Justice Legislation Amendment
(Succession and Surrogacy) Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The Justice Legislation (Succession and Surrogacy) Bill 2014 amends the
Administration and Probate Act 1958, the Wills Act 1997, the Trustee
Companies Act 1984, the Status of Children Act 1974 and the Births,
Deaths and Marriages Registration Act 1996. The Bill also includes minor
and consequential amendments to the Status of Children Act 1974, the
Trustee Companies Act 1984 and the Wills Act 1997.
The aim of the Bill is to ensure that Victorian succession laws operate justly,
fairly and in accordance with community expectations in relation to the way
that property is dealt with after a person dies.
The Bill also allows for recognition of commissioning parents of a child born
in Victoria under a surrogacy arrangement for the purposes of birth
registration, where the child was conceived in another Australian State or a
Territory and a corresponding surrogacy parentage order has been obtained
from the other State or Territory.
Background
In 2012, the Attorney-General asked the Victorian Law Reform Commission
(VLRC) to review Victoria's succession laws. The VLRC produced the
Succession Laws Report, which was tabled in Parliament on
15 October 2013. The Bill implements a number of recommendations from
that Report.
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BILL LC INTRODUCTION 19/8/2014
Clause Notes
PART 1—PRELIMINARY
Clause 1
Clause 2
provides that the main purposes of the Bill are—

to amend the Administration and Probate Act 1958 in
relation to family provision claims, the rules for the
payment of debts of an estate and the administration of
small estates;

to amend the authorised wills scheme in the Wills Act
1997;

in relation to surrogacy, to amend the Status of
Children Act 1974 to allow registration of a surrogate
birth if a parentage order is made by an interstate court;
and

to make consequential and other miscellaneous
amendments.
provides that the Justice Legislation Amendment (Succession
and Surrogacy) Act 2014 will come into operation on a day or
days to be proclaimed, or on 1 July 2015 if not proclaimed before
that date.
PART 2—AMENDMENT OF ADMINISTRATION AND
PROBATE ACT 1958—FAMILY PROVISION
Clause 3
subclause (1) substitutes the definition of Court in section 90 of
the Administration and Probate Act 1958 so that Court means
the Supreme Court or the County Court. This amendment
removes reference to the County Court's jurisdictional limit, as
the County Court no longer has a civil jurisdictional limit.
Subclause (2) inserts a definition of disability into section 90, so
that disability means—
(a)
a disability that is attributable to one or more
intellectual, cognitive, neurological, sensory or physical
impairments or to one or more impairments attributable
to a psychiatric condition; and
(b)
the impairment or impairments are, or are likely to be,
permanent; and
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(c)
(b)
the impairment or impairments result in substantially
reduced functional capacity to undertake, or
psychosocial functioning in undertaking, one or more of
the following activities—
(i)
communication;
(ii)
social interaction;
(iii)
learning;
(iv)
mobility;
(v)
self-care;
(vi)
self-management; and
the impairment or impairments affect the person's
capacity for social or economic participation.
The definition of disability has been adapted from the
Commonwealth National Disability Insurance Scheme Act 2013.
Subclause (2) also inserts a definition of eligible person into
section 90, so that eligible person means—
(a)
a person who was the spouse or domestic partner of the
deceased at the time of the deceased's death;
(b)
a child of the deceased, including an adopted child who,
who at the time of the deceased's death was under the
age of 18 years, or was a full-time student between
18 and 25 years, or was a child with a disability;
(c)
a stepchild of the deceased who, at the time of the
deceased's death was under the age of 18 years, or was a
full-time student between 18 and 25 years, or was a
stepchild with a disability (noting that a stepchild is not
limited to a deceased's spouse but also includes a child
of the deceased's domestic partner);
(d)
a person who, for a substantial period during the life of
the deceased, believed that the deceased was a parent of
the person and was treated by the deceased as a natural
child of the deceased who, at the time of the deceased's
death, was under the age of 18 years, or was a full-time
student between 18 and 25 years, or was a child with a
disability;
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(e)
a former spouse or domestic partner of the deceased
(if the person at the time of the deceased's death would
have been able to take proceedings under the
Commonwealth Family Law Act 1975 and has either
not taken those proceedings or commenced but not
finalised those proceedings and is now prevented from
taking or finalising those proceedings because of the
death of the deceased);
(f)
a child or stepchild of the deceased who is not under
18 years of age and not a full-time student between the
ages of 18 and 25 and does not have a disability;
(g)
a person who, for a substantial period during the life of
the deceased, believed that the deceased was a parent of
the person and was treated as a natural child of the
deceased, not referred to in section 90(d);
(h)
a registered caring partner of the deceased;
(i)
a grandchild of the deceased;
(j)
a spouse or domestic partner of a child of the deceased
(including a stepchild or a person referred to in
paragraph (d) or (g)) if the child of the deceased dies
within one year of the deceased's death; or
(k)
a person who, at the time of the deceased's death, is
(or had been in the past and would have been likely in
the near future, had the deceased not died, to again
become) a member of the household of which the
deceased was also a member.
Subclause (2) also inserts a new definition of family provision
order, which means an order under section 91 of the
Administration and Probate Act 1958.
Clause 4
inserts a new section 90A into the Administration and Probate
Act 1958.
Subsection (1) allows an eligible person, or a person acting on
behalf of an eligible person, to apply to the Court for a family
provision order, subject to section 90A(2).
Subsection (2) provides that an application for a family provision
order must be made within the time specified at section 99 of the
Administration and Probate Act 1958 and otherwise in
accordance with the Part and the Rules.
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Clause 5
substitutes section 91 of the Administration and Probate Act
1958.
Subsection (1) provides that, despite anything to the contrary in
the Administration and Probate Act 1958, the Court may make
an order that provision be made out of the estate of a deceased
person for the proper maintenance and support of an eligible
person on an application under section 90A.
Subsection (2) states that the Court must not make a family
provision order under subsection (1) unless satisfied that—
(a)
the person is an eligible person and has not entered into
a release of rights agreement under section 99B; and
(b)
in the case of an eligible person referred to in section
90(f) to (k) of the definition of eligible person, that the
person was wholly or partly dependent on the deceased
for the eligible person's proper maintenance and support
at the time of the deceased's death; and
(c)
at the time of death, the deceased had a moral duty to
provide for the eligible person's proper maintenance and
support; and
(d)
the distribution of the deceased's estate fails to make
adequate provision for the proper maintenance and
support of the eligible person, whether by the deceased's
will (if any), or the operation of the intestacy provisions
(under Division 6 of Part I of the Administration and
Probate Act 1958), or both the will and the operation of
the intestacy provisions.
The term "moral duty" has frequently been used by the courts to
assess a testator's obligations by reference to community
expectations and such concepts as a "wise and just testator".
Subsection (3) provides that for the purposes of determining
dependency at section 91(2)(b), the Court must disregard any
means-tested government benefits that the eligible person has
received or is eligible to receive.
Subsection (4) provides that the Court, in determining the amount
of provision to be made by a family provision order, if any, must
take into account—
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(a)
the degree to which, at the time of death, the deceased
had a moral duty to provide for the eligible person; and
(b)
the degree to which the distribution of the deceased's
estate fails to make adequate provision for the proper
maintenance and support of the eligible person; and
(c)
in the case of an eligible person referred to in
paragraphs (f) to (k) of the definition of eligible person
in section 90 of the Administration and Probate Act
1958, the degree to which the eligible person was
wholly or partly dependent on the deceased for the
eligible person's proper maintenance and support at the
time of the deceased's death.
The term "moral duty" has frequently been used by the courts to
assess a testator's obligations by reference to community
expectations and such concepts as a "wise and just testator".
Subsection (5) limits the amount of provision that can be made
by a family provision order by reference to the amount necessary
for the eligible person's proper maintenance and support and, in
respect of an eligible person who is eligible under paragraphs (f)
to (k) of the definition of eligible person in section 90 of the
Administration and Probate Act 1958, that amount must also
be proportionate to the eligible person's degree of dependency on
the deceased for the eligible person's proper maintenance and
support at the time of the deceased's death.
Clause 5 also inserts a new section 91A into the Administration
and Probate Act 1958, which sets out the factors which the
Court must consider in making a family provision order.
Subsection (1) provides that in making a family provision order
the Court must have regard to the deceased's will, any evidence
of the deceased's reasons for making the dispositions in the
deceased's will and any other evidence of the deceased's
intentions in relation to providing for the eligible person.
Subsection (2) provides the criteria to which the Court may have
regard in making a family provision order. The criteria are—
(a)
any family or other relationship between the deceased
and the eligible person, including the nature and length
of the relationships;
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Clause 6
(b)
any obligations or responsibilities of the deceased to the
eligible person and any other eligible person or
beneficiaries of the estate;
(c)
the size and nature of the estate of the deceased and any
charges and liabilities to which the estate is subject;
(d)
the financial resources, including earning capacity, and
the financial needs at the time of the hearing and for the
foreseeable future of the eligible person and any other
eligible person or beneficiary of the estate;
(e)
any physical, mental or intellectual disability of any
eligible person or beneficiary of the estate;
(f)
the age of the eligible person;
(g)
any contribution that the eligible person has made to the
building up of the estate or the welfare of the deceased
or the deceased's family (except where for adequate
compensation);
(h)
any benefits previously given by the deceased to any
eligible person or any beneficiary;
(i)
whether the eligible person was being maintained by the
deceased before the deceased's death and the extent to
which and the basis on which the deceased had done so;
(j)
the liability of any other person to maintain the eligible
person;
(k)
the character and conduct of the eligible person or any
other person;
(l)
the effects a family provision order would have on the
amounts received from the deceased's estate by other
eligible persons; and
(m)
any other matter the Court considers relevant.
substitutes "order under this Part" for the term "family provision
order" and modernises the language in section 97 of the
Administration and Probate Act 1958.
Subclause (5) repeals the requirement that notice of an
application shall be served on all persons taking any benefit
under the order sought to be rescinded or altered from
section 97(5) of the Administration and Probate Act 1958 and
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places it in new section 97(5). This subclause also updates the
language of that requirement.
Subclause (6) repeals sections 97(6) and (7) of the
Administration and Probate Act 1958, which allowed the
Court to make any order as to costs on a family provision
application that, in the Court's opinion, was just and allowed the
Court to order the costs of the application to be made against the
applicant where the Court was satisfied that the application under
section 91 had been made frivolously, vexatiously or with no
reasonable prospect of success.
Clause 7
inserts the term "family provision order" and replaces the
language in section 98 of the Administration and Probate Act
1958 with gender neutral references. Section 98 of that Act
provides for the adjustment of probate duty.
Clause 8
substitutes section 99 of the Administration and Probate Act
1958 to modernise the language and remove a redundant
reference to Part V of the Act.
Subsection (1) provides that an application by an eligible person
for a family provision order must be made within 6 months after
the date of the grant of probate of the will or of letters of
administration. This is consistent with the existing time limit for
making an application for a family provision order.
Subsection (2) allows the Court, on application, to extend the
period for making an application for a family provision order if,
after hearing such of the parties affected as the Court thinks
necessary, the Court considers it appropriate to extend the period
including where the time for making the application has already
expired.
Subsection (3) provides that any extension of the period under
subsection (2) must be made before the final distribution of the
estate.
Subsection (4) provides that the making of an application for an
extension under subsection (2) and any order of the Court in
relation to the application for extension does not disturb or affect
the distribution of any part of the estate made prior to the making
of that application.
These provisions are consistent with existing section 99 of the
Administration and Probate Act 1958.
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Clause 9
substitutes the term "his" for the gender neutral term
"the personal representative" and inserts the term "family
provision order" throughout section 99A of the Administration
and Probate Act 1958.
Subclause (3) substitutes section 99A(3) and provides that no
action lies against a personal representative by reason of the
personal representative having distributed any part of the estate if
the distribution was properly made by the personal representative
after the expiry of 6 months after the grant of probate of the will
or of letters of administration and either the personal
representative has not had notice of an application for a family
provision order or, if the personal representative has received
such notice, the personal representative has not received written
notice that an application for a family provision order has been
made to the court within 3 months of the receipt of that notice.
The notice to a personal representative must be in writing, signed
by the eligible person (or the eligible person's legal practitioner)
and lapses within 3 months from the receipt of the notice by the
personal representative unless an application for a family
provision order has been made to the Court, and is incapable of
being renewed.
Nothing in the section extends the period within which a person
can make an application for a family provision order without a
Court order or prevents the subsequent making of an application
for a family provision order within any other period allowed by
the Bill.
Clause 10 inserts new section 99B into the Administration and Probate
Act 1958, which allows a person (the releaser) to enter into an
agreement with a person against whose estate any right to apply
for a family provision order could be exercised when that person
dies to release any rights the releaser may have in the future to
apply for a family provision order in relation to that estate.
Subsection (2) provides that a release of rights agreement must
be in writing and must be made during the lifetime of the person
against whose estate the rights to apply for a family provision
order could be exercised.
Subsection (3) provides that a release of rights agreement under
subsection (1) is not effective unless the releaser has taken
independent legal advice in relation to the legal effect of the
release of rights under that agreement.
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PART 3—AMENDMENT OF ADMINISTRATION AND
PROBATE ACT 1958—PAYMENT OF DEBTS
Clause 11 substitutes the definition of pecuniary legacy in section 5(1) of
the Administration and Probate Act 1958 so that pecuniary
legacy means a gift or a sum of money in a will and includes—
(a)
an annuity; and
(b)
a general legacy which is a gift by will payable out of
the deceased's general estate and not attached to a
specific asset or fund belonging to the deceased; and
(c)
a demonstrative legacy which is a gift by will directed
to be paid out of a specific fund or a particular part of
the deceased's estate, to the extent that it cannot be paid
out of the specific property on which it is charged; and
(d)
any other general direction by a testator for the payment
of an amount including all duties relating to the estate or
property.
Clause 12 substitutes section 39 of the Administration and Probate Act
1958 to allow for the payment of debts of an insolvent estate.
Subsection (1) provides that this section applies to the
administration of a deceased person's estate if the estate is
insufficient to pay its debts and liabilities in full and is not being
administered under the Commonwealth Bankruptcy Act 1966.
Subsection (2) provides that the administration of an insolvent
estate must be conducted in accordance with the bankruptcy rules
as in force at the date of death of the deceased.
Subsection (3) provides that the bankruptcy rules apply in
relation to the rights of secured and unsecured creditors against
the deceased's estate, the debts and liabilities provable against the
deceased's estate, the valuation of annuities and future and
contingent liabilities of the deceased's estate and the priorities
and liabilities of the deceased's estate.
Subsection (4) provides that, despite anything to the contrary in
the bankruptcy rules, a demand, in relation to which proceedings
are maintainable against the deceased person's estate, is provable
against the estate despite being a demand in the nature of
unliquidated damages arising otherwise than by reason of a
contract, promise or breach of trust.
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Subsection (5) provides that for the purposes of applying the
bankruptcy rules, a reference in the Commonwealth Bankruptcy
Act 1966 or regulations made under that Act to a date of an order
for administration under Part XI of that Act or to the date on
which an administration under Part XI of the Act is deemed to
have commenced under that Part is taken to be a reference to the
date of the deceased's death. A reference to the Court is taken to
be a reference to the Supreme Court.
Subsection (6) inserts a definition of bankruptcy rules into
section 39 of the Act so that bankruptcy rules means the
provisions of the Bankruptcy Act 1966 of the Commonwealth
and regulations made under the Act applying in relation to the
administration of estate of deceased persons in bankruptcy.
Clause 12 also inserts a new section 39A into the
Administration and Probate Act 1958 to allow for the payment
of debts of solvent estates.
Subsection (1) provides that this section applies if the deceased's
estate is sufficient to pay its debts and liabilities in full.
Subsection (2) provides that subject to any contrary intention
appearing the in the deceased's person's will and in accordance
with the Rules, the real and personal estate of the deceased must
be applied towards the discharge of the deceased's funeral,
testamentary and administration expenses, debts and liabilities in
the following order—from property specifically appropriated,
devised, bequeathed, directed to be sold or subject to a charge for
the payment of a debt or liability of the estate, then from property
comprising the residuary estate and property in relation to which
a disposition in the deceased's will operates as the exercise of a
general power of appointment, and then from property
specifically devised or bequeathed, including property
specifically appointed under a general power of appointment and
any legacy charged on the property devised, bequeathed or
appointed.
Subsection (3) provides that for the purpose of subsection (2)
property must be applied to the discharge of the estate's debts and
liabilities rateably according to value and if specific property is
applied to the payment of a debt or liability of the estate and a
legacy is charged on the property—the legacy and the property
must be applied rateably (allocated among all members of the
class of persons entitled to share in the distribution in proportion
11
to their interests) according to the value of the property and the
value of the property must be reduced by the amount of the
legacy charged on it.
Clause 12 also inserts a new section 39B into the
Administration and Probate Act 1958 to provide that, subject
to any contrary intention in the deceased's will, any pecuniary
legacy must be paid out of any property comprising the residuary
estate or any property in relation to which a disposition in the
deceased's will operates as the exercise of a general power of
appointment. If the property is insufficient to pay any pecuniary
legacy, the pecuniary legacy must abate proportionately.
Clause 13 repeals the term "deed or other document" in section 40 of the
Administration and Probate Act 1958 to make it clear that a
contrary intention to pay off debt must be contained in the will
and modernises the language of that section by removing
references to "he" and "his" and replacing them with gender
neutral language.
Clause 14 repeals the Second Schedule to the Administration and Probate
Act 1958. The Second Schedule sets out the rules as to payment
of debts where the estate is solvent and the order or application of
assets where the estate is solvent. The Second Schedule is
repealed as those rules are now contained in sections 39 and 39A
of the Act.
PART 4—AMENDMENT OF ADMINISTRATION AND
PROBATE ACT 1958—SMALL ESTATES
Clause 15 repeals the definition of small estate in section 3(1) of the
Administration and Probate Act 1958 as this term will no
longer be used in the Act (except in the Part heading).
Clause 16 inserts a new section 31A into the Administration and Probate
Act 1958 which provides that a person may transfer money or
property without requiring the production of a grant of
representation to a surviving spouse or domestic partner, child or
other person who appears to be entitled to the money or the
property where the value of the money or property is not greater
than $25 000 (or the indexed value of that amount as calculated
in accordance with section 31B).
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Subsection (4) replaces section 32(2) of the Administration and
Probate Act 1958, which provides that a receipt signed by a
person aged 16 years and over who receives a payment or
transfer of money or property made in good faith under
subsection 31A(1) is a complete discharge of all liability in
relation to the person who paid or transferred the money or
personal property.
Subsection (5) replaces section 32(3) of the Administration and
Probate Act 1958 which provides that nothing in this section
affects or prejudices the rights of any person who has a claim to
or against a deceased's estate to enforce a remedy against a
person to whom a payment or transfer has been made under
subsection (1).
Clause 16 also inserts a new section 31B into the Act which
indexes the threshold amount in section 31A to a formula based
on the all groups consumer price index for Melbourne.
The Minister must, on or before 1 July 2015 (and in each
succeeding financial year) by order published in the Government
Gazette, declare the threshold amount.
Clause 16 also inserts a new section 31C into the
Administration and Probate Act 1958, which provides that this
section applies to a person who does not hold a grant of
representation of the deceased person's estate and who
fraudulently or without full and valuable consideration obtains,
receives or holds the estate or any part of the estate of a deceased
person; effects the release of any debt or liability payable to the
estate.
Subsection (2) provides that a person to whom this section
applies is liable to account for the estate's assets to the extent of
the estate obtained, received or held by the person or the debt or
liability released.
Subsection (4) provides that the liability of a person under this
section is reduced to the extent of any payment made by the
person which may be made by a personal representative who has
a grant of representation of the estate.
Clause 16 also inserts a new section 31D into the
Administration and Probate Act 1958 which sets out that
where a person has wasted or converted any part of a deceased's
estate for private use and then dies, that person's personal
representative is liable and chargeable in respect of the waste or
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conversion, limited up to the available assets of the deceased
personal representative.
Clause 17 repeals section 32 of the Administration and Probate Act 1958.
Section 32 provided that an employer may, without requiring the
production of a grant of probate or letters of administration pay
or transfer to the surviving partner or child of an employee or any
other person appearing to be entitled, pay or transfer property or
money not exceeding $12 500. This section has been superseded
by new section 31A of the Administration and Probate Act
1958.
Clause 18 repeals section 33 of the Administration and Probate Act 1958.
Section 33 of that Act provided that a person who fraudulently
obtains or retains the estate of the deceased shall be charged as
executor to the extent of the estate received or coming to his
hands, after deducting any payment made by him which
might properly have been made by a personal representative.
Section 33 has been replaced by new section 31C of the
Administration and Probate Act 1958.
Clause 19 substitutes section 71(1) of the Administration and Probate Act
1958 which currently provides that where a person dies leaving
property not exceeding $25 000 (or $50 000 where the only
beneficiaries are the partner and/or children of the deceased) that
the person entitled to probate of the will or to letters of
administration may apply for the aid of the registrar of probates.
The new section 71(1) allows a person who is entitled to a grant
of probate of the will or to letters of administration to apply to the
registrar of probates (or to a registrar of the Magistrates' Court)
for aid where the deceased's property does not exceed the
maximum monetary value. New section 71(1A) sets the
maximum monetary value at the greater of $100 000 or an
amount calculated in accordance with the formula in
section 71(1B), which is based on the all groups consumer price
index for Melbourne. The Minister must, on or before 1 July
2015 (and in each succeeding financial year) by order published
in the Government Gazette, declare the maximum monetary
value.
Clause 20 substitutes the heading to section 72 of the Administration and
Probate Act 1958 with "Registrar of probates may issue probate
or administration if satisfied of certain matters" to better describe
the content of that section.
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Clause 21 substitutes "he" with the gender neutral term "the registrar" in
section 73 of the Administration and Probate Act 1958.
Clause 22 substitutes the amounts of $25 000 and $50 000 with the
maximum monetary value specified in section 71(1A) and
modernises the language in section 74 of the Administration
and Probate Act 1958. Section 74 provides that if the registrar
of probates or the registrar of the Magistrates' Court has reason to
believe that the whole real and personal property of the deceased
person exceeds the maximum money value then the registrar
shall refuse to proceed with the application until satisfied as to
the real value thereof.
Clause 23 substitutes the reference to the "post-office at the corner of
Elizabeth and Bourke Streets" with a reference to the "north-east
corner of Elizabeth and Bourke Streets" in section 76 of the
Administration and Probate Act 1958. Section 76 provides
that a person with a fixed abode within a 32-kilometre radius of
the north-east corner of Elizabeth and Bourke Streets may apply
to the registrar of probates.
Clause 24 substitutes the references to "he" and "him" with the gender
neutral term "the registrar of probates" to modernise the language
in section 77 of the Administration and Probate Act 1958.
Clause 25 substitutes the reference to "he" with the gender neutral term
"the registrar of probates" to modernise the language in
section 78 of the Administration and Probate Act 1958.
Clause 26 subclause (1) substitutes section 79(1)(a) of the Administration
and Probate Act 1958 which refers to the definition of small
estate (being repealed by clause 15 of the Bill) with a reference to
the estimated value of the estate not exceeding the maximum
monetary value specified in section 71(1A).
Subclause (2) provides for a consequential amendment to
section 79(1)(b) of the Administration and Probate Act 1958
arising from the repeal of the section 11A of the Trustee
Companies Act 1984.
Subclause (3) substitutes the requirement in section 79(2) of the
Administration and Probate Act 1958 that the State Trustees
must give notice of intention to administer an estate in a daily
newspaper circulating generally throughout Victoria with a
15
requirement that the State Trustees give notice in accordance
with the Rules of Court.
Subclause (4) inserts a new section 79(2A) which requires that
State Trustees must file the deceased's will with the registrar of
probates as soon as practicable after giving notice in accordance
with the Rules of Court.
Subclause (5) inserts a new section 79(2A) which requires that
where State Trustees, in the course of administering an estate to
which section 79 applies, finds that the value of the estate
exceeds 120 per cent of the maximum monetary value specified
in 71(1A), State Trustees must notify the registrar of probates in
writing and apply for a grant of probate or administration of the
estate.
Clause 27 inserts transitional provisions into the Administration and
Probate Act 1958. New section 101 provides that Part IV of the
Administration and Probate Act 1958 as in force immediately
before the commencement of Part 2 of the Bill will continue to
apply to an application or proceeding commenced under Part IV
before the commencement as if those amendments had not been
made.
New section 102 provides that Division 5 of Part I and the
Second Schedule to the Administration and Probate Act 1958
as in force immediately before the commencement of Part 3 of
the Bill will continue to apply to an application for a grant of
probate or letters of administration which was granted or made
but not granted, before the commencement as if those
amendments had not been made.
New section 103 provides that sections 32 and 33 of the
Administration and Probate Act 1958, as in force immediately
before the repeal of those sections continue to apply to the estate
of a deceased person who died before the repeal.
Sections 71 and 74 as in force immediately before amendment
will continue to apply to an application made before that
amendment as if the amendment had not been made.
Section 79(1)(a) as in force immediately before amendment will
continue to apply to the administration of an estate commenced
under that section before that amendment as if the amendment
had not been made.
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New section 104 provides that if any difficulty arises because of
the operation of this Bill then the Court may make any order it
considers appropriate to resolve the difficulty.
New section 105 of the Administration and Probate Act 1958
empowers the Governor in Council to make regulations of a
transitional nature to deal with matters arising as a result of the
enactment of Part 2, 3 or 4 of the Bill. This provision is repealed
on the second anniversary of the day it comes into operation.
PART 5—AMENDMENT OF WILLS ACT 1997
Clause 28 repeals the requirement that a person obtain the leave of the
Court to make an application under section 21(2) of the Wills
Act 1997.
Clause 29 inserts a new section 21A into the Wills Act 1997 which replaces
section 28 of that Act and sets out the information which the
applicant must give if required by the Court in proceedings for a
hearing of an application for an order under section 21 of that
Act.
Clause 29 also inserts a new section 21B into the Wills Act 1997
which replaces section 26 of that Act and requires that the Court
must be satisfied that the person on whose behalf the will is to be
made or revoked does not have testamentary capacity, the
proposed will or revocation reflects what the intentions of the
person would be likely to be, or what the intention of the person
might reasonably be expected to be, if the person had
testamentary capacity, and that it is reasonable in all the
circumstances for the Court, by order, to authorise the making of
the will for the person.
Clause 29 also inserts a new section 21C into the Wills Act 1997
which replaces section 29 of that Act. Section 21C sets out the
persons who are entitled to appear and be heard in proceedings
for the hearing of an application for an order under section 21,
but omits the reference to leave to apply (which is being
repealed).
Clause 29 also inserts a new section 21D into the Wills Act 1997
which allows the court to order separate representation of a
person lacking testamentary capacity, either on the Court's own
motion or on the application of any person entitled to be heard in
a proceeding under Division 2.
17
Clause 30 removes the reference to "an application for leave" in
section 22(1)(a) of the Wills Act 1997 and provides that the
Court may make any necessary related orders or directions when
authorising a will for a person who does not have testamentary
capacity.
Clause 31 repeals sections 23, 26, 27, 28 and 29 as they have been replaced
by the new provisions 21A, 21B, 21C and 21D of the Wills Act
1997.
Clause 32 inserts transitional provisions into the Wills Act 1997.
New section 53 provides that the Wills Act 1997 as in force
immediately before the commencement of this Bill will continue
to apply to an application or proceeding commenced under
Division 2 of Part 3 before the amendment as if those
amendments had not been made.
New section 54 provides that if any difficulty arises because of
the operation of the Bill then the Court may make any order it
considers appropriate to resolve the difficulty.
New section 55 in the Wills Act 1997 empowers the Governor in
Council to make regulations to deal with matters of a transitional
nature arising as a result of the enactment of Part 5 of the Bill.
This provision is repealed on the second anniversary of the day it
comes into operation.
PART 6—AMENDMENT OF STATUS OF CHILDREN ACT
1974 AND BIRTHS, DEATHS AND MARRIAGES
REGISTRATION ACT 1996
Division 1 of Part 6 of the Justice Legislation Amendment (Succession and
Surrogacy) Bill 2014 contains amendments to the Status of Children Act
1974.
Clause 33 inserts new definitions in section 17(1) of the Status of Children
Act 1974. Corresponding interstate surrogacy law means a
prescribed law of another Australian State or of a Territory
relating to parentage of a child born under a surrogacy
arrangement and corresponding surrogacy parentage order
means an order relating to legal parentage of a child born under a
surrogacy arrangement that is made under a prescribed provision
of a corresponding interstate surrogacy law. Registration order
is defined by reference to new section 29A of the Status of
Children Act 1974, which is inserted by clause 36 of the Bill.
18
This clause also substitutes section 17(2) of the Status of
Children Act 1975 to provide that in relation to a child
conceived in another Australian State or a Territory under a
surrogacy arrangement, a reference to the surrogate mother's
partner means the person who is the surrogate mother's partner,
however described under the corresponding interstate surrogacy
law of that Australian State or Territory.
Clause 34 substitutes section 19(b) of the Status of Children Act 1974 to
extend the operation of that section so that parentage
presumptions that arise under Parts II, III or V of that Act do not
prevail over a corresponding surrogacy parentage order where a
registration order has also been made in respect of the same
surrogacy arrangement. Previously, section 19(b) only provided
that the relevant parentage presumptions did not prevail over a
substitute parentage order.
This amendment will have the effect of displacing the parentage
presumptions in the Status of Children Act 1974 that would
otherwise presume the surrogate mother and her partner (if any)
to be the child's parents, allowing the commissioning parents of a
child born under a surrogacy arrangement to be recognised as the
child's parents when a registration order has been made in their
favour.
Clause 35 inserts a new section 22A into the Status of Children Act 1974,
which provides that the Registrar of Births, Deaths and
Marriages, on notification that a Victorian substitute parentage
order has been made or discharged in respect of a child who is
registered in another Australian State or a Territory, must notify
that jurisdiction's registering authority, as defined in section 4 of
the Births, Deaths and Marriages Registration Act 1996.
Clause 36 inserts a new Division 2A of Part IV of the Status of Children
Act 1974 to provide for registration orders.
New section 29A of the Status of Children Act 1974 provides
that a registration order directs the Registrar of Births, Deaths
and Marriages to register the birth of a child born under a
surrogacy arrangement.
New section 29B of the Status of Children Act 1974 provides
that the commissioning parents of a child born under a surrogacy
arrangement may apply for a registration order if the child was
conceived under a surrogacy arrangement in another Australian
19
State or a Territory and the child was born in Victoria and a
corresponding surrogacy parentage order has been made in
favour of the commissioning parents in another Australian State
or a Territory. On application for a registration order, new
section 29B requires the commissioning parents to file with the
court a certified copy of the child's birth certificate and a copy of
the sealed corresponding surrogacy parentage order.
New section 29C provides that an applicant for a registration
order must notify the Secretary of the Department of Justice in
writing of an application for a registration order at least 14 days
before the hearing of the application.
New section 29D of the Status of Children Act 1974 provides
that the Secretary of the Department of Justice may appear or be
represented at the hearing of an application for a registration
order. The absence of the Secretary does not prevent the court
from making any order and new section 29D does not require the
Secretary to appear or be represented.
New section 29E of the Status of Children Act 1974 provides
that the court may make a registration order if satisfied of the
criteria in that section, including that—
(a)
the making of the order is in the best interests of the
child;
(b)
the commissioning parents did not enter into the
surrogacy arrangement for the purpose of avoiding
requirements under Part IV of the Status of Children
Act 1974 or under the Assisted Reproductive
Treatment Act 2008;
(c)
the commissioning parents had a genuine connection to
the Australian State or Territory in which the child was
conceived; and
(d)
the surrogate mother and her partner, if her partner is a
party to the surrogacy arrangement, have not received
any material benefit or advantage from the surrogacy
arrangement and have consented to the making of the
order.
New section 29E(4) directs the court, in making consequential or
ancillary orders to have regard to the registration order and any
orders made in respect of the child in another Australian State or
a Territory, including an order made under the corresponding
20
interstate surrogacy law. This section is to avoid inconsistencies
between an order made by a Victorian court and an order made in
another Australian State or a Territory.
New section 29F of the Status of Children Act 1974 provides
that the court may dispense with the consent of the surrogate
mother or her partner if they cannot be found after making
reasonable inquiries, they are deceased or they are in such
physical or mental condition as to be incapable of properly
considering whether to give consent.
New section 29G of the Status of Children Act 1974 provides
that the Attorney-General, the Secretary of the Department of
Justice and the child whose birth registration was affected (if the
child has reached 18 years of age) may apply to have a
registration order revoked. This section provides that any person
may apply for leave to intervene in an application for revocation
of a registration order and, unless the court orders otherwise, a
person granted leave is to have all the rights, duties and liabilities
of a party. The parties who may apply for revocation of a
registration order are the same parties who may apply for
discharge of a substitute parentage order under existing
section 27 of the Status of Children Act 1974.
New section 29H provides that the court may revoke a
registration order on an application under section 29F if it is
satisfied—
(a)
(b)
as to any of the following grounds—
(i)
the order was obtained by fraud, duress,
misleading the court or other improper means;
or
(ii)
a consent relied on for the making of the order
was not an effective consent; or
(iii)
there is an exceptional reason why it should be
revoked; and
that the revocation is in the best interests of the child.
If the corresponding surrogacy parentage order has been
discharged, the court must revoke the registration order and is
not required to be satisfied of any other matter. However, the
court must not make an order revoking a registration order unless
it is satisfied that reasonable efforts have been made to give
21
notice of the application to the surrogate mother, her partner
(if her partner was a party to the surrogacy arrangement), each of
the commissioning parents and, if the court considers it
appropriate having regard to the child's age, the child.
New section 29H(4) directs the court, in making consequential or
ancillary orders, to have having regard to any orders made in
respect of the child in another Australian State or a Territory,
including an order made under the corresponding interstate
surrogacy law. This section is to avoid inconsistencies between
an order made by a Victorian court and an order made in another
Australian State or a Territory.
If the Registrar of Births, Deaths and Marriages is notified that a
corresponding surrogacy parentage order has been discharged,
new section 29I requires the Registrar to notify the
Attorney-General and Secretary of the Department of Justice of
this in writing as soon as practicable. This is to enable the
Attorney-General or the Secretary to make an application under
new section 29G for revocation of a registration order on the
basis that the corresponding surrogacy parentage order has been
discharged. If the Registrar does not make this notification, an
application for revocation of a registration order may still be
made under new section 29H.
Clause 37 substitutes the heading to Subdivision 3 of Division 2 with the
heading "Division 2B—Appeals".
Clause 38 amends section 30(2) of the Status of Children Act 1974 so that
a party who is given leave to intervene in an application to
revoke a registration order under new section 29G may appeal
against an order of the court or a refusal of the court to make an
order.
Clause 39 substitutes section 31 of the Status of Children Act 1974.
The substituted section requires the court to give the Registrar of
Births, Deaths and Marriages a sealed copy of a registration order
or an order revoking a registration order and a copy of the sealed
copy of the corresponding surrogacy parentage order.
The existing requirements in that section have been retained.
Clause 40 amends section 34(2)(e) of the Status of Children Act 1974 so
that an intervener in a proceeding for revocation of a registration
order under new section 29G of that Act is a person to whom the
court may grant access to court records.
22
Clause 41 inserts subsection (4) into section 46 of the Status of Children
Act 1974, to provide that the existing transitional arrangements
in section 46 of that Act are, from the date of commencement of
Part 6 of the Bill, subject to section 48 of the Status of Children
Act 1974. Section 48 of the Status of Children Act 1974 is
being inserted by clause 42 of the Bill and contains further
transitional arrangements relating to Part IV of that Act.
Clause 42 inserts a new Part VIII into the Status of Children Act 1974 to
deal with transitional matters.
New section 48 of the Status of Children Act 1974 provides that
Part IV of that Act, as amended by the Bill, applies in respect of a
surrogacy arrangement entered into before commencement of the
amending Act, subject to certain modifications.
If the surrogacy arrangement was entered into before 1 January
2010, then the court may make a registration order under new
section 29E of the Status of Children Act 1974 if it is satisfied
that the making of the registration order is in the best interests of
the child. The other criteria under section 29E, which the court
would otherwise need to be satisfied of, do not apply.
Further, new sections 29C and 29D of the Status of Children
Act 1974, under which the Secretary of the Department of
Justice is to be given notice of an application for a registration
order and is permitted to appear or be represented at the hearing,
do not apply to these pre-2010 arrangements.
If the surrogacy arrangement was entered into on or after
1 January 2010, but before the commencement of the Justice
Legislation Amendment (Succession and Surrogacy) Act
2014, the court may make a registration order under new
section 29E of the Status of Children Act 1974 if it is satisfied
that the making of the order is in the best interests of the child,
the commissioning parents did not enter into the surrogacy
arrangement for the purpose of avoiding requirements under
Part IV of the Status of Children Act 1974 or under the
Assisted Reproductive Treatment Act 2008 and the
commissioning parents had a genuine connection to the
Australian State or Territory in which the child was conceived.
The other criteria under section 29E, of which the court would
otherwise need to be satisfied, do not apply.
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Division 2 of Part 6 of the Justice Legislation Amendment (Succession and
Surrogacy) Bill 2014 contains amendments to the Births, Deaths and
Marriages Registration Act 1996.
Clause 43 amends the heading to section 19A of the Births, Deaths and
Marriages Registration Act 1996 from "Surrogate birth
registration" to "Surrogate birth registration—substitute
parentage orders". This amendment is necessary to distinguish
this section from new section 19B of the Births, Deaths and
Marriages Registration Act 1996, which deals with surrogate
birth registration relating to corresponding surrogacy parentage
orders.
Clause 44 inserts a new section 19B into the Births, Deaths and
Marriages Registration Act 1996. This section provides that, if
the court makes a registration order under the Status of Children
Act 1974, the Registrar must register the surrogacy in the
Surrogate Birth Register and mark the words "closed—surrogate"
against the original birth entry in the Register when it receives a
sealed copy of the registration order and a copy of the sealed
copy of the corresponding surrogacy parentage order.
The process provided for in this section will have the effect of
amending the child's birth registration to name the
commissioning parents under the surrogacy arrangement as the
child's parents. This will enable the commissioning parents to
obtain a birth certificate for the child naming them as the child's
parents.
New section 19B of the Births, Deaths and Marriages
Registration Act 1996 also provides that if the court makes an
order revoking a registration order then the Registrar of Births,
Deaths and Marriages must, on receipt of a sealed copy of the
order revoking the registration order, cancel the relevant entry in
the Surrogate Birth Register and remove the words "closed—
surrogate" from the original birth entry in the Register.
In new section 19B of the Births, Deaths and Marriages
Registration Act 1996, corresponding surrogacy parentage
order and registration order have the same meaning as in
section 17 of the Status of Children Act 1974.
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PART 7—MINOR AND CONSEQUENTIAL AMENDMENTS
TO OTHER ACTS
Clause 45 substitutes the term "for a family provision order" for "any
application" in section 6(1) of the Status of Children Act 1974
as a consequence of the amendments made by Part 2 of the Bill.
Clause 46 substitutes the term "for a family provision order" for "claim" in
section 7(1) of the Status of Children Act 1974.
Clause 47 repeals section 11A of the Trustees Companies Act 1984.
Section 11A of that Act allowed a trustee company to file an
election to administer the estate in the office of the registrar of
probates where no grant of administration had been made to any
person and the trustee company would be entitled to a grant of
administration.
Clause 48 repeals the heading to the Schedules to the Trustees Companies
Act 1984, as there are no schedules remaining in that Act.
Clause 49 substitutes the term "for a family provision order" for "an
application" in section 28(g) in the Wills Act 1997.
Clause 50 substitutes the term "for a family provision order" for "or any
application" in section 31(4)(b)(i) in the Wills Act 1997.
Clause 51 substitutes the term "for a family provision order" for
"an application" in section 39(4) of the Wills Act 1997.
PART 8—REPEAL
Clause 52 provides for the automatic repeal of the Justice Legislation
Amendment (Succession and Surrogacy) Act 2014 on 1 July
2016. The repeal of this Act does not affect the continuing
operation of amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
25