The Secretary to the Department of the Treasury has referred for advice the following memorandum received by him from the Chairman of the Central War Gratuity Board:

A case has arisen in South Australia where a deceased unmarried soldier, without children, left no will, and the mother is claiming the war gratuity in respect of his services.

The Chairman of the District Board in South Australia advises that under the Intestate Estates Act the father, who is still alive, is the only possible claimant, but he has not submitted a claim.

It is recommended that the facts as above be submitted to the Attorney-General's Department and an opinion asked for as to whether we can legally pay the gratuity to the mother under section 9, sub-section (1).

Sub-section (1) of section 9 of the War Gratuity Acts 1920 provides as follows:

9(1) Where a person to whom a war gratuity would have been payable has died before payment of the gratuity (whether before or after the passing of this Act) the gratuity shall not form part of the estate of the deceased, and shall not be claimable by the executor or administrator of the estate, but may be paid to such one or more of the following persons, and in such proportions, as the regulations prescribe or the prescribed authority approves, namely:-

any person who-

1. is beneficially entitled under the will of the deceased to any part of his estate; or
2. is, or would, if the deceased had died intestate, have been, entitled to a share in the distribution of his intestate estate,

and who is either the widow, or a child, parent, step-parent, foster-parent, or dependant, of the deceased.

In the case under consideration, the deceased has died intestate and, presuming
that the law of South Australia applies, the only person who is entitled to a share in the distribution of his intestate estate is his father.

In South Australia the common law apparently applies to the distribution of the estate of a person dying intestate, without wife or child, and leaving a father. Under the common law, in such a case, the father is entitled as the next of kin, in the first degree, to the whole of the personal estate of the intestate, exclusive of all others (Williams on Executors and Administrators, 10th edn, Vol. II, p. 1249).

In my opinion, therefore, there is no power, under sub-section (1) of section 9, to pay the war gratuity to the mother.

[Vol. 17, p. 4]