Administration and Probate Act 1929

If the partner of an intestate acquires a beneficial interest under the will of the intestate in the real or personal property of the intestate (other than in the personal chattels of the intestate), schedule 6 applies only to the extent it is expressed to apply under this section but the person or persons entitled to take an interest in the intestate estate, and the interest in that estate that that person or those persons are entitled to take, must be ascertained in accordance with this section according to the facts and circumstances existing in relation to the intestate.

If an intestate is survived by his or her partner but not by issue, the partner is entitled to the whole of the intestate estate.

If the intestate is survived by his or her partner and by issue—

if the value of the beneficial interest that is acquired by the partner under the will does not exceed $200 000—schedule 6, part 6.1, item 2 applies as if the references to the sum of $200 000 were read as references to the sum ascertained by deducting from $200 000 the value of that beneficial interest; or

if the value of the beneficial interest that is acquired by the partner under the will exceeds $200 000—

the partner is entitled to be paid out of the intestate estate a sum equal to, if 1 child or the issue of 1 child of the intestate but no other issue of the intestate survives the intestate, 1/2 of the value of the intestate estate or, in any other case, 1/3 of the value of the intestate estate; and

the issue of the intestate are entitled to the balance of the intestate estate after payment to the partner of the sum to which the partner is entitled under subparagraph (i).

Section 49 (3) applies for subsection (3) in the same way as it applies for schedule 6.

If a child of an intestate who is entitled to take an interest in the intestate estate also acquires an interest under the will of the intestate in the real or personal property of the intestate, the interest to which the child is entitled under the will 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 interest that the child is entitled to take under this division in the intestate estate.

For this section, a beneficial interest in real or personal property acquired because of the exercise, by will, of a general power of appointment, is taken to be an interest acquired under that will.