Legislation

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This page contains information about legislation on succession and inheritance. 

The table below sets out the relevant state and territory statutes with links to Australasian Legal Information Institute (Austlii). 

Information on regulations, court rules and the most common Commonwealth legislation affecting succession law then follows.  Other statutes with provisions which may impact succession and inheritance matters depending upon the circumstances, are listed at the end of this article.          

State and territory legislation
Australian states and territories are responsible for making succession and inheritance law.  As a result some differences exist between them.

Links to succession and inheritance legislation

The links in the table below go to the Australasian Legal Information Institute (Austlii) website at http://www.austlii.edu.au.

  On Wills & Intestacy
On Administration, Probate & Intestacy On Family Provision or Testator’s Family Maintenance
Trustee
NSW Succession Act 2006 Probate & Administration Act 1898
Succession Act 2006
Succession Act 2006 Trustee Act 1925
QLD Succession Act 1981 Succession Act 1981 Succession Act 1981 Trusts Act 1973
VIC Wills Act 1997 Administration & Probate Act 1958 Part IV of the Administration & Probate Act 1958 Trustee Act 1958
SA Wills Act 1936 Administration & Probate Act 1919 Inheritance (Family Provision) Act 1972 Trustee Act 1936
WA Wills Act 1970 Administration Act 1903 Family Provision Act 1972 Trustees Act 1962
TAS Wills Act 2008 Administration & Probate Act 1935
Intestacy Act 2010
Testator’s Family Maintenance Act 1912 Trustee Act 1898
NT Wills Act 2000 Administration & Probate Act 1993 Family Provision Act 1980 Public Trustee Act 1979
ACT Wills Act 1968 Administration & Probate Act 1929 Family Provision Act 1969 Trustee Act 1925

To search within an Act, click on the tab [Search this Act] in the menu bar across the top of the Table of Provisions page.

Where to find Australian legislation online

1.  State and Territory Governments publish their legislation on official websites. For example the New South Wales Government publishes its legislation and related materials at http://www.legislation.nsw.gov.au.

2.  Another source for all Australian legislation and a wide range of legal materials, including Australian court judgments (case law), is through the Australasian Legal Information Institute (Austlii) website at http://www.austlii.edu.au.  Access to Austlii materials is free.

Regulations
In addition to Acts of Parliament there are other statutory materials affecting succession law such as regulations which accompany an act. 

Regulations are made by Parliaments under a particular act to accompany that act.  For example in New South Wales a series of Succession Regulations have been passed by the NSW Parliament under the Succession Act 2006.

Court rules – including probate rules and administration
If a problem has to be resolved by court proceedings, as well as the above, there are court rules and rules governing the procedure for civil actions to be followed. 

The courts which deal with wills, estates and probate matters are the probate registries of the Supreme Courts in each state and territory. Their power and procedures are governed by acts of parliament and the rules Parliaments make under (or pursuant to) those statutes.  For example see the rules of the NSW Supreme Court here. Part 78 Probate and Administration of that Act contains the rules on probate, informal testamentary documents and the administration of deceased estates.

Visit the website of the Probate Registry of the Supreme Court in your state or territory to find information and links to that jurisdiction’s Court rules which contain the probate rules.

Rules on civil court procedure
Each state and territory has its own rules on the procedure to be followed for civil matters.  In NSW these are the Uniform Civil Procedure Rules 2005 (UCPR), click here.  They are uniform because they apply to all civil proceedings occurring across all courts in NSW and made under the authority of the Civil Procedure Act 2005.

Commonwealth legislation
Commonwealth legislation can be accessed either through the Austlii at  http://www.austlii.edu.au, or through the Australian Government’s website Comlaw at www.comlaw.gov.au.

Commonwealth statutes mostly affecting succession and inheritance are:

  • Income tax legislation
  • Superannuation: Superannuation Industry (Supervision) Act 1993, and the Regulations
  • Social security
  • Family law Act 1975 (Cth) and Family Law Rules 2004 (Cth)
  • Bankruptcy Act 1966 (Cth) and Rules
  • Evidence Act 1996

The law of succession contains a web of law
Listing areas of law which have a connection with succession
and inheritance, (in one way or another), shows at a glance the possible areas and inter-related areas of law which may be affected by passing away.  And the list is not exhaustive.

  • Income tax: the final tax return, capital gains tax, GST registrations
  • State taxes such as stamp duties and land tax
  • Property, real and personal, intellectual property – copyright, trade marks
  • Insurance – life insurance
  • Social Security legislation – Centrelink entitlements
  • Veterans Entitlements legislation
  • Guardianship
  • Family law – including property relationships (de facto, domestic relationships)
  • Bankruptcy
  • Property law- real property- family home or your residence, investment, business
  • Property law – personal property such as jewellery, cars, boats, caravans, antiques, collectables (coins, stamps, military), family heirlooms
  • Corporations law – sole director/shareholder/member companies
  • Trust law
  • Computer law, internet law, technology – domain names
  • Traffic law – vehicle registrations
  • Partnership law
  • Adoption legislation
  • Laws on artificial conception, in vitro fertilisation, surrogacy and related areas.
  • Powers of attorney legislation

Some other statutes applicable from time to time in succession law are listed below.  While not meant to be a complete list by any means, the aim is to show the wide reach matters of succession and inheritance can have on our lives.

NSW

  • Adoption Act 2000
  • Children (Equality of Status) Act 1976
  • Status of Children Act 1996
  • Adoption Act 2000,  the Surrogacy Act 2010 .
  • Property (Relationships) Act 1984
  • Conveyancing Act 1919
  • Forfeiture Act 1995
  • Human Tissue Act 1983
  • Interpretation Act 1987
  • NSW Trustee and Guardian Act 2009
  • Powers of Attorney Act 2003
  • Protected Estates Act 1983
  • Public Health (Disposal of Bodies) Regulation 2002
  • Relationship Register Act 2010
  • Status of Children Act 1996
  • Trustee and Guardian Act 2009
  • Trustee Companies Act 1964

ACT

  • Adoption Act 1993
  • Births, Deaths and Marriages Registration Act 1997
  • Cemeteries and Cremation Regulations 2003
  • Civil Law (Property) Act 2006
  • Civil Partnerships Act 2008
  • Forfeiture Act 1991
  • Parentage Act 2004
  • Transplantation and Anatomy Act 1978
  • Trustee Companies Act 1947

Northern Territory

  • Adoption of Children Act 1994
  • Companies (Trustees and Personal Representatives) Act 1981
  • De Facto Relationships Act 1991
  • Interpretation Act 1978
  • Law of Property Act 2000
  • Status of Children Act 1978

Queensland

  • Adoption Act 2009
  • Civil Partnerships Act 2011
  • Cremation Act 2003
  • Powers of Attorney Act 1988
  • Status of Children Act 1978
  • Transplantation and Anatomy Act 1979
  • Trustee Companies Act 1968

South Australia

  • Acts Interpretation Act 1915
  • Adoption Act 1988
  • Cremation Regulations 2001
  • Family Relationships Act 1975
  • Law of Property Act 1936
  • Transplantation and Anatomy Act 1983
  • Trustee Companies Act 1988

Tasmania

  • Adoption Act 1988
  • Acts Interpretation Act 1931
  • Burial and Cremation Regulations
  • Human Tissue Act 1985
  • Relationship Act 2003
  • Status of Children Act 1974
  • Trustee Companies Act 1953

Victoria

  • Adoption Act 1984
  • Cemeteries and Cremations Act 2003
  • Human Tissue Act 1982
  • Interpretation of Legislation Act 1984
  • Property Law Act 1958
  • Status of Children Act 1974
  • Trustee Companies Act 1958

Western Australia

  • Adoption Act 1994
  • Artificial Conception Act 1985
  • Cremation Act 1929
  • Human Tissue and Transplantation Act 1982
  • Interpretation Act 1984
  • Property Law Act 1969
  • Trustee Companies Act 1987

 

Last updated:  May 2017
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