Succession Act 2006

This Act is the Succession Act 2006.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

administration of the estate of a deceased person is defined in section 55.

administrator has the same meaning as it has in the Probate and Administration Act 1898.

close personal relationship is defined in subsection (3).

costs, in relation to proceedings under this Act, means costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration.

Court means—

the Supreme Court, in relation to any matter (including a matter referred to in paragraph (b)), or

the District Court, in relation to a matter under Chapter 3 for which it has jurisdiction under section 134 of the District Court Act 1973.

deceased person includes any person in respect of whose estate administration has been granted.

deceased transferee means a deceased transferee referred to in section 81 or 82.

disposition includes the following—

any gift, devise or bequest of property under a will,

the creation by will of a power of appointment affecting property,

the exercise by will of a power of appointment affecting property.

document—

except as provided by paragraph (b)—has the same meaning as it has in the Interpretation Act 1987, and

in Chapter 2 (other than section 8)—means any paper or material on which there is writing.

domestic relationship has the same meaning as it has in the Property (Relationships) Act 1984.

eligible person means a person who may make an application for a family provision order under section 57.

family provision order means an order made by the Court under Chapter 3 in relation to the estate or notional estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person.

intestate is defined in section 102.

legal representative of an estate is defined in section 55 (2).

notional estate of a deceased person means property designated by a notional estate order as notional estate of the deceased person.

notional estate order means an order made by the Court under Chapter 3 designating property specified in the order as notional estate of a deceased person.

personal representative means the executor or administrator of the estate of a deceased person.

property includes any valuable benefit.

Registrar means a person who is—

appointed in accordance with section 120 of the Supreme Court Act 1970, and

nominated by the Principal Registrar of the Court for the purposes of this Act.

will includes a codicil and any other testamentary disposition.

Note—

The Interpretation Act 1987 contains definitions of some terms and expressions used in this Act. See, for example, the definitions of minor, land and property in section 21 of that Act.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A reference in this Act to a child or issue of any person includes a child or issue who is born after the person’s death after a period of gestation in the uterus that commenced before the person’s death and survives the person for at least 30 days after birth.

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

For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care—

for fee or reward, or

on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

Notes included in this Act do not form part of this Act.

Note—

References in headings to sections of this Act to “WPA” are references to the Wills, Probate and Administration Act 1898 as in force before it was amended by this Act. References in headings to sections of this Act to “FPA” are references to the Family Provision Act 1982 as in force immediately before it was repealed by the Succession Amendment (Family Provision) Act 2008.

A person may dispose by will of property to which the person is entitled at the time of the person’s death.

Subsection (1) applies whether or not the entitlement existed at the date of the making of the will.

A person may dispose by will of property to which the person’s personal representative becomes entitled, in the capacity of personal representative, after the person’s death.

Subsection (3) applies whether or not the entitlement existed at the time of the person’s death.

A person may not dispose by will of property of which the person is trustee at the time of the person’s death.

A will made by a minor is not valid.

Despite subsection (1)—

a minor may make a will in contemplation of marriage (and may alter or revoke such a will) but the will is of no effect if the marriage contemplated does not take place, and

a minor who is married may make, alter or revoke a will, and

a minor who has been married may revoke the whole or any part of a will made while the minor was married or in contemplation of that marriage.

Subsection (1) does not apply to a will made by an order under section 16 (Court may authorise minor to make, alter or revoke a will).

A will is not valid unless—

it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and

the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.

It is not essential for a will to have an attestation clause.

If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.

If a power is conferred on a person to make an appointment by a will that is to be executed in some particular way or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in the particular way or with the particular solemnity.

This section does not apply to a will made by an order under section 18 (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity).

A will that is executed in accordance with this Act is validly executed even if one or more witnesses to the will did not know that the document he or she attested and signed was a will.

This section applies to a document, or part of a document, that—

purports to state the testamentary intentions of a deceased person, and

has not been executed in accordance with this Part.

The document, or part of the document, forms—

the deceased person’s will—if the Court is satisfied that the person intended it to form his or her will, or

an alteration to the deceased person’s will—if the Court is satisfied that the person intended it to form an alteration to his or her will, or

a full or partial revocation of the deceased person’s will—if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to—

any evidence relating to the manner in which the document or part was executed, and

any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

This section applies to a document whether it came into existence within or outside the State.

A person who is unable to see and attest that a testator has signed a document may not act as a witness to a will.

This section applies if a beneficial disposition is given or made by will to a person (the interested witness) who attests the execution of the will.

The beneficial disposition is void to the extent that it concerns the interested witness or a person claiming under the interested witness.

A beneficial disposition is not void under subsection (2) if—

at least 2 of the people who attested the execution of the will are not interested witnesses, or

all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give that consent, or

the Court is satisfied that the testator knew and approved of the disposition and it was given or made freely and voluntarily by the testator.

Note—

Consent under section 10 (3) (b) is not liable to duty. See section 65 (12A) of the Duties Act 1997.

In this section—

beneficial disposition does not include a charge or direction for the payment of—

a debt, or

reasonable remuneration to an executor, administrator, legal practitioner or other person acting in relation to the administration of the testator’s estate.

The whole or any part of a will may be revoked but only—

if the revocation (whether by a will or other means) is authorised by an order under section 16 or 18, or

by the operation of section 12 or 13, or

by a later will, or

by some writing declaring an intention to revoke it, executed in the manner in which a will is required to be executed by this Act, or

by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it, or

by the testator, or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the Court is satisfied from the state of the will that the testator intended to revoke it.

No will or part of a will may be revoked by any presumption of an intention on the ground of an alteration in circumstances.

A will is revoked by the marriage of a testator.

Despite subsection (1), the following are not revoked by the marriage of the testator—

a disposition to the person to whom the testator is married at the time of his or her death,

an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his or her death,

a will made in the exercise of a power of appointment if the property in relation to which the appointment is exercised would not pass to the executor, administrator or NSW Trustee and Guardian if the power of appointment was not exercised.

A will made in contemplation of a particular marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage concerned.

A will that is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.