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SUCCESSION ACT 2006 - SCHEDULE 1

SCHEDULE 1 – Savings, transitional and other provisions

(Section 104)

Part 1 - General

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
this Act
Statute Law (Miscellaneous Provisions) Act (No 2) 2007 , to the extent that it amends this Act
Succession Amendment (Family Provision) Act 2008
Succession Amendment (Intestacy) Act 2009
any other Act that amends this Act
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
(4) Regulations made as referred to in subclause (1) may have effect despite the terms of any savings or transitional provisions contained in this Schedule, if the regulations so provide.

Part 2 - Provisions consequent on enactment of this Act

2 Definition

In this Part:

"repealed provisions" means the provisions of the Wills, Probate and Administration Act 1898 repealed by Schedule 2 to this Act (as in force immediately before Schedule 2 was repealed by the Statute Law (Miscellaneous Provisions) Act (No 2) 2008 ).

3 Transitional provisions

(1) Sections 4, 5, 6, 17, 19- 26, 32, 35, 39, 41 and 42 apply to wills made on or after the commencement of this clause.
(2) Despite subclause (1), section 41 (Dispositions not to fail because issue have died before testator) applies to a will made before the commencement of this clause if the testator has died on or after the death of the issue and the deaths occurred on or after the commencement.
(3) Sections 7, 8, 10, 27- 31, 33, 34, 36- 38, 40, 43- 54 apply to a will whenever made, if the testator dies on or after the commencement of this clause.
(4) Sections 5, 11, 14 and 15 apply to the alteration, revocation or revival of a will on or after the commencement of this clause even if the will was made before the commencement.
(5) The Court may make an order under section 16 or 18 with respect to the alteration or revocation of a will or part of a will even if the will was made before the commencement of this clause.
(6) The repealed provisions, as in force immediately before the commencement of this clause, continue to apply to wills made
"" before the commencement, in so far as they are not affected by the operation of subclauses (7), (8) and (9) or by the operation of the sections specified in subclause (1), (2), (3) or (4).
(7) Section 9 (Persons who cannot act as witnesses to wills) extends to a document that alters or revokes a will and that is made on or after the commencement of this clause even if the will was made before the commencement.
(8) Section 12 (Effect of marriage on a will) extends to a will made before the commencement of this clause, in relation to a marriage solemnised on or after the commencement.
(9) Section 13 (What is the effect of divorce or an annulment on a will?) extends to a will made before the commencement of this clause, if the divorce or the annulment of the marriage occurs on or after the commencement.

4 Will of minor pursuant to leave of Court

Despite the repeal of section 6A of the Wills, Probate and Administration Act 1898 , a will may be made by a minor after repeal of that section pursuant to (and in accordance with any conditions of) leave granted under that section before its repeal.

6 Construction of references

Subject to this Schedule and the regulations, in any Act (other than this Act) or instrument:

(a) a reference to a repealed provision for which there is a corresponding provision in this Act extends to the corresponding provision of this Act, and
(b) a reference to any act, matter or thing referred to in a repealed provision for which there is a corresponding provision in this Act extends to the corresponding act, matter or thing referred to in the corresponding provision of this Act.

7 Pending proceedings

(1) Subject to this Schedule and the regulations, this Act and the rules apply to proceedings commenced before the commencement of this clause in relation to the repealed provisions in the same way as they apply to proceedings commenced on or after the commencement.
(2) The Court may in such proceedings make such orders dispensing with the requirements of this Act or the rules in relation to the proceedings, and such consequential orders (including orders as to costs) and directions, as are appropriate in the circumstances.

8 Wills deposited in registry of Court

A will deposited in the registry of the Court under section 32 of the Wills, Probate and Administration Act 1898 , as in force immediately before the repeal of that section by this Act, is taken to have been deposited with the Registrar under section 51 (Will may be deposited with Registrar).

Part 3 - Provisions consequent on enactment of Succession Amendment (Family Provision) Act 2008

9 Definitions

In this Part:

"amending Act" means the Succession Amendment (Family Provision) Act 2008 .

"the 1916 provisions" means Part 2 of the Testator's Family Maintenance and Guardianship of Infants Act 1916 as in force before its repeal by the Succession Amendment (Intestacy) Act 2009 .

"the 1982 Act" means the Family Provision Act 1982 .

10 General savings

(1) Without limiting section 30 of the Interpretation Act 1987 , any act, matter or thing done or omitted to be done under a provision of the 1982 Act and having any force or effect immediately before the commencement of a provision of this Act that replaces that provision is, on that commencement, taken to have been done or omitted under the relevant provision of this Act.
(2) This clause does not apply:
(a) to the extent that its application is inconsistent with any other provision of this Schedule or a provision of a regulation under clause 1, or
(b) to the extent that its application would be inappropriate in a particular case.

11 Transitional provisions

(1) Chapter 3, as inserted by the amending Act, applies in relation to the estate of a person who dies on or after the commencement of this clause.
(2) The provisions of the 1982 Act, as in force before the commencement of this clause, continue to apply in relation to the estate of a person who dies before the commencement of this clause, in so far as they are not affected by the operation of this Part.
(3) Without limiting subclause (2), the provisions of the 1982 Act, as in force immediately before the commencement of this clause, continue to have effect in relation to the determination of an application made before that commencement.
(4) Section 59 (3) (b) and (4) (relating to undisclosed property) extend to an order for provision out of the estate or notional estate of a deceased person made before the commencement of this clause.
(5) The 1916 provisions continue to apply in relation to any estate of a person who died before the repeal of the provisions to which those provisions would have applied but for the repeal.

Part 4 - Provisions consequent on enactment of Succession Amendment (Intestacy) Act 2009

12 Definition

In this Part:

"amending Act" means the Succession Amendment (Intestacy) Act 2009 .

13 Transitional provision--intestacy

(1) Chapter 4 (Intestacy) applies to the distribution of the intestate estate of a person who dies intestate on or after the commencement of this clause.
(2) The distribution of the intestate estate of a person who died intestate before the commencement of this clause is governed by the law of this State as in force at the date of death.

Part 5 - Provisions consequent on enactment of Justice Legislation Amendment Act (No 3) 2018

14 Definitions

In this Part:

"recognised divorce or annulment" means a divorce or annulment of a recognised same sex marriage, being a divorce or annulment:

(a) that occurred before 9 December 2017, and
(b) was recognised as valid in Australia on 9 December 2017 because of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth.

"recognised same sex marriage" means a marriage that:
(a) was solemnised before 9 December 2017, and
(b) was recognised as valid in Australia on 9 December 2017 because of Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth, and
(c) would not have been recognised apart from that Part.
Note : 9 December 2017 is the day on which Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth commenced.

15 Recognition of same sex marriages entered into before 9 December 2017

(1) Section 12 (1) extends to a recognised same sex marriage, subject to this clause.
(2) A will made by a testator before 9 December 2017 is taken to have been revoked under section 12 (1) by the marriage of the testator if:
(a) the marriage of the testator was solemnised after the will was made, and
(b) the marriage is a recognised same sex marriage.
(3) The will is taken to have been revoked on 9 December 2017, even if by that date the recognised same sex marriage had been annulled or had ended in divorce.
(4) However, section 12 (1) does not apply to a recognised same sex marriage of a testator if the testator died before 9 December 2017.
(5) A will made after the date on which a recognised same sex marriage was solemnised is not revoked under section 12 (1) because of the marriage, even if the marriage did not become a recognised same sex marriage until after the date the will was made.
(6) This clause is subject to the exceptions provided for in section 12.
(7) If a will was made before the commencement of this Act (1 March 2008) and the marriage was solemnised before that date, section 15 of the Probate and Administration Act 1898 (as in force immediately before that date) applies in relation to the will in the same way as section 12 of this Act applies under the modifications provided for by this clause.
Note : Accordingly, a same sex marriage that was solemnised before 9 December 2017 and that, from 9 December 2017, became recognised in Australia as valid is taken to have revoked a will that was made before the marriage was solemnised, unless the testator died before 9 December 2017.

16 Recognition of same sex divorces and annulments before 9 December 2017

(1) Section 13 (1) extends to a recognised divorce or annulment, subject to this clause.
(2) A disposition, appointment or grant in a will made before 9 December 2017 is taken to be revoked under section 13 (1) by the divorce of the testator or the annulment of the testator's marriage if:
(a) the divorce or annulment occurred after the will was made, and
(b) the divorce or annulment is a recognised divorce or annulment.
(3) The disposition, appointment or grant is taken to have been revoked on 9 December 2017.
(4) However, section 13 (1) does not apply to a recognised divorce or annulment if the testator died before 9 December 2017.
(5) If a will was made after the date on which a recognised divorce or annulment occurred, a disposition, appointment or grant made by the will is not revoked under section 13 (1), even if the divorce or annulment did not become a recognised divorce or annulment until after the date the will was made.
(6) This clause is subject to the exceptions provided for in section 13.
(7) If a will was made before the commencement of this Act (1 March 2008) and the divorce or annulment occurred before that date, section 15A of the Probate and Administration Act 1898 (as in force immediately before that date) applies in relation to the will in the same way as section 13 of this Act applies under the modifications provided for by this clause.
(8) In this clause:

"disposition, appointment or grant" means a disposition, appointment or grant referred to in section 13 (1) (a), (b) or (c) respectively.

17 Validation

Anything done or omitted to be done by a person on or after 9 December 2017 that would have been lawful if this Part had applied at the time concerned is taken to be (and to always have been) lawful.



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