Australia Intestate Succession System Research

The intestate succession system is an important inheritance system,and the intestate succession to the formation of the system is earlier than the wills inheritance system.Although the wills inheritance system has a great development in the modern society,civil law countries and common law countries have attached great importance to intestate succession system,and both of them continue to improve its legislation.In China,people are rather accustomed to the intestate succession than to the wills inheritance,and the intestate succession system still hold a dominant position.But the current intestate succession system in China is not suitable for current society and has shown many defects.At present,the academic community has been reached to amend the existing intestate succession system,and there have been some proposals.However,the majority of scholars studying the relevant provisions of German,France,Switzerland,Japan,England and the United States,only a few scholars study the intestate succession system of Australia.Australian intestate succession system bases on the British law,but after 200 years, particularly after the establishment of the Federation in the development of more than 100 years,the British intestate succession system has been gradually localization,and formed a number of suitable Australia conditions unique system.It is a high learning and reference value to improve our intestate succession system.This article bases on the intestate succession system of the Australian states and territories,from the legislative background, development and the major content of Australian intestate succession system, to has a more comprehensive and systematic study of Australian intestate succession system.At the same time,with the analysis of the pros an cons of Australian intestate succession system,combine with the reality of Chinese national conditions,the article will explore the shortcomings of the existing system,and try to give some legislative proposals to improve Chinese intestate succession system.This article has four parts except the foreword and has about 50000 words.The main issues this article discusses are: Part one:the history of Australian intestate succession system.This section mainly from the legislative background and the development to explore the basic situation of the Australian intestate succession system.The intestate succession system Australia is based on British law,but Australia continues to improve its intestate succession system in development and has formed its own characteristics intestate succession system.The main features include:Australia has gotten rid of the unreasonable legislation of British law; the states and territories have become relatively mature intestate succession system;great respect for the local customary law and has its own characteristics in some specific system.Part two:the main content of Australian intestate succession system.This part introduces present Australian intestate succession system from the aspects of the range of successors,the order of successors,the statutory share, subrogation succession and the special rules of the distribution of intestate estates.About the range and order of successors.In Australian Capital Territory, South Australia and Northern Territory of Australia,the range and order of genetic heirs are:the first order are issues;the second order are parents;the third order are the brothers and sisters and the issues of any brothers or sisters of an intestate who predecease the intestate;the fourth order are the grandparents;the fifth order are the brothers and sisters of a parent of the intestate and the issues of any brothers or sisters of a parent of an intestate who predecease the intestate;the sixth order is government.The range and order of genetic heirs of other areas are the same as the above-mentioned areas.But in New South Wales,the third order are the brothers and sisters of the whole blood of the intestate;the fourth order are the brothers and sisters of the half blood of the intestate;the fifth order are the brothers and sisters of the whole blood of a parent of the intestate;the sixth order are the brothers and sisters of the half blood of a parent of the intestate.In Tasmania,the third order are the brothers and sisters;the fifth order are the brothers and sisters of a parent of the intestate.In Queensland and Western Australian,the third order are the brothers and sisters and the children of any brothers or sisters of an intestate who predecease the intestate;the fifth order are the brothers and sisters of a parent of the intestate and the children of any brothers or sisters of a parent of an intestate who predecease the intestate.The spouse has no fixed order of succession,and he or she can join succession with the called genetic heirs.And all regions,the de facto spouse has the inheritance right.About the statutory share.The statutory share of the spouse dues to the order of the genetic heirs who will inherit with her or him,and it is fixed in a certain sequence.Besides the spouse has the right to a certain share of the intestate estate firstly.The statutory share of genetic heirs should be shared in the co-inheritors.When there are not genetic heirs and spouse,the government in entitled to the estate.About the subrogation succession.In most of the state and territories, when the children of the intestate,the brothers or sisters of an intestate,and the brothers or sisters of a parent of an intestate who predecease the intestate, then the issue(or children in Queensland and Western Australian) of the children,the issue of the brothers or sisters and the issue(or children in Queensland and Western Australian) of the brothers or sisters of a parent of an intestate will be the representatives.About the special distribution rules.Firstly,in the most of the state and territories except Queensland and Tasmania,the surviving spouse shall be entitled the household chattels.Secondly,in New South Wales,Queensland, Australian Capital Territory,South Australia and North Territory,the surviving spouse has priority in obtaining the right to the matrimonial home.Thirdly,in South Australia,Victoria,Tasmania and North Territory there are the heritage naturalization deduction system.Part three:the analysis to the Australian intestate succession.The characteristics of the scope of the intestate heirs system are:firstly, the scope of genetic heirs are broad;secondly,the de facto spouse has the inheritance rights.The characteristics of the order of the intestate heirs system are:firstly, spouse has no fixed order of succession;secondly,the order of genetic heirs takes the combined relatives grading and the relatives in the system of the legislative.The characteristics of the statutory share are:firstly,the distinction between spouse and genetic heirs;secondly,attaching great importance to the inheritance rights of the spouse,and the spouse has the right to take a certain share of the intestate estate firstly.The characteristics of the subrogation succession are:firstly,the reason is single;secondly,the scope of people who were subrogation are broad;thirdly, the share of the subrogation successor takes the "by branch distribution" and "by-sharing distribution".The characteristics of the special distribution rules are:firstly,protecting the stability of the life of the survival spouse;secondly,safeguarding the fairness of the distribution in the common heritage.Part four:the enlightenment of Australian intestate succession system to China.At present,the deficiencies of China' current intestate succession system exist:the range of successors is unscientfic;the order of successors is unreasonable;the statutory share is too simple;the conditions of the subrogation succession is too strict and the special distribution rules have some defects.So this article give some legislative proposals.Firstly,re-establishing the scope and the order of the legal successors. The spouse has no fixed order of succession,and the order of the genetic heirs is:children and their immediate belcher genetically;parents;brothers and sisters and the children of any brothers or sisters of an intestate who predecease the intestate;grandparents.Secondly,refining the statutory share system.The genetic heirs of the same order should be take the same shares,except the there are the opposite provisions and the common agreement.Spouse can join succession with the genetic heirs of the first to fourth,and the spouse can take the fixed the statutory share.When there are not the genetic heirs,the spouse can take the whole estate.Thirdly,perfecting the special distribution rules.The subrogation right of succession is the "solid right";the scope of people who were subrogation should be broad and the share of the subrogation successor takes the "by branch distribution" and "by-sharing distribution".Fourthly perfecting the special distribution rules.The surviving spouse has the privileges to take the shared house and the daily necessities.If the parent or parents can not take the inheritance,the parent or parents have the privileges to have life-long tenure the house that for personal daily use and other items.Setting up the heritage natutalization deduction system in order to achieve equitable distribution on intestacy.About the discretion of the legacy system.The system will applies to the widowed daughter-in-law and widowed the son-in-law who make a major maintenance obligations to the parents-in-law can apply.And it also applies to the step-parents,the step-children,the step-brothers and the step-sisters who have the dependency relationship.