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Justice Legislation Amendment (Succession and Surrogacy) Act 2014 No. 80 of 2014 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENT OF ADMINISTRATION AND PROBATE ACT 1958—FAMILY PROVISION 3 3 Definitions 3 4 New section 90A inserted 6 90A Eligible person may apply for family provision order 6 5 Section 91 substituted and new section 91A inserted 6 91 Court may make family provision order 6 91A Factors to be considered in making family provision order 9 6 Contents of order 11 7 Adjustment of probate duty 12 8 Section 99 substituted 12 99 Time within which application may be made 12 9 Protection of personal representative against certain claims 13 PART 3—AMENDMENT OF ADMINISTRATION AND PROBATE ACT 1958—PAYMENT OF DEBTS 16 10 Definitions 16 1
Transcript

Justice Legislation Amendment (Succession and Surrogacy) Act 2014

No. 80 of 2014

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 2

PART 2—AMENDMENT OF ADMINISTRATION AND PROBATE ACT 1958—FAMILY PROVISION 3

3 Definitions 34 New section 90A inserted 6

90A Eligible person may apply for family provision order 65 Section 91 substituted and new section 91A inserted 6

91 Court may make family provision order 691A Factors to be considered in making family provision

order 96 Contents of order 117 Adjustment of probate duty 128 Section 99 substituted 12

99 Time within which application may be made 129 Protection of personal representative against certain claims 13

PART 3—AMENDMENT OF ADMINISTRATION AND PROBATE ACT 1958—PAYMENT OF DEBTS 16

10 Definitions 1611 Section 39 substituted and new sections 39A and 39B inserted 17

39 Insolvent estates—payment of debts 1739A Solvent estates—payment of debts 1939B Solvent estates—pecuniary legacies 20

12 Charges on property of deceased to be paid primarily out of property charged 21

13 Second Schedule repealed 21

1

PART 4—AMENDMENT OF ADMINISTRATION AND PROBATE ACT 1958—MISCELLANEOUS AMENDMENTS 22

14 Definitions 2215 New sections 31A to 31D inserted 22

31A Protection of payments or transfers of property without requiring the production of a grant of representation 22

31B Threshold amount 2331C Liability of person fraudulently obtaining or retaining

estate of deceased 2531D Persons liable for the waste or conversion of a deceased's

estate 2616 Payment or transfer by employer of moneys etc. held on account

of deceased employee 2617 Liability of person fraudulently obtaining or retaining estate of

deceased 2618 Aid of registrar or clerk in procuring a grant of probate 2619 Heading to section 72 inserted 2920 Registrar may require proof of identity 2921 Satisfaction as to value 2922 Applicants residing within 32 kilometres from Melbourne 2923 Registrar of probates may require further materials 3024 Registrar of probates need not proceed in difficult cases 3025 Administration of small estates 3026 New sections 101 to 105 inserted 31

101 Transitional provision—family provision—Justice Legislation Amendment (Succession and Surrogacy) Act 2014 31

102 Transitional provision—payment of debts—Justice Legislation Amendment (Succession and Surrogacy) Act 2014 32

103 Transitional provision—small estates—Justice Legislation Amendment (Succession and Surrogacy) Act 2014 32

104 Power to resolve transitional difficulties in proceeding—Justice Legislation Amendment (Succession and Surrogacy) Act 2014 33

105 Regulations dealing with transitional matters—Justice Legislation Amendment (Succession and Surrogacy) Act 2014 34

PART 5—AMENDMENT OF WILLS ACT 1997 36

27 Wills for persons who do not have testamentary capacity authorised by the Court 36

28 New sections 21A to 21D inserted 3621A Information which the Court may require in support of

an application under section 21 3621B Matters of which the Court must be satisfied before

making an order under section 21 3821C Persons entitled to appear 3821D Court may order separate representation of person

lacking testamentary capacity 3929 Hearing an application for an order 3930 Sections 23, 26, 27, 28 and 29 repealed 3931 New sections 53, 54 and 55 inserted 40

53 Transitional provision—Court authorised wills—Justice Legislation Amendment (Succession and Surrogacy) Act 2014 40

54 Power to resolve transitional difficulties in proceeding—Justice Legislation Amendment (Succession and Surrogacy) Act 2014 40

55 Regulations dealing with transitional matters—Justice Legislation Amendment (Succession and Surrogacy) Act 2014 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 Interpretation 4333 Surrogacy arrangements—presumption as to status of child 44

19 Surrogacy arrangements—presumption as to status of child 44

34 New section 22A inserted 4422A Registrar of Births, Deaths and Marriages must notify

Australian State or Territory registering authority of orders 44

35 New Division 2A of Part IV inserted 45

Division 2A—Registration orders 45

29A What is a registration order? 4529B Application for a registration order 4529C Applicant must give notice of hearing 4629D Secretary of the Department of Justice has standing to

appear at hearing 4629E Court may make registration order 46

29F Circumstances in which consent to registration order not required 48

29G Application to revoke registration order 5029H Court may revoke registration order 5029I Notification of discharged corresponding surrogacy

parentage order 5236 Heading to Subdivision 3 of Division 2 substituted 5237 Appeals 5338 Section 31 substituted 53

31 Registrar of Births, Deaths and Marriages to receive copy of orders 53

39 Access to court records 5340 Transitional—application of Part IV 5341 New Part VIII inserted 54

PART VIII—TRANSITIONAL PROVISIONS—JUSTICE LEGISLATION AMENDMENT (SUCCESSION AND SURROGACY) ACT 2014 54

48 Registration orders—application to surrogacy arrangements before commencement of Part 54

Division 2—Amendment of Births, Deaths and Marriages Registration Act 1996 55

42 Heading to section 19A amended 5543 New section 19B inserted 55

19B Surrogate birth registration—corresponding surrogacy parentage orders 55

PART 7—MINOR AND CONSEQUENTIAL AMENDMENTS TO OTHER ACTS 57

Division 1—Amendment of Status of Children Act 1974 57

44 Protection of executors, administrators and trustees 5745 Recognition of paternity 57

Division 2—Amendment of Trustee Companies Act 1984 57

46 Election by trustee company to administer estate 5747 Statute law revision 57

Division 3—Amendment of Wills Act 1997 58

48 Information which the Court may require in support of an application for leave 58

49 Can a will be rectified? 5850 Beneficiaries must survive testator by 30 days 58

PART 8—REPEAL 59

51 Repeal of amending Act 59═══════════════

ENDNOTES 60

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

Victoria

1

(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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PART 2—AMENDMENT OF ADMINISTRATION AND PROBATE ACT 1958—FAMILY PROVISION

3 Definitionss. 3

See:Act No.6191.Reprint No. 11as at6/5/2010and amendingAct Nos17/2010 and 31/2013.LawToday:www.legislation.vic.gov.au

(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;

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(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;

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—

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(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—

(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

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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 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

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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

(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.

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(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

(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

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(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.

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;

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(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—

(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;

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(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.".

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

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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.".

(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—

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"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, 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".

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(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".

(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

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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 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.".

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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; andExample

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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(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;

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(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

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 ×

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

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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—

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(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.

(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.

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(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 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

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person who is entitled to probate of the will or to letters of administration of the deceased's estate may apply for aid, in 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 ×

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

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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.

(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

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(b) if the amount of the variation is $1000 or more, it must be rounded to the nearest whole $10.

(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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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.

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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.

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(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.".

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PART 5—AMENDMENT OF WILLS ACT 1997

27 Wills for persons who do not have testamentary capacity authorised by the Court

s. 27See:Act No.88/1997.Reprint No. 2as at19/04/2013.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

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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;

(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

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reasonably be expected to give or make by will;

(l) any other evidence available to the applicant and which is relevant to the application.

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;

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(d) any guardian or administrator of the person within the meaning of the Guardianship and Administration Act 1986;

(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

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Sections 23, 26, 27, 28 and 29 of the Wills Act 1997 are repealed.

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

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Rights and Responsibilities Act 2006).

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

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(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.".

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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 Interpretations. 32

See:Act No.8602.Reprint No. 3as at1 May 2013.LawToday:www.legislation.vic.gov.au

(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—

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(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 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—

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"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—

(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—

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(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.

(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.

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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

(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

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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—

(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

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(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.

(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.

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(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 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

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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 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

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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 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 Attorney-General 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

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For the heading to Subdivision 3 of Division 2 of Part IV of the Status of Children Act 1974 substitute—

"Division 2B—Appeals".

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

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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.".

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

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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

(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

s. 42

See:Act No.43/1996.Reprint No. 3as at21 July 2011andamendingAct Nos68/2013 and 44/2014.LawToday:www.legislation.vic.gov.au

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corresponding surrogacy parentage order the Registrar must—

(a) register the surrogacy by entering the prescribed particulars in the Surrogate Birth Register; and

(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.'.

__________________

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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".

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.

See:Act No.8602.Reprint No. 3as at1 May 2013.LawToday:www.legislation.vic.gov.au

s. 44

See:Act No.10168.Reprint No. 5as at20/05/2009and amendingAct Nos68/2009 and 17/2010.LawToday:www.legislation.vic.gov.au

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Division 3—Amendment of Wills Act 1997

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".

__________________

See:Act No.88/1997.Reprint No. 2as at19/04/2013.LawToday:www.legislation.vic.gov.au

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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).

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ENDNOTES

Endnotes

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† 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."


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