Mr. Speaker, when a person dies his or her property must be

distributed in an appropriate manner.

Generally the distribution will be in accordance with the

deceased’s will but if the deceased person has either not made

a valid will, or if the will fails to dispose of some or all of the

deceased’s assets effectively, the property is distributed

according to a statutory scheme known as the laws of

intestacy.

One of the more widely acknowledged aims of intestacy laws is

to produce a similar result as would have been achieved had

the person who died intestate had an effective will.

The statutory distribution schemes generally distribute the

deceased’s property to those closely related to him or her.

However, what is seen as appropriate may vary over time – in

the past intestacy laws allowed for a statutory legacy to a

person’s spouse or defacto partner but not to both.

Now the laws recognize that a person may have both a spouse

and a defacto partner at the same time, or that there may be

children of the deceased who are not also children of the

deceased’s spouse.

Obviously, a system that reflects what is generally accepted will

not always accurately reflect the actual situation – an intestate

may in fact have been estranged from his or her family and be

closer to friends who will not inherit under the intestacy laws.

However, the rules of intestacy aim to be fair in the majority of

cases and are simply a “fall back” position where a person has

not made a will effectively disposing of his or her estate.

2

If there is unfairness in distribution under the intestacy rules,

there may be an opportunity for an interested party to remedy

The Standing Committee of Attorneys General established a

National Committee to manage a Uniform Succession Laws

project in 1995. Over the last several years it has produced a

number of reports on wills, intestacy, administration of estates

and family provision.

In March 2007, the National Committee released its “Report

on Intestacy”, which included a draft model Bill, to the Standing

Committee of Attorneys General.

In July 2007 a summary of the recommendations contained in

the Report and the draft model Bill were circulated to

Tasmanian stakeholders and published on the internet asking

for comment, following which this Bill was drafted and

circulated to stakeholders last year.

In Tasmania intestacy provisions are currently contained in the

In 1985, the Law Reform Commission of Tasmania, in its

of changes to these provisions, but no amendments were made

at that time and it was subsequently decided to wait for the

National Committee’s Report before proceeding with any

changes.

The majority of the changes recommended by the Law Reform

Commission are picked up in the recommendations of the

National Committee and have been included in this Bill.

The Tasmanian Bill will move the intestacy provisions from the

because it contains considerably more than the current four

sections and secondly because there is no logical reason why

3

intestacy laws should be included with the laws on

administration of estates.

In addition, the National Committee on Uniform Succession

Laws has now released its final report on the administration of

If in the future, after all the statutes relating to succession law

have been updated, it is considered desirable for there to be a

single Act, this could be done by creating a Succession Act

which includes the law of wills, intestacy law, family provision

and administration of estates.

Mr Speaker, I will now turn to particular substantive provisions

of the Bill.

surviving spouse will inherit the whole estate.

(“issue” refers to children and any children of those children –

that is the deceased’s linear descendants.)

In cases where some of the issue are issue of the intestate from

another relationship, the spouse will receive a spousal legacy,

which I shall talk about in more detail later, and any residue of

the estate will be shared between the spouse and all issue.

Currently the estate is shared between the spouse and issue,

even when the only issue are also issue of the surviving spouse.

This Bill, by providing that the spouse will take everything

unless there are issue from another relationship, simplifies the

law and eliminates the need to make special arrangements for

the surviving spouse in most cases.

It is based on the underlying assumption that the issue will

ultimately receive a share of intestate’s estate through the

4

surviving spouse and also conforms to distribution of estates

under the majority of wills.

A survey carried out by the NSW Law Reform Commission

found that in 75% of cases where a person who had a spouse

and children made a will, that person left the whole estate to

the spouse. The estate was shared between the spouse and

children in only 2.3% of the estates surveyed. The Bill reflects

that preponderance of experience.

A further change made by this Bill is that where the intestate is

survived by a spouse and issue from another relationship, the

spouse will be entitled to all of the tangible personal property

of the intestate with listed exceptions.

The listed exceptions cover items not generally considered

personal property, such as property used exclusively for

business purposes, property held as a form of security or

property, like gold bullion, in which the deceased invested to

hedge against inflation or adverse currency movements.

The current Tasmanian intestacy provisions do not differentiate

between real and personal property when an intestate’s

property is distributed, but in all other Australian jurisdictions

the surviving spouse is entitled to the personal effects of the

intestate, thus minimising the disruption to the spouse.

This Bill increases the statutory spousal legacy to $250,000

bearing in mind that a spousal legacy will only be required

where there are issue from another relationship and the estate

has to be split.

The basis for the spousal legacy is to allow the spouse to

continue living in the family home by purchasing the share

owned by the deceased if the property was solely in the name

of the deceased or they were tenants in common.

If the deceased and spouse were joint tenants the issue does

not arise as the surviving joint tenant automatically inherits the

property on the death of the other joint tenant.

5

Currently in Tasmania the spousal legacy is set at $50,000

compared with $200,000 in New South Wales, $150,000 in

Queensland and the Australian Capital Territory, $100,000 in

Victoria, $50,000 in Western Australia and $10,000 in South

Australia.

As far back as 1985 the Tasmanian Law Reform Commission

recommended that the amount be increased to reflect rising

property values.

The national model Bill recommends that the legacy be

increased to $350,000 in every state and territory, however,

the Committee did recognise that there was some support for

allowing the legacy to be fixed on a jurisdiction by jurisdiction

basis to take into account variations in property prices across

Australia.

As at March 2010, Real Estate Institute of Australia data

indicated that the Hobart median house price was $380,000

which was close to 70% of the Australian median house price

of $514,000. To reflect this Bill sets the statutory legacy at

$250,000 which is close to 70% of the recommended $350,000.

The amount of the legacy will be adjusted annually in

accordance with the CPI.

The Bill also contains a provision to the effect that where the

surviving spouse is entitled to claim statutory legacies in more

than one jurisdiction, he or she should receive legacies of a

combined value that is no more than the highest statutory

legacy among the jurisdictions in which he or she is entitled.

This will prevent a surviving spouse receiving a windfall benefit

to the detriment of surviving issue, as has happened at common

law.

Unlike the current intestacy provisions the Bill contains a

provision allowing the spouse to elect to take any part of the

estate, for example the family home, as part of his or her

entitlement to the statutory legacy.

6

As a consequence of the spouse being able to elect to take a

particular part of the estate, the Bill also contains a number of

procedural provisions in relation to such an election including

notice requirements, time-limits, election by a spouse who is a

minor, revocation of an election, valuation of property,

procedure where the property is the subject of a charge,

restrictions on dealing with property when an election is

pending or has been made in favour of the property and a

requirement that the spouse be able to provide satisfaction for

the interest in the relevant property.

The Bill contains a provision allowing a personal representative

to apply to a court to restrict the spouse’s right to elect in

certain circumstances.

In the situation where an intestate is survived by a spouse and

issue who are not also the issue of that spouse, the Bill

provides that the spouse is entitled to one-half of what remains

of the estate after he or she has received the personal effects

of the intestate and the statutory legacy. The other half-share

of the residue will be divided among the issue of the intestate.

For example, if the intestate estate is worth $750,000 (not

including personal effects) and the intestate is survived by a

widow with whom he had two surviving children, and also two

surviving children of the intestate from a previous marriage

then the widow will be entitled to the statutory legacy plus half

the remainder which will amount to $500,000. The remaining

$250,000 will be shared equally between the four children.

The current Tasmanian intestacy provisions allow for one third

of the residue of the estate to be distributed to the spouse

with the remainder being distributed among the issue even

when the issue are also issue of the surviving spouse, which can

have the unfortunate effect of ousting the surviving spouse

from the family home where it is the main asset of the estate.

7

Where there is no surviving spouse, the Bill provides that the

basis, which is the same as the current Tasmanian provision.

descendants is determined by the entitlement of those who

have predeceased them, for example where a child of the

intestate has predeceased the intestate, that child’s children

(the deceased’s grandchildren) will only take proportionately

among themselves the share that their deceased parent would

have taken if he or she was alive.

For example if a widow dies intestate leaving two surviving

daughters and two grandchildren of a deceased son, an estate

worth $300,000 would be divided so that each daughter

received $100,000 and each grandchild of the deceased son

received $50,000 representing their share of the $100,000 that

would have gone to the son had he not predeceased his

mother.

8

The Bill also provides for various permutations arising where

the intestate has more than one spouse at the time of death.

Where there is more than one spouse and no issue of the

intestate, other than issue who are also issue of the surviving

spouses, the Bill provides that each spouse will be entitled to

share in the estate.

The current Tasmanian provisions provide that where there is

a surviving husband or wife and another partner, the partner is

entitled to the spouse’s entitlement if he or she has been

partner to the deceased for a continuous period of not less

than 2 years. In all other cases the surviving spouse is entitled.

The Bill reflects the fact that there is no good reason to

arbitrarily limit the number of spouses/partners so long as they

met the definitional requirements. It is envisaged that where

there is more than one spouse or partner, the distribution of

items from the estate can be subject to negotiation between

the parties.

Again there is an underlying assumption that all the issue of the

deceased will ultimately receive a share of intestate’s estate

through their surviving parent.

In the slightly more complicated situation where there is more

than one spouse and also issue of the intestate from at least

one other relationship the Bill provides that:

legacy, rateably if there are insufficient funds, and a share

of half of any residue of the estate; and

share of the remaining half of any residue.

Because in this case there is at least one child who is not also

the child of the surviving spouses, there can be no presumption

9

that all of the issue of the deceased will inherit a share of the

deceased’s estate through a surviving spouse.

The fairest way to deal with this is to allow all children to share

equally in half the residual estate. Again, this differs from the

current Tasmanian provisions which do not contemplate there

being more than one spouse.

This Bill provides that issue born after the death of the

intestate will have to have been in the uterus of their mother

before the death of the intestate in order to gain any

In times past a child could only have been issue of the deceased

if conceived prior to the deceased’s death.

However advances in assisted reproductive technology mean

that further issue may be born well after the normal gestation

period, which could have the effect of delaying the

administration of a deceased estate, especially when the

number of people in a generation needs to be determined for

distribution.

The Bill takes the simple approach of disregarding for the

purposes of intestate succession any child born by means of

that “a child, being the product of his father's semen and

mother's ovum, implanted in the mother's womb subsequent to

the death of his father is, upon birth, entitled to a right of

inheritance afforded by law”.

For simplicity and certainty, the Bill contains a provision to the

effect that a step-child is not recognised for the purposes of

intestacy.

This is the case currently in Tasmania at common law.

10

Most often these days children are step-children because their

natural parents have divorced and re-married and they are

likely to already be beneficiaries under their natural parents will

or entitled to take on intestacy.

To also be entitled to take on intestacy of a step-parent may

amount to “double dipping”.

The Bill removes any requirement that the amount available to

certain persons entitled on an intestacy be reduced where they

have already received a benefit from the deceased before his or

her death.

Section 44(4) of the current Act provides that where the

intestacy is partial only, any benefit that the surviving spouse is

entitled to under the will shall be taken as being given in

satisfaction towards the spousal legacy.

Section 46(1)(c) provides that where an intestate estate is to

be shared, any money or property paid to, or for the benefit of,

a child of the intestate by way of “advancement or on

marriage” shall be taken, subject to evidence of a contrary

intention to have been paid in satisfaction of the child’s share of

the estate and shall be taken into account.

Section 47(a) applies the requirements of section 46(1)(c) to a

partial intestacy where a child has benefited under the will.

Such provisions are sometimes referred to as “the doctrine of

hotchpot”.

The majority of submissions on intestacy received by the

National Committee supported the abolition of such

accounting, mostly on the basis of unnecessary complexity.

The Committee noted that despite the long existence of the

doctrine of hotchpot there was a great deal of uncertainty in

applying the doctrine, for example in defining “advancement”

and determining the date of valuation of the benefits conferred.

11

In addition, the more traditional forms of benefit referred to in

the doctrine are anachronistic as marriage settlement and

advancements to children are not common in modern society.

The National Committee was of the view that there was

nothing to prevent the surviving family members from agreeing

to a different distribution if the justice of the case demands it.

Queensland, Western Australia and New South Wales have

already repealed accounting provisions.

If the donor of a gift wishes to ensure that it is taken into

account when his or her estate is distributed the donor can

make a will with a provision to that effect.

This Bill reduces the category of relatives entitled to a

distribution from an intestate estate.

Currently in Tasmania the category of relatives entitled to

inherit an intestate estate is unlimited. That is, if distribution

cannot be made firstly to a spouse and issue, secondly to

parents, thirdly to brothers and sisters and fourthly to aunts

and uncles then any next of kin according to old civil law can

inherit.

While unlimited distribution may be justified on the grounds

that most people would prefer a distant, unknown relative to

inherit rather than the monies going to the Government as

and time-consuming and sometimes impossible to locate family

members.

While under this Bill the order of distribution is to be the

same, the limit of distribution is to first cousins of the

deceased, which will avoid complexity, delay and expense in the

administration of intestate estates.

If a person has a strong aversion to the Government potentially

benefiting if no close relatives survive him or her then that

person should make a will.

12

The limit is unlikely to prevent relatives inheriting in most

instances. In New South Wales, where distribution has been

limited to aunts and uncles of the deceased, no more than 30

There will also be a provision, as in the current Tasmanian

legislation, whereby certain persons may apply to the State for

While such applications have been rare in Tasmania in the past

because of the unlimited distribution, they may become more

common with the intended restricted distribution.

distributed by the courts only 10 to 15 times a year so the

number in Tasmania is likely to be very small.

The Bill provides for a wide category of persons who may

estate, which is a fair solution to the imposition of a limit on

the degrees of kin who are entitled to take. It will also allow

claims by close friends or foster children.

The Bill contains two provisions which reflect the current law

in Tasmania.

The first is that a person entitled to take in more than one

capacity is entitled to take in each capacity (an example of this

would be where a maternal aunt and paternal uncle of the

intestate have married and have children).

The second is that there is no distinction between siblings with

one parent in common and those with two parents in common.

In addition to the recommendations put forward by the

National Committee, the Bill also includes a provision which

gives an administrator of an estate (worth $20,000 or less) the

discretion to cease further searching for next of kin who may

be entitled to inherit an intestate estate where the

administrator has formed a view that the cost of conducting

13

the search is likely to exhaust the whole or a substantial part of

the funds of the estate.

This provision will apply only where the administrator is the

Public Trustee, a Trustee Company or an Australian legal

practitioner, all of which have strict statutory and professional

obligations in relation to dealing with unclaimed money.

The Bill provides that where there are some identified and

locatable persons who are established to the administrator’s

satisfaction as entitled to inherit, the administrator may either

pay the whole or part of the estate funds to those persons.

If only part of the estate is paid out then the remainder of the

estate must be dealt with as unclaimed money.

In a case where there are no identified and locatable persons

entitled to inherit the whole of the funds of the estate will be

treated as unclaimed monies under the relevant legislation

In brief such monies are held for a period of years pending

claims by eligible persons and then are disposed of as required

by statute.

An example of how the new provision will work to the benefit

of Tasmanians can be given by looking at the work of the Public

Trustee.

Intestate estates in Tasmania are generally administered by the

If a deceased has no immediate family the Public Trustee, as

administrator, must conduct a search to locate relatives to

whom the estate can be distributed. This can be particularly

problematic if the deceased is a migrant with family members

living overseas.

14

The limit in the Bill on those entitled to share in the estate on

intestacy will alleviate this problem somewhat, but there can

still be problems where the estate is small and first cousins are

difficult to locate.

Suppose an intestate leaving a small estate had migrated to

Tasmania from post-war Europe with a first cousin with whom

he had a close relationship.

If the intestate was an only child who never married or had

children, and who had no living parents, grandparents or aunts

and uncles then first cousins can take on intestacy.

However, a search must be conducted for other cousins as the

distribution is required to be among all kin at that level of

relationship to the deceased and the percentage each will

receive is determined by the number of kin in the class.

If other first cousins have migrated to different countries and

have not kept in touch it may be a very expensive and possibly

ultimately futile exercise to attempt to locate them and the

search will significantly, if not completely, deplete the value of a

small estate. The cousin living in Tasmania, with whom the

deceased had a close relationship, currently cannot receive any

share of the estate until the search process is finalised, by

which time there may be nothing left to distribute.

Under the proposed change, if the Public Trustee forms a view

that the cost of conducting the search is likely to exhaust the

whole or a substantial part of the funds of the estate, the Public

Trustee would have a discretion to distribute the whole or part

of the estate to the cousin whose whereabouts are known and

hold any balance as unclaimed monies.

unclaimed monies are held either by the Public Trustee or the

Government and any person who may be entitled to the funds

has up to 21 years to make a claim.

15

Currently the Public Trustee holds 31 intestate estates which

are worth less than $20,000 and which require lengthy and

time-consuming searches for more remote next of kin.

A third of the estates are worth less than $5,000 and 2 are

worth less than $2,000.

Many of these estates relate to estates of post-war migrants

from countries where there was a massive displacement of

persons in the war years.

Searches are currently being undertaken in Croatia, Poland,

Hungary, Germany and Russia.

It is proposed that rather than expend possibly the whole of

these estates conducting searches for ever-more distant

relatives that the provision giving an administrator a discretion

not to search apply retrospectively to small intestate estates

where the intestate died prior to the commencement of the

amendment.

Act

Act

which will be CPI adjusted in accordance with the

given formula.

Provides that interest is payable if the legacy is not

paid within one year.

Provides that if a spouse is entitled to a statutory

legacy in more than one jurisdiction, the spouse will

only receive an amount equal to the highest legacy

payable.

Provides that if there are insufficient funds to pay the

statutory legacy in full the legacy decreases to the

necessary extent, or if more than one legacy is

payable the legacies decrease rateably.

intestate”.

be entitled to participate in distribution and that a

reference to a category of person entitled to share in

the estate is limited to a person who survives the

intestate.

the child of the adoptive parents for the purposes of

distribution on intestacy.

had no issue

the intestate are also issue of spouse

issue of the intestate is not issue of the spouse

property from the intestate estate, when court

authorisation of the election is required and the

power of the court to grant authorisation, impose

conditions or refuse authorisation.

to the spouse of the spouse’s right of election.

made and provides for the court to extend time

provided the administration of the estate has not

been completed.

to acquire property is the market value at the date of

the intestate’s death. Provides for a reduction in the

price if the spouse assumes liability for a mortgage,

charge or encumbrance over the property. Provides

for when a valuation should be obtained.

the spouse elects to acquire property from the

intestate estate.

on disposal of property from the intestate estate.

one spouse but no issue.

more than one spouse and the issue are all issue of

surviving spouses.

intestate are not issue of surviving spouses.

spouses.

representative may apply to the Court for a

distribution order and the Court’s powers to deal

with such application.

and sisters.

grandparents.

uncles and, if one of these has predeceased the

intestate, the entitlement of any surviving child of that

aunt or uncle.

in the distribution of an intestate estate in separate

capacities.

from the scheme of the Act for indigenous members

of the community this clause provides that the

personal representative, or a person claiming to be

entitled to a share of the estate, of an Indigenous

intestate may apply for a Court order for distribution

in accordance with the laws, customs etc of the

Indigenous community or group to which the

intestate belonged and sets out that the application is

to be accompanied by a scheme of distribution. Sets

out time frames for making an application. Sets out

restrictions on distribution if an application is made

under this Part.

distribution where an application has been made

under clause 34.

operates, subject to its terms to the exclusion of all

other provisions of this Act.

the intestate estate, the State takes the whole estate.

whole or part of an intestate estate on application by

certain listed persons on conditions the Minister

considers appropriate.

interest in an intestate estate vests immediately.

an intestate estate or is disqualified from taking an

interest that person will be treated for the purposes

of distribution as is they had predeceased the

intestate. This may allow any issue of the person

disclaiming or disqualified to take that person’s share.

affected by gifts by the intestate to persons entitled

either during the intestate’s life or on a partial

intestacy by will.

the Public Trustee, a trustee company or an

Australian legal practitioner may cease to search for

next of kin in the case of a small intestate estate

the whole or a substantial part of the funds of that

estate.

exercised his or her discretion to cease searching

under the previous section may pay the whole or part

of the funds to any person the administrator is

satisfied is entitled. Any remaining funds of the estate

are to be dealt with as unclaimed monies under the

appropriate legislation.

exercised his or her discretion to cease searching

under the previous section and there is no person

entitled under this Act the estate is to be dealt with

as unclaimed monies under the appropriate legislation.

Minister for Justice.

commencement of the Act.

Provide for consequential amendments to the

This Bill is based on a model Bill prepared by the National Committee

on Uniform Succession Laws for the Standing Committee of Attorneys

General in March 2007.

Tasmanian intestacy provisions are currently contained in Part V of the

The following are the main changes to intestacy law brought about by

this Bill:

children of the surviving spouse, the surviving spouse is to

the whole intestate estate.

surviving spouse is entitled to a statutory legacy of

$250,000, the intestate’s personal property and half of any

residue of the estate. The remaining half of any residue is to

be divided between all the intestate’s children.

who are not also children of the surviving spouses, each

spouse is entitled to share in the estate.

the intestate who are not also children of the surviving

spouses, each spouse is entitled to a statutory legacy

(rateably if there are insufficient funds) and a share of half

the residue, if any. All children will share equally in the

remaining half of the residue (if any).

have to have been in the uterus of the mother at the time

of the intestate’s death.

benefits a person entitled on intestacy received either in the

intestate’s lifetime or under a will that dealt with part of the

estate only.

children of deceased aunts and uncles.

Trustee, a trustee company or a legal practitioner, the

administrator may cease to search for next of kin if of the

opinion that the search will exhaust the whole or a

substantial part of the estate. The administrator who has

ceased searching may distribute the whole or part of the

estate to known relatives of the deceased.

intestate estate unless they survive the deceased by 30 days.