Justice Legislation Amendment (Succession and
Surrogacy) Act 2014
No. 80 of 2014
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1
2
1
Purposes
Commencement
1
2
PART 2—AMENDMENT OF ADMINISTRATION AND PROBATE
ACT 1958—FAMILY PROVISION
3
3
4
5
6
7
8
9
Definitions
New section 90A inserted
90A
Eligible person may apply for family provision order
Section 91 substituted and new section 91A inserted
91
Court may make family provision order
91A
Factors to be considered in making family provision
order
Contents of order
Adjustment of probate duty
Section 99 substituted
99
Time within which application may be made
Protection of personal representative against certain claims
3
6
6
6
6
9
11
12
12
12
13
PART 3—AMENDMENT OF ADMINISTRATION AND PROBATE
ACT 1958—PAYMENT OF DEBTS
16
10
11
12
13
Definitions
Section 39 substituted and new sections 39A and 39B inserted
39
Insolvent estates—payment of debts
39A
Solvent estates—payment of debts
39B
Solvent estates—pecuniary legacies
Charges on property of deceased to be paid primarily out of
property charged
Second Schedule repealed
i
16
17
17
19
20
21
21
Section
Page
PART 4—AMENDMENT OF ADMINISTRATION AND PROBATE
ACT 1958—MISCELLANEOUS AMENDMENTS
22
14
15
16
17
18
19
20
21
22
23
24
25
26
Definitions
New sections 31A to 31D inserted
31A
Protection of payments or transfers of property without
requiring the production of a grant of representation
31B
Threshold amount
31C
Liability of person fraudulently obtaining or retaining
estate of deceased
31D
Persons liable for the waste or conversion of a deceased's
estate
Payment or transfer by employer of moneys etc. held on account
of deceased employee
Liability of person fraudulently obtaining or retaining estate of
deceased
Aid of registrar or clerk in procuring a grant of probate
Heading to section 72 inserted
Registrar may require proof of identity
Satisfaction as to value
Applicants residing within 32 kilometres from Melbourne
Registrar of probates may require further materials
Registrar of probates need not proceed in difficult cases
Administration of small estates
New sections 101 to 105 inserted
101
Transitional provision—family provision—Justice
Legislation Amendment (Succession and Surrogacy)
Act 2014
102
Transitional provision—payment of debts—Justice
Legislation Amendment (Succession and Surrogacy)
Act 2014
103
Transitional provision—small estates—Justice
Legislation Amendment (Succession and Surrogacy)
Act 2014
104
Power to resolve transitional difficulties in proceeding—
Justice Legislation Amendment (Succession and
Surrogacy) Act 2014
105
Regulations dealing with transitional matters—Justice
Legislation Amendment (Succession and Surrogacy)
Act 2014
ii
22
22
22
23
25
26
26
26
26
29
29
29
29
30
30
30
31
31
32
32
33
34
Section
Page
PART 5—AMENDMENT OF WILLS ACT 1997
27
28
29
30
31
Wills for persons who do not have testamentary capacity
authorised by the Court
New sections 21A to 21D inserted
21A
Information which the Court may require in support of
an application under section 21
21B
Matters of which the Court must be satisfied before
making an order under section 21
21C
Persons entitled to appear
21D
Court may order separate representation of person
lacking testamentary capacity
Hearing an application for an order
Sections 23, 26, 27, 28 and 29 repealed
New sections 53, 54 and 55 inserted
53
Transitional provision—Court authorised wills—Justice
Legislation Amendment (Succession and Surrogacy)
Act 2014
54
Power to resolve transitional difficulties in proceeding—
Justice Legislation Amendment (Succession and
Surrogacy) Act 2014
55
Regulations dealing with transitional matters—Justice
Legislation Amendment (Succession and Surrogacy)
Act 2014
36
36
36
36
38
38
39
39
39
40
40
40
41
PART 6—AMENDMENT OF STATUS OF CHILDREN ACT 1974
AND BIRTHS, DEATHS AND MARRIAGES REGISTRATION
ACT 1996
43
Division 1—Amendment of Status of Children Act 1974
43
32
33
34
35
Interpretation
Surrogacy arrangements—presumption as to status of child
19
Surrogacy arrangements—presumption as to status of
child
New section 22A inserted
22A
Registrar of Births, Deaths and Marriages must notify
Australian State or Territory registering authority of
orders
New Division 2A of Part IV inserted
43
44
Division 2A—Registration orders
45
29A
29B
29C
29D
45
45
46
29E
What is a registration order?
Application for a registration order
Applicant must give notice of hearing
Secretary of the Department of Justice has standing to
appear at hearing
Court may make registration order
iii
44
44
44
45
46
46
Section
Page
29F
36
37
38
39
40
41
Circumstances in which consent to registration order not
required
29G
Application to revoke registration order
29H
Court may revoke registration order
29I
Notification of discharged corresponding surrogacy
parentage order
Heading to Subdivision 3 of Division 2 substituted
Appeals
Section 31 substituted
31
Registrar of Births, Deaths and Marriages to receive
copy of orders
Access to court records
Transitional—application of Part IV
New Part VIII inserted
PART VIII—TRANSITIONAL PROVISIONS—JUSTICE
LEGISLATION AMENDMENT (SUCCESSION AND
SURROGACY) ACT 2014
48
Registration orders—application to surrogacy
arrangements before commencement of Part
Division 2—Amendment of Births, Deaths and Marriages
Registration Act 1996
42
43
Heading to section 19A amended
New section 19B inserted
19B
Surrogate birth registration—corresponding surrogacy
parentage orders
48
50
50
52
52
53
53
53
53
53
54
54
54
55
55
55
55
PART 7—MINOR AND CONSEQUENTIAL AMENDMENTS TO
OTHER ACTS
57
Division 1—Amendment of Status of Children Act 1974
57
44
45
Protection of executors, administrators and trustees
Recognition of paternity
Division 2—Amendment of Trustee Companies Act 1984
46
47
Election by trustee company to administer estate
Statute law revision
Division 3—Amendment of Wills Act 1997
48
49
50
Information which the Court may require in support of an
application for leave
Can a will be rectified?
Beneficiaries must survive testator by 30 days
iv
57
57
57
57
57
58
58
58
58
Section
Page
PART 8—REPEAL
51
59
Repeal of amending Act
═══════════════
ENDNOTES
59
60
v
Victoria
Justice Legislation Amendment
(Succession and Surrogacy) Act 2014†
No. 80 of 2014
[Assented to 21 October 2014]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The main purposes of this Act are—
(a) to amend the Administration and Probate
Act 1958 in relation to—
(i) family provision claims; and
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s. 2
Part 1—Preliminary
(ii) the rules for the payment of debts of an
estate; and
(iii) the administration of small estates; and
(b) to amend the court authorised wills scheme
in the Wills Act 1997; and
(c) in relation to surrogacy—
(i) 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
(ii) to make related amendments to the
Births, Deaths and Marriages
Registration Act 1996; and
(d) to make consequential and other
miscellaneous amendments to other Acts.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 July 2015, it comes into
operation on that day.
__________________
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s. 3
PART 2—AMENDMENT OF ADMINISTRATION AND
PROBATE ACT 1958—FAMILY PROVISION
3 Definitions
(1) In section 90 of the Administration and Probate
Act 1958, for the definition of Court substitute—
"Court means the Supreme Court or the County
Court;".
(2) In section 90 of the Administration and Probate
Act 1958 insert the following definitions—
"disability means a disability—
(a) 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
(c) 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
(d) the impairment or impairments affect
the person's capacity for social or
economic participation;
3
See:
Act No.
6191.
Reprint No. 11
as at
6/5/2010
and
amending
Act Nos
17/2010 and
31/2013.
LawToday:
www.
legislation.
vic.gov.au
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Part 2—Amendment of Administration and Probate Act 1958—Family
Provision
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 a
child adopted by the deceased who, at
the time of the deceased's death, was—
(i) under the age of 18 years; or
(ii) a full-time student aged between
18 years and 25 years; or
(iii) a child with a disability;
(c) a stepchild of the deceased who, at the
time of the deceased's death, was—
(i) under the age of 18 years; or
(ii) a full-time student aged between
18 years and 25 years; or
(iii) a stepchild with a disability;
(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—
(i) under the age of 18 years; or
(ii) a full-time student aged between
18 years and 25 years; or
(iii) a child with a disability;
(e) a former spouse or former domestic
partner of the deceased if the person, at
the time of the deceased's death—
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(i) would have been able to take
proceedings under the Family Law
Act 1975 of the Commonwealth;
and
(ii) has either—
(A) not taken those proceedings;
or
(B) commenced but not finalised
those proceedings; and
(iii) is now prevented from taking or
finalising those proceedings
because of the death of the
deceased;
(f) a child or stepchild of the deceased not
referred to in paragraph (b) or (c);
(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
paragraph (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;
(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
5
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Part 2—Amendment of Administration and Probate Act 1958—Family
Provision
household of which the deceased was
also a member;
family provision order means an order under
section 91;".
4 New section 90A inserted
After section 90 of the Administration and
Probate Act 1958 insert—
"90A Eligible person may apply for family
provision order
(1) Subject to subsection (2), an application for a
family provision order may be made to the
Court by, or on behalf of, an eligible person.
(2) An application under subsection (1) must be
made—
(a) within the time specified in section 99;
and
(b) otherwise in accordance with this Part
and the Rules.".
5 Section 91 substituted and new section 91A inserted
For section 91 of the Administration and
Probate Act 1958 substitute—
"91 Court may make family provision order
(1) Despite anything to the contrary in this Act,
on an application under section 90A, the
Court may order that provision be made out
of the estate of a deceased person for the
proper maintenance and support of an
eligible person.
(2) The Court must not make a family provision
order under subsection (1) unless satisfied—
(a) that the person is an eligible person;
and
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Provision
(b) in the case of a person referred to in
paragraphs (h) 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; and
(c) that, at the time of death, the deceased
had a moral duty to provide for the
eligible person's proper maintenance
and support; and
(d) that the distribution of the deceased's
estate fails to make adequate provision
for the proper maintenance and support
of the eligible person, whether by—
(i) the deceased's will (if any); or
(ii) the operation of Division 6 of
Part I; or
Note
Division 6 of Part I contains the intestacy
provisions.
(iii) both the will and the operation of
Division 6 of Part I.
(3) For the purposes of subsection (2)(b), the
Court must disregard any means-tested
government benefits that the eligible person
has received or is eligible to receive.
(4) In determining the amount of provision to be
made by a family provision order, if any, the
Court must take into account—
(a) the degree to which, at the time of
death, the deceased had a moral duty to
provide for the eligible person; and
7
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Part 2—Amendment of Administration and Probate Act 1958—Family
Provision
(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 paragraph (f) or (g) of the
definition of eligible person, the degree
to which the eligible person is not
capable, by reasonable means, of
providing adequately for the eligible
person's proper maintenance and
support; and
(d) in the case of an eligible person
referred to in paragraphs (h) to (k) of
the definition of eligible person, 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.
(5) The amount of provision made by a family
provision order—
(a) must not provide for an amount greater
than is necessary for the eligible
person's proper maintenance and
support; and
(b) in the case of an eligible person
referred to in paragraphs (h) to (k) of
the definition of eligible person, must
be proportionate to the eligible person's
degree of dependency on the deceased
for the person's proper maintenance and
support at the time of the deceased's
death.
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91A Factors to be considered in making family
provision order
(1) In making a family provision order, the
Court must have regard to—
(a) the deceased's will, if any; and
(b) any evidence of the deceased's reasons
for making the dispositions in the
deceased's will (if any); and
(c) any other evidence of the deceased's
intentions in relation to providing for
the eligible person.
(2) In making a family provision order, the
Court may have regard to the following
criteria—
(a) any family or other relationship
between the deceased and the eligible
person, including—
(i) the nature of the relationship; and
(ii) if relevant, the length of the
relationship;
(b) any obligations or responsibilities of
the deceased to—
(i) the eligible person; and
(ii) any other eligible person; and
(iii) the 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—
9
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Part 2—Amendment of Administration and Probate Act 1958—Family
Provision
(i) the eligible person; and
(ii) any other eligible person; and
(iii) any beneficiary of the estate;
(e) any physical, mental or intellectual
disability of any eligible person or any
beneficiary of the estate;
(f) the age of the eligible person;
(g) any contribution (not for adequate
consideration) of the eligible person
to—
(i) building up the estate; or
(ii) the welfare of the deceased or the
deceased's family;
(h) any benefits previously given by the
deceased to any eligible person or to
any beneficiary;
(i) whether the eligible person was being
maintained by the deceased before that
deceased's death either wholly or partly
and, if the Court considers it relevant,
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
beneficiaries;
(m) any other matter the Court considers
relevant.".
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Part 2—Amendment of Administration and Probate Act 1958—Family
Provision
6 Contents of order
(1) Insert the following heading to section 97 of the
Administration and Probate Act 1958—
"Contents of family provision order".
(2) In section 97(1) of the Administration and
Probate Act 1958 for "order under this Part"
substitute "family provision order".
(3) In section 97(3) of the Administration and
Probate Act 1958 for "provision" substitute "a
family provision order".
(4) For section 97(4) of the Administration and
Probate Act 1958 substitute—
"(4) Subject to this Part, a family provision order
operates and takes effect—
(a) if the deceased dies leaving a will
disposing of the whole or any part of
the deceased's estate, as if the provision
made by the family provision order had
been made by the deceased by
executing a codicil to that will
immediately before the deceased's
death; or
(b) if the deceased dies without leaving a
will—
(i) as a modification of Division 6 of
Part I in respect of so much of the
deceased's estate as is affected by
the family provision order; and
(ii) as if the provision made by the
family provision order had been
made by the deceased in the
deceased's will.".
11
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Part 2—Amendment of Administration and Probate Act 1958—Family
Provision
(5) In section 97(5) of the Administration and
Probate Act 1958, for "order making provision
for any person. Notice of the application shall be
served on all persons taking any benefit under the
order sought to be rescinded or altered" substitute
"family provision order".
(6) After section 97(5) of the Administration and
Probate Act 1958 insert—
"(5A) Notice of an application under subsection (5)
must be served on all persons taking any
benefit under the family provision order
sought to be rescinded or altered.".
(7) Section 97(6) and (7) of the Administration and
Probate Act 1958 are repealed.
7 Adjustment of probate duty
In section 98 of the Administration and Probate
Act 1958—
(a) after "this Part" insert "by a family provision
order";
(b) for "his" (wherever occurring) substitute
"the deceased's".
8 Section 99 substituted
For section 99 of the Administration and
Probate Act 1958 substitute—
"99 Time within which application may be
made
(1) An application to the Court 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, as
the case may be.
(2) Despite subsection (1), on application, the
Court may extend the period for making an
application for a family provision order if,
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Part 2—Amendment of Administration and Probate Act 1958—Family
Provision
after hearing such of the parties affected as
the Court thinks necessary, the Court
considers it appropriate to extend the period,
including in any case where the time for
making an application has already expired.
(3) An application for extension under
subsection (2) must be made before the final
distribution of the estate.
(4) The making of an application for 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.".
9 Protection of personal representative against certain
claims
(1) In section 99A(1) of the Administration and
Probate Act 1958—
(a) for "his" substitute "the personal
representative";
(b) for "order under this Part" substitute "family
provision order";
(c) after "application under this Part" insert "for
a family provision order".
(2) In section 99A(2) of the Administration and
Probate Act 1958—
(a) after "this Part" insert "for a family
provision order";
(b) for "his" substitute "the personal
representative".
13
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Part 2—Amendment of Administration and Probate Act 1958—Family
Provision
(3) For section 99A(3) and (4) of the Administration
and Probate Act 1958 substitute—
"(3) 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 (as
the case may be) and either—
(a) the personal representative has not had
notice of an application for a family
provision order in respect of the estate;
or
(b) if the personal representative has had a
notice of an intention to make an
application for a family provision order
in respect of the estate in accordance
with subsection (4), 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 of an intention to make an
application for a family provision order.
(4) For the purposes of this section, notice to a
personal representative of an intention to
make any application for a family provision
order referred to in subsection (3)(b)—
(a) must be in writing signed by the
eligible person or the eligible person's
legal practitioner; and
(b) lapses within 3 months from the receipt
of the notice by the personal
representative unless an application for
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Provision
a family provision order has been made
to the Court; and
(c) is incapable of being renewed.
(5) Nothing in this section—
(a) extends the period within which a
person can make an application for a
family provision order without a Court
order; or
(b) prevents the subsequent making of an
application for a family provision order
within any other period allowed by this
Act.".
__________________
15
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s. 10
Part 3—Amendment of Administration and Probate Act 1958—Payment of
Debts
PART 3—AMENDMENT OF ADMINISTRATION AND
PROBATE ACT 1958—PAYMENT OF DEBTS
10 Definitions
In section 5(1) of the Administration and
Probate Act 1958, for the definition of pecuniary
legacy substitute—
"pecuniary legacy means a gift of a sum of money
in a will and includes—
(a) an annuity; and
Example
X's will gives $1000 to A every year for the
next 10 years.
(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
Example
X's will gives $1000 to A.
(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
Example
X's will gives $10 000 to A from X's bank
account at the Bank of Y and provides that if
this bank account is inadequate to satisfy the
legacy or does not exist at the time of X's death,
then $10 000 may be paid to A out of X's
general estate.
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Debts
(d) any other general direction by a testator
for the payment of an amount,
including all duties relating to the estate
or property;
Example
A general direction includes if a legacy is
directed to be paid free of all duties, the
payment of any duties to which the legacy is
subject.".
11 Section 39 substituted and new sections 39A and
39B inserted
For section 39 of the Administration and
Probate Act 1958 substitute—
"39 Insolvent estates—payment of debts
(1) This section applies to the administration of
a deceased person's estate if the estate—
(a) is insufficient to pay its debts and
liabilities in full; and
(b) is not being administered under the
Bankruptcy Act 1966 of the
Commonwealth.
(2) Subject to subsection (4) and anything to the
contrary in this Act, the administration of an
estate to which this section applies must be
conducted in accordance with the bankruptcy
rules as in force at the date of death of the
deceased.
(3) The bankruptcy rules apply in relation to the
following—
(a) the rights of secured and unsecured
creditors against the deceased's estate;
(b) the debts and liabilities provable
against the deceased's estate;
17
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Part 3—Amendment of Administration and Probate Act 1958—Payment of
Debts
(c) the valuation of annuities and future
and contingent liabilities of the
deceased's estate;
(d) the priorities of debts and liabilities of
the deceased's estate.
(4) Despite anything to the contrary in the
bankruptcy rules, a demand, in relation to
which proceedings are maintainable against
the deceased'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.
(5) For the purpose of applying the bankruptcy
rules, a reference in the Bankruptcy Act
1996 of the Commonwealth or regulations
made under that Act—
(a) to the date of an order for
administration under Part XI of that Act
is taken to be a reference to the date of
the deceased's death; and
(b) to the date on which an administration
under Part XI of that Act is deemed to
have commenced under that Part is
taken to be a reference to the date of the
deceased's death; and
(c) to the Court is taken to be a reference to
the Supreme Court.
(6) In this section—
bankruptcy rules means the provisions of
the Bankruptcy Act 1966 of the
Commonwealth and regulations made
under that Act applying in relation to
the administration of estates of
deceased persons in bankruptcy.
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39A Solvent estates—payment of debts
(1) This section applies if the estate of a
deceased person is sufficient to pay its debts
and liabilities in full.
(2) Subject to any contrary intention appearing
in the deceased'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—
(a) from property specifically appropriated,
devised, bequeathed, directed to be sold
(either by a specific or general
description) or subject to a charge for
the payment of a debt or liability of the
estate;
(b) 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;
(c) 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.
(3) For the purpose of subsection (2)—
(a) property must be applied to the
discharge of the estate's debts and
liabilities rateably according to value;
and
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(b) if specific property is applied to the
payment of a debt or liability of the
estate and a legacy is charged on that
property—
(i) the legacy and the property must
be applied rateably according to
the value of the property; and
(ii) the value of that property must be
reduced by the amount of the
legacy charged on it.
39B Solvent estates—pecuniary legacies
(1) Subject to subsection (2) and any contrary
intention in the deceased's will, any
pecuniary legacy must be paid out of—
(a) any property comprising the residuary
estate; or
(b) any property in relation to which a
disposition in the deceased's will
operates as the exercise of a general
power of appointment.
(2) If the property referred to in subsection (1) is
insufficient to pay any pecuniary legacy, the
pecuniary legacy must abate proportionately.
Example
X's will gives pecuniary legacies totalling $4000 to A,
B and C. A is to receive $500, B is to receive $1500
and C is to receive $2000. X's available property has a
value of $2000 and is insufficient to pay the pecuniary
legacies.
If the pecuniary legacies must abate proportionally
and only 50% of the value of the gifts is available to
meet them, each gift must abate by 50%. As a result,
A receives $250, B receives $750 and C receives
$1000.".
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12 Charges on property of deceased to be paid
primarily out of property charged
(1) In section 40(1) of the Administration and
Probate Act 1958 omit "deed or other
document".
(2) In section 40(1) of the Administration and
Probate Act 1958 for "his will disposes of an
interest in property which at the time of his death"
substitute "and the will disposes of an interest in
property which, at the time of the deceased's
death".
(3) In section 40(2)(a) of the Administration and
Probate Act 1958 for "the testator out of his
personal estate or his residuary real and personal
estate or his residuary real estate" substitute "out
of the testator's personal estate, residuary real and
personal estate or residuary real estate".
13 Second Schedule repealed
The Second Schedule to the Administration and
Probate Act 1958 is repealed.
__________________
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Part 4—Amendment of Administration and Probate Act 1958—
Miscellaneous Amendments
PART 4—AMENDMENT OF ADMINISTRATION AND
PROBATE ACT 1958—MISCELLANEOUS AMENDMENTS
14 Definitions
In section 3(1) of the Administration and
Probate Act 1958, the definition of small estate is
repealed.
15 New sections 31A to 31D inserted
After section 31 of the Administration and
Probate Act 1958 insert—
"31A Protection of payments or transfers of
property without requiring the production
of a grant of representation
(1) A person who holds money or personal
property for a deceased person of not more
than the threshold amount may pay or
transfer the money or the personal property
without requiring the production of a grant of
representation to any of the following
persons who have legal capacity and who
appear to be entitled to the money or
personal property—
(a) the surviving spouse or domestic
partner of the deceased;
(b) a child of the deceased;
(c) any other person.
(2) For the purposes of subsection (1), the
threshold amount is the greater of—
(a) $25 000; or
(b) if an amount is calculated in accordance
with section 31B, that amount.
(3) A payment of money or transfer of personal
property which is made under subsection (1)
and in good faith is a complete discharge of
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all liability in relation to the person who is
paying or transferring the money or personal
property.
(4) 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 (1) is a complete discharge
of all liability in relation to the person who
paid or transferred the money or personal
property.
(5) Nothing in this section affects or prejudices
the rights of any person who has a claim to
or against a deceased person's estate to
enforce a remedy against a person to whom a
payment or transfer has been made under
subsection (1).
31B Threshold amount
(1) From 1 July 2015 and for each subsequent
financial year, the threshold amount must be
calculated in accordance with the following
formula—
A×
B
C
where—
A is—
(a) $25 000; or
(b) if an amount has been calculated in
accordance with this formula and that
amount is greater than $25 000, the
amount as last calculated;
B is the all groups consumer price index for
Melbourne in original terms for the most
recent reference period in the preceding
calendar year most recently published by
23
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the Australian Bureau of Statistics as at 15
June immediately preceding the date on
which the variation is made;
C is the all groups consumer price index for
Melbourne in original terms for the
corresponding reference period one year
earlier than the reference period referred to
in B published by the Australian Bureau of
Statistics as at 15 June immediately
preceding the date on which the variation is
made.
(2) If the threshold amount has been calculated
under subsection (1) and—
(a) the threshold amount is reduced, the
reduced amount does not take effect,
except for the purpose of the
application of the formula under this
section in the following year; or
(b) if, in the next or subsequent financial
year the threshold is increased
following a reduction referred to in
paragraph (a), that amount has effect as
an increase only to the extent (if any)
that—
(i) the amount of the increase
exceeds the amount of the
reduction in the previous financial
year; or
(ii) part of the reduction has not been
set off against a previous increase.
(3) For the purpose of calculating the threshold
amount in accordance with the formula
under this section—
(a) if the amount of the variation is less
than $1000, it must be rounded to the
nearest whole $1; and
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(b) if the amount of the variation is $1000
or more, it must be rounded to the
nearest whole $10.
(4) On or before 1 July 2015 and on or before
1 July in each succeeding financial year, the
Minister by order published in the
Government Gazette, must declare the
threshold amount that applies for the
purposes of section 31A(2) as from the date
specified in the order.
31C Liability of person fraudulently obtaining
or retaining estate of deceased
(1) Subject to subsection (3), this section applies
to a person—
(a) who does not hold a grant of
representation of a deceased person's
estate; and
(b) who fraudulently or without full and
valuable consideration—
(i) obtains, receives or holds the
estate or any part of the deceased's
estate; or
(ii) effects the release of any debt or
liability payable to the estate.
(2) A person to whom this section applies is
liable to account for the estate's assets to the
extent of—
(a) the estate obtained, received or held by
the person; or
(b) the debt or liability released.
(3) 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
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Part 4—Amendment of Administration and Probate Act 1958—
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personal representative who has a grant of
representation of the estate.
31D Persons liable for the waste or conversion
of a deceased's estate
(1) If a personal representative wastes or
converts any part of a deceased person's
estate for private use and then dies, the
personal representative of that deceased
personal representative is liable and
chargeable in respect of the waste or
conversion in the same manner as the
deceased personal representative would have
been if that person had been alive.
(2) The liability of the personal representative of
a deceased personal representative under this
section is limited to the extent of the
available assets of the deceased personal
representative.".
16 Payment or transfer by employer of moneys etc.
held on account of deceased employee
Section 32 of the Administration and Probate
Act 1958 is repealed.
17 Liability of person fraudulently obtaining or
retaining estate of deceased
Section 33 of the Administration and Probate
Act 1958 is repealed.
18 Aid of registrar or clerk in procuring a grant of
probate
(1) For section 71(1) of the Administration and
Probate Act 1958 substitute—
"(1) If a person dies leaving property not
exceeding the maximum monetary value, a
person who is entitled to probate of the will
or to letters of administration of the
deceased's estate may apply for aid, in
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procuring the grant of probate or letters of
administration—
(a) to the registrar of probates; or
(b) to a registrar of the Magistrates' Court
whose office is nearest to the fixed
place of abode of the applicant at the
time of the making of the application.
(1A) For the purposes of subsection (1), the
maximum monetary value is the greater of—
(a) $100 000; or
(b) if an amount is calculated in accordance
with subsection (1B), that amount.
(1B) From 1 July 2015 and for each subsequent
financial year, the maximum monetary value
must be varied in accordance with the
following formula—
A×
B
C
where—
A is—
(a) $100 000; or
(b) if an amount has been calculated in
accordance with this formula and that
amount is greater than $100 000, the
amount as last calculated;
B is the all groups consumer price index for
Melbourne in original terms for the most
recent reference period in the preceding
calendar year most recently published by
the Australian Bureau of Statistics as at 15
June immediately preceding the date on
which the variation is made;
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C is the all groups consumer price index for
Melbourne in original terms for the
corresponding reference period one year
earlier than the reference period referred to
in B published by the Australian Bureau of
Statistics as at 15 June immediately
preceding the date on which the variation is
made.
(1C) If a maximum monetary value has been
calculated under subsection (1B) and—
(a) the maximum monetary value is
reduced, the reduced amount does not
take effect, except for the purpose of
the application of the formula under
this section in the following year; or
(b) if, in the next or subsequent financial
year the maximum monetary value is
increased following a reduction referred
to in paragraph (a), that amount has
effect as an increase only to the extent
(if any) that—
(i) the amount of the increase
exceeds the amount of the
reduction in the previous financial
year; or
(ii) part of the reduction has not been
set off against a previous increase.
(1D) For the purpose of calculating the maximum
monetary value in accordance with the
formula under this section—
(a) if the amount of the variation is less
than $1000, it must be rounded to the
nearest whole $1; and
(b) if the amount of the variation is $1000
or more, it must be rounded to the
nearest whole $10.
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(1E) On or before 1 July 2015 and on or before 1
July in each succeeding financial year, the
Minister, by order published in the
Government Gazette, must declare the
maximum monetary value that applies for
the purposes of subsection (1) as from the
date specified in the order.".
(2) In section 71(2) of the Administration and
Probate Act 1958, for "Supreme Court"
substitute "Magistrates Court".
19 Heading to section 72 inserted
Insert the following heading to section 72 of the
Administration and Probate Act 1958—
"Registrar of probates may issue probate or
administration if satisfied of certain matters".
20 Registrar may require proof of identity
In section 73 of the Administration and Probate
Act 1958, for "he" substitute "the registrar".
21 Satisfaction as to value
In section 74 of the Administration and Probate
Act 1958, for "$25 000 or (if the case so requires)
$50 000 he shall refuse to proceed with the
application until he" substitute "the maximum
monetary value specified in section 71(1A), the
registrar shall refuse to proceed with the
application until the registrar".
22 Applicants residing within 32 kilometres from
Melbourne
In section 76 of the Administration and Probate
Act 1958, for "post office at the" substitute
"north-east".
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s. 23
Part 4—Amendment of Administration and Probate Act 1958—
Miscellaneous Amendments
23 Registrar of probates may require further materials
In section 77 of the Administration and Probate
Act 1958—
(a) for "him" substitute "the registrar of
probates";
(b) for "he shall" substitute "the registrar of
probates shall";
(c) for "which he" substitute "which the
registrar of probates".
24 Registrar of probates need not proceed in difficult
cases
In section 78 of the Administration and Probate
Act 1958, for "he" substitute "the registrar of
probates".
25 Administration of small estates
(1) For section 79(1)(a) of the Administration and
Probate Act 1958 substitute—
"(a) the value of an estate is estimated not to
exceed the maximum monetary value
specified in section 71(1A); and".
(2) In section 79(1)(b) of the Administration and
Probate Act 1958—
(a) omit ", 10A"; and
(b) omit "or elect under section 11A of the
Trustee Companies Act 1984 to administer
the estate".
(3) In section 79(2) of the Administration and
Probate Act 1958, for "a daily newspaper
circulating generally throughout Victoria"
substitute "accordance with the Rules".
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(4) After section 79(2) of the Administration and
Probate Act 1958 insert—
"(2A) State Trustees must file the deceased's will,
if one exists, with the registrar of probates as
soon as practicable after giving notice under
subsection (2).".
(5) After section 79(3) of the Administration and
Probate Act 1958 insert—
"(3A) If in the course of administering an estate to
which this section applies the value of the
estate is found to exceed 120 per cent of the
maximum monetary value specified in
section 71(1A), State Trustees must, as soon
as practicable—
(a) notify the registrar of probates in
writing of that fact; and
(b) apply for a grant of probate or
administration of the estate.".
26 New sections 101 to 105 inserted
After section 100 of the Administration and
Probate Act 1958 insert—
"101 Transitional provision—family
provision—Justice Legislation
Amendment (Succession and Surrogacy)
Act 2014
The amendments made to Part IV of this Act
by Part 2 of the Justice Legislation
Amendment (Succession and Surrogacy)
Act 2014 apply in respect of the estate of any
person who dies on or after the
commencement of Part 2 of that Act.
31
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Part 4—Amendment of Administration and Probate Act 1958—
Miscellaneous Amendments
102 Transitional provision—payment of
debts—Justice Legislation Amendment
(Succession and Surrogacy) Act 2014
(1) Despite the amendment of this Act by Part 3
of the Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
Division 5 of Part I and the Second
Schedule, as in force immediately before the
commencement of that Part, continue to
apply to an application for a grant of probate
or letters of administration which was made
but not granted before that commencement
as if those amendments had not been made.
(2) Despite the amendment of this Act by Part 3
of the Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
Division 5 of Part I and the Second
Schedule, as in force immediately before the
commencement of that Part, continue to
apply to an application for a grant of probate
or letters of administration which was
granted before that commencement as if
those amendments had not been made.
103 Transitional provision—small estates—
Justice Legislation Amendment
(Succession and Surrogacy) Act 2014
(1) Despite the repeal of section 32 by the
Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
section 32, as in force immediately before its
repeal continues to apply to the estate of a
deceased person who died before the repeal.
(2) Despite the repeal of section 33 by the
Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
section 33, as in force immediately before its
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repeal, continues to apply to the estate of a
deceased person who died before the repeal.
(3) Despite the amendment of section 71 by the
Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
section 71, as in force immediately before its
amendment, continues to apply to an
application made under that section before
that amendment as if the amendment had not
been made.
(4) Despite the amendment of section 74 by the
Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
section 74, as in force immediately before its
amendment, continues to apply to an
application made under section 71 before
that amendment as if the amendment had not
been made.
(5) Despite the amendment of section 79 by the
Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
section 79, as in force immediately before its
amendment, continues to apply to the
administration of an estate commenced under
that section before that amendment as if the
amendment had not been made.
104 Power to resolve transitional difficulties in
proceeding—Justice Legislation
Amendment (Succession and Surrogacy)
Act 2014
(1) If any difficulty arises because of the
operation of the Justice Legislation
Amendment (Succession and Surrogacy)
Act 2014 in relation to an application or a
proceeding under this Act, the Court may
make any order it considers appropriate to
resolve the difficulty.
33
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Part 4—Amendment of Administration and Probate Act 1958—
Miscellaneous Amendments
(2) An order made under subsection (1)—
(a) may be made on application of a party
to the application or proceeding or on
the Court's own motion; and
(b) has effect despite any provision to the
contrary made by or under any Act
(other than the Charter of Human
Rights and Responsibilities Act
2006).
105 Regulations dealing with transitional
matters—Justice Legislation Amendment
(Succession and Surrogacy) Act 2014
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the enactment of Part 2, 3 or 4 of
the Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
including any repeals and amendments made
by any of those Parts of that Act.
(2) Regulations made under this section may—
(a) have a retrospective effect to a day on
or from the date that the Justice
Legislation Amendment (Succession
and Surrogacy) Act 2014 receives the
Royal Assent;
(b) be of limited or general application;
(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
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(e) provide for the exemption of persons,
applications or proceedings or a class of
persons, applications or proceedings
from any of the regulations made under
this section.
(3) Regulations made under this section have
effect despite anything to the contrary—
(a) in any Act (other than Part 2, 3 or 4 of
the Justice Legislation Amendment
(Succession and Surrogacy) Act 2014
or the Charter of Human Rights and
Responsibilities Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
__________________
35
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s. 27
Part 5—Amendment of Wills Act 1997
PART 5—AMENDMENT OF WILLS ACT 1997
27 Wills for persons who do not have testamentary
capacity authorised by the Court
See:
Act No.
88/1997.
Reprint No. 2
as at
19/04/2013.
LawToday:
www.
legislation.
vic.gov.au
In section 21(2) of the Wills Act 1997 omit "if the
person has first obtained leave of the Court to
make the application".
28 New sections 21A to 21D inserted
After section 21 of the Wills Act 1997 insert—
"21A Information which the Court may require
in support of an application under
section 21
In proceedings for the hearing of an
application for an order under section 21, the
applicant, if required by the Court, must give
the following—
(a) a written statement of the general
nature of the application and the
reasons for making it;
(b) a reasonable estimate, formed from any
evidence available to the applicant, of
the size and character of the estate of
the person on whose behalf the will is
to be made;
(c) a draft of the proposed will for which
the applicant is seeking the Court's
approval;
(d) any evidence available to the applicant
of the wishes of the person;
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Part 5—Amendment of Wills Act 1997
(e) any evidence available to the applicant
of the ability of the person to
participate in the proceedings and
express the person's wishes;
(f) any evidence available to the applicant
of the likelihood of the person
acquiring or regaining testamentary
capacity;
(g) any evidence available to the applicant
of the terms of any will previously
made by the person;
(h) any evidence available to the applicant
of the likelihood of an application for a
family provision order being made
under Part IV of the Administration
and Probate Act 1958 in respect of the
property of the person;
(i) any evidence available to the applicant
of the circumstances of any person for
whom provision might reasonably be
expected to be made under the will;
(j) any evidence available to the applicant
of any persons who might be entitled to
claim on intestacy;
(k) any evidence available to the applicant
of any gift for a charitable or other
purpose that the person might
reasonably be expected to give or make
by will;
(l) any other evidence available to the
applicant and which is relevant to the
application.
37
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s. 28
Part 5—Amendment of Wills Act 1997
21B Matters of which the Court must be
satisfied before making an order under
section 21
Before making an order under section 21, the
Court must be satisfied that—
(a) the person on whose behalf the will is
to be made or revoked does not have
testamentary capacity; and
(b) the proposed will or revocation reflects
what the intentions of the person would
be likely to be, or what the intentions of
the person might reasonably be
expected to be, if the person had
testamentary capacity; and
(c) it is reasonable in all the circumstances
for the Court, by order, to authorise the
making of the will for the person.
21C Persons entitled to appear
Each of the following persons is entitled to
appear and be heard in any proceedings for
the hearing of an application for an order
under section 21—
(a) the person on whose behalf the will is
to be made;
(b) an Australian legal practitioner
representing that person;
(c) an attorney appointed by that person
under an enduring power of attorney;
(d) any guardian or administrator of the
person within the meaning of the
Guardianship and Administration
Act 1986;
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(e) any other person who has, in the
opinion of the Court, a genuine interest
in the matter.
21D Court may order separate representation
of person lacking testamentary capacity
(1) The Court, if it considers it appropriate to do
so, may—
(a) order that a person on whose behalf a
will is proposed to be made or revoked
under section 21 be separately
represented;
(b) make any order it considers necessary
to secure that representation.
(2) An order under subsection (1) may be
made—
(a) on the Court's own motion; or
(b) on the application of any person
entitled to be heard in a proceeding
under this Division.".
29 Hearing an application for an order
(1) In section 22(1)(a) of the Wills Act 1997, for "in
support of an application for leave under
section 28" substitute "under section 21A".
(2) After section 22(2) of the Wills Act 1997
insert—
"(3) In making an order under section 21, the
Court may make any necessary related
orders or directions.".
30 Sections 23, 26, 27, 28 and 29 repealed
Sections 23, 26, 27, 28 and 29 of the Wills Act
1997 are repealed.
39
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s. 31
Part 5—Amendment of Wills Act 1997
31 New sections 53, 54 and 55 inserted
After section 52A of the Wills Act 1997 insert—
"53 Transitional provision—Court authorised
wills—Justice Legislation Amendment
(Succession and Surrogacy) Act 2014
Despite the amendment of this Act by Part 5
of the Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
Division 2 of Part 3 of this Act, as in force
immediately before the commencement of
Part 5 of that Act, continues 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.
54 Power to resolve transitional difficulties in
proceeding—Justice Legislation
Amendment (Succession and Surrogacy)
Act 2014
(1) If any difficulty arises because of the
operation of Part 5 of the Justice Legislation
Amendment (Succession and Surrogacy)
Act 2014 in relation to an application or a
proceeding under this Act, the Court may
make any order it considers appropriate to
resolve the difficulty.
(2) An order made under subsection (1)—
(a) may be made on application of a party
to the application or proceeding or on
the Court's own motion; and
(b) has effect despite any provision to the
contrary made by or under any Act
(other than the Charter of Human
Rights and Responsibilities Act
2006).
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55 Regulations dealing with transitional
matters—Justice Legislation Amendment
(Succession and Surrogacy) Act 2014
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the enactment of Part 5 of the
Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
including any repeals and amendments made
by that Part of that Act.
(2) Regulations made under this section may—
(a) have a retrospective effect to a day on
or from the date that the Justice
Amendment Legislation (Succession
and Surrogacy) Act 2014 receives the
Royal Assent;
(b) be of limited or general application;
(c) differ according to differences in time,
place or circumstances;
(d) leave any matter or thing to be decided
by a specified person or specified class
of persons;
(e) provide for the exemption of persons,
applications or proceedings or a class of
persons, applications or proceedings
from any of the regulations made under
this section.
(3) Regulations made under this section have
effect despite anything to the contrary—
(a) in any Act (other than Part 5 of the
Justice Legislation Amendment
(Succession and Surrogacy) Act 2014
41
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s. 31
Part 5—Amendment of Wills Act 1997
or the Charter of Human Rights and
Responsibilities Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it comes
into operation.".
__________________
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Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
s. 32
PART 6—AMENDMENT OF STATUS OF CHILDREN ACT
1974 AND BIRTHS, DEATHS AND MARRIAGES
REGISTRATION ACT 1996
Division 1—Amendment of Status of Children Act 1974
32 Interpretation
(1) In section 17(1) of the Status of Children Act
1974 insert the following definitions—
"corresponding interstate surrogacy law means a
prescribed law of another Australian State or
a Territory relating to parentage of a child
born under a surrogacy arrangement;
corresponding surrogacy parentage order means
an order—
(a) relating to legal parentage of a child
born under a surrogacy arrangement;
and
(b) that is made under a prescribed
provision of a corresponding interstate
surrogacy law;
registration order has the meaning given in
section 29A;".
(2) For section 17(2) of the Status of Children Act
1974 substitute—
"(2) In this Part, a reference to the surrogate
mother's partner means—
(a) in relation to a child conceived in
Victoria under a surrogacy
arrangement, the person who was the
surrogate mother's partner at the time
the surrogacy arrangement was entered
into;
(b) in relation to a child conceived in
another Australian State or a Territory
under a surrogacy arrangement, the
43
See:
Act No.
8602.
Reprint No. 3
as at
1 May 2013.
LawToday:
www.
legislation.
vic.gov.au
Justice Legislation Amendment (Succession and Surrogacy) Act 2014
No. 80 of 2014
s. 33
Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
person who, under the corresponding
interstate surrogacy law of that
Australian State or Territory, was the
surrogate mother's partner, however
described under that law.".
33 Surrogacy arrangements—presumption as to status
of child
For section 19 of the Status of Children Act
1974 substitute—
"19 Surrogacy arrangements—presumption
as to status of child
Subject to Part VII, the presumptions of law
that arise under Part II, III or V apply in
respect of a child that is born as a result of a
surrogacy arrangement but do not prevail
over a substitute parentage order or a
corresponding parentage order if a
registration order has also been made in
respect of the same surrogacy arrangement.
Note
Part VII contains transitional provisions that are relevant to
the application of the presumptions of law that arise under
Parts III and V in certain cases.".
34 New section 22A inserted
After section 22 of the Status of Children Act
1974 insert—
"22A Registrar of Births, Deaths and Marriages
must notify Australian State or Territory
registering authority of orders
(1) The Registrar of Births, Deaths and
Marriages must notify the registering
authority of another Australian State or a
Territory if the Registrar of Births, Deaths
and Marriages is notified—
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(a) that the birth of a child born under a
surrogacy arrangement is registered in
that Australian State or Territory; and
(b) that a substitute parentage order has
been made or discharged by the court
under this Act in relation to that child.
(2) In this section registering authority has the
same meaning as it has in section 4 of the
Births, Deaths and Marriages
Registration Act 1996.".
35 New Division 2A of Part IV inserted
After Division 2 of Part IV of the Status of
Children Act 1974 insert—
"Division 2A—Registration orders
29A What is a registration order?
A registration order directs the Registrar of
Births, Deaths and Marriages to register the
birth of a child born under a surrogacy
arrangement in accordance with section 19B
of the Births, Deaths and Marriages
Registration Act 1996.
29B Application for a registration order
(1) The commissioning parents of a child born
under a surrogacy arrangement may apply
for a registration order if—
(a) the child was conceived under the
surrogacy arrangement in another
Australian State or a Territory; and
(b) the child was born in Victoria; and
(c) a corresponding surrogacy parentage
order has been made in favour of the
commissioning parents.
45
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s. 35
Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
(2) Before the court hears the application, the
commissioning parents must file with the
court—
(a) a certified copy of the child's birth
certificate; and
(b) a copy of the sealed corresponding
surrogacy parentage order.
29C Applicant must give notice of hearing
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.
29D Secretary of the Department of Justice has
standing to appear at hearing
(1) Subject to subsection (2), the Secretary of
the Department of Justice is entitled to
appear or be represented at the hearing of an
application for a registration order.
(2) The absence of the Secretary of the
Department of Justice or the Secretary's
representative does not prevent the court
from making any order.
(3) Nothing in this section requires the Secretary
of the Department of Justice to appear or be
represented at the hearing of an application
for a registration order.
29E Court may make registration order
(1) The court may make a registration order if
satisfied that—
(a) making the order is in the best interests
of the child; and
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Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
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(b) the commissioning parents did not enter
into the surrogacy arrangement for the
purpose of avoiding requirements under
this Part or the Assisted Reproductive
Treatment Act 2008 that would have
applied to the arrangement if the child
had been conceived in Victoria; and
(c) at the time the surrogacy arrangement
was entered into, the commissioning
parents had a genuine connection to the
Australian State or Territory in which
the child was conceived; and
(d) the child was living with at least one of
the commissioning parents at the time
the application for the registration order
was made; and
(e) the surrogate mother and, if her partner
is a party to the arrangement, her
partner have not received any material
benefit or advantage from the surrogacy
arrangement; and
(f) the surrogate mother freely consents to
the making of the order; and
(g) the surrogate mother was at least 25
years of age before entering into the
surrogacy arrangement.
(2) If the surrogate mother's partner is a party to
the surrogacy arrangement, before making a
registration order the court must also
consider whether her partner consents to the
making of the order.
(3) For the purposes of subsection (1)(e),
material benefit or advantage does not
include any reimbursement of costs
permitted by—
47
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s. 35
Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
(a) the relevant corresponding interstate
surrogacy law; or
(b) any prescribed law of the other
Australian State or Territory in which
the corresponding surrogacy parentage
order was made.
(4) On making a registration order, the court
may make any consequential or ancillary
order it thinks fit in the interests of justice or
in the best interests of the child whose birth
registration is affected having regard to—
(a) the registration order; and
(b) any order made in respect of the child
in another Australian State or a
Territory, including an order made
under the corresponding interstate
surrogacy law of that Australian State
or Territory.
29F Circumstances in which consent to
registration order not required
(1) Despite section 29E(1)(f), the court may
dispense with consent of the surrogate
mother if satisfied—
(a) that the commissioning parents cannot,
after reasonable inquiries, find the
surrogate mother; or
(b) that the surrogate mother is deceased;
or
(c) on evidence given in accordance with
subsection (4), that the surrogate
mother is, and is likely to continue to
be, in such a physical or mental
condition as to be incapable of properly
considering whether to give consent.
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Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
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(2) Despite section 29E(2), the court may
dispense with consent of the surrogate
mother's partner if satisfied—
(a) that the commissioning parents cannot,
after reasonable inquiries, find the
surrogate mother's partner; or
(b) that the surrogate mother's partner is
deceased; or
(c) on evidence given in accordance with
subsection (4), that the surrogate
mother's partner is, and is likely to
continue to be, in such a physical or
mental condition as to be incapable of
properly considering whether to give
consent.
(3) For the purposes of subsections (1)(a) and
(2)(a), the commissioning parents have made
reasonable inquiries if they have—
(a) sent the person a letter, by registered
post, to the person's last known place of
residence and seeking the person's
consent; and
(b) sent a letter referred to in paragraph (a)
to the address of any other person that
the commissioning parents believe may
know where the person may be found;
and
(c) made any other enquiries the court
determines.
(4) For the purposes of subsections (1)(c) and
(2)(c), the evidence required is a certificate
signed by at least two persons registered
under the Health Practitioner Regulation
National Law to practise in the medical
profession (other than as a student) certifying
49
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s. 35
Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
as to the matters referred to in that
paragraph.
29G Application to revoke registration order
(1) The following persons may apply for an
order revoking a registration order—
(a) the Attorney-General;
(b) the Secretary of the Department of
Justice;
(c) a child whose birth registration was
affected by the registration order and
who has reached the age of 18 years.
(2) Any person may apply for leave to intervene
in an application under subsection (1) and
the court may make an order entitling the
person to intervene in the application.
(3) A person who is permitted under
subsection (2) to intervene in an application
under subsection (1) is to be treated as a
party to the application with all the rights,
duties and liabilities of a party, unless the
court orders otherwise.
29H Court may revoke registration order
(1) The court may revoke a registration order on
an application under section 29G if
satisfied—
(a) as to any of the following grounds—
(i) the registration order was obtained
by fraud, duress, misleading the
court or other improper means;
(ii) if a consent was required for the
making of the registration order,
the consent was not an effective
consent because it was obtained
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Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
by fraud, duress or material
inducement;
(iii) there is an exceptional reason that
the registration order should be
revoked; and
(b) that the revocation of the registration
order is in the best interests of the child
whose birth registration would be
affected.
(2) If the corresponding surrogacy parentage
order is discharged by the court that made it,
the court must revoke a registration order on
an application under section 29G without
being satisfied as to any matter in
subsection (1).
(3) The court must not make an order under
subsection (1) or (2) revoking a registration
order unless the court is satisfied that
reasonable efforts have been made to give
notice of the application to—
(a) the surrogate mother of the child whose
birth registration would be affected;
and
(b) if the surrogate mother had a partner
who was also a party to the surrogacy
arrangement, that partner; and
(c) each of the commissioning parents; and
(d) if the court considers it appropriate
having regard to the child's age, the
child whose birth registration would be
affected.
(4) On making an order revoking a registration
order, the court may make any consequential
or ancillary order it thinks fit in the interests
of justice or in the best interests of the child
51
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s. 36
Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
whose birth registration is affected having
regard to any order made in respect of the
child in another Australian State or a
Territory, including an order made under the
corresponding interstate surrogacy law of
that Australian State or Territory.
(5) For the purposes of subsection (1)(a)(ii),
material inducement does not include any
reimbursement of costs permitted by—
(a) the relevant corresponding interstate
surrogacy law; or
(b) any prescribed law of the other
Australian State or Territory in which
the corresponding surrogacy parentage
order was made.
29I Notification of discharged corresponding
surrogacy parentage order
(1) If the Registrar of Births, Deaths and
Marriages is notified that a corresponding
surrogacy parentage order has been
discharged, the Registrar, as soon as
practicable, must notify the AttorneyGeneral and the Secretary of the Department
of Justice in writing of that fact.
(2) A failure of the Registrar of Births, Deaths
and Marriages to notify a person under
subsection (1) does not prevent an
application being made under section 29G.".
36 Heading to Subdivision 3 of Division 2 substituted
For the heading to Subdivision 3 of Division 2 of
Part IV of the Status of Children Act 1974
substitute—
"Division 2B—Appeals".
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Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
37 Appeals
In section 30(2) of the Status of Children Act
1974, after "section 27" insert "or 29G".
38 Section 31 substituted
For section 31 of the Status of Children Act
1974 substitute—
"31 Registrar of Births, Deaths and Marriages
to receive copy of orders
(1) The court must give a sealed copy of the
order to the Registrar of Births, Deaths and
Marriages if the court makes—
(a) a substitute parentage order; or
(b) an order discharging a substitute
parentage order; or
(c) a registration order; or
(d) an order revoking a registration order.
(2) If the court makes a registration order, the
court must also give to the Registrar of
Births, Deaths and Marriages a copy of the
sealed copy of the corresponding surrogacy
parentage order.".
39 Access to court records
In section 34(2)(e) of the Status of Children Act
1974, after "section 27" insert "or 29G".
40 Transitional—application of Part IV
After section 46(3) of the Status of Children Act
1974 insert—
"(4) On and from the commencement of Part 6 of
the Justice Legislation Amendment
(Succession and Surrogacy) Act 2014, this
section applies subject to section 48.".
53
s. 37
Justice Legislation Amendment (Succession and Surrogacy) Act 2014
No. 80 of 2014
s. 41
Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
41 New Part VIII inserted
After Part VII of the Status of Children Act 1974
insert—
"PART VIII—TRANSITIONAL PROVISIONS—
JUSTICE LEGISLATION AMENDMENT
(SUCCESSION AND SURROGACY) ACT 2014
48 Registration orders—application to
surrogacy arrangements before
commencement of Part
(1) Subject to this section, Part IV, as amended
by the Justice Legislation Amendment
(Succession and Surrogacy) Act 2014,
applies to an application for a registration
order in respect of a surrogacy arrangement
entered into before the commencement of
Part 6 of that Act.
(2) If the surrogacy arrangement was entered
into before 1 January 2010—
(a) the court may make a registration order
under section 29E if satisfied that the
making of the order is in the best
interests of the child; and
(b) the requirements of sections 29C, 29D
and 29E do not otherwise apply to the
making of the order.
(3) If the surrogacy arrangement was entered
into on or after 1 January 2010 but before the
commencement of Part 6 of the Justice
Legislation Amendment (Succession and
Surrogacy) Act 2014—
(a) the court may make an order under
section 29E if satisfied as to the matters
in section 29E(1)(a) to (c); and
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Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
s. 42
(b) the requirements of section 29E do not
otherwise apply to the making of the
order.
__________________".
Division 2—Amendment of Births, Deaths and Marriages
Registration Act 1996
42 Heading to section 19A amended
In the heading to section 19A of the Births,
Deaths and Marriages Registration Act 1996,
for "registration" substitute "registration—
substitute parentage orders".
43 New section 19B inserted
After section 19A of the Births, Deaths and
Marriages Registration Act 1996 insert—
'19B Surrogate birth registration—
corresponding surrogacy parentage
orders
(1) If the court makes a registration order under
the Status of Children Act 1974, on receipt
of a sealed copy of the registration order and
a copy of the sealed copy of the
corresponding surrogacy parentage order the
Registrar must—
(a) register the surrogacy by entering the
prescribed particulars in the Surrogate
Birth Register; and
55
See:
Act No.
43/1996.
Reprint No. 3
as at
21 July 2011
and
amending
Act Nos
68/2013 and
44/2014.
LawToday:
www.
legislation.
vic.gov.au
Justice Legislation Amendment (Succession and Surrogacy) Act 2014
No. 80 of 2014
s. 43
Part 6—Amendment of Status of Children Act 1974 and Births, Deaths and
Marriages Registration Act 1996
(b) mark the words "closed—surrogate"
against the original birth entry in the
Register.
(2) If the court makes an order under the Status
of Children Act 1974 revoking a
registration order, on receipt of the sealed
copy of that order the Registrar must—
(a) cancel the relevant entry in the
Surrogate Birth Register; and
(b) remove the words "closed—surrogate"
from the original birth entry in the
Register.
(3) In this section—
corresponding surrogacy parentage order
and registration order have the
meanings given in section 17 of the
Status of Children Act 1974.'.
__________________
56
Justice Legislation Amendment (Succession and Surrogacy) Act 2014
No. 80 of 2014
Part 7—Minor and Consequential Amendments to other Acts
s. 44
PART 7—MINOR AND CONSEQUENTIAL AMENDMENTS
TO OTHER ACTS
Division 1—Amendment of Status of Children Act 1974
44 Protection of executors, administrators and trustees
In section 6(1) of the Status of Children Act
1974 after "any application" insert "for a family
provision order".
See:
Act No.
8602.
Reprint No. 3
as at
1 May 2013.
LawToday:
www.
legislation.
vic.gov.au
45 Recognition of paternity
In section 7(1) of the Status of Children Act
1974 after "claim" insert "for a family provision
order".
Division 2—Amendment of Trustee Companies Act 1984
46 Election by trustee company to administer estate
Section 11A of the Trustee Companies Act 1984
is repealed.
47 Statute law revision
The heading to the Schedules to the Trustee
Companies Act 1984 is repealed.
57
See:
Act No.
10168.
Reprint No. 5
as at
20/05/2009
and
amending
Act Nos
68/2009 and
17/2010.
LawToday:
www.
legislation.
vic.gov.au
Justice Legislation Amendment (Succession and Surrogacy) Act 2014
No. 80 of 2014
s. 48
Part 7—Minor and Consequential Amendments to other Acts
Division 3—Amendment of Wills Act 1997
See:
Act No.
88/1997.
Reprint No. 2
as at
19/04/2013.
LawToday:
www.
legislation.
vic.gov.au
48 Information which the Court may require in
support of an application for leave
In section 28(g) of the Wills Act 1997 after "an
application" insert "for a family provision order".
49 Can a will be rectified?
In section 31(4)(b)(i) of the Wills Act 1997 after
"or any application" insert "for a family provision
order".
50 Beneficiaries must survive testator by 30 days
In section 39(4) of the Wills Act 1997 after "an
application" insert "for a family provision order".
__________________
58
Justice Legislation Amendment (Succession and Surrogacy) Act 2014
No. 80 of 2014
Part 8—Repeal
PART 8—REPEAL
51 Repeal of amending Act
This Act is repealed on 1 July 2016.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═══════════════
59
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Justice Legislation Amendment (Succession and Surrogacy) Act 2014
No. 80 of 2014
Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Council: 20 August 2014
Legislative Assembly: 18 September 2014
The long title for the Bill for this Act was "A Bill for an Act to amend the
Administration and Probate Act 1958, the Wills Act 1997 and the
Status of Children Act 1974, to make consequential and other
amendments to other Acts and for other purposes."
60