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©State of Queensland
QUEENSLAND.
11
THE SUCCESSION ACTS,
1867 TO 1943
11(Compiled to 31st August, 1955)
Prepared by direction of
The
Hon. W. POWER, M.L.A., Attorney-General of Queensland.By Authority.: S. G. REID, Government Printer, Brisbane-*1973
TABU Of CONTENTS.
Page.
~· THE SuccESSION AcTs, 1867 TO 1943 " 1
"'THE SuccESSION AcT DECLARATORY Ac'i' OF 1884 " 26
"' THE SuccESSION AcT AMENDMENT AcT OF 1895 " 27
"THE SuccESSION AcT oF 1906" 28
"'THE SuccEsSION AcT oF 1906 DEcLARATORY AcT OF 1919" 29
" THE WILLS (SOLDIERS, SAILORS, AND MEMBERS OF THE
Am FORCE) ACT OF 1940 " 30
"THE SuccEsSION AcTs AMENDMENT .AcT oF 1942" 32
"THE SuccEssiON AcTs AND ANoTHER AcT AMENDMENT
AcT oF 1943" 33
81
THE SUCCESSION ACTS, 1867 TO 1943"
being
"The Succession Act of 1867" (31 V. No. 24) ;
"The Succession Act Declaratory Act of 1884" (48
V.No.
11);"The Succession Act Amendment Act of
1895" (59 V.No. 10);
" The Succession Act of 1906 "
(6 E. 7.No. 24) ;
" The Succession Act of 1906 Declaratory Act of 1919 " (10 G. 5, No. 6) ;
"The
Wills(Soldiers, Sailors, and Members of the Air Force) Act of 1940 " (4 G. 6, No. 4) ;
"The Succession Acts Amendment Act of
1942" (6 G. 6,No.
20) ;and
'' The Succession Acts and Another Act Amendment Act of 1943 "
(7 G. 6,
No.
28), Parts I.and n.
An
Act to Consolidate and Amend the Laws Relating to Dower
s1 Vic. No. 24 StJCCESSIONInheritance Succession
WillsPowers Uses and Remedies
ACT oF 1867.against Realty.
[ASSENTED TO 28TH DECEMBER, 1867.]
~BE it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of Queensland in Parliament assembled and by the authority of the same as follows : -
Interpretation.
1. That the words and expressions hereinafter mentioned which Meanin? of in their ordinary signification have a more confined or a different words m the meaning shall in this Act except where the nature of the provision Act.
or the context of the Act shall exclude such construction be inter- pi"eted as follows (that is to say)
the word "land" shall extend to messuages and all other" Land."
hereditaments whether corporeal or incorporeal and whether freehold or of any other tenure and whether descendible according to the common law or according to any other law or custom and to money to be laid out in the purchase of land and to chattels and other personal property transmissible to heirs and also to any share of the same hereditaments and properties or any of them and to any estate of inheritance or estate for any life or lives or other estate transmissible to heirs and to any possibility right or title of entry or action and any other interest capable of being inherited and whether the same estates possibilities rights titles and interests or any of them shall be in possession reversion remainder or contingency
'lf Preamble rep., 8 E. 7 No. 18, s. 2.
...
References to "Pring's Statutes" and to Colonial Acts were omitted from the marginal notes throughout this Act by 3 E. 7 No. 10, s. 10.
B
2
"The Purchaser."
"Descent."
"Descen- dants."
"Persons last entitled."
"Assurance."
7Wm. IV. &
1 Vic. c. 26 s. 1.
"Will."
"Real estate."
"Personal estate."
3 & 4 Wm.
IV. c. 105 s. 1.
~Verbally
corrected.
Seisin shall not be necessary to give title to dower.
3 & 4Wm.
IV. c. 105 s. 3.
Succession Acts.
and the words " the purchaser " shall mean the person who last acquired the land otherwise than by descent or than by any escheat partition or inclosure by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent and the word " descent " shall mean the title to inherit land by reason of consanguinity as well where the heir shall be an ancestor or collateral relation as where he shall be a child or other issue
and the expression " descendants " of any ancestor shall extend to all persons who must trace their descent through such ancestor
and the expression " the person last entitled to land " shall extend to the last person who had a right thereto whether he did or did not obtain the possession or the receipt of the rents and profits thereof
and the word " assurance " shall mean any deed or instrument (other than a will) by which any land shall be conveyed or transferred at law or in equity
and the word " will " shall extend to a testament and to a codicil and to an appointment by will or by writing in the nature of a will in exercise of a power and also to a disposition by will and testament or devise of the custody · and tuition of any child and to any other testamentary disposition
and the words " real estate " shall extend to messuages lands rents and hereditaments whether freehold or of anv other tenure and whether corporeal incorporeal ~r personal and to any undivided share thereof and to any estate right or interest (other than a chattel interest) therein
and the words " personal estate " shall extend to leasehold estates and other chattels real and also to moneys shares of Government and other funds securities for money (not being real estates) debts choses in action rights credits goods and all other property whatsoever which by law devolves upon the executor or administrator and to any share or interest therein
Provided that in the ~fourteen sections next hereupon follow- ing the word " land " shall not extend to such hereditaments as are not now liable to dower nor any land which by any Act heretofore passed may have been exempted from dower.
Right to Dower* or Provision.
2. When a husband shall have been entitled to a right of entry or action in any land and his widow would be entitled to dower out of the same if he had recovered possession thereof she shall be entitled to dower out of the same although her husband shall not have recovered possession thereof
Provided that such dower be sued for or obtained within the period during which such right of entry or action migh1fbe enforced.
• Estates and rights of dower or by the curtesy abolished, " The Intestacy Act of 1877," s.'~8.
Succession Acts. 3
3. When a husband shall die beneficially entitled to any land Wic;Iows to be
for an interest which shall not entitle his widow to dower out of the ~ntitled t~ f same at law and such intere~t whether wholly equitable or partly e~:_~~~: 0 legal and partly equitable shall be an estate of inheritance in posses-estates.
sion or equal to an estate of inheritance in possession (other than 3 & 4 Wm.
an estate in joint-tenancy) then his widow shall be entitled in equity IV2 c. 105
to dower out of the same land. 8" •
4. No gift or bequest made by any husband to or for the benefit Beques\ of
of his widow of or out of his personal es.tate or of or out of any of ~=:!~~
0
his land not liable to dower shall defeat or prejudice her right to widow shall
dower unless a contrary intention shall be declared by his will. not bar her dower.
3 &4Wm.
IV. c. 105 s. 10.
5. Provided always that nothing in this Act contained shall Agreement
prevent any court of equity from enforcing any covenant or agreement not to bar
entered into by or on the part of any husband not to bar the right of ~ow~ ma~
his widow to dower out of his lands or any of them. 3 e; 4
w!."
IV. c. 105 s. 11.
6. Nothing in this Act contained shall interfere with any rule Legacies in
of equity or of ecclesiastical law by which legacies bequeathed to
b:I
1 of ~~;v;fwidows in satisfaction of dower are entitled to priority over other :0
1 pr~~e~e:ce
legacies. 3 & 4 Wm.
Restrictions on the Right.
IV. c 105 s. 12.
'i. No widow shall hereafter be entitled to dower ad ecclesire or dower ex assensu patris.
ostium Certain dowers abolished.
3 &4Wm.
IV. c. 105 s. 13.
8. No claim to dower on the part of the widow of any deceased R~si~ence of
owner of land shall have any force at law or in equity against any w~e m the
person claiming by purchase from such owner for valuable :.~~fe~;e of
consideration unless it shall be proved that the claimant resided her existence
in Queensland with and as the wife of such deceased owner before at time o_f
his sale of the land or that the purchaser had notice before or at the sale reqwred.
time of sale of the fact of the deceased owner having been married to the claimant and in case the defendant resisting such claim shall derive title through the original purchaser from such deceased owner it shall not be sufficient to prove such knowledge on the part of the original purchaser without also showing that before the defendant purchased the land either the claimant had resided with her husband in the said colony or the defendant had become acquainted with the said fact of marriage.
9. The claim to dower out of any land by the widow of any Claim to
person who has or shall have alienated such land for valuable
t
0'!:dconsideration shall be limited to one-third of the estimated rent 1ml • for the time being of such land considered as if remaining in the state of improvement in which the same shall have been at the time of such alienation and shall not be recoverable by metes and bounds
4 Succession Acts.
but shall be assignable by a court of equity only with liberty never- theless to such court to direct the trial at law of any issue of fact on which the assessment of the claim shall depend.
No dower 10. No widow shall be entitled to dower out of any land which
·d~>~t of edstafte shall have been absolutely disposed of by her husband in his lifetime
1spose o . b h" will 3 & 4 Wm. or y IS • IV. c. 105
s. 4.
Dower may 11. A widow shall not be entitled to dower out of any land of bedbate~_by her husband when in the deed by which such land was conveyed to
~:~::.Ion him or by any deed executed by him it shall be declared that his
3 & 4 Wm. widow shall not be entitled to dower out of such land.
IV. c. 105 s. 6.
Or by a declaration in the husband's will.
3 &4Wm.
IV. c. 105 s. 7.
12. A widow shall not be entitled to dower out of any land of which her husband shall die wholly or partially intestate when by the will of her husband duly executed for the devise of freehold estates he shall declare his intention that she shall not be entitled to dower out of such land or out of any of his land.
Dower.shall 13. The right of a widow to dower shall be subject to any
be ts~bJ~ct to conditions restrictions or directions which shall be declared by the
res riCtiOns. ill f h h b d d l d .c • l
3 & 4 Wm. w o er us an u y execute as a~oresaw . IV. c. 105
s. 8.
Devise of real 14. Where a husband shall devise any land out of which his es~te t~ \~e widow would be entitled to dower if the same were not so devised :~r ~':rs a or any estate or interest therein to or for the benefit of his widow
dower. such widow shall not be entitled to dower out of or in any land of
3 & 4 Wm. her said husband unless a contrary intention shall be declared by IV. c. 105 his will.
8. 9.
Priority to partial estates charges and specialty debts.
3 &4Wm.
IV. c. 105 s. 5.
15. All partial estates and interests and all charges created by any disposition or will of a husband and all debts encumbrances contracts and engagements to which his land shall be subject or liable shall be valid and effectual as against the right of his widow to dower.
Descent to be traced from the Purchaser.
Descent shall 16. In every case descent shall be traced from the purchaser :~wa~s ke and to the intent that the pedigree may never be carried further
thS:e rom back than the circumstances of the case and the nature of the title
purchaser shall require the person last entitled to the land shall for the purposes
but the last of this Act be considered to have been the purchaser thereof unless
~wner ~all d it shall be proved that he inherited the same in which case the person t~ ~~n:~eere from whom he inherited the same shall be considered to have been
purchaser the purchaser unless it shall be proved that he inherited the same
unless the and in like manner the last person from whom the land shall be proved contrt~? be to have been inherited shall in every case be considered to have been
~r~v:
wm.
the purchaser unless it shall be proved that he inherited the same.IV. c. 106 s. 2.
Succession Acts.
l'i, When any land shall have been devised by any testator Heir entit~d
to the heir or to the person who shall be the heir of such testator ~~rt!'kwill such heir shall be considered to have acquired the land as a devisee ~evisee e,!_dO:
and not by descent and when any land shall have been limited by any limitation to
assurance to the person or to the heirs of the person who shall thereby the f?an~o:r
have conveyed the same land such person shall be considered to have 0~
tiS
he~acquired the same as a purchaser by virtue of such assurance and shall !n a es~~:: by not be considered to be entitled thereto as his former estate or part purchase.
thereo[ 3 & 4 Wm.
IV. c. 106 s. 3.
18. When any person shall have acq1ired any land by purchase Where heim
under a limitation to the heirs or to the heirs of the body of any of his take
:Y
ancestors contained in any assurance or under a limitation to the ~~rase heirs or to the heirs of the body of any of his ancestors or under any limitations
limitation having the same effect contained in a will of any testator to the. heil'!l
then and in any of such cases such land shall descend and the descent of th~r thereof shall be traced as if the ancestor named in such limitation :~e~d
had been the purchaser of such land. shall dee.cend
as if the ancestor had been the purchaser.
3 &4Wm.
IV. c. 106 Descent to be Lineally Traced. s. 4.
19. No brother or sister shall be considered to inherit immediately Brothers &c.
from his or her brother or sister but every descent from a brother or sdhall trtace
· escen
s1ster sha.ll be traced through the parent. through
their parent, 3 & 4Wm.
IV. c. 106 s. 5.
20. Every lineal ancestor shall be capable of being heir to any Lineal
of his issue and in every case where there shall be no issue of the ances~o~may
purchaser his nearest lineal ancestor shall be his heir in preference be hfie1r m h ld h b ' l d . h . 'h b preerence
to any person w o wou ave een ent1t e to m er1t mt er y to collater~
tracing his descent through such lineal ancestor or in consequence person
of there being no descendant of such lineal ancestor so that the father claiming ..
shall be preferred to a brother or sister and a more remote lineal ih~~g-~
7
hJID.ancestor to any of his issue other than a nearer lineal ancestor or his IV. c. 10
Z:'
issue. s. 6.
Maternal Ancestors.
21. None of the maternal ancestors of the person from whom The male
the descent is to be traced nor any of their descendants shall be line to be
capable of inheriting until all his paternal ancestors and their ~rte;.;-·
descendants shall have failed and also no female paternal ancestor IV. c. 10-:
of such person nor any of her descendants shall be capable of s. 7.
inheriting until all his male paternal ancestors and their descendants
shall have failed and no female ~maternal ancestor of such person~ Verbally nor of any of her descendants shall be capable of inheriting until con-ected.
all his male maternal ancestors and their descendants shall have failed.
The mother of more remote male
&ncestor to be preferred to the mother of the less remote male
&ncestor.
3&4Wm.
IV. c. 106 s. 8.
Succession Acts.
22. Where there shall be a failure of male paternal ancestors of the person from whom the descent is to be traced and their descendants the mother of his more remote male paternal ancestor or her descendants shall be the heir or heirs of such person in preference to the mother of a less remote male paternal ancestor or her descendants and where there shall be a failure of male maternal ancestors of such person and their descendants the mother of his more remote male maternal ancestor and her descendants shall be the heir or heirs of such person in preference to the mother of a
ess remote male maternal ancestor and her descendants.
The Half Blood.
Half blood if 23. Any '-person related to the person from whom the descent
~~ ::afeart is to be traced by the half blood shall be capable of being his heir ancestor to and the place in which any such relation by the half blood shall stand inherit after in the order of inheritance so as to be entitled to inherit shall be next the wh~e after any relation in the same degree of the whole blood and his issue
~~~o!!.e where the common ancestor shall be a male and next after the common degree if on ancestor where such common ancestor shall be a female so that the the part of brother of the half blood on the part of the father shall inherit next a female after the sisters of the whole blood on the part of the father and their
~=s~r issue and the brother of the half blood on the part of the mother shall
; &r4 w~. inherit next after the mother.
IV. c. 106 s. 9.
After the death of a person
"attainted his
descendants may inherit.
3 &4Wm.
IV. c. 106 .a. 10.
No escheat
<Jf property held upon trust or mortgage.
Act not to prevent escheat or forfeiture of beneficial interest.
1f
Verbally•orrected.
Escheat and Forfeiture.
24. When the person from whom the descent of any land is to be traced shall have had any relation who having been attainted shall have died before such descent shall have taken place then such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same by tracing his descent through such relation if he had not been attainted.
25. No lands stock or chose in action vested in any person upon any trust or by way of mortgage or any profits thereof shall escheat or be forfeited to Her Majesty by reason of the attainder or conviction for any offence of such trustee or mortgagee but shall remain in such trustee or mortgagee or survive to his or her co-trustee or descend or vest in his or her representative as if no such attainder or conviction had taken place.
26. Nothing contained in this Act shall prevent the escheat or forfeiture of any lands or personal estate vested in any such trustee or 'lfmortgagee so far as relates to any beneficial interest therein of any such trustee or mortgagee but such lands or personal est?'te so far as. relates to any such beneficial interest shall be receverable m the same ·manner as if this Act had not passed.
Succession Acts. '1
Failure of Heirs.
27. When there shall be a total failure of heirs of the purchaser Descent how or where any land shall be descendible as if an ancestor had been ~~ :
:;ac.;.d.
the purchaser thereof and there shall be a total failure of the heirs c. 35 s. 19.1c.
of such ancestor then and in every such case the land shall descend and the descent shall thenceforth be traced from the person last entitled to the land as if he had been the purchaser thereof.
Estates pur autre Vie.
28. If no disposition by will shall be made of any estate pur Estate~ pur autre vie of a freehold nature the same shall be chargeable in the hands autre me.
of the heir if it shall come to him by reason of special occupancy as
i
~r:_·c~·6
&assets by descent as in the case of freehold land in fee-simple and in s. 6.
case there shall be no special occupant of any estate pur autre vie See 54 whether freehold or of any other tenure and whether a corporeal or George incorporeal hereditament it shall go to the executor or administrator ill. c. 15 s. 4·
of the party that had the estate thereof by virtue of the grant and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this Act it shall be assets in his hands and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate.
Statute of Distributions.
*29. The Supreme Court and every person who by any Act is How and to enabled to make distribution of the surplusage of the estate of any whom the person dying intestatet shall distribute the whole surplusage of such ~urt~sage estate or estates in manner and form following (that is to say) one-third ~t~ib:ted.
part of the said surplusage to the wife of the intestatet and all the 22 & 23 Car.
residue by equal portions to and amongst the children of such persons 2 c. 10 .s. 5.
dying intestate and such persons as legally represent such children in O~e-t~d to case any of the said children be then dead other than such child or :,s~=
children (not being heir at law) who shall have any estate by the amongst the settlement of the intestate or shall be advanced by the intestate in children.
his lifetime by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made and in case any child other than the heir
at law who shall have any estate by settlement from the said intestate Advance- or shall be advanced by the said intestate in his lifetime by portion ment by
not equal to the share which will be due to the other children by such portion.
distribution as aforesaid then so much of the surplusage of the estate of such intestate to be distributed to such child or children as shall have any land by settlement from the intestate or were advanced in the lifetime of the intestate as shall make the estate of all the said children to be equal as near as can be estimated:
§Provided that where there is only one such child aforesaid of the person dying intestate, the surplusage of the estate, both real.- and personal, of such person shall be distributed in the manner and form following, that is to say, one-half part of the said surplusage to the
*Section 29 printed as amd. by s. 4 of the amending Act of 1943.
t As to the real and personal estate of ali intestate married woman, 866
"The SuccBBaion Act of 1906."
:J: But 8ee the Amendment Act of 1895.
§ Proviso ins. by s. 4 of the amending Act of 1943.
Heir at law t.o have an equal part.
Uno children then one moiety to wife and residue to next of kin.
22 & 23 Car.
2 C. 10 B. 6.
Succession Acts.
wife of the intestate, and· the other one-half part of the said surplusage to the child of the intestate, and in case such child be then dead, such other one-half part shall be distributed among the children of such deceased child in equal shares.
But the heir at law notwithstanding any land that he shall have by descent or otherwise from the intestate is to have an equal part in the distribution with the rest of the children without any consideration of the value of the land which he hath by descent· or otherwise from the intestate.
30. And in case there be no children nor any legal representatives of them then one moiety of the said estate to be allotted to the wife of the intestate* the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree and those who legally represent them.
31. Provided that there be no ry,Presentations admitted among collaterals after brothers' and sisters' children.
If no wife then to be distributed
amongst the And in case there be no wife then all the said estate to be children. distributed equally to and amongst the children and in case there
;2 '\g 3
~ar. be no child then to the next of. kindred in equal degree of or unto ... c. s. · the intestate and their legal representatives as aforesaid and in no FUrtherprovisions aa to distribution
m
intestacyin certain circum- stances.
Where father and mother survive intestate.
Where mother only survives intestate.
Where father only survives intestate.
other manner whatsoever.
t
t
31A. The real and personal estate of every p<irson who shall hereafter die intestate in the circumstances hereinafter specified shall be distributed in the manner following, that is to say-(a) Where the intestate dies leaving a father and also a mother, but no widow, or, as the case may be, no widower, and no lineal descendant, the whole surplusage of such estate shall be distributed in the manner and form following, that is to say, one-half part of the said surplusage to the father of the intestate, and one-half part of the said surplusage to the mother of the intestate ;
(b) Where the intestate dies leaving a mother but no father, and no widow, or, as the case may be, no widower, and no lineal descendant, the whole surplusage of such estate shall be so distributed that the whole surplusage of such estate shall go to the mother of the intestate, absolutely and exclusively ;
(c) Where the intestate dies leaving a father but no mother, and no widow, or, as the case may be, no widower, and no lineal descendant, the whole surplusage of such estate shall be so distributed that the whole surplusage of such·
estate shall go to the father of the intestate, absolutely and exclusively ;
*
But see the Amendment Act of 1895.t
As to share of intestate's mother, see " The Succession Act Declaratory Act of 1884."t Section 3IA ins. by s. 5 of the amending Act of 1943.
(d)
Succession Acts.
Where the intestate dies leaving a widow, or, as the case ~ere
may be, a widower, but no father and no mother and no w~~ow or children and no next-of-kin, the whole surplusage of such ;~;wer estate shall be so distributed that the whole thereof shall survives go to the widow, or, as the case may be, the widower, intestate.
absolutely and exclusively.
9
*
31B. (1.) If any person (hereinafter called "the intestate") ~ro~ion fox- dies or has died without leaving a will, the Court may, in its discretion, il~~Jt;mate on application by or on behalf of any child or children of the intestate fntest:y.born out of lawful wedlock (as hereinafter defined) order that such provision as the Courb thinks fit shall be made out of the estate of the intestate for the proper maintenance and support of any such child or children.
(2.) For the purposes of this section a distribution of the estate of the intestate concerned under· the laws in force relating to the distribution of the surplusage of the estate of a person dying intestate (herein collectively referred to as the " Statute of Distributions ") shall for the purposes of this section be and be deemed to be a distribution of the estate of such intestate as if such intestate had made such a distribution of his estate under a will duly executed by him.
(3.) For the purposes of this section the provisions of
t"
The Testator's Family Maintenance Acts, 1914 to 1943" shall, mutatis mutandis, apply and extend in respect of any such application as aforesaid and in :respect of the powers, authorities, and jurisdiction of the Court thereunder, subject to the following variations, that is to say--(i.) For the definition of" child of the testator" in subsection (lA) of section three of the said Act; the following definition shall be
substituted, namely : - '"·
"Child of the intestate "-The term includes-
A child of the intestate, born out of lawful wedlock (and not otherwise legitimised and not an adopted child as defined in paragraph (iii.) of the said subsection (1.A)),
and- ·
(a) Under the age of twenty-one years at the date of the death of the intestate; andjor
*Section 31B ins. by s. 6 (1) of the amending Act of 1943. Subsec. (2) of s. 6 of this amending Act reads as follows : -
" Operation of section.
(2.) The provisions of this section shall apply and extend in respect of the estate of an intestate person dying before, on, or after the passing of this Act, and where letters of administration or an order to administor is granted aftei' the passing of this Act or an election under " The Public Curator Acts, 1915 to 1942 '' is filed after the passing of this Act :
Provided that nothing in this section contained shall of itself invalidate or disturb the payment of any moneys belonging to the intestate estate of any deceased person or the distribution of the intestate estate of any such person made or partly made before the passing of this Act, such payment vr distribution being lawfully so made pursuant to any law in force prior to the passing of this Act."
i' 5 G. 5 No. 26 and amending Act.
'lO &tccession Acts.
(b) Of or over the age of twenty-one years at the date of the death of the intestate and being a person who, during the lifetime of the intestate, has helped to build up and/or conserve the estate of the intestate:
Provided that the Court before making an order in respect of such a child born out of lawful wedlock as referred to in this paragraph shall satisfy itself-
(i.) That the evidence submitted to it on behalf of such child is reasonably sufficient to establish that such child is the offspring of the intestate concerned ; and (ii.) That the evidence submitted to it that such child was acknowledged or recognised by the intestate concerned during his or her lifetime as being his or her offspring is reasonably sufficient.
(ii.) For subsection three of the said section three, the following subsection three shall be substituted, namely : -
"(3.) The incidence of the payment or payments ordered shall, unless the Court otherwise directs, fall rateably upon the whole estate of the intestate (other than upon the charge upon the estate to which the widow or, as the case may be, the widower (if any) of the intestate, is entitled under section two, or three or four of
*"
The Succession Act Amendment Act of 1895 " as amended byt"
The Succession Acts and Another Act Amendment Act of 1943," or under section two oft"
The Succession Act of 1906 " as amended by §" The SuccessionAct of 1906 Declaratory Act of 1919 " ani by
t"
The Succession Acts and Another Act Amendment Act of 1943 ") or, in cases where the authority of the Court does not extend or cannot directly or indirectly be m:ade to extend to the whole estate, then to so much thereof as is situated in Queensland."(iii.) For the word "testator's" in subsection four of the said section three, the word "intestate's" shall be substituted; also for the word " executor " in the said subsection four the word " adminis- trator " shall be substituted.
(iv.) For the words "any legatee or devisee " in subsection five of the said section three the words and brackets, namely," any person (other than the widow or widower of the intestate in respect of the charge upon the estate to which she or he is entitled under sect~on
two, or three or four of *" The .Succession Act Amendment Act of 1895" as amended by
t"
The Succession Acts and Another Act Amendment Act of 1943" or under section two oft"
The Succession Act of 1906 "as amended by §"The Succession Act of 1906 Declaratory Act of 1919" and byt"
The Succession Acts and Another Act Amend- ment Act of 1943 ") sharing in the surplus of the estate under the Statute of Distributions" shall be substituted.*
59 V. No. 10.t 7 G. 6 No. 28.
:j: 6 E. 7 No. 24.
§ 10 G. 5 No. 6.
Sttccession Acts.
(v.) For the word "executor" in subsection seven of the said rsection three the word "administrator" is substituted.
(vi.) For the words "grant in Queensland of probate of the will"
in subsection eight of the said section three, the words " grant in Queensland of letters of administration or of an order to administer or from the filing of an election under *"The Public Curator .Acts, 1915 to 1942" in the intestacy concerned" shall be substituted.
(vii.) In subsection one of section four for the words "under the will of the testator " the words " of the intestate " are substituted ; also for the words " part of the will " the words " part of the distri- bution in accordance with the Statute of Distributions " are substituted.
(viii.) Section five giving the power of the Court to make rules shall, mutatis mutandis, apply in respect of any application, order, or matters under this section :
Provided that until any such rules are made, the existing Rules of Court, including Rules of Court in respect of applications, orders and matters under
t"
The Testator's Family Maintenance .Acts, 1914 to 1943 " shall, mutatis mutandis, extend and apply to an application, order or matter under this section.11
(4.) Notwithstanding anything hereinbefore contained in this Power of
section or in any other Act or law or rule or practice or process of Public
law, where a person being a widow or widower or an unmarried person, ~ra~or to
dies or has died without leaving a will, and without leaving any lawful ?-istrib~te issue, but leaving a child or children born out of lawful wedlock (any :t'::~ not
such child being a " child of the intestate " as defined in paragraph (i.) exceeding of subsection three of this section) surviving her or him, then if the £200.
net value of the estate of such intestate does not exceed two ·hundred pounds the following provisions shall apply, namely:-
(i.) For the purpose of the Statute of Distributions any such
"child of the intestate" shall for the purpose of such Statute be and be deemed a lawful child of the intestate person;
(ii.) The Public Curator, upon being satisfied that any such child is a " child of the intestate " and upon being satisfied that the evidence submitted to him on behalf of any such child is reasonably sufficient to establish that such child is the offspring of the intestate concerned and also that the evidence submitted to him that such child was acknow- ledged or recognised by such intestate as being her or his offspring during her or his lifetime, is reasonably sufficient, shall have power, authority, and jurisdiction to distribute the estate of the intestate so that the whole surplusage of such estate shall go to such child, and if there may be more than one of such children, to distribute such whole surplusage equally between such children ;
(iii.) No grant of administration shall be made by the Court in respect of any such estate as aforesaid to any person other than the Public Curator.
* 6 G. 5 No. 14 and amending Acts.
t 5 G. 5 No. 26 and amending Act.
"Where mother only survives her illegitimate child dying intestate.
Application of Public Curator Acts, &c.
Succession Acts.
(5.) Notwithstanding anything hereinbefore contained in this section or in any other Act or law or rule or practice or process of law, where a child born out of lawful wedlock (and not otherwise legitimised and not an adopted child as defined in paragraph (iii.) of subsection (1A) of section three of*" The Testator's Family Maintenance Acts, 1914 to 1943 "), and being a widow or widower or an unmarried person dies or has died without leaving a wi.ll and without leaving any issue (whether born in or out of wedlock) but leaving her or his mother surviving her or him, the following provisions shall apply, namely:-
(i.) For the purposes of the Statute of Distributions such mother shall be and be deemed the lawful mother of such child dying intestate and to the same extent as if such child were her offspring born in lawful wedlock;
(ii.) The Public Curator upon being satisfied that the evidence submitted to him on behalf of such mother is reasonably sufficient to establish that such child dying intestate was the offspring of such mother shall have power, authority and jurisdiction to distribute the surplusage of such estate of such child dying intestate so that the whole surplusage of such estate shall go to the mother absolutely and exclusively ;
(iii.) No grant of administration shall be made by the Court in respect of any such estate as aforesaid to any person other than the Public Curator.
(6.) For the purposes of this section the Public Curator shall have and may exercise all or any of his powers, authorities, and jurisdiction under
t"
The Public Curator Acts, 1915 to 1943,"t"
The Intestacy Act of 1877 " (as amended by subsequent Acts),or under any other Act or Law or Rule of Court in relation to the allowance of claims andjor the distribution of estates in intestacy, which are, mutatis mutandis, applied herein accordingly.
No 32. Provided also to the end that a due regard be had to creditors
~istribution that no such distribution of the goods of any person dying intestate
till afte~ be made till after one year be fully expired after the intestate's death
~~el~~ Car. and that such and every one to whom any distribution and share shall
2 c. 10 s. 8. be allotted shall give bond with sufficient sureties in the Supreme
If debts afterwards appear then all to refund propor- tionally.
Court that if any debt or debts truly owing by the intestate shall be afterwards sued for and recovered or otherwise duly made to appear that then and in every such case he or she shall respectively refund and pay back to the administrator his or her rateable part of that debt or debts and of the costs of suit and charges of the administrator by reason of such debt out of the part and share so as aforesaid allotted to him or her thereby to enable the said administrator to pay and satisfy the said debt or debts so discovered after the distribution made as aforesaid.
*
5 G. 5 No. 26 and amending Act.t 6 G. 5 No. 14 and amending Acts.
~ 41 V. No. 24 and amending Acts.
Succession Acts.
13
33. Provided also that in all cases where the Supreme Court This Act hath used heretofore to grant administration cum testamento annexo shall not it shall continue so to do and the will of the deceased in such testament e=-?~ to expressed shall be performed and observed. :ion llllStra-
cum testamento annexo.
22 & 23 Car.
2 c. 10 s. 9.
34. When any person shall die having by his or her will or any Executors codicil or codicils thereto appointed any person or persons to be deemed to his or her executor or executors such executor or executors shall ~e trustees b d e eeme d b y courts o eqm y to e a trustee or trustees _or t e f 't b £ h >Or persons entitled to person or persons (if any) who would be· entitled to the estate under any residue the statute of distributions in respect of any residue not expressly under the disposed of unless it shall appear by the will or any codicil thereto sd~at~tbe o_f
h · d IStri utwns
t e person or persons so appomte executor or executors was or were unless intended to take such residue beneficially. otherwise
directed by will.
11 Geo. IV.
& 1 Wm.IV.
c. 40 s. I.
35. Provided that nothing in the section last preceding contained Not to affect shall affect or prejudice any right to which any executor if this Act rights of had not been passed would have been entitled in cases where there exhecutorhs
. h ldb ' l d h ' d weretere
IS not any person w o wou e ent1t e to t e testator s estate un er is no nerson the present or any statute of distributions in respect of any residue entitl~d to
not expressly disposed of. the residue.
11 Geo. IV.
&1 Wm.
IV.c.40
Wills. s. 2.
36. It shall be lawful for every person to devise bequeath or All property dispose of by his will executed in manner hereinafter required all ~ay be real estate and all personal estate which he shall be entitled to either d~s£ose~l at law or in equity at the time of his death and which if not so devised ~om~r7:ing bequeathed or disposed of would devolve upon the heir-at-law of freeholds him or if he became entitled by descent of his ancestor or upon his also such executor or administrator and also all estates pur autre vie whether of them as there shall or shall not be any special occupant thereof and whether ~':d~~is~d':' the same shall be freehold or of any other tenure and whether the
same shall be a corporeal or incorporeal hereditament and also all Estates pur
contingent executory or other future interests in any real or personal autre vie.
estate whether the testator may or may not be ascertained as the
person or one of the persons in whom the same respectively may Contingent become vested and whether he may be entitled thereto under the interests.
instrument by which the same respectively were created or under any disposition thereof by deed or will and also all rights of entry for
conditions broken and other rights of entry and also such of the same Rights of estates interests and rights respectively and other real and personal entry ~d estate as the testator may be entitled to at the time of his death ;~~~~e~
notwithstanding that he may become entitled to the same subsequently after
to ·the execution of his will. execution of
the will.
7Wm.IV.
& 1 Vic.
c. 26 s. 3.
14
No will of a. minor valid.
7Wm.IV.
& 1 Vic.
c.26s.7.
Nor of a femme covert except such as might now be made.
7Wm.IV.
& 1 Vic.
c. 26 s. 8.
Every will to be in writing and signed by the testator in the presence of two witnesses.
7Wm.IV.
& 1 Vic.
c. 26 s. 9.
When signature to a will shall be deemed valid.
15 & 16 Vic.
c. 24.
Succession Acts.
Competency of Testators.
37. No will made by any person under the age o:f twenty-one years shall be valid.
38. *Provided also that no will made by any married woman shall be valid except such a will as might have been made by a marriecl woman before the passing of this Act.
Execution and Attestation of Wills and Powers.t
39. No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned and required (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary.
40. Every such will shall so far only as regards the position of the signature of the testator or of the per,Son signing for him as afore- said be deemed to be valid if the signature shall be so placed at or after or following or under or beside or opposite to the end of the will that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will
and no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation or shall follow or be after or under the clause of attestation either with or without a blank space intervening or shall follow or be after or under or beside the names or one of the names of the subscribing witnesses or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature
and the enumeration of the above circumstances shall not restrict the generality of the above enactment but no signature under this Act
*As to wills of realty by a married woman, see "The Intestacy Act of 1877," s. 52. See now s. 3 of "The Married Women (Restraint upon Antici- pation) Act of 1952."-1 Eliz. II. No. 36.
t As to attestation clause being prima facie evidence of due execution of will, see " The Rules of the Supreme Court of 1900," Order LXXI. r. 13.
Succession Acts.
shall be operative to give effect to any disposition or direction which is underneath or which follows it nor shall it give effect to any disposition or direction inserted after the signature shall be made
15
41. The provisions of the section last preceding shall extend Act to and be applied to every will already made where administration or exte~d to ills
probate has not already been granted or ordered in consequence ~r:!:~ w
of the defective execution of such will or where the property being made.
other than personalty has not been possessed or enjoyed by some person claiming to be entitled thereto in consequence of the defective execution of such will or the right thereto shall not have been decided to be in some other person than the person claiming under the will in consequence of the defective execution of such will.
42. No appointment made by will in exercise of any power Appoint- shall be valid unless the same be executed in manner hereinbefore m~fts ~ required and every will executed in manner hereinbefore required :xec~~ede shall so far as respects the execution and attestation thereof be a like other valid execution of a power of appointment by will notwithstanding wills, &c.
it shall have been expressly required that a will made in exercise 7 Wm: IV.
of such power should be executed with some additional or other &
J
6V10io
form of execution or solemnity. c. s. ·
43. Provided always that any soldier being in actual military Soldiers' service or any mariner or seaman being at sea may dispose of his and.
1 h marmers'
persona estate as e might have done before the making of this Act. wills excepted.
7 Wm. IV.
& I Vic.c.26 s. ll.
44. This Act shall not prejudice or affect any of the provisions Act not to contained in an Act passed in the eleventh year of the reign of His affec~ . Majesty King George the Fourth and the first year of the reign of P~0
1
~1s~ns.His late Majesty King William the Fourth intituled "An Act to ~V. & 1 e~m.
Amend and Consolidate the Laws relating to the Pay of the Royal Navy"* IV. c. 20 respecting the wills of petty officers and seamen in the Royal Navy with_ respect and non-commissioned officers of marines and marines so far as relates to t~1ll~f to their wages pay prize money bounty money and allowances or ~ec. yo cera, other moneys payable in respect of services in Her Majesty's Navy. 7 Wm. IV.
Publication.
45. Every will executed in manner hereinbefore required be valid without any other publication thereof.
Competency of Attesting Witnesses.
& 1 Vic.
C. 26 B. 12.
shall Publication not to be requisite.
7Wm. IV.
& 1 Vic.
c. 26 B. 13.
46. If any person who shall attest the execution of a will shall Will not at the time of th,e execution thereof or at any time afterwards be yoid by incompetent to be admitted a witness to prove the execution thereof m~om- of such will shall not on that account be invalid. ~~t:~~~
- - - 7 Wm. IV.
*Repealed by" The Naval Discipline Act, 1866" (29 and 30 V. c. 109), & 1 Vic.
~a L~~~
16
Gifts to an attesting witness to be void.
7Wm.IV.
& 1 Vic.
c. 26 s. 15.
Creditor attesting to be admitted a witness.
7Wm.IV.
& 1 Vic.
c. 26 s. 16.
Executor to be admitted a witness.
7Wm. IV.
& 1 Vic.
c.26s.l7.
Will to be revoked by marriage.
7Wm.IV.
& 1 Vic.
c. 26 s. IS.
No will to be revoked by presump- tion.
7Wm.IV.
& 1 Vic.
c. 26 s. 19 •.
In what cases wills may be revoked.
7Wm.IV.
& 1 Vic.
c. 26 s. 20.
Succession Acts.
47. If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise legacy estate interest gift or appointment of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts) shall be thereby given or made such devise legacy estate interest gift or appointment shall so far only as concerns such person attesting the execution of such will or the wife or husband of such person or any person claiming under such person or wife or husband be utterly null and void and such person so attesting shall he admitted as a witness to prove the execution of such w~ll or to prove the validity or invalidity thereof notwithstanding such devise legacy estate interest gift or appointment mentioned in such will.
48. In case by any will any real or personal estate shall be charged with any debt or debts and any creditor or the wife or husband of any creditor whose debt is so charged shall attest the execution of such will such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will or to prove the validity or invalidity thereof.
49. No person shall on account of his being _an executor of a will be incompetent to be admitted a witness to prove the execution of such will or a witness to prove the validity or invalidity thereof.
Revocation and Alteration.
50. Every will made by a man or woman shall be revoked by his or her marriage except a will made in exercise. of a power of appointment when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir executor or administrator or the ·person entitled as his or her next of kin under any statute of distribution.
51. No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.
52. No will or codicil or any part thereof shall be revoked otherwise than as aforesaid or by another will or codicil executed in manner hereinbefore required or by some writing declaring an intention to revoke the same and executed in the manner in which a will is hereinbefore required to be executed or by the burning tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention Qf revoking the same.
No alteration 53. No obliteration interlineation or o~her alteration made in in a. will any will after the execution thereof shall be valid or have any effect shall have except- so far as the words or effect of the will before such alteration any effect
unless shall not be apparent unless such alteration shall be executed in executed like manner as hereinbefore is required for the execution of the will as a. will but the will with such alteration as part thereof shall be deemed to
