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.