20Basis of election

20 Basis of election

(1)  The price for which a spouse may elect to acquire property from the intestate estate (the "exercise price") is the market value of the property as at the date of the intestate's death.

(2)  If, however, the spouse and the holder of a mortgage, charge or encumbrance over property that the spouse has elected to acquire agree to the assumption by the spouse of the liability secured by the mortgage, charge or encumbrance, the exercise price is to be reduced by the amount of the liability (as at the date of transfer) secured by the mortgage, charge or encumbrance, but –

(a) the spouse takes the property subject to the mortgage, charge or encumbrance; and

(b) on the transfer of the property, the liability passes to the spouse and the estate is exonerated from it.

(3)  The personal representative of an intestate must obtain a valuation from a land valuer of real property forming part of the intestate estate if –

(a) a spouse elects to acquire the real property; or

(b) a spouse asks the personal representative to obtain a valuation to enable the spouse to decide whether to elect to acquire it.

(4)  The personal representative must give a copy of the valuation to the spouse and to the other beneficiaries entitled to share in the intestate estate.

(5)  The requirement for a personal representative to obtain a valuation under subsection (3) may be waived with the consent of all the beneficiaries entitled to share in the intestate estate.