LSB July 2018_Web

WILLS & ESTATES
A Review of Family Provision Laws in
South Australia: Distinguishing between
the Deserving and Undeserving
DR DAVID PLATER, DEPUTY DIRECTOR, SOUTH AUSTRALIAN LAW REFORM INSTITUTE;
AND DR SYLVIA VILLIOS, SENIOR LECTURER, ADELAIDE LAW SCHOOL
‘This case raises some profound
questions about the nature
of family obligations, the
relationship between family
obligations and the state, and
the relationship between the
freedom of property owners to
dispose of their property as
they see fit and their duty to
fulfil their family obligations.’ 1
This observation from Lady Hale
in the recent UK Supreme Court
case of Ilott v The Blue Cross, 2 highlights
the questions that are typically raised
in the area of family provision law. Her
comments are equally applicable in an
Australian context. Lady Hale raised
the difficult balance for a court to
“distinguish between the deserving and the
undeserving” 3 and to somehow balance
between respecting the testamentary
freedom of a deceased and allowing
meritorious claims from genuine claimants.
Since its first introduction in Victoria
in 1906, and subsequently in the other
States and Territories of Australia,
family provision laws in Australia have
substantially extended in scope through
sometimes generous judicial interpretation
and legislative amendments, transforming
what started out as a limited protective
measure to ensure adequate provision
for dependent widows and orphans (who
otherwise faced destitution) to a strong
entitlement to inheritance rights for a
relatively wide range of relatives, extending
to even financially comfortable applicants.
The current law faces much criticism over
the perceived excessive encroachment of
testamentary freedom and the allowance,
even encouragement, of opportunistic
claims, resulting in calls for reform around
Australia. 4
34 THE BULLETIN July 2018
The former Attorney-General of South
Australia, the Hon John Rau MP, invited
the South Australian Law Reform Institute
(SALRI) to identify the areas of succession
law that were most in need of review in
South Australia, to review each area and
to recommend reforms. SALRI’s final
report, covering the role and operation of
the Inheritance (Family Provision) Act 1972
(SA) (the Act) was provided to the former
Attorney-General in December, 2017. 5 It is
entirely an issue for the State Government
and Parliament whether to accept and
implement the recommendations in this
report.
This proved a topical and important
reference. SALRI’s research and
consultation (with both the legal
profession and the general community)
highlighted that, although perhaps not
such an acute problem as in New South
Wales and Victoria, the manner in which
modern family provision law is applied
has still seriously challenged testamentary
freedom to the extent that people are now
questioning the significance of making
a will when it is likely that their wishes
could ultimately be overruled. Reference
was often made to SALRI, reflecting
wider research, of a modern culture of
“expectation”, even “entitlement”, from
family members that they should receive
a share of the estate. 6 Courts have shown
an increasing willingness to override
the testator’s wishes in family provision
cases. 7 This strong recurring theme during
its consultation resulted in SALRI’s
overarching recommendation that,
although absolute testamentary freedom
is inappropriate, a greater focus should
be given in law and practice to respecting
and preserving testamentary freedom,
providing courts with a direction that, as
far as possible or practicable, the wishes of
the testator should be respected.
SALRI recommended that the South
Australian law should be strengthened
so that a greater focus be given to
discourage or deter baseless, opportunistic,
undeserving or unmeritorious claims under
the Act. In order to achieve this, SALRI
made a number of recommendations to
restrict claims of former spouses and
former domestic partners, grandchildren,
parents and siblings. SALRI did not go
as far as recommending a restriction of
claims by self-supporting adult children
as taking this step was not supported
during the consultation. In particular,
there was a strong view that imposing
restrictions on the eligibility for adult
children could lead to the real risk of
precluding deserving claims and may in
some situations encourage dependency.
The only class of claimant where SALRI
recommended an extension of the current
law was adult stepchildren, however the
recommendation was to restrict eligibility
to limited circumstances, including the
blended family situation where the assets
accumulated by the adult stepchild’s
natural parent substantially contributed to
the testator’s estate.
With respect to the court’s discretion to
determine whether the applicant has been
left without adequate provision for his or her
proper maintenance, education or advancement
in life, 8 the general sentiment expressed
during the consultation was that due to
the court’s liberal interpretation of what