Succession Act 1981

This section applies if a spouse (the resident) makes an election under section 39A to acquire an intestate’s interest in a shared home at transfer value.

On payment of the transfer value adjusted on an equitable basis to apportion any outgoings paid or payable, or rent or other amount received, that are ordinarily adjusted on sale, the resident is entitled to transfer of the intestate’s interest.

However—

before payment of the transfer value, the transfer documentation must be properly stamped under the Duties Act 2001 at the resident’s expense; and

the resident is not entitled to a discharge of any mortgage, charge, encumbrance or lien over the intestate’s interest in the shared home.

Subsection (3)(a) has effect despite the Duties Act 2001, section 17(2).

At the resident’s option, money that may at the time of transfer be distributed to the resident from the deceased’s estate (whether under a will or on intestacy) may be set off to reduce the amount of the transfer value.

A resident may acquire an intestate’s interest in a shared home under this section even if the resident is a personal representative of the intestate.

If production of a document or other assistance by a person (other than the resident or personal representative) is necessary to effect the acquisition, the person must, at the personal representative’s request, give the assistance on payment of the person’s reasonable costs and outlays by the personal representative.