Topic 1 – Intestate Succession

Article: Intestacy in NSW: The 1977 Statutory Amendments (1979) 53 ALJ 77

Refers to the "prescribed amount" has now changed, it is no longer $50,000, it is now $200,000.

When a person dies without having made a Will or if they made a Will but the Will does not dispose of any property, (for example it may simply appoint an Executor "A"- "to give the whole of my estate to "B" - and "B" may have predeceased the testator. In this case there is an intestacy but there is an executor so you would still have a grant of probate) = Total intestacy and the estate is to be distributed entirely in accordance with the intestacy provisions of the Wills ,Probate and Administration Act 1898 (NSW).

If the deceased dies and leaves a Will disposing of some, but not all of his property, then the deceased is said to have died "partially intestate" in which case the Wills, Probate and Administration Act 1898 (NSW) prescribes who will take the property and in what proportion in which they will take.

We will only be dealing with the situation of a person dying after 1 January 1978.

PROBATE AND ADMINISTRATION ACT 1898 - SECT 61B
Succession to real and personal property on intestacy

61B Succession to real and personal property on intestacy
(1) Where a person dies wholly intestate, the real and personal estate of that person shall, subject to the payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate, be distributed or held in trust in the manner specified in this section, and the real estate of that person shall be held as if it had been devised to the persons for whom it is held in trust under this section.
(2) If the intestate leaves a spouse but no issue, the estate shall be held in trust for the spouse absolutely.
(3) If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceed the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then:
(a) the household chattels (if any),
(b) the prescribed amount, and
(c) one-half of the estate (excluding any household chattels and the prescribed amount),
shall be held in trust for the spouse and the residue of the estate shall be held in statutory trust for the issue of the intestate.
(3A) Notwithstanding subsections (2) and (3), if the intestate leaves a spouse and a de facto spouse, the whole or, as the case may be, such part of the estate of the intestate as is required to be held in trust for the spouse of the intestate shall be held in trust for:
(a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate and the intestate did not, during the whole or any part of that period, live with the person to whom the intestate was married-the de facto spouse, or
(b) in any other case-the spouse.
(3B) Notwithstanding subsection (3), if the intestate leaves a de facto spouse and also leaves issue but no spouse, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a spouse, be required to be held in trust for the spouse of the intestate shall be held in trust for:
(a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate-the de facto spouse, or
(b) in any other case:
(i) except as provided by subparagraph (ii)-the issue as if the intestate left no spouse, or
(ii) where the intestate leaves no issue being children of the intestate or where such of the issue as are children of the intestate are issue also of the de facto spouse-the de facto spouse.
(4) If the intestate leaves issue but no spouse, the estate shall be held in statutory trust for the issue of the intestate.
(5) If the intestate leaves no spouse and no issue but one or both of the intestate’s parents, the estate shall be held:
(a) where both parents survive the intestate, in trust for those parents in equal shares, or
(b) where only one parent survives the intestate, in trust for that parent absolutely.
(6) If the intestate leaves no spouse, no issue and no parents, the estate shall be held for the following persons living at the death of the intestate and in the following order and manner:
(a) firstly, in statutory trust for the brothers and sisters of the whole blood of the intestate; but if there are no such brothers or sisters, then
(b) secondly, in statutory trust for the brothers and sisters of the half blood of the intestate; but if there are no such brothers or sisters, then
(c) thirdly, in trust for the grandparents of the intestate and, if more than one of them survive the intestate, in equal shares; but if there are no such grandparents, then
(d) fourthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares; but if there are no such uncles or aunts, then
(e) fifthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares.
(7) In default of any person taking an interest under subsections (2) to (6), the estate shall belong to the Crown as bona vacantia, and in place of any right to escheat.
(8) The Crown, without prejudice to any other powers, may, out of the whole or any part of the property devolving on it as bona vacantia, provide for dependants, whether kindred or not, of the intestate and any other persons for whom the intestate might reasonably have been expected to make provision.
(9) Spouses shall for all purposes of distribution under this section be treated as separate persons.
(10) Where household chattels referred to in subsection (3) (a) are subject to a hire-purchase agreement within the meaning of subsection (1) of section 2 of the Hire-Purchase Act 1960 or within the meaning of any enactment of another State, or of a Territory, of the Commonwealth corresponding to that subsection, the surviving spouse, as referred to in subsection (3), shall be entitled to those chattels but subject to the rights of the owner under the agreement and under the provisions of the Hire-Purchase Act 1960 or, as the case may be, of the enactment of that other State or that Territory corresponding to that Act.
(11) Subsection (3) (a) has effect subject to section 145 of the Conveyancing Act 1919 .
(12) Where the prescribed amount is held in trust for a spouse of an intestate under subsection (3), the spouse is entitled, in addition to the spouse’s entitlement under that subsection, to interest on that amount at the rate prescribed for the purposes of section 84A from the date of death of the intestate until that amount is paid or appropriated to the spouse.
(13) Notwithstanding subsection (3), where the interest of an intestate in a shared home is, under section 61D, held in trust for a surviving spouse of the intestate, the share of the intestate’s estate to which the spouse would, but for this subsection, have been entitled under subsection (3) (b) and (c) shall:
(a) where the value of that interest is equal to or exceeds the value of that share, be deemed to be fully satisfied and, if the value of that interest exceeds the value of that share, the share of the issue under subsection (3) shall be reduced by the amount of the excess, or
(b) where the value of that interest is less than the value of that share, be deemed to be satisfied to the extent of the value of that interest.
(14) This section has effect subject to the provisions of section 24 (Effect of disposal of home shared by spouses under enduring power of attorney in cases of intestacy) of the Powers of Attorney Act 2003 .

No surviving spouse

This is provided for under s.61 B(.4) & (7) of the Wills ,Probate and Administration Act 1898 (NSW).
If there is no surviving spouse then the estate is inherited by any issue in Statutory Trust. Issue is lineal descendants, no matter how remote.
Statutory Trust is defined by s.61C of the Wills ,Probate and Administration Act 1898 (NSW), and basically it means that all children living at the date of death of the intestate take in equal shares, as tenants in common, but if a child has died leaving issue then those issue take in equal shares the share that his or her parent would have taken had the parent been alive at the date of the intestate's death. This is called "distribution per stirpes" as opposed to distribution "per capita", it is distribution by branches of the family and not by heads.

If there was a distribution per capita then as there are eight children/lineal issue, then each would take one eight of the estate. However, the Wills ,Probate and Administration Act 1898 (NSW) states that it is distributed to issue on statutory trust, per stirpes. Therefore each child, "A"„ "B", & "C", if alive would each take one third.

If "C" predeceased the intestate then "A" and "B" would each take half each.
If also "A" died before the intestate then "B" would take half, "Al" and "A2" would each take one quarter being the half that "A" would have taken if alive.
If "Al" also predeceased the intestate then "A3" and "A4" would each take one eight, being the quarter that their parent "Al" would have taken.

Thornton v Brunsden (1956)

Facts: it was argued that before you could begin the per stirpes distribution there had to be at least one of the head class living at the intestates death, i.e. if "A", "B", & "C" had predeceased the intestate then none of their issue, "Al", A2", "A3", "A4", or "B1", even though living could not take unless at least one of "A", "B", or "C" was alive. In which case the distribution then would have to go to the next class.

Held: This argument was not accepted by the court. It was only on a total failure of all members of the first class did you pass on to the next category of next of kin. If “A4” was the only surviving issue then “A4” would take all the estate.

If there were no surviving spouse and no surviving issue, then we would go to the next class which is:

Parents
This is provided for under s.61 B(5) of the Wills ,Probate and Administration Act 1898 (NSW). Parents take in equal shares if they are both alive or solely if only one living.

If both parents are deceased then the next class is:

Brothers and sisters of the whole blood
This is provided for under s.61 B(6)(a) of the Wills ,Probate and Administration Act 1898 (NSW). Brothers and sisters of the whole blood (both parents are common parents to the brothers and sisters as well as the intestate) take in statutory trust. This means that nephews and nieces, great nephews and nieces etc will take in the event that their parents are dead.

If there are no brothers and sisters of the whole blood or all brothers and sisters of the whole blood are deceased then the next class is:

Brothers and sisters of the half blood
This is provided for under s.61 B(6)(b) of the Wills ,Probate and Administration Act 1898 (NSW). Brothers and sisters of the whole blood (one parent is in common to the brothers and sisters and the intestate) take in statutory trust.

If there are no brothers and sisters of the half blood or all brothers and sisters of the half blood are deceased then the next class is:

Grandparents
This is provided for under s.61 B(6)(c) of the Wills ,Probate and Administration Act 1898 (NSW). Grandparents take in equal shares if they are both alive or solely if only one living.

If there are no grandparents living then the next class is:

Uncle and Aunts
This is provided for under s.61B(6)(d) of the Wills ,Probate and Administration Act 1898 (NSW). Uncle and Aunts take in equal shares if they are both alive or solely if only one living.
This refers to uncles and aunts of the intestate who are the brothers and sisters of the whole blood of parents of the intestate. Children of uncles and aunts, that are the intestate's cousins, are not eligible next of kin for an intestacy. Uncles and aunts do not take under statutory trust.

If there are no uncles and aunts of the whole blood of the parents of the intestate living then the next class is:

Uncle and Aunts (half blood)
This is provided for under s.61 B(6)(e) of the Wills ,Probate and Administration Act 1898 (NSW). Uncle and Aunts take in equal shares if they are both alive or solely if only one living.
This refers to uncles and aunts of the intestate who are the brothers and sisters of the half blood of a parent of the intestate. This may occur, say if an intestate's parent remarries and have other children by that marriage.

If there are no uncles and aunts of the half blood then the estate shall belong to:

The Crown
This is provided for under s.61B(7) of the Wills ,Probate and Administration Act 1898 (NSW). The estate belongs to the Crown as bona vacantia.
Note: If making a will and something is to be left to the cousins, it is best to name them by name rather than refer to leaving an item to your first cousin as the term may not be what you think.

Surviving Spouse

Surviving spouse and no issue
If there is a surviving spouse but no issue then under s.61B(2) of the Wills ,Probate and Administration Act 1898 (NSW) the surviving spouse takes the whole estate.

Surviving spouse and issue
If the intestate leaves a surviving spouse and issue then under s.61 B(3) of the Wills ,Probate and Administration Act 1898 (NSW):
1. The surviving spouse takes the "household chattels" absolutely.
2. Then, if what is left after taking out the household chattels, is less than the "prescribed amount" then the surviving spouse takes the whole estate.
3. If what is left after taking out the household chattels is more than the "prescribed amount" then the spouse gets
(a) The prescribed amount and
(b) Half of what is left.
The remaining half goes to the issue on statutory trust.

PROBATE AND ADMINISTRATION ACT 1898 - SECT 61A
Application and interpretation

61A Application and interpretation
(1) This Division shall not apply in respect of the estate of a person who died wholly or partially intestate before the commencement of section 5 of the Wills, Probate and Administration (Amendment) Act 1977 and any such estate shall be distributed in accordance with the enactments and rules of law in force at the death of that person.
(2) In this Division, except so far as the context or subject-matter otherwise indicates or requires:
"dwelling-house" means:
(a) a building that is designed to be used, or designed to be used principally, as a separate residence for one family or person, together with the land which forms the curtilage of the building, or
(b) an apartment or flat that is so designed, together with any interest in any part of the building of which the apartment or flat forms part, or in any part of the curtilage of that building, that is owned or otherwise held in conjunction with that apartment or flat.
"household chattels", in relation to an intestate, means all furniture, curtains, drapes, carpets, linen, china, glassware, ornaments, domestic appliances and utensils, garden appliances, utensils and effects and other chattels of ordinary household use or decoration, liquors and consumable stores and domestic animals, which, immediately before the intestate’s death, were owned by the intestate (whether absolutely or subject to any charge, encumbrance or lien securing the payment of money) or in which, immediately before the intestate’s death, the intestate held an interest as grantor under a bill of sale or as hirer under a hire-purchase agreement within the meaning of subsection (1) of section 2 of the Hire-Purchase Act 1960 or within the meaning of any enactment of another State, or of a Territory, of the Commonwealth, corresponding to that subsection, but does not include any motor vehicle, boat, aircraft, racing animal, original painting, trophy, clothing, jewellery or other chattel of a personal nature which was so owned by the intestate or in which the intestate held such an interest.
"interest", in relation to a shared home, means:
(a) an estate in fee simple,
(b) a leasehold estate which has not less than 14 years to run or, in the case of a leasehold estate having less than 14 years to run, which confers a right of renewal for one or more terms of not less than 14 years in the aggregate, or
(c) an exclusive licence to occupy conferred by virtue of a holding of shares in a company that owns the parcel of land on which is erected the building in which the shared home is included,
and includes an interest held by an intestate as a tenant in common (but only if there is only one other tenant in common and that tenant in common is the surviving spouse of the intestate for whom part of the estate of the intestate is required to be held in trust under section 61B (3), (3A) or (3B)), but does not include an interest so held as a joint tenant.
"prescribed amount", in relation to an intestate’s estate, means:
(a) if no regulation referred to in paragraph (b) is in force at the death of the intestate-$200,000, or
(b) if a regulation made under section 153 and prescribing another amount is in force at the death of the intestate-that other amount.
"shared home", in relation to an intestate’s estate, means a dwelling-house in which the intestate held an interest in respect of which the surviving spouse or de facto spouse of the intestate for whom part of the estate of the intestate is required to be held in trust under section 61B (3), (3A) or (3B) is entitled to exercise the right conferred by section 61D.
"value":
(a) in relation to:
(i) an intestate’s estate, or
(ii) a share of any person in such an estate,
means the value, fixed in accordance with section 61E, of that estate or share at the date of the intestate’s death, and
(b) in relation to an interest in a shared home included in an intestate’s estate, means the value, fixed in accordance with section 61E, of that interest:
(i) where the right conferred by section 61D is exercised with respect to that interest within the period of 12 months after the intestate’s death-at the date of that death, or
(ii) where that right is exercised after the expiration of that period-at the date on which the right is exercised.
(3) References in this Division to a child or issue living at the date of death of any person shall be construed as including references to any child or issue who has been conceived and not born at that date but who is subsequently born alive.
Note: “Household chattels” and “Prescribed amount” is defined under s61A(2).
The date for value of the estate is at the date of death: s61A.

Right of surviving spouse to Elect to take the Matrimonial Home – s 61D Wills, Probate and Administration Act 1898 (NSW)

PROBATE AND ADMINISTRATION ACT 1898 - SECT 61D
Rights of surviving spouse with respect to shared home

61D Rights of surviving spouse with respect to shared home
(1) Subject to the Fourth Schedule, where:
(a) an intestate dies leaving a spouse and issue,
(b) the value of the estate of the intestate (excluding any household chattels) exceeds the prescribed amount,
(c) the intestate, at the time of the intestate’s death, held an interest in a dwelling-house which is situated in New South Wales, and
(d) that dwelling-house was, at that time, occupied by the intestate and the intestate’s spouse or by the intestate’s spouse as their, or as the spouse’s, only or principal residence,
the spouse may require the administrator to hold that interest in trust for the spouse, and on being so required, the administrator shall hold that interest accordingly.
(2) A reference in subsection (1) to the spouse of an intestate is, where the intestate dies leaving a spouse and a de facto spouse, a reference to the spouse or de facto spouse for whom part of the estate is required to be held in trust under section 61B (3), (3A) or (3B).

PROBATE AND ADMINISTRATION ACT 1898 - SCHEDULE 4

SCHEDULE 4 – Rights of surviving spouse of intestate with respect to acquisition of the shared home
(Section 61D)
1 Construction of Schedule
This Schedule shall be construed as forming part of section 61D.
2 Exercise of right conferred by sec 61D
(1) The right conferred by section 61D shall be exercisable by notification in writing:
(a) where there is a sole administrator who is not the surviving spouse of the intestate, delivered to that administrator,
(b) where there are two or more administrators, delivered to each of those administrators (other than one who is the surviving spouse of the intestate), or
(c) where there is a sole administrator who is the surviving spouse of the intestate, filed in the office of the Registrar.
(2) A notification delivered or filed under subclause (1) of this clause shall not be revocable except with the consent of the Court.
(3) For the purpose of enabling the surviving spouse to decide whether or not to exercise the right conferred by section 61D, the spouse may require the administrator to ascertain and fix the value of the interest of the intestate in the shared home and to inform the spouse of that value.
3 Restrictions on the exercise of right conferred by sec 61D
(1) The right conferred by section 61D shall not be exercisable:
(a) after the death of the surviving spouse of the intestate,
(b) after the expiration of 12 months from the date on which letters of administration were first taken out in respect of the estate of the intestate,
(c) if the interest of the intestate in the shared home is required by the administrator to meet funeral and administration expenses, debts and other liabilities payable out of the estate of the intestate, or
(d) in any case in which the transfer or conveyance by the administrator to the spouse of the interest of the intestate in the shared home would require compliance with the provisions of:
(i) the Environmental Planning and Assessment Act 1979 , the Conveyancing Act 1919 and any other Act with respect to the manner of dividing land into parts, and with respect to any requirement incidental to the manner of dividing land into parts,
(ii) the Strata Schemes (Freehold Development) Act 1973 with respect to the manner of subdividing land within the meaning of section 7 (1) of that Act or of any lot within the meaning of section 5 (1) of that Act, and with respect to any requirement incidental to the manner of subdividing any such land or lot, or
(iii) the Strata Schemes (Leasehold Development) Act 1986 , with respect to the manner of subdividing land within the meaning of section 6 of that Act or of any lot within the meaning of section 4 (1) of that Act, and with respect to any requirement incidental to the manner of subdividing any such land or lot,
unless those provisions would be complied with.
(2) Without limiting subclause (1) of this clause, where:
(a) the shared home forms part of a building and an interest in the whole of the remainder of the building is comprised in the intestate’s estate,
(b) the shared home is held with land used for agricultural, pastoral or horticultural purposes and an interest in that land is comprised in that estate,
(c) the whole or a part of the shared home was, at the time of the intestate’s death, used as a hotel or lodging house, or
(d) a part of the shared home was, at that time, used for purposes other than residential purposes,
the right conferred by section 61D shall not be exercisable unless the Court, on the application of the administrator or the surviving spouse of the intestate (not being the sole administrator), makes an order declaring itself to be satisfied that the exercise of that right is not likely to diminish the value of assets in the estate (disregarding household chattels, if any, and the interest of the intestate in the shared home) or to make those assets more difficult to dispose of.
(3) During the period of 12 months referred to in subclause (1) (b) of this clause the administrator (not being the surviving spouse of the intestate) shall not, except as authorised under subclause (4) of this clause, without the written consent of the surviving spouse sell or otherwise dispose of the interest of the intestate in the shared home except in the course of administration due to want of other assets.
(4) Where in respect of an application made under subclause (2) of this clause the Court does not order that the right conferred by section 61D shall be exercisable by the surviving spouse, it may authorise the administrator to dispose of the interest of the intestate in the shared home before the expiration of the period of 12 months referred to in subclause (1) (b) of this clause.
4 Determination of curtilage of building
(1) Where, in any case in which the surviving spouse of an intestate exercises the right conferred by section 61D in relation to a building referred to in paragraph (a) of the definition of "dwelling-house" in section 61A (2), the area of:
(a) the land on which the building is erected, and
(b) the land which is attached to and occupied with the building for the amenity or convenience of the building, does not exceed 2 500 square metres and no estate or interest in any land contiguous with the land comprised in that area is comprised in the intestate’s estate, the land referred to in paragraph (b) shall be presumed, until the contrary is proved, to form the curtilage of the building.
(2) Where the surviving spouse of an intestate exercises the right conferred by section 61D in relation to a building referred to in paragraph (a) of the definition of "dwelling-house" in section 61A (2), but a question arises as to the curtilage of the building, the administrator or any person beneficially interested in the estate of the intestate may apply to the Court for an order to determine the question, and on any such application being made, the Court may make such order with respect to the question as it thinks just.
5 Power of administrator to create easements etc in certain cases
Where the right conferred by section 61D is exercised in respect of a shared home, being:
(a) a dwelling-house referred to in paragraph (a) of the definition of "dwelling-house" in section 61A (2) which is contiguous with other land in which an estate or interest is comprised in the intestate’s estate, or
(b) a dwelling-house referred to in paragraph (b) of the definition of "dwelling-house" in section 61A (2) which is contiguous with another part of the building of which the dwelling-house forms part and in which an estate or interest is comprised in the intestate’s estate,
the administrator, when transferring or conveying the interest of the intestate in the shared home or, as the case may be, the estate or interest in the other land or the other part of the building may, by the instrument of transfer or conveyance create such easements or restrictions as to user benefiting or burdening the shared home or benefiting or burdening that other land or part of the building as the administrator considers necessary for the purpose of rendering usable that other land or part of the building or, as the case may be, the shared home.
6 Power of surviving spouse to make valid requirement etc where spouse is a minor
A requirement or consent made or given under this Schedule by a surviving spouse who is a minor is as valid and effective as it would be if the spouse had attained majority.
7 Miscellaneous matters
(1) Nothing in section 61D or in this Schedule confers on the surviving spouse of an intestate whose estate includes a shared home any right as against any person who has in good faith purchased for value from the administrator the interest of the intestate in the shared home.
(2) Where the surviving spouse of an intestate whose estate includes a shared home is one of two or more administrators, the rule that a trustee may not be a purchaser of trust property shall not prevent the spouse from purchasing out of the intestate’s estate any interest of the intestate in the shared home.

S.61D of the Wills, Probate and Administration Act 1898 (NSW) provides that where the intestate at the time of death held an interest in a dwelling house which was occupied by the intestate and his/her spouse as their principle residence then the surviving spouse may require the administrator to hold that house on trust for him/her in full or partial satisfaction of his/her share in the intestacy. '
Note also the fourth Schedule to the Act which has to be read as forming part of s.61 D.
Note: “Dwelling House”, “Interest” and “value” are defined in s61A(2).
“Value” – is the value of the house less any mortgage or charge secured thereon; that it is the unencumbered value.

Note: (1) the spouse is also entitled to interest on the prescribed amount.
(2) the same rules apply, as far as possible to a partial intestacy .

De facto Spouse
Since the Wills, Probate De facto Relationships Amendment Act 1984 which came into force on 1 July 1985 a De facto spouse is also an eligible next of kin and in some cases may over ride the legal spouse.
"De facto" is essentially defined in s.32G(1) as a sole partner in a de facto relationship with a person of the opposite sex and is not a partner in any other de facto relationship.
"De facto relationship" is defined essentially as a relationship between a man and a woman on a bona fide domestic basis although not married to each other.

PROBATE AND ADMINISTRATION ACT 1898 - SECT 32G
Interpretation

32G Interpretation
(1) In this Part:
"de facto relationship" has the same meaning as in the Property (Relationships) Act 1984 .
"de facto spouse", in relation to a person dying wholly or partly intestate, means someone who:
(a) was the sole partner in a de facto relationship with the person, and
(b) was not a partner in any other de facto relationship.
(2) Except where the contrary intention appears, a reference in this Part to the spouse of an intestate includes a reference to a person who, at the time of death of the intestate, was the de facto spouse of the intestate.

S 32G(2) – De Facto spouse but no legal spouse or issue

Where the intestate leaves a de facto spouse but no legal spouse and no issue then the de fact spouse is entitled to the whole estate.

S 61B(3A) – De Facto and legal spouse survive (with or without issue)

The de facto spouse, in order to over ride the legal spouse must have lived with the intestate for a continuous period of not less than 2 years prior to the death of the intestate and the intestate, during that period, must not have lived with the person to whom they were legally married. (Note: other rights for the spouse or a de facto of less than 2 years may exist under the Family Provisions Act.)

The issue, if any, take what they would normally be entitled to.

S61B(3B) – De Facto and issue but no legal spouse

For the de facto to take, the de facto must have lived with the intestate for at least 2 years  prior to the death of the intestate. If the de facto does not qualify for the 2 year period then the issue would take all - s.61B(3B)(b)(i), unless, the issue does not include children may be grand children or great grand .children) or if they are children of the de facto and the intestate - s.61 B(3B)(b)(ii).
If a de facto spouse is entitled (2 years etc) then the de facto spouse would take everything that a spouse can take. The only exception would be with the matrimonial home in that a legal spouse could elect even if he/she was living alone in the matrimonial home at the intestates death but because of the definition of the de fact relationship they both have to be living in the matrimonial home.

Presumption as to order of death

It will sometimes be necessary to decide who takes under an intestacy or a Will to ascertain the order in which two or more people died. Usually it is a straight forward matter, but some times it is difficult even when the deaths occur almost simultaneous, such as in a motor car accident, or apart but in circumstances which make it hard to fix the order; for example, "A" dies in a nursing home in NSW and "B" is killed in an avalanche in Switzerland at approximately the same time but the body is not found for some days.
In these circumstances you have the statutory presumption as to order of death under s35 of the Conveyancing Act 1919 which states that where two or more persons die under circumstances which render it uncertain which of them survived, the deaths for all purposes effecting title to property are presumed to occurred in order of seniority, the younger is deemed to have survived the elder.

Re Plaiser (1934)

Facts: a man murdered his wife and child and then committed suicide. It was impossible to find on the medical evidence the actual order of death. A representative of the wife and daughter, who were younger than the husband, sought to get the court to apply s.35 Conveyancing Act 1919. The judge held that "uncertain" in the section did not mean that the facts had to proved with scientific accuracy, it meant only that on the whole of the evidence presented the judge was still uncertain.
Held: In this case, from the evidence, the judge was not uncertain. He had found as a matter of fact that the child died first, the wife second, and the husband last and therefore he had no need to apply s.35 Conveyancing Act 1919 . He also found that the husband was insane and therefore it was the husband who inherited the wife's and child's property and it was the husband's relatives that inherited the lot under his intestacy as there is no bar to succeeding to the property of persons you murder whilst you are insane. Note:- The section does not apply where one of the deaths in question has to be presumed as in Halbert v Myner.

Halbert v Mynar [1981]

Held: A court will give a grant to administer an estate of a person whose death cannot be proved, can not find the body, but s presumed wither because of the circumstances in which the person died or by unexplained absence for 7 years. S35 of the Conveyancing Act 1919 only applies to where the time of death is uncertain not as to the death itself. S35 relevant to timing only.

Adoption of Children Act 1965

ADOPTION OF CHILDREN ACT 1965 - SECT 35
General effect of adoption orders

35 General effect of adoption orders
(1) For the purposes of the laws of New South Wales, but subject to this Act and to the provisions of any law of New South Wales that expressly distinguishes in any way between adopted children and children other than adopted children, upon the making of an adoption order:
(a) the adopted child becomes a child of the adopter or adopters, and the adopter or adopters become the parent or parents of the child, as if the child had been born to the adopter or adopters in lawful wedlock,
(b) the adopted child ceases to be a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person ceases to be a parent of the child,
(c) the relationship to one another of all persons (including the adopted child and an adoptive parent or former parent of the adopted child) shall be determined on the basis of the foregoing provisions of this subsection so far as they are relevant,
(d) any existing guardianship of the adopted child (including the Minister’s parental responsibility under the Children and Young Persons (Care and Protection) Act 1998 ) ceases to have effect, and
(e) any previous adoption of the child (whether effected under the law of New South Wales or otherwise) ceases to have effect.
(2) The provisions of subsection (1) do not have effect so as to deprive an adopted child of any vested or contingent proprietary right acquired by the child before the making of the adoption order.
(3) Where:
(a) one of the natural parents of a child, or one of two adoptive parents of an adopted child, has died,
(b) the surviving parent remarries or, if not previously married, marries, and
(c) the child is adopted by the surviving parent and that parent’s spouse,
any property of any collateral or lineal next-of-kin of the deceased parent who dies intestate shall, notwithstanding subsection (1), devolve in all respects as if the child had not been so adopted.
(4) Notwithstanding the provisions of subsection (1), for the purposes of any law of New South Wales relating to a sexual offence, being a law for the purposes of which the relationship between persons is relevant, an adoption order, or the discharge of an adoption order, does not cause the cessation of any relationship that would have existed if the adoption order, or the discharging order, as the case may be, had not been made, and any such relationship shall be deemed to exist in addition to any relationship that exists by virtue of the application of that subsection in relation to that adoption order or by virtue of the discharge of that adoption order.

ADOPTION OF CHILDREN ACT 1965 - SECT 36
Effect of orders as regards dispositions of property etc

36 Effect of orders as regards dispositions of property etc
(1) Subject to subsection (2) of section 35, the provisions of subsection (1) of that section have effect in relation to a disposition of property, whether by will or otherwise, and whether made before or after the commencement of this Act, and to a devolution of property in respect of which a person dies intestate after the commencement of this Act, except that:
(a) those provisions do not affect a disposition of property by a person who, or by persons any of whom, died before the commencement of this Act, and
(b) those provisions do not affect a disposition of property that has taken effect in possession before the commencement of this Act.
(2) The provisions of subsection (1) of section 35 do not apply in relation to an agreement or instrument (not being a disposition of property) made or executed before the commencement of this Act.
(3) Where:
(a) before the commencement of this Act, a person made, by an instrument other than a will, a disposition of property,
(b) the disposition had not taken effect in possession before the commencement of this Act, and
(c) it did not appear from the instrument that it was the intention of that person to include adopted children as objects of the disposition,
that person may, notwithstanding that the instrument could not, apart from this subsection, be revoked or varied, by a like instrument, vary the first-mentioned instrument to exclude adopted children (whether adopted under this Act or otherwise) from participation in any right, benefit or privilege under the instrument.
(4) In relation to a disposition of property by a person who, or by persons any of whom, died before the commencement of this Act, and in relation to a devolution of property in respect of which a person died intestate before that commencement, an adoption order made under this Act has the same effect as if the former Acts had continued in force and the adoption order had been made under those Acts.
(5) Nothing in section 35 or in this section affects the operation of any provision in a will or other instrument (whether made or coming into operation before or after the commencement of this Act) distinguishing between adopted children and children other than adopted children.

Adoption Act 2000 (NSW)

95 General effect of adoption orders

(1) An adoption order made by the Court gives sole parental responsibility for a child to the person or persons named in the order (the adoptive parent or adoptive parents).

(2) For the purposes of the law of New South Wales, if an adoption order is made:
(a) the adopted child has the same rights in relation to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents,
(b)  the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents,
(c)  the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child,
(d) the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child.

(3) Despite subsection (1), an adopted child does not cease to be regarded in law as the child of a birth parent or adoptive parent, and the birth parent or adoptive parent does not cease to be regarded in law as the parent of the child, if an adoption order is made in relation to a step parent with whom the birth parent or adoptive parent is living.

(4) For the purposes of any law of New South Wales relating to a sexual offence (being a law for which the relationship between persons is relevant), any relationship that would have existed if an adoption order or discharge order had not been made continues to exist for the purposes of that law in addition to any relationship that exists under this section by virtue of the order.

96 Effect of adoption order on guardianship and previous adoption

(1) On the making of an adoption order:
(a) the existing guardianship of the adopted child (including the Minister's parental responsibility under the Children and Young Persons (Care and Protection) Act 1998) ceases to have effect, and
(b) any previous adoption of the child (whether effected under the law of New South Wales or otherwise) ceases to have effect.

(2) This section does not apply in relation to an agreement or instrument (not being a disposition of property) made or executed before 7 February 1967.

Note:   7 February 1967 was the date of commencement of the Adoption of Children Act 1965 .

97 Effect of orders as regards property

(1) Section 95 does not have effect so as to deprive an adopted child of any vested or contingent property right acquired by the child before the making of the adoption order.

(2) If:
(a) one of the birth parents of a child, or one of 2 adoptive parents of an adopted child, has died, and
(b) the surviving parent remarries or, if not previously married, marries, and
(c) the child is adopted by the surviving parent and that parent's spouse,
any property of any collateral or lineal next-of-kin of the deceased parent who dies intestate is, despite section 95, to devolve in all respects as if the child had not been so adopted.

Note: 

Spouse is defined in the Dictionary. This section ensures that if an adoption order is made in favour of the spouse of a deceased birth or adoptive parent of a child, it does not exclude any rights of inheritance that the child might have from or through the deceased parent.

Status of Children Act 1996

Status of Children Act 1996 (NSW)

Part 2  Status of children and dispositions of property

5 All children are of equal status

(1) For the purposes of any law of the State by or under which the relationship between any person and the person's father and mother (or either of them) arises, that relationship and any other relationship (whether of consanguinity or affinity) between the person and another person is to be determined regardless of whether the person's parents are or have been married to each other.

(2) This section is subject to sections 6 and 7.

6 Construction of dispositions of property made on or after 1 July 1977

(1) This section applies to the following dispositions only:
(a) dispositions made inter vivos on or after 1 July 1977 (being the date on which the Children (Equality of Status) Act 1976 commenced),
(b) dispositions made by will or codicil executed before, on or after 1 July 1977 by a person who dies after that date.

(2) Unless a contrary intention appears, in any disposition to which this section applies:
(a) a reference (however expressed) to the child or children of a person includes a reference to an exnuptial child of whom that person is a parent, and
(b) a reference (however expressed) to any person or persons related to another person (other than as a parent or child) includes a reference to anyone who is so related in fact regardless that the person related in fact, or some other person through whom the relationship is traced, is or was an exnuptial child.

(3) The use of any of the following words (or of any word or words having the same or a similar meaning) does not of itself indicate a contrary intention for the purposes of subsection (2):
(a) the words "legitimate'' or "lawful'' when used with reference to the child or children of a person or persons related to another person in some other way,
(b) the words "married'', "husband'' or "wife'' when used with reference to the parent or parents of a person.

(4) Without limiting any other provision of this Act, any rule of law that a disposition in favour of an exnuptial child not conceived or born when the disposition takes effect is void as being contrary to public policy is abolished in respect of any disposition to which this section applies.

7 Construction of dispositions of property made before 1 July 1977

(1) The following dispositions are to be construed as if the Children (Equality of Status) Act 1976 and this Act had not been enacted:
(a) dispositions made inter vivos before 1 July 1977,
(b) dispositions made by will or codicil executed by a person who died before 1 July 1977.

(2) If any such disposition contains a special power of appointment, nothing in this Act:
(a) extends the class of persons in whose favour the appointment may be made, or
(b) causes the exercise of the power to be construed so as to include any person who is not a member of that class.

8 Rights of exnuptial children and their relatives on intestacy

(1) This section applies to rights under the intestacy of persons dying on or after 1 July 1977.

(2) If any relative of an exnuptial child (including a parent of the child) dies intestate in respect of all or any of the relative's real or personal property, the child (or any of the child's issue if the child is dead) is entitled to take any interest in that property that the child (or the child's issue) would have been entitled to take if the child's parents had been married to each other when the child was born.

(3) If an exnuptial child dies intestate in respect of all or any of the child's real or personal property, any relative of the child (including a parent of the child) is entitled to take any interest in that property that the relative would have been entitled to take if the parents of the child had been married to each other when the child was born.

(4) Nothing in this section affects the generality of section 5. However, this section does not (despite section 5) apply to any child who is an adopted person under an adoption order made or continued in force under the Adoption of Children Act 1965 or under an adoption recognised in the State under Part 5 of that Act.

Refers to the status of children and the disposition of property regardless of whether the persons parents are or have been married to each other.