then there is
an equal sharing; s.125.
DISTRIBUTION ORDERS: s126 succession act
Page 25 of 34
The Court may order that the property be distributed between the spouses in any way it considers just and equitable;
s.126(3);
The Court may allocate the whole of the property to one of the spouses to the exclusion of the other or others; s.126(4);
A distribution order may include conditions; s.126(5).
How should the distribution be made?
Contributions?
Length and nature of the relationship?
Dependants?
Needs of either spouse?
Widowers be treated differently from Widows?
Just and equitable between spouses The claims of others upon the intestates bounty?
Objective or subjective test?
THE SPOUSES RIGHT TO ACQUIRE PROPERTY: Succession Act
The spouse is given the right to acquire any property from the estate in lieu of receiving in whole or part a cash distribution.
This right can be contrasted to that under previous law where the spouse only had a right to elect to receive the deceased
interested in a home shared with the spouse. This was not a right to receive the home in specie only the value of that share.
The right applies where intestate leaves one spouse only; s.114.
Is an election to acquire property in specie; s.115.
Requires court approval if:
Property forms part of a larger aggregate such as a farmhouse or an antique that is part of a collection and;
Election would diminish value of remainder or make administration substantially more difficult such as making a
sale of the remainder more difficult.
No election if acquisition would require compliance with specified mandatory provisions relating to the subdivision of land
or strata lots unless the spouse pays the costs of compliance.
No election where the property has been acquired by a bona fide purchaser for value.
Personal Representative must give notice to spouse of right to elect within 1 month of grant; s.116(1). Notice must state:
How the election is to made;
Election may be subject to court approval and in what circumstances;
Election must be made within 3 months of notice.
Notice not require if spouse is the (or a) personal representative; s.116(2).

The election must be made within 3 months from date of notice; s.117(1)(a).
If the spouse is a Personal Representative then the election must be made 3 months after grant; s.117(1)(b)
The Court may extend time upon sufficient cause, even after the 3 months has passed, but not once the administration is
complete; s.117(3).
The election must be by notice in writing identifying the property; s.118(1).
Notice must be given to:
Personal Representative(s) and;
All persons entitled to share in the estate.
The election may be revoked by giving notice in writing any time before the property is transferred to the spouse.
The spouse acquires the property by payment of the exercise price:
Out of money they are entitled to from the estate, then if insufficient;
From their own funds before or on the date of transfer; s.120.
Page 26 of 34
The exercise price = market value of the property; s.119(1).

If the spouse agrees to take over a mortgage then market value is reduced by the mortgage liability but the spouse takes
subject to the mortgage.
Property must be valued by a registered valuer if there is an election or if spouse requests so as to consider making an
election.
Valuation report must be given to the spouse and all persons entitled to share in the estate.
Valuation may be waived with the consent of all persons entitled to share in the estate.
Personal Representative must not dispose of property unless:
They are the spouse entitled to elect;
No election occurs and time has passed;
Court refuses to authorise the election;
Spouse advises in writing of no election;
Property is required to pay debts etc.;
Perishable property; s.121.
A transaction contrary to s.121 is valid.
Where the intestate died before 1 March 2010 then s.61D of the Probate and Administration Act 1898 allowed the spouse to
elect to retain the shared home. But to do so the:
a) Intestate must die leaving a spouse and issue.
b) Value of estate (excluding household chattels) must exceed the prescribed amount.
c) Intestate at death must have held an interest in a dwelling house in NSW.
d) Dwelling house must be occupied at time of death by the intestate and spouse as their only or principal residence.
The right to elect was subject to the Fourth Schedule, which was deemed to form part of s.61D.
The election:
a) Must be exercised in writing; cl 2(1).
b) Cannot be revoked except with the consent of the Supreme Court; cl 2(2).
c) Spouse can require valuation of the home; cl 2(3). See s.61E.
d) Must be exercised within 12 months of Letters of Administration; cl 3.
e) Debts etc. have priority; cl 3.
f) No right of spouse to the home against a bona fide purchaser for value from the Administrator; cl 7.
Dwelling House s.61A(2)
Building designed principally for use as a separate residence for one person or family plus curtilage. By cl 4 of Schedule 4 curtilage
is up to 2,500 sq. m.
Interest s.61A(2)
1. Fee simple.
2. Lease 14 years or more to run or if less than 14 years then a right of renewal for 14 years or more.
3. Right of exclusive occupancy under company title.
4. Includes interest of intestate held as a tenant in common but only if held with surviving spouse. But does not include a joint
tenancy.
Valuation s.61E Probate and Administration Act 1898
1. Administrator may value the estate, a persons share, or the shared home.
2. If the valuation is made in good faith it is binding.
3. The value of the shared home is derived by ascertaining its market value and then deducting the mortgage and any other
encumbrances (if any).
Effect of Taking the Shared Home
If the value of the shared home is greater than or equal to the share the spouse would have received excluding the household chattels
(i.e. the share under section 61B(3)(b) and (c)) without electing to take the home then the spouses share is deemed fully satisfied
and if the value is greater than the spouses share then the share of the issue is reduced by the amount of the excess; s.61B(13)(a).
Page 27 of 34
If the value is less than the spouses share then the share is deemed satisfied only to the extent of that value; s.61B(13)(b).
The share that the spouse would have received without making an election is for the purposes of s.61B(13) the prescribed amount
plus the half share referred to in s.61B(3)(c). In other words the share the spouse would get without making an election less the
value of the household chattels.
Issue:
Definition: Issue means natural offspring of the deceased i.e. children, grandchildren and their issue.
EX NUPTIAL
At common law a reference to issue was to legitimate issue; Re: Pritchard (1940) 40 SR (NSW) 443. An ex nuptial child was
filius nullius.
Section 5 of the Status of Children Act requires the relationship between a parent and his/her child to be determined irrespective
of whether the parents are married. This includes where the relationship to another person is to be determined through the
childs parents.
(1) For the purposes of any law of the State by or under which the relationship between any person and the person's father and
mother (or either of them) arises, that relationship and any other relationship (whether of consanguinity or affinity) between the
person and another person is to be determined regardless of whether the person's parents are or have been married to each other.
(2) This section is subject to sections 6 and 7.
MEANING: the common law is abolished so that every child is the child of its parents; Gorey v Griffin [1978] 1 NSWLR
739 at 744 per Hutley JA.
Thus from 1 July 1977 a reference in a will to a child is a reference to an ex nuptial child and a reference to a relationship
to a child is a reference to the relationship traced though an ex nuptial child; s.6. Section 6 provides:
(1) This section applies to the following dispositions only:
(a) dispositions made inter vivos on or after 1 July 1977 (being the date on which the Children (Equality of Status) Act
1976 commenced),
(b) dispositions made by will or codicil executed before, on or after 1 July 1977 by a person who dies after that date.
(2) Unless a contrary intention appears, in any disposition to which this section applies:
(a) a reference (however expressed) to the child or children of a person includes a reference to an exnuptial child of whom
that person is a parent, and
(b) a reference (however expressed) to any person or persons related to another person (other than as a parent or child)
includes a reference to anyone who is so related in fact regardless that the person related in fact, or some other person
through whom the relationship is traced, is or was an exnuptial child.
(3) The use of any of the following words (or of any word or words having the same or a similar meaning) does not of itself indicate
a contrary intention for the purposes of subsection (2):
Page 28 of 34
(a) the words "legitimate" or "lawful" when used with reference to the child or children of a person or persons related to
another person in some other way,
(b) the words "married", "husband" or "wife" when used with reference to the parent or parents of a person.
(4) Without limiting any other provision of this Act, any rule of law that a disposition in favour of an exnuptial child not conceived
or born when the disposition takes effect is void as being contrary to public policy is abolished in respect of any disposition to which
this section applies.
Dispositions before this date are determined by common law; s.7.
Section 8 applies section 5 to intestacy from 1 July 1977 so a child includes an ex nuptial child and allows relatives to take property
from an ex nuptial child. Section 8 provides:
(1) This section applies to rights under the intestacy of persons dying on or after 1 July 1977.
(2) If any relative of an exnuptial child (including a parent of the child) dies intestate in respect of all or any of the relative's real or
personal property, the child (or any of the child's issue if the child is dead) is entitled to take any interest in that property that the
child (or the child's issue) would have been entitled to take if the child's parents had been married to each other when the child
was born.
(3) If an exnuptial child dies intestate in respect of all or any of the child's real or personal property, any relative of the child
(including a parent of the child) is entitled to take any interest in that property that the relative would have been entitled to take
if the parents of the child had been married to each other when the child was born.
(4) Nothing in this section affects the generality of section 5. However, this section does not (despite section 5) apply to any child
who is an adopted person under an adoption order made or continued in force under the Adoption Act 2000 or under an
adoption recognised in the State under Part 5 of that Act.
Ex nuptial means a child whose parents were not married at the time of conception or not subsequently married; s.3(2).
LEGITIMATION
A child born out of wedlock whose parents subsequently marry is legitimate even if there is a legal impediment to marriage at
the date of birth; s.89, Marriage Act 1961 (Cth). So to a child of a void marriage is legitimate provided at least one parent
believed on reasonable grounds the marriage valid at the time of marriage or conception; s.91.
ADOPTION
Section 109 of the Succession Act 2006 makes a child for the purposes of the intestacy rules a child of the adopted parents and
provides that biological relationships inconsistent with the adoption order are to be disregarded.
By s.95 of the Adoption Act 2000 an adoption order:

Makes the child the child of the adoptive parents as if the child had been born to them in lawful wedlock.
The child ceases to be the child of its natural parents.
Section 95 provides: (1-3 you cant challenge and arent irrevocable, includes IVF)
(1) An adoption order made by the Court gives sole parental responsibility for a child to the person or persons named in the
order (the adoptive parent or adoptive parents).
(2) For the purposes of the law of New South Wales, if an adoption order is made:
(a) the adopted child has the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the
adoptive parent or adoptive parents,
(b) the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to
the adoptive parent or adoptive parents,
(c) the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or
adoptive parents are regarded in law as the parents of the adopted child,
(d) the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded
in law as the parents of the adopted child.
(3) Despite subsection (1), an adopted child does not cease to be regarded in law as the child of a birth parent or adoptive
parent, and the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child, if an adoption
order is made in relation to a step parent with whom the birth parent or adoptive parent is living.
(4) For the purposes of any law of New South Wales relating to a sexual offence (being a law for which the relationship
between persons is relevant), any relationship that would have existed if an adoption order or discharge order had not been
made continues to exist for the purposes of that law in addition to any relationship that exists under this section by virtue of
the order.
Thus an adopted child cannot inherit on intestacy from his/her natural parents. But nothing prevents a testator from
distinguishing between natural and adopted children in the making of his or her will; s.98(4).
Page 29 of 34
Section 97(1) does not deny the child any vested or contingent proprietary right acquired prior to the adoption order.
Further s.95(3) preserves the rights to inheritance from the natural or birth parent where the one of the natural or birth parents
has died and the survivor remarries and the new spouse adopts the child.
Subject to s.97(1) s.95 applies to all dispositions of property by will or intestacy where a person dies after 7 February 1967; see
s.98(1) (This was the date of commencement of the previous legislation Adoption of Children Act 1965.) s. 98(3) provides that
where a person dies intestate before 7 February 1967 any adoption order under the 2000 Act has the same effect as if it had been
made under any former Acts.
By s.99 for the purposes of the Succession Act 2006 adopted persons are deemed related to other children of the adoptive
parents where:
Adopted by both parents, as a brother or sister of the whole blood.
Adopted by one parent, as a brother or sister of the half blood.
Section 99 provides:
(1) This section has effect for the purposes of:
(a) the application of the Succession Act 2006 to the devolution of any property in relation to which a person dies intestate,
and
(b) the construction of any disposition of any property.
(2) An adopted child is taken to be related to another person, being the child or adopted child of his or her adoptive parent or
parents:
(a) if he or she was adopted by 2 persons who are the spouses of each other jointly, and that other person is the child or
adopted child of both of them, as brother or sister of the whole blood, and
(b) in any other case, as brother or sister of the half blood.
NB: The Adoption Act 2000 was assented to on 9 November 2000 and came into force on 1 February 2003. This Act repeals the
Adoption of Children Act 1965 but the above provision are substantially re-enactments of the pre-existing law.
ARTIFICIAL CONCEPTION
By s.14 of the Status of Children Act:
When a married woman1 undergoes a fertilisation procedure, a child is born as a result of the pregnancy, then the husband2
is irrebuttably presumed3 to be the father even if he did not supply the sperm but only if he consented 4 to the procedure;5
When a married woman undergoes a fertilisation procedure, a child is born as a result of the pregnancy, then the woman is
irrebuttably presumed to be the mother even if she did not supply the ovum;6
When a woman who is the de facto partner of another woman undergoes a fertilistation procedure, a child is born as a result
of the pregnancy, then the other woman is irrebuttably presumed to be a parent of the child but only if she consented to the
procedure, such consent is presumed;7
When a woman who is the de facto partner of another woman undergoes a fertilisation procedure, a child is born as a result
of the pregnancy, then the woman is irrebuttably presumed to be the mother even if she did not supply the ovum; 8
1 Married woman is for the purpose of section 14 defined to include a woman who is the de facto partner of a
man; section 14(6)(a) of the Status of Children Act 1996 (NSW). De facto partner is defined in section 21C(1)
of the Interpretation Act 1987 (NSW) to mean the person is in a registered relationship or interstate registered
relationship with the other person within the meaning of the Relationships Register Act 2010 (NSW), or the
person is in a de facto relationship with the other person.
2 Husband for the purpose of section 14 includes a man who is the de facto partner of a woman and where this
is the case excludes the person to whom she is married; 14(6)(b) of the Status of Children Act 1996 (NSW).
3 Section 14(4) of the Status of Children Act 1996 (NSW).
4 Consent is presumed unless rebutted; section 14(5) of the Status of Children Act 1996 (NSW).
5 Section 14(1)(a) of the Status of Children Act 1996 (NSW).
6 Section 14(1)(b) of the Status of Children Act 1996 (NSW).
7 Section 14(1A)(a) of the Status of Children Act 1996 (NSW).
8 Section 14(1A)(b) of the Status of Children Act 1996 (NSW).
Page 30 of 34
If any woman becomes pregnant as a result of a fertilisation procedure using sperm from a man not her husband then that
man is presumed not be the father, and this presumption is irrebuttable;9
If any woman becomes pregnant as a result of a fertilisation procedure using ovum from another woman then that woman
is presumed not be the mother, and this presumption is irrebuttable.10
Thus s.14 provides:
14 Presumptions of parentage arising out of use of fertilisation procedures
(1) When a married woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) her husband is presumed to be the father of any child born as a result of the pregnancy even if he did not provide any or
all of the sperm used in the procedure, but only if he consented to the procedure, and
(b) the woman is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the
ovum used in the procedure.
(1A) When a woman who is in a de facto relationship with another woman has undergone a fertilisation procedure as a result of
which she becomes pregnant:
(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman
consented to the procedure, and
(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even
if she did not provide the ovum used in the procedure.
(2) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained
from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.
(3) If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained
from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. This
subsection does not affect the presumption arising under subsection (1A) (a).
(4) Any presumption arising under subsections (1)(3) is irrebuttable.
(5) In any proceedings in which the operation of subsection (1) is relevant, a husbands consent to the carrying out of the
fertilisation procedure is presumed.
(5A) In any proceedings in which the operation of subsection (1A) is relevant, the consent of a woman to the carrying out of a
fertilisation procedure that results in the pregnancy of her de facto partner is presumed.
(6) In this section:
(a) a reference to a married woman includes a reference to a woman who is in a de facto relationship with a man, and
(b) a reference (however expressed) to the husband or wife of a person:
(i) is, in a case where the person is in a de facto relationship with a person of the opposite sex, a reference to that other
person, and
(ii) does not, in that case, include a reference to the spouse (if any) to whom the person is actually married.
The effect of s.14 is to exclude the donor from being regarded as the parent of the child.
In the case of surrogate parents this means that the birth mother and her husband are regarded as the child's parents and not the
donor mother and her husband. This in effect at law nullifies the surrogacy agreement. In order to overcome this in one case
The Adoption of Children Act 1965 (see now the Adoption Act 2000) was used to give effect to such an agreement by making
an adoption order in favour of the donor parents; Application of A and B [2000] NSWSC 640 (7 July 2000).
In order to recognise non-commercial surrogacy arrangements the Surrogacy Act 2010 was enacted. The Act commences on 1
March 2011. Part 3 enables the Supreme Court to make a parentage order in favour of the persons intended to be parents under
the surrogacy agreement where certain preconditions are met.
A parentage order operates so as to make the intended parents the parents of the child for the purpose of the law and cancels any
property rights of the child to the birth parents; ss. 39-40.

Page 31 of 34
On 7 February 2011 the Uniform Rules Committee approved amendments to the UCPR, which insert a new Part 56A into the
rules. The new Part includes rules that specify how an application for a parentage order is made, how it is dealt with, what
evidence is required and other ancillary matters, consistent with the Surrogacy Act. For consistency, the rules in this part have
been modelled on Part 56, which deals with matters under the Adoption Act.
Section 109A of the Succession Act 2006 makes a child for the purposes of the intestacy rules a child of the intended parents
under a surrogacy agreement and provides that biological relationships inconsistent with the parentage order are to be
disregarded.
Indigenous Persons:
The Court may approve a scheme of distribution that is in accordance with the laws, customs, traditions and practices of the
community or group to which the intestate belonged; s.133.
Such a scheme may displace the intestacy rules in whole or in part; s.135.
An application for a distribution order can be made by the personal representative or a person who would benefit under such
scheme.
The Court must have regard to the proposed scheme and laws, customs, traditions and practices of the community or group to which
the intestate belonged.
It must be just and equitable to make the order.
Page 32 of 34
Forfeiture Rule:
DEFINITION: A person who is otherwise a beneficiary under a will or a next of kin on intestacy may be prevented from
inheriting from the deceased if they have unlawfully killed the deceased. This principle has been expressed in the case law as ...a
man shall not slay his benefactor and thereby take his bounty...; In the Estate of Hall; Hall v Knight and Baxter [1914] P 1 at 7 per
Hamilton LJ.
QUOTE: The rule applies in cases of inheritance under a will; Troja v Troja (1994) 33 NSWLR 269 and on intestacy; Re Jane
Tucker (dec'd) (1920) 21 SR (NSW) 175.
RULE: applies in
Cases of inheritance under a will; Troja v Troja (1994) and on intestacy; Re Jane Tucker (dec'd) (1920).
It also applies where a person would succeed to property by reason of survivorship where one joint tenant unlawfully kills
another; Re Thorp and the Real Property Act (1961) 80 WN (NSW) 61 and Rasmanis v Jurewitsch (1970) 70 SR (NSW)
407.
It also applies to claims under the Family Provision Act; Troja v Troja (1994) also Re Royce (decd) [1985] Ch 85 affirmed
on appeal
Unlawful Killing
The rule will apply in any situation where an unlawful killing brings about an enforceable legal right in the perpetrator.
Thus the rule also applies in cases of claims under insurance policies; Cleaver v Mutual Reserve Fund Life Association
[1892] 1 QB 147; and even claims under the Family Law Act 1975 (Cth); Homsy v Yassa and Yassa (1994)
Murder and Manslaughter
Page 33 of 34
The forfeiture rule applies not only to killings that are murder; Estate of Crippen [1911] P 108 but also manslaughter; Troja
v Troja (1994) 33 NSWLR 269 and those cases where the killing amounts to a lesser crime such as dangerous driving
causing death.
Assisted Suicide
The rule applies to cases of assisted suicide; The Public Trustee of Queensland v The Public Trustee of Queensland & Ors
[2014] QSC 47.
Motivation of killing
It does not matter whether the killing was motivated by the desire to inherit; Gonzales v Claridades (2003) or was
committed out of a desire to alleviate the suffering of the deceased without any motive to benefit; In re Dellows Will
Trusts; Lloyds Bank Ltd v Institute of Cancer Research [1964]
Balance of Probabilities
Proof of the unlawful killing is on the civil standard of the balance of probabilities not the criminal standard; Helton v
Allen (1940).
The court will however be conscious of the gravity of the allegation and require clear and satisfactory proof of the facts; In
the Estate of Arthur Aitchison Thomson [2015]
Insanity
The forfeiture rule will not be applied where the unlawful killing was committed in circumstances amounting to insanity; In
re Plaister; Perpetual Trustee Co v Crawshaw (1934)
but will be applied in cases of manslaughter by diminished responsibility; Troja v Troja (1994)
The forfeiture rule applies to all those who must claim through the killer Beresford v Royal Insurance Co Ltd [1938] AC 586.
APPLICATION OF THE RULE:

Forfeiture rule is a stubborn rule to all cases where a right to benefit arises from an unlawful killing has resulted in the rule
producing harsh results in some cases particularly where it was thought that the killing was not morally culpable.
As a result, the Forfeiture Act 1995 (NSW) gives power to the Supreme Court to exercise a discretion to modify the forfeiture rule
in any case where it might apply; section 5.
However, the rule cannot be modified where the unlawful killing would amount to murder section 4.
The rule has been modified under this legislation in some cases; see Leneghan-Britton v Taylor (1998) and Batey v Potts (2004)
Page 34 of 34

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DEATH

Succession is that body of law relating to the devolution of property on death.

Death gives rise to 3 areas of law:

Procedural i.e. Registration.

Contesting validity of wills.

Old term for a will relating only to chattels.

A will that alters or adds to an existing will.

A grant made by a court exercising a probate jurisdiction authorising the administrator

Testamentary Freedom v Forced Inheritance:

Norman conquest-introduction of feudalism-wills of chattels only. Land passes to the heir-at-law.

27 Hen VIII c10 Statute of Uses, abolishes the Use. Unpopular.

(3) In this section:

Order of Death and Survivorship

Death Disposal of the Body:

Haynes Case (1614)

Edwards; Re Estate of Edwards (2011

BURIAL EXECUTOR: (will)

BURIAL NO EXECUTOR: (no will)

Beard v Baulkham Hills Shire Council (1986) 7 NSWLR 273.

RIGHTS WITH RESPECT TO GRAVES

Applicable Law: Statute

Post 01/03/2010 - Succession Act 2006 (NSW)

LEAVING PEOPLE OUT OF WILLS:

INTESTACY OCCURS WHEN:

Survivorship: 30 DAY RULE

SPOUSE AND NO CHILDREN:

s.111Spouse takes the whole estate. .

SPOUSE AND CHILDREN:

(a) s101 PERSONAL EFFECTS

Personal property thats tangible/personal property of intestate except

(b) s106 STATUTORY LEGACY:

R = A x C D = __ (e.g. R 350.000 x C 107.8 D 83.8 $448,895.68)

The CPI weighted average of eight capital cities:

Intestate died between

1 March and 31 March 2010

CHILDREN AND NO SPOUSE:

The children take the whole estate; s127(1).

NO ISSUE AND NO SPOUSE: Parents

NO ISSUE, NO SPOUSE AND NO PARENTS: Brother/Sisters

NO ISSUE, NO SPOUSE, NO PARENTS AND NO BROTHERS OR SISTERS OR ISSUE OF ANY

NO ISSUE, NO SPOUSE, NO PARENTS, NO BROTHERS OR SISTERS OR ISSUE OF ANY

SPOUSE AND DE FACTO SPOUSE (3A)

The share of each spouse is to be determined as follows:

DISTRIBUTION ORDERS: s126 succession act

THE SPOUSES RIGHT TO ACQUIRE PROPERTY: Succession Act

Notice not require if spouse is the (or a) personal representative; s.116(2).

The exercise price = market value of the property; s.119(1).

By s.95 of the Adoption Act 2000 an adoption order:

9 Section 14(2) of the Status of Children Act 1996 (NSW).

APPLICATION OF THE RULE:

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