Succession Amendment (Family Provision) Bill 2008
The bill amends the Succession Act 2006 to ensure that adequate provision is made from the estate of the deceased person for members of the family of the deceased person and certain other persons, to repeal the Family Provision Act 1982, and for other purposes. The National Committee for Uniform Succession Laws submitted reports on proposed national uniform laws on family provisions to the Standing Committee of Attorneys-General in December 1997 and July 2004. The New South Wales Law Reform Commission’s report No. 110, “Uniform Succession Laws: Family Provision”, was published in May 2005 and set out draft model provisions to implement the earlier reports.
These provisions enable a court to override the terms of the deceased persons will or the distribution of a deceased person’s estate on intestacy if it determines it is necessary to do so to ensure that the family and other dependants of the deceased person are adequately provided for. The New South Wales Family Provision Act 1982 was used as a basis for model provisions. It is just a simple matter of fact that arguments over family wills are some of the most distressing cases to ever come before a court or mediators. They involve one of the rare situations in which a person who mediates inevitably, regardless of which side is supported, is regarded as being wrong by the other side. Very rarely are family wills and estates issues resolved satisfactorily, so if the introduction of the bill by the Government assists in resolving those issues, it will well deserve the community’s appreciation.
The key aspects of the bill that depart from the model include the following. First, the model did not adopt the eligibility requirements attached to an application for family provision that are currently in place in New South Wales. Currently the Family Provision Act provides that the following people are automatically entitled to apply for provision: the spouse of the deceased, a person with whom the deceased was living in a domestic relationship, such as a de facto relationship, and the adult or non-adult child of the deceased. Former spouses of the deceased and other dependants, including grandchildren, are also entitled to apply, but the Act requires the court to determine whether there are factors warranting the application being made before proceeding to consider it.
However, the model bill restricts those who are automatically entitled to make an application for provision to spouses, de facto partners and non-adult children of the deceased. It contains a catch-all category of claimant, allowing anyone to whom the deceased owed a responsibility to provide maintenance, education or advance on in life to apply to the court for a family provision order.
Such a change has the potential to lead to a flood of new claims being made on the estates by people who currently are not entitled to apply in New South Wales. Adult children also would be forced to demonstrate the requirement of the deceased’s responsibility to them. This may lead to more lengthy and expensive litigation as adult children seek to prove that they meet the requirement. The bill does not adopt the model bill’s eligibility provisions. It retains the approach taken in the current Act, with one modification: the current Act provides that those living in a domestic relationship with the deceased are automatically entitled to eligibility. The bill replaces domestic relationship with de facto relationship based on the model bill’s restriction of this entitlement to de facto relationships.
The bill also creates a new category of applicant—a person who is in a close personal relationship with the deceased. This applicant has to meet the same requirements imposed on former spouses and other dependants before being entitled to have the application considered by the court. It seeks to prevent people from making unmeritorious claims and accessing money from a deceased estate to fund their legal costs without any restriction.
It gives the court specific powers to make rulings in relation to costs, including the costs payable out of the estate and the cost in relation to estates worth less than $750,000, and to make rulings relating to the use of expert witnesses and other means of proof, such as medical reports, valuations and the like. Such items are sometimes the most expensive components of the cost of a case. The court also will have power to make rulings relating to applications that can be dealt with on the papers. That will allow the court to cut costs by determining simple cases without a hearing and without calling expert witnesses.
The bill provides a regulation-making power that enables regulations to be made with respect to costs in family provision proceedings, including the fixing of maximum costs that can be paid out of the estate or the notional estate. It also provides power to make regulations regarding the advertising of legal services in connection with the proceedings for family provision to prevent the exploitation of vulnerable people.
Proposed section 98 makes it clear that the Government’s objective is to encourage settlement of family provision matters before they go to a hearing, if possible. This is a measure that we all applaud. The court will be required to refer all matters to mediation before making an order, unless there are special reasons why the matter should not be mediated. Mediation would not be advisable in circumstances in which there is a threat of violence against a family member or a power imbalance between the parties.
Proposed section 59 (3) reflects the model bill by providing that the court may order additional provision for a previously successful family provision order applicant when it can be demonstrated that there has been a substantial detrimental change in that eligible person’s circumstances since a family provision order was last made in that eligible person’s favour.
Proposed section 59 (3) (b) covers the situation when evidence about the nature and extent of the deceased person’s estate did not reveal the existence of certain property when the family provision order was made, and when the court would have considered the estate to be of substantially greater value if the existence of the property had been known. As to evidence of statements made by the deceased, the model bill does not include a provision based on section 32 of the current Act.
Proposed section 32 clarifies the circumstances in which evidence can be adduced about statements that were made by the deceased during his or her lifetime. For example, the deceased might have stated that a child was being left less in the deceased’s will because the child already had been given his or her share of the estate. This evidence could be useful in ascertaining the testator’s reasons for making a will in the manner in which it was made. Finally, the bill incorporates the provisions of section 32 into proposed section 101. The court will continue to be able to make interim family provision orders if there is a pressing need for financial support.
In conclusion, the bill modernises the law of family provision in New South Wales. It makes a number of changes to protect family estates from being whittled away by unmeritorious litigation and encourages settlement in a timely and positive manner.
It is another step towards enhanced consistency for succession laws across Australia. As I said, the problems of wills and successions in families and gaining benefit on behalf of the deceased or claiming that more should be owed to certain members than others within the family is always a difficult situation, leading to long terms of disagreement and disharmony within families. As this bill makes some of these things more clear and provides an opportunity particularly for those who have less power or fewer resources than others, I commend the bill to the House.
