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Legislation

This page contains information about legislation on succession and inheritance in Australia. 

The table below sets out relevant state and territory statutes.  The links go 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.          

Australian states and territories are responsible for making succession and inheritance law.  As a result some differences exist.

Where to find Australian legislation on succession 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 https://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 https://www.austlii.edu.au.  Access to Austlii is free.

 

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

 

On Wills and Intestacy

On Administration, Probate and Intestacy

NSW

Succession Act 2006Probate & Administration Act 1898
Succession Act 2006

QLD

Succession Act 1981Succession Act 1981
VICWills Act 1997Administration & Probate Act 1958
SAWills Act 1936Administration & Probate Act 1919
WAWills Act 1970Administration Act 1903
TASWills Act 2008Administration & Probate Act 1935
Intestacy Act 2010
NTWills Act 2000Administration & Probate Act 1969
ACTWills Act 1968Administration & Probate Act 1929

Australian legislation on family provision or testator’s family maintenance

New South Wales: Chapter 3 of the Succession Act 2006 (NSW)
Queensland:   Succession Act 1981 (QLD)
Victoria:           Part IV of the Administration & Probate Act 1958 (VIC)
South Australia:    Inheritance (Family Provision) Act 1972 (SA)
Western Australia:  Family Provision Act 1972(WA)
Tasmania:      Testator’s Family Maintenance Act 1912 (TAS)
Northern Territory: Family Provision Act 1970 (NT)
Australian Capital Territory:Family Provision Act 1969 (ACT)

Other relevant legislation:

 

Status of children legislation

Trustees

NSWStatus of Children Act 1996 (NSW)Trustee Act 1925
QLDStatus of Children Act 1978 (QLD)Trusts Act 1973
VICStatus of Children Act 1974 (VIC)Trustee Act 1958
SAFamily Relationships Act 1975 (SA)Trustee Act 1936
WAWills Act 1970 (WA)Trustees Act 1962
TASStatus of Children Act 1974 (TAS)Trustee Act 1898
NTStatus of Children Act 1978 (NT)Public Trustee Act 1979
ACTParentage Act 2004 (ACT),  also the Wills Act 1968 (ACT)Trustee Act 1925

Regulations to succession legislation

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.  Regulations incorporate further rules into the law on a particular topic and can refer to schedules. 

Court rules – on civil procedure, probate rules and rules on the administration of deceased estates 

Where a dispute has to be resolved by court proceedings, as well as legislative rules in the above statutes, there are rules made by the court which govern court procedures for civil actions. 

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  https://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