70Partial intestacies

70 Partial intestacies (1) Where a beneficial interest in the real or personal property (other than personal chattels) of an intestate is acquired under a will of the intestate by a spouse or de facto partner of the intestate who, but for this section, would be entitled to an interest in the intestate's intestate estate by virtue of Schedule 6, then: (a) the person or persons entitled to take an interest in the intestate estate; and (b) the interest in that estate which that person or those persons is or are entitled to take, shall be ascertained by reference to this section, with Schedule 6 applying only to the extent that this section so provides. (2) Where the intestate is not survived by issue or a parent, a brother or sister or the issue of a brother or sister – the spouse or de facto partner is entitled to the whole of the intestate estate. (3) Where the intestate is survived by issue: (a) if the value of the beneficial interest that is acquired by the spouse or de facto partner under the will does not exceed the amount prescribed for the purposes of item 2 in Part I of Schedule 6 – that item (including that item as applied by Part II or III of Schedule 6) has effect as if references in it to the prescribed amount or the prescribed sum were references to the prescribed amount or the prescribed sum, as the case may be, reduced by the value of that beneficial interest; or (b) if the value of the beneficial interest that is acquired by the spouse or de facto partner under the will exceeds the amount prescribed for the purposes of item 3 in Part I of Schedule 6: (i) the spouse or de facto partner is entitled to be paid out of the intestate estate a sum equal to, if one child or the issue of one child of the intestate but no other issue of the intestate survives the intestate, one-half of the value of the intestate estate or, in any other case, one-third of the value of the intestate estate; and (ii) the issue of the intestate are entitled to the balance of the intestate estate after payment to the spouse or de facto partner of the sum to which the spouse or de facto partner is entitled under subparagraph (i). Administration and Probate Act 1969 28 (4) Where the intestate is not survived by issue but is survived by a parent, a brother or sister or the issue of a brother or sister: (a) if the value of the beneficial interest that is acquired by the spouse or de facto partner under the will does not exceed the amount prescribed for the purposes of item 3 in Part I of Schedule 6 – that item (including that item as applied by Part II or III of Schedule 6) has effect as if references in it to the prescribed amount or the prescribed sum were references to the prescribed amount or the prescribed sum, as the case may be, reduced by the value of that beneficial interest; or (b) if the value of the beneficial interest that is acquired by the spouse or de facto partner under the will exceeds the amount prescribed for the purposes of item 3 in Part I of Schedule 6: (i) the spouse or de facto partner is entitled to be paid out of the intestate estate a sum equal to one-half of the value of the intestate estate; (ii) if the intestate is survived by one or both of his or her parents (whether or not the intestate is also survived by a brother or sister or the issue of a brother or sister) – the surviving parent is entitled, or the parents are entitled in equal shares, as the case may be, to the balance of the intestate estate after payment to the spouse or de facto partner of the sum to which the spouse or de facto partner is entitled under subparagraph (i); and (iii) if the intestate is not survived by a parent – the brothers and sisters of the intestate who survive the intestate, and the issue who survive the intestate of a brother or sister of the intestate who died before the intestate, are entitled to the balance of the intestate estate, after payment to the spouse or de facto partner of the sum to which the spouse or de facto partner is entitled under subparagraph (i), in the shares in which he, she or they would have been entitled to the intestate estate if the intestate had not been survived by his or her spouse or de facto partner. (5) Section 66(3) applies for the purposes of subsections (3) and (4) in like manner as it applies for the purposes of Schedule 6. (6) Where a child of an intestate who is entitled to take an interest in his or her intestate estate also acquires an interest under the will of the intestate in the real or personal property of the intestate, the interest to which the child is entitled under the will shall be brought into account, at a valuation, as at the date of death of the intestate, Administration and Probate Act 1969 29 in accordance with the requirements of the personal representative of the intestate, in calculating the interest that the child is entitled to take under this Division in the intestate estate. (7) For the purposes of this section, a beneficial interest in real or personal property acquired by virtue of the exercise, by will, of a general power of appointment, shall be taken to be an interest acquired under that will.