Report 124 (2009) - Uniform Succession Laws: Administration of estates of deceased persons
Schedule 2. Priority of persons to letters of administration on intestacy
Updates and background for this project (Digest)
section 322(2)
1 a surviving spouse of the deceased person
2 the deceased person’s children
3 the issue of any child of the deceased person who died before the deceased person or who failed to survive the deceased person by 30 days, if the issue are entitled to share in the deceased person’s estate
4 the deceased person’s parents
5 the deceased person’s brothers and sisters
6 the issue of a brother or sister of the deceased person who died before the deceased person or who failed to survive the deceased person by 30 days, if the issue are entitled to share in the deceased person’s estate
7 the deceased person’s grandparents
8 the brothers and sisters of the deceased person’s parents
9 the children of any deceased brother or sister of the deceased person’s parents who died before the deceased person or who failed to survive the deceased person by 30 days
10 the [public trustee]
11 anyone else the Supreme Court may appoint, including a creditor of the deceased person’s estate
S2.1 This schedule sets out the order of priority that the Court must apply in granting letters of administration for an intestate estate, as referred to in cl 322(2).
S2.2 The order of priority is consistent with the National Committee’s recommendations about the distribution of estates on intestacy1 which have now been adopted in NSW.2 However, the National Committee decided to follow the policy of rule 610 of the Uniform Civil Procedure Rules 1999 (Qld), on which cl 322 is based, and accord higher priority to kin who are more closely related to the deceased.3 In this way, children of the deceased (item 2) are accorded higher priority than more remote descendants (item 3); the siblings of the deceased (item 5) are accorded higher priority than their descendants (item 6); and the siblings of the deceased’s parents (item 8) are accorded higher priority than their children (item 9). The National Committee also decided to limit the standing of those listed in items 3, 6 and 9, by requiring that they be entitled to share in the estate.4
S2.3 Note that “spouse” is defined in schedule 3 in a manner consistent with the National Committee’s recommendations in the Report on intestacy.5 However, this definition has been altered in the NSW provision giving effect to the National Committee’s recommendation.6
FOOTNOTES
1. See New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy, Report 116 (2007) (“NSWLRC, Report 116”).
2. Succession Amendment (Intestacy) Act 2009 (NSW).
3. 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”) [5.52]-[5.53].
4. QLRC, Report 65 [5.56].
5. NSWLRC, Report 116 [2.2]-[2.18], draft Intestacy Bill 2006 cl 7.
6. Succession Act 2006 (NSW) proposed s 104 and s 105 as inserted by Succession Amendment (Intestacy) Act 2009 (NSW) sch 1[4]. |
