Chapter 7. Transitional Provisions and Repeal
Updates and background for this project (Digest)
7.1 Because the model legislation has been drafted as a bill of the Queensland Parliament, it is not possible for it to contain transitional and repeal provisions that would be relevant to all of the Australian jurisdictions. It has, therefore, been left to each individual jurisdiction to draft the necessary provisions that are relevant to it. Some of the matters that should be taken into account in NSW are outlined in the following paragraphs with respect to repeal, amendment of other statutes and the enactment of transitional provisions.
700
[Provisions to be drafted by each jurisdiction.]
Repeal
7.2 Provision will need to be made to repeal certain existing provisions in NSW, including the remainder of the Probate and Administration Act 1898 (NSW)1 and some parts of other statutes whose provisions have been superseded by provisions in the model legislation. The following provisions which will need to be repealed are discussed in other parts of this Report:
- Conveyancing Act 1919 (NSW) s 145;2
- Imperial Acts Application Act 1969 (NSW) s 13 and s 14;3
- NSW Trustee and Guardian Act 2009 (NSW) s 26-s 30;4
- Trustee Companies Act 1964 (NSW) s 15A;5
- Administration (Validating) Act 1900 (NSW) s 46 and s 5;7 and
- Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(1), (4) and (5).8
7.3 Two provisions, however, have not been considered in relation to particular model provisions but are still subject to conclusions of the National Committee, namely:
- Imperial Acts Application Act 1969 (NSW) s 15; and
- NSW Trustee and Guardian Act 2009 (NSW) s 31.
These are dealt with in the following paragraphs.
Liability for waste or conversion
7.4 In NSW, s 15 of the Imperial Acts Application Act 1969 (NSW) provides for the survival of a cause of action against a deceased personal representative for the waste or conversion of estate property. The provision, which is based on a 17th century English statute, has been unnecessary since general provisions for the survival of actions were introduced in the 20th century.9
7.5 The National Committee concluded that such a provision was unnecessary in light of general provisions in the model legislation for the survival of actions10 and should be repealed.11
Administering small estates without a grant and without filing an election to administer
7.6 In NSW, s 31 of the NSW Trustee and Guardian Act 2009 (NSW) allows the NSW Trustee to administer small estates up to a value of $20,000 as if the Court had made a grant of representation in the NSW Trustee’s favour.
7.7 The National Committee12 concluded that it was not necessary to include such a provision in the model legislation, preferring to rely on the model provisions relating to elections to administer in Chapter 3 part 6.13 While the National Committee made no comment on the utility of this specific provision, support for its repeal can be implied.
Amendment of other statutes
7.8 In addition to the amendments to the Conveyancing Act 1919 (NSW) in relation to the survivorship provisions which are outlined in Chapter 8, the National Committee’s recommendations raised the need to consider the amendment or addition of provisions to other statutes. Such changes include:
- the amendment of s 60 of the Trustee Act 1925 (NSW) to ensure consistency with cl 415(1)-(8);14
- the amendment of s 61 of the Trustee Act 1925 (NSW) to take account of the absence from the model legislation of a provision to the effect of s 94 of the Probate and Administration Act 1898 (NSW);15
- the insertion in the Trustee Act 1925 (NSW) of so much of s 45 of the Probate and Administration Act 1898 (NSW) as relates to trusts;16 and
- the amendment of s 24 of the NSW Trustee and Guardian Act 2009 (NSW) and s 5 and s 6 of the Trustee Companies Act 1964 (NSW) to accommodate the absence from the model legislation of a provision to the effect of s 75A of the Probate and Administration Act 1898 (NSW).17
7.9 The National Committee has also recommended that other Australian jurisdictions consider adopting provisions to the effect of s 111 and s 112 of the Land Title Act 1994 (Qld).18 These provisions allow for the transfer of real property in a deceased estate, without the production of a grant, to the a person who is, or is entitled to be, the personal representative or would succeed in an application for a grant, or to a person who is beneficially entitled to the real property, so long as the “personal representative” consents in writing. The appropriate statute in NSW would be the Real Property Act 1900 (NSW).19
7.10 Numerous technical amendments will also need to be made to provisions in other statutes that include reference to the existing provisions that the model legislation will repeal or replace.20 A particularly complex task is presented by the NSW Trustee and Guardian Act 2009 (NSW) which provides in its definition section that “words and expressions used in this Act have the same meaning as they have in the Probate and Administration Act 1898”.21 Careful consideration will need to be given to any changes in terminology affected by the model legislation as implemented in NSW. In some cases, it may be desirable to transfer some of the relevant definitions from the Probate and Administration Act 1898 (NSW) into the NSW Trustee and Guardian Act 2006 (NSW).
Transitional provisions
7.11 Transitional provisions will also need to be included along the lines of those already contained in schedule 1 of the Succession Act 2006 (NSW) that relate to earlier implementations of the National Committee’s recommendations in NSW.
FOOTNOTES
1. See Appendix A.
2. To be replaced by cl 506-509.
3. To be replaced by cl 339, cl 341 and cl 400.
4. To be replaced by Chapter 3 pt 6.
5. To be replaced by Chapter 3 pt 6.
6. To be replaced by cl 406.
7. To be replaced by cl 408.
8. To be replaced by cl 600-602.
9. For example, Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2. See A A Preece, Lee’s Manual of Queensland Succession Law (6th ed, Law Book Company, 2007) [9.290] footnote 83; and Law Reform Commission of Western Australia, United Kingdom Statutes in Force in Western Australia, Report, Project No 75 (1994) 55.
10. Chapter 6 pt 1.
11. Queensland Law Reform Commission, Administration of Estates of Deceased Persons: Report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys General, Report 65 (2009) (“QLRC, Report 65”) [14.27]–[14.28].
12. See para 3.92.
13. QLRC, Report 65 [29.180].
14. QLRC, Report 65 [21.188].
15. See Appendix A, para A.33-A.35.
16. See para 2.7.
17. See Appendix A, para A.19-A.20.
18. QLRC, Report 65 [29.221].
19. See Real Property Act 1900 (NSW) s 93.
20. For example, the Adoption Act 2000 (NSW) s 99(1)(a); Companies (Death Duties) Act 1901 (NSW) s 10(1)(f); Compensation to Relatives Act 1897 (NSW) s 7(2); Contaminated Land Management Act 1997 (NSW) s 7(2)(d), s 38(3); Conveyancing Act 1919 (NSW) s 7(1), s 23B(2)(a), s 33, s 152(a); Inheritance Act 1901 (NSW) s 14; Landlord and Tenant (Amendment) Act 1948 (NSW) s 83B, s 83C; Limitation Act 1969 (NSW) s 11; NSW Trustee and Guardian Act 2009 (NSW) s 3(2), s 25(5), s 29(3); Powers of Attorney Act 2003 (NSW) s 3(1); Trustee Act 1925 (NSW) s 5, s 61, s 101; Trustee Companies Act 1964 (NSW) s 15AC(3).
21. NSW Trustee and Guardian Act 2006 (NSW) s 3(2).
