Are you an executor or administrator of an estate? If a firearm is part of that estate, you need to know how to dispose of it legally and safely. And, with an estimated one gun for every 20 people living in Canberra (The Canberra Times, 29 July 2017), this situation is quite common. In this article, Gillian Hunter outlines some of the issues you need to be aware of if you find yourself in this situation.
What rules apply to the disposal of firearms?
There are specific rules about the disposal of firearms from an estate. Unlike a piece of furniture, a firearm can’t simply be distributed to a beneficiary or sold from an estate.
For the purpose of this article, ‘dispose’ means to sell, give or otherwise transfer possession of a firearm.
Section 6 of the Firearms Act 1996 (ACT) defines ‘firearm’ as:
‘A gun, or other weapon, that is, or at any time was, capable of propelling a projectile by means of an explosive force, however caused [and includes] —
(i) a blank fire firearm; and (ii) an airgun; and (iii) a paintball marker; and (iv) something declared to be a firearm under section 31; and (v) a modified item; and (vi) a firearm frame or firearm receiver that does not form part of a firearm.’
Ordinarily, a person isn’t authorised to possess or use a firearm, unless:
- they hold a licence to possess or use that particular kind of firearm, and
- that particular firearm is registered to them.
It’s important to note, however, that you must follow the legislative requirements of the relevant jurisdiction.
What should you do if you are an executor or administrator of an estate that includes firearms?
The Firearms Act 1996 (ACT) includes provisions that allow the executor or administrator of a deceased estate to possess firearms registered to the deceased — without a licence or permit — but only for the purpose of lawfully disposing of them.
The executor or administrator must notify the Firearms Registry that the licensed person who possessed the firearms has died. And they must do this as soon as they can after that person has died. The Firearms Registry will help the executor/administrator to follow the correct process to dispose of the firearm.
In the context of administering an estate in the ACT, ‘lawful disposal’ means that the executor or administrator must do one of the following:
- surrender the firearm as soon as possible to the police or ACT Firearms Registry (if the firearm is unregistered, this is the only option available)
- arrange, through a licensed firearms dealer, to sell the firearm on behalf of the estate
- arrange for a licensed firearms dealer to store the firearm while the beneficiary obtains a firearms licence of the same category as the deceased person’s firearms licence.
Importantly, the executor or administrator mustn’t:
- use the firearm or store the firearm at their own premises
- attempt to sell or otherwise dispose of the firearm privately.
What is the penalty for unlawful disposal of a firearm?
The maximum penalty for unlawful disposal of a firearm is as follows:
(a) if the firearm is a prohibited firearm—imprisonment for 10 years; or (b) in any other case—imprisonment for 5 years. (Section 226, Firearms Act 1996.)
If you are an executor or administrator, you need to take special care with firearms. We recommend that if you don’t know how to disposal of firearms as part of the administration of the estate, you should familiarise yourself with the laws and regulations. You can do this by contacting the local firearms registry before taking possession of the firearm, or taking any action, whatsoever, in respect of the firearm.
It’s also important to be aware that each Australian state and territory has different laws and regulations for the storage and transportation of firearms and ammunition.
How can we help?
If you own a firearm, you should advise your executor, through the terms of your will, how they can lawfully dispose of the firearm from your estate.
You can contact our Wills & Estates team on 02 6285 8000 or by email to make an appointment.