Gifts made before death of intestate
49BA Gifts made before death of intestate
If—
an intestate has, within the period of 5 years immediately before death, given any money or property to or for the benefit of a person who is, under this division, entitled to a share in the intestate estate, or to or for the benefit of an unentitled partner of such a person; and
the intestate estate, or a part of the intestate estate, is divisible between that person, or the issue of that person, and another person or persons entitled under this division to a share in the intestate estate;
the money or property is taken to have been given in or towards satisfaction of the share that the person will become entitled to take, or would have become entitled to take if he or she had survived the intestate in the intestate estate or the part of the intestate estate unless—
the contrary intention appears from the circumstances of the particular case; or
the value, as at the date of death of the intestate, ascertained in accordance with the requirements of the personal representative of the intestate, of all the money or property or of so much of the money or property in relation to which such a contrary intention did not appear, does not exceed $10 000.
If, under subsection (1), any money or property is taken to have been given in or towards satisfaction of the share of a person referred to in subsection (1), the money or property must be brought into account at a valuation, as at the date of death of the intestate, in accordance with the requirements of the personal representative of the intestate, in calculating the share that the person or the person’s issue is, under this division, entitled to take in the intestate estate or a part of the intestate estate.
This section does not apply in relation to money or property given to or for the benefit of the intestate’s partner.
If an intestate has made a gift to which this section applies, the unentitled partner of a person entitled to a share in the intestate’s estate is, for subsection (1), someone who—
is not entitled to a share in the intestate’s estate; and
was the domestic partner of the entitled person at the time of the gift; and
either—
was the entitled person’s spouse, civil union partner or civil partner at that time; or
had been the entitled person’s domestic partner continuously for 2 or more years at that time; or
was at that time the parent of a child of the entitled person, if the child was less than 18 years old at that time.
For the meaning of domestic partner, see Legislation Act, s 169.
In this section:
given, in relation to money or property, means money or property paid, transferred, assigned or settled (otherwise than for valuable consideration).
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