In Raad v Gedeon  ACTSC 337 the ACT Supreme Court considered whether a surviving spouse who elects to appropriate the dwelling house towards their interest in an intestate estate, must account to the estate for the value of the house which exceeds their statutory entitlement. The decision overturned the earlier ruling in the case of Rosa Manna v Damiano Manna and Peter Manna  ACTSC 10 (‘Manna’), to bring the ACT into line with other jurisdictions across Australia.
The Court held that the preferable application of section 49G of the Administration and Probate Act 1929 (ACT) (‘the Act’) permits a surviving spouse to appropriate the dwelling house, but only to the extent of their interest under the Act , having regard to the requirements of section 46 of the Trustee Act 1925 (ACT) to preserve the respective interests of other persons entitled to a share of an intestate’s estate.
The earlier decision in Manna, entitled the spouse to appropriate the dwelling house irrespective of the spouse’s interest in the estate on intestate distribution, and without requiring them to account for any difference in value.
The Manna decision drew from the now-repealed section 61D of the Wills, Probate and Administration Act 1898 (NSW) which expressly authorised appropriation where the value of the dwelling house exceeded the spouse’s entitlement. No such provision exists in the ACT. In the context of the Territory Act, the court found that a construction of section 49G to limit an appropriation to the extent of the spouse’s interest specified in the Act, was consistent with the overall purpose of the legislation.
How Can We Help?
As solicitors for the successful applicants, Snedden Hall & Gallop have an intimate understanding of this development in the law. If you need assistance in any aspect of a deceased estate, please contact our Wills & Estates team on 02 6285 8000 or via email.