What it does
The Succession Act 2006 (NSW) provides a comprehensive statutory framework for testamentary succession in New South Wales. At its core, it regulates the creation, alteration, revocation, and revival of wills (Part 2), the construction and interpretation of wills (Part 2.3), the recognition of wills made under foreign law or as international wills (Parts 2.4 and 2.4A), and the deposit and inspection of wills (Part 2.5). Chapter 3 establishes a modern family provision regime, enabling eligible persons to apply for orders adjusting the distribution of a deceased person's estate or notional estate where inadequate provision has been made for their maintenance, education, or advancement in life (ss 57–73). This regime replaced the former Family Provision Act 1982 and introduced the concept of notional estate orders (Part 3.3, ss 74–90) to capture assets disposed of by the deceased in relevant property transactions (ss 75–76) that disadvantaged potential claimants.
Chapter 4 codifies intestacy rules, determining distribution where a person dies without a will or with a will that does not fully dispose of the estate (s 102). It prioritises spouses (with a statutory legacy under s 106, adjusted by CPI and including interest if unpaid after 12 months), issue, parents, siblings, and more remote relatives (ss 110–131), while providing mechanisms for multiple spouses (ss 122–126) and Indigenous persons whose estates may be distributed according to community laws, customs, traditions, and practices via court order (ss 133–135). The Act binds the Crown (s 56) and includes miscellaneous provisions on costs, mediation, evidence, and procedural matters (ss 98–100, 141–143).
The legislation operates by defining key concepts in s 3, such as "eligible person" (cross-referenced to s 57), "family provision order" (s 3), "notional estate order" (s 3), and "intestate" (s 102). It sets minimum ages and execution requirements (ss 5–6), dispenses with formalities where testamentary intention is clear (s 8), and provides for court-authorised wills for minors (s 16) or those lacking testamentary capacity (s 18). Construction rules presume dispositions pass the whole interest (s 38), require beneficiaries to survive by 30 days (s 35), and admit extrinsic evidence in limited cases of ambiguity (s 32). For intestacy, it imposes a 30-day survivorship rule (s 107), treats adopted children as biological (s 109), and allows the State to claim where no relatives survive (s 136), subject to discretionary waivers (s 137).
