Legislative Council: Tuesday, May 02, 2023


Succession Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 February 2023.)

The Hon. J.E. HANSON (15:53): What a joy it is to be able to rise and speak on such a bill that gives so much life, I think, to so many debates. I know that because so many people have spoken for so long already on this bill. Their contributions are notable, Mr President, certainly by yourself, I am sure, who has sat through them. The contributions made by other members in their second reading speeches have done a good job, I think, of covering the salient matters in relation to this bill and the changes it will bring to laws in the area of succession and inheritance in South Australia.

I will reiterate that this bill represents pretty significant changes to succession law, as all the other members have. It is largely the same as previous bills that have come here but now includes technical amendments which were filed by the previous government. It enacts the recommendations from seven reports that came out of the SALRI review initiated by John Rau in 2011.

The Hon. R.B. Martin: John Rau KC.

The Hon. J.E. HANSON: Sorry, the Hon. Mr Martin points out it is the Hon. John Rau KC.

The Hon. K.J. Maher: I think he's SC.

The Hon. J.E. HANSON: SC or KC, the Hon. Mr Maher? Anyway, the point is, back in the day he was just the mere Hon. John Rau. He now may be something else. Nonetheless, he is not yet subject to the Succession Bill, so I will get back to that. This bill repeals the Administration and Probate Act, the Wills Act and the Inheritance (Family Provision) Act 1972 and consolidates their provisions into a single act, which is actually quite a difficult thing to do, for everybody who has ever put anything through in here.

One of the changes that will be the most relevant to the community is that it aims to modernise and simplify both the laws in this area and the language which lays them out. The fact that a reference to King Charles II has persisted in South Australian legislation, appearing in the definition of 'will'—and for anyone who this little tidbit has not yet fully hit home, let me emphasise to you that King Charles died in 1685—tells you most, I think, of what you need to know about why it is both desirable and sensible to go through our laws with a view to reviewing and modernising them, and especially with a view to making them, I think, pretty easy to understand, easy to comply with, easy to enforce.

In this area of law I think that is a particularly good idea, so in the hope of injecting some life, for lack of a better word, into the discussion around a bill that deals with some of the consequences arising from lifelessness, the 2019 film Knives Out, I think, provides a pretty colourful example of the cinematic trope whereby a deceased person's will is read out before an assembly of those who believe they will be named as the fortunate beneficiaries. The scenario could in fact be more a real-life situation and less cinematic trope, but I have never been in the presence of such an assembly myself. If anyone has been, perhaps they can share that story with us.

Anyway, in Knives Out the entirety of the estate of a decedent or—I think that is the legal term, so I will use one that is a bit easier to speak—the deceased (he is a wealthy author) is bequeathed to a kind-hearted RN who attended him in his final months, a young woman who is of absolutely no blood relation, leaving his astonished and affronted family of rude, entitled adult children and grandchildren to bellow at the RN, if you like, and at each other, and at the probate lawyer who delivered the shocking twist as he read out the will that was written only a week prior.

One thing the surprised family immediately does in the film is to inspect the will, and that is pretty understandable. To bring it back to the bill, a new provision in this bill gives certain classes of person a right to inspect the will of a deceased person. The classes of person include persons named in the will, beneficiaries, surviving spouses and domestic partners, or former spouses and domestic partners, parents or guardians of the deceased, and persons eligible to share in the estate under the rules of intestacy if the person has died intestate.

We know in the course of things there are plenty of aggrieved persons who believe they have a legitimate claim against an estate, particularly when they might have been left out. This bill provides that persons with claims against an estate in law or in equity can inspect the will, but only with the permission of the Supreme Court if they have the proper interest in the matter and it is appropriate for them to do so.

The bill allows persons who hold small amounts of money or personal property of a deceased estate—amounts up to the value of $15,000—to convey it directly to the surviving close family of the deceased without needing a grant of probate or administration. This is intended, if you like, to facilitate an expedited transfer of money to a surviving person who, hopefully, needs that money in order to live instead of going out and buying a really expensive scooter they cannot use.

Provisions dealing with the administration of small, deceased estates allow the Public Trustee to give notice to the Registrar of Probates that they intend to administer a small estate of a value of $100,000 or less under the deemed grant provisions. The Public Trustee will be taken to have a deemed grant of administration, if you like, and will not have to apply for a formal letter of administration. The bill deals with the administration of deceased estates, incorporating a range of changes that were all recommended in the SALRI reports.

We know there are plenty of real-life situations whereby executors and administrators fail to adequately undertake their duties. Usually, they are the subject of some Hollywood film you might watch, but they do actually happen in real life too. Provisions of this bill which allow the court to require an executor or an administrator to give an undertaking to the court relating to how the estate is to be administered will be strengthened and protections against malfeasance or negligence in the area will apply.

But, in the event of such misfortune, the court has also been given a wide range of powers to remedy loss if an executor or an administrator fails to perform their duties. The court may order the executor or the administrator to pay into the estate an amount equivalent to the financial benefit obtained by the executor or the administrator as a result of their failure and in order for the executor or administrator to compensate the persons who have suffered loss or another order that the court considers to be appropriate—perhaps hand back the Lamborghini.

Reviews of previous legislation concluded that claims under the family provision act are too easy to make and not enough weight is placed on the wishes of the testator. The categories of claimant who are automatically entitled to bring a claim under the family provision act have been adjusted in a range of ways, taking a number of factors into account, which, frankly, other members have already discussed. Many other changes have been well covered by other contributors, so, given it is 4 o'clock, I will not go into the them today. I believe this bill will bring significant improvements that will benefit—

Members interjecting:

The Hon. J.E. HANSON: I can sense the goodwill of my fellow members to that aspect of my speech, above all others. I believe this bill will—

Members interjecting:


The Hon. J.E. HANSON: Thank you for your protection, Mr President. I believe this bill will bring significant improvement that will benefit South Australians in an area of law that can be, frankly, very boring until it suddenly affects you. Once it affects you, it is still very boring, but it also becomes quite frustrating. Very few people affected by this bill will in fact be the silver spoon fed scions of mining magnates or media moguls, although I trust they, too, should be pleased at these changes, which are aimed at modernising and improving processes and promoting clarity for any instance of a person's death that leaves an estate that must be dealt with.

Hopefully, this bill will improve the experience of all parties who interface with this area of law, whether they do it once or every day as part of their job. It will have implications for South Australians who are concerned with everything from the family home to the family farm to the family industrial empire and so forth. I commend the Attorney-General and all those who have worked to develop this legislation and I am pleased to have spoken in favour of it.

The Hon. R.A. SIMMS (16:03): I rise today to indicate the Greens' support for the Succession Bill 2022. I will make some brief remarks. I am mindful that it is past 4pm, as the Hon. Mr Hanson has indicated, so I do not want to trespass further on his time, but this is an important bill that we are dealing with today.

The bill consolidates provisions for succession and inheritance into one act. As a result of recommendations from the South Australian Law Reform Institute, this bill simplifies and modernises language and introduces several positive reforms that have been outlined by the Attorney-General and others in their second reading contributions.

The Greens are supportive of the measures in this bill, but in particular I want to highlight the provisions in part 6. Part 6 ensures that the intent of the person who has made a will is prioritised. The court must primarily consider the wishes of the deceased person when others are making a claim against the will. I believe that members of the community will be comforted to know that when they are making a will, their wishes will be upheld.

When I was looking at this legislation, I was reminded of my days back at law school considering estates law, and there is a lot that can go wrong in this area of law. After all, making a will is a challenging thing for many people in the community to do because of course it does mean considering one's impending death, but also it is about ensuring that loved ones are provided for and it is about ensuring that one's wishes after they pass away are respected. When those legal documents are challenged, it can create a great deal of stress for family and friends, so we welcome the efforts of this reform to ensure that the interests of the person making the will are front and centre.

However, it is important to consider that the bill also includes some important provisions that relate to people who are dependent on the deceased person and that they are able to make a claim. In particular, the bill references people living with a disability, their carers or people who are minors. This will ensure that vulnerable people are not left behind when it comes to making legitimate claims.

The bill that was previously introduced by the former government has now been introduced by the current Attorney-General. It is a worthwhile piece of legislation that deals with future succession and inheritance, and I want to recognise the work of the previous government in this regard as well. We understand the government will be moving a number of amendments that deal with some of the concerns that have been raised by the Law Society and other stakeholders. We welcome that and we consider those amendments to be sensible additions. The Greens are pleased to support this important reform to succession and inheritance.

The Hon. C. BONAROS (16:06): I rise on behalf of SA-Best to speak on the Succession Bill 2022. It has been a long time coming, dating all the way back to the reform work initiated by then Attorney-General, John Rau, as has been mentioned, with the SALRI review commencing in 2014 and then again in 2017. As has been pointed out, much of this work was undertaken by the former Attorney-General, Ms Chapman, and many elements of the bill before this chamber share iterations of the former government bill.

It is a complex area of law. I am not going to stand here today and pretend that succession law was one of my favourite subjects at university or that I did very well in succession law.

The Hon. R.A. Simms: I bombed out.

The Hon. C. BONAROS: Did you bomb out?

The Hon. R.A. Simms: Yes.

The Hon. C. BONAROS: You were not the only one. I do note—I probably should not say this, but I am going to anyway—that it was considered one of the subjects, certainly when I was at university, that you could easily get a high distinction in if you applied yourself. If you did not apply yourself—perhaps there are two examples here—you could easily get away with a pass and I am a living example of the latter and not the former.

For many reasons, we are absolutely indebted to SALRI for providing us with the detailed body of work that informed the bill before us, not just for their exceptional expertise but I have to say also for their very witty titles, and I am going to quote them. The 2017 report starts with a quote:

'How sharper than a serpent's tooth it is to have a thankless child.' William Shakespeare, King Lear (Act 1, Scene 4)… Distinguishing between the Deserving and the Undeserving: Family Provision Laws in South Australia.

And then the second:

Riddles, Mysteries and Enigmas: The Common Law Forfeiture Rule.

Those are two of the titles that have formed that body of work. Thank you to SALRI not only for your expertise but your witty entertainment in titles.

We are also, of course, very grateful to the Law Society for casting its critical and lived experience eye over the bill and its predecessor. We are hopeful that succession law will soon become easier to navigate for those students who are studying today, following the repeal of the various acts and the introduction of one new coverall act—a simplified, modernised piece of legislation that better reflects the diversity of families today and into the future.

The Attorney has detailed much of what it does in a lengthy second reading explanation and explanation of clauses, and we are supportive of this critical piece of legislation in principle and have gone back and forth with the Attorney's office in relation to some of those more difficult issues that have been raised.

Laws surrounding family provision inheritance have not always proved effective in striking the right balance between the competing policy interests in this complex area. They have become increasingly problematic and contentious as they exist in the realm of human emotion. For most in our communities the occasion of running into the provisions of this piece of legislation will come after the death of a family member, so to provide in the face of that death what is a more cost-effective and simplistic—or as simplistic as it can be—and accessible legislative regime is essential.

It does contain critical SALRI recommendations which act to vastly reduce the costs and procedural burdens to claimants in the courts, such as introducing the deemed grant model for the administration of small estates to the value of $100,000 or less as well as the provision allowing the Public Trustee to not have to apply for a formal grant of letters of administration and to instead be taken to have a deemed grant of administration.

Of course, there is a public accountability mechanism to accompany this change, with the Public Trustee being required to gazette the notices, if they are electing to administer an estate under the deemed grant, and have that published on a website approved by the minister.

When it comes to accountability and transparency I note also the government amendments addressing the issues relating to preferential legacy in the distribution of an asset to the spouse or domestic partner of the intestate deceased person and the mechanism used in delegating authority to when financial changes are made to the higher preferential legacies in any financial year.

The amendments, as I understand it now, remove the delegated power from the minister by way of notice of Gazette to be prescribed by regulation. Importantly, this will allow the Legislative Review Committee, a very important committee of this place, to have oversight as well as garnish greater practical benefit to legal practitioners in accessing any changes made to preferential legacy.

A considerable reform is the expanded inclusion and consideration of stepchildren and grandchildren and their rights to a claim. This is the position that currently exists in other jurisdictions like Victoria, Tasmania and Queensland, where stepchildren are not required to prove any dependency in order to be eligible.

The inclusion of stepchildren is critical among stakeholders in terms of modernising characteristics intended in the reformative piece of legislation, so it is important, I think, that we get right these particular provisions, which, again, are complicated. This includes careful consideration of the complex nature of the modern family infrastructure.

As the law currently stands, adult stepchildren have no entitlement to claim under the Inheritance (Family Provision) Act 1972. Our office was contacted last year by a constituent whose mother had passed away some 10 years before. His mother had remarried a gentlemen later in life, and upon her marriage she sold her house and used the proceeds to purchase a house with her new husband, with the understanding that upon their deaths the house would be split between the four children they had between them.

Unfortunately, the constituent's mother passed away 10 years before her husband, and the stepfather eventually decided to change his will, leaving his entire estate to his own biological children only, leaving his two adult stepchildren with nothing and no mechanism to apply to a court to have the matter dealt with. They essentially received no money flowing from the significant contributions that their late mother had made to the new family purchased home.

We had at the time drafted a bill to address this specific anomaly following our meeting with the constituent but are pleased to see that it is included in this bill, as it was in the previous version of the bill introduced by the former Attorney. It is unfortunate that it will not help our constituent and people who have already gone through this process, but I am glad to say that he has made peace with what has happened. His motivation was to prevent it from happening to other stepchildren who found themselves in similar situations.

We note amendments to clause 115 which deal with stepchildren provisions by addressing the public policy concerns raised by the Law Society which, without the change to include a former spouse or former domestic partner, would have assumed that only a person who is a stepchild of the deceased at the time of death would be captured within the eligibility criteria. This would have represented a manifest inconsistency with the policy intention of the bill, so that is a welcome amendment.

It extends, as I said, to grandchildren of the deceased person being captured within the scope of the eligibility criteria. Some work has been done to this clause, as I understand it, to ensure that a grandchild of a deceased person is able to make a claim for family provision without both parents of the grandchild having to be deceased in order to be eligible, which was previously the case.

It seeks to put testamentary freedom at the core of the court's ability to determining whether to make an order for family provision by placing the wishes of the deceased person as a primary consideration for the court, which I will ask the Attorney about when we get to the committee stage, but we do refer to the Law Society's concerns regarding the issue of instructing the courts to consider the wishes of the deceased person as the primary consideration, given the clear departure from the established legal maxim where courts must balance testamentary freedom against the merits of a claimant's claim under legislation, which the court informs itself on a decision to alter a testator's wishes of their will only to the extent necessary to give effect to the statutory test for provision.

In a nutshell, the Law Society, I think, has raised concerns around potential unintended consequences the narrowing of the court's consideration may have and, of course, well established case law which, with a piece of legislation like this, goes back many years and the inevitability that that will lead to more litigation around the meaning of those provisions. These are, again, matters that I am hoping the Attorney will address in the committee stage.

We note the provisions that address costs of proceedings for unmeritorious claims by allowing the court to order costs to a party if there is, in the court's view, a claim for family provision that is made without merit, or the party is unwilling to negotiate a settlement of claim provision. At present, there is no such mechanism, and time and time again we see disputes progressing through the courts that are light on merit but that nonetheless attract a right to challenge, which only acts, in practice, to deplete the assets of the deceased estate. So, from this point, I think these amendments are well intended in terms of discouraging or preventing those unmeritorious claims.

A significant change also is the introduction of those provisions that clarify the rules that will apply when there are simultaneous deaths—and we will have some questions around that: the death of a spouse, spouses or domestic partners—which seek to align South Australia with other jurisdictions in codifying these provisions rather than rely, as we do now, on common law. These new provisions seek to codify the presumption of survivorship, which determines when two or more persons die in circumstances where it is not possible to determine the order of death.

Initially, we had a situation where—we have had some changes in this area in terms of whether it should be in terms of seniority of age or whoever dies first. In fact, I think it is probably better to say that this has been the subject of quite lengthy correspondence with the Law Society. So, at the risk of completely misquoting them, I would seek to table both letters from the Law Society that have been provided to members, one dated February 2023 and one dated March 2023, so that as a matter of public record we can have some clarity around the issues that have been raised and also seek clarity from the Attorney about the amendments which seek to address the issues around section 126 and section 127 in accordance with the most recent correspondence dated March 2023. I seek leave to table those documents.

Leave granted.

The Hon. C. BONAROS: Just finally, as part of assessing the bill, I have filed an amendment—and I apologise for the late notice—for consideration that addresses a critically important oversight function, which is to provide a five-year review of the operations and functions of the act, and a report to be tabled in parliament. I think that is only warranted given that this has been the subject of the SALRI reports that have been referred to but also such lengthy debate in this place, and also given the complex nature of the legislation that we are dealing with.

I think five years provides adequate time for these provisions to have become operational and for us then to check whether we got it right in terms of those changes. I note also that I had drafted amendments originally which dealt with some of the other requests that the Law Society had made or concerns that the Law Society had raised.

Some of them dealt with the lack of substantial provisions in the bill and leaving things to regulation, but I think the Attorney might be able to clarify that the reasons for not going down this path relate more to the application of commonwealth legislation and therefore regulations are the most appropriate vehicle for those.

I am going to leave it there and ask the Attorney some questions. I will close by saying that we all know that where there is a will there is a relative and the complexity of this bill, and indeed succession law in general, is very indicative of that. Again, I wish to thank SALRI for their reports, which have certainly assisted us. For my part, and all my success in succession law, I will perhaps just end by saying that I will continue to tell people to be crystal clear on what they would like in their wills, what their final wishes are, to be as clear as you can but, ultimately, you will be dead so do not kill yourself over preparing your will.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:21): I thank all those who contributed on this bill. The poor puns, the mum and dad jokes, were not as appreciated as the sensible discussion and, for the record, I have not got a clue what grade I received way into the last century when I studied succession law.

It is a very important area. It is an area of law that most people will come into contact with at some stage as family members and loved ones pass away. It is an area that can cause great personal conflict within families and it is an area that involves much emotion and, where you get that combination of things, also substantial litigation.

That is why, way back in 2011, former Attorney-General at the time, John Rau SC—and I have had that confirmed by way of communication with the former Attorney-General—asked SALRI to start looking at this. Between 2014 and 2017, SALRI produced seven reports that go towards what we are doing today. It is a bill that repeals a number of different bills: the Administration and Probate Act, the Wills Act, and the Inheritance (Family Provision) Act and brings it all together in one area.

It is certainly something that has crossed over a number of governments. I think three attorneys-general and one planning minister exercising the powers and functions of the Attorney-General have all traversed this area. It is, as members have indicated with reflections and examples, a difficult area that often involves much emotion at some of the most difficult times in people's lives.

To codify, where possible, disparate and difficult areas of the common law and to bring together three acts into the one area, I think, will be a worthwhile thing that will, amongst other things, try to help make this simpler and reduce disputation. With that, I commend the bill to the chamber and look forward to answering questions during the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: I raised a few issues during my second reading contribution. I suppose the first is just to clarify, given we did not proceed with amendments around regulation-making powers, that the government's position was: because we are relying on commonwealth legislation, regulations were actually more appropriate in this instance than providing those provisions in the substantive bill.

The Hon. K.J. MAHER: Yes, I thank the honourable member for her question. I guess the answer is yes, that particular area first prescribed agreements under the Family Law Act. Given that is a part of commonwealth legislation that could change via an act of the commonwealth parliament, we thought it preferable to have them under regulations so that we could more easily change them should that particular element change in commonwealth law.

The Hon. C. BONAROS: I might just ask these now at the outset so that we can get them out of the way. I think one of the other issues that I mentioned was about the wishes of the deceased person as the primary consideration for the court and the concerns, I suppose, that we have now noted that the society has raised, that this has the potential to result in further litigation. Can the Attorney clarify what consideration was given to those concerns and indeed whether we think there might be the potential for further litigation as a result?

The Hon. K.J. MAHER: This is the result of recommendations from SALRI reports that have placed the testator of primary importance for the court to consider. There is a likelihood that initially that could be tested and could initially lead to, because this is a departure from how it is currently considered, an initial increase in litigation. But I think there is an expectation that over time, because you are making that the primary consideration, that would lead to a decrease in litigation.

Whenever we pass something here, it has the potential to be tested through litigation in courts. But certainly, it is a policy decision to give effect to the recommendations of the SALRI reports and with an intention to, certainly over time, make it easier and to clarify for the courts.

As I mentioned in my second reading summing-up, this always is a balance. I think many people expect that the wishes of someone, when they are alive and expressed in a will, will be given effect to. Of course, there are meritorious and justifiable claims that do not expressly affect those wishes, and they are not prohibited, and that is what over 100 clauses of the bill go through to describe, but it is a positive decision to give effect to recommendations from the SALRI reports.

The Hon. C. BONAROS: I am not sure if the Attorney's preference is if I continue now at clause 1, but there were some points raised in relation to section 116(6) regarding parents of a deceased person and concerns raised by the society about the eligibility criteria for parents.

A parent is most unlikely under the present law to have a viable claim for family provision if their deceased child has a spouse, domestic partner or children, and that is because the greater moral duty on the deceased child would be to leave the person's estate to their own spouse, domestic partner or own children. The major situation is where the child dies without having a spouse, domestic partner or children but the parents survive the deceased child and the parents have provided money or assets to the child and the parents are the reason why the deceased child has died having an estate.

The issue that I suppose I am asking the Attorney is: was it one of the SALRI recommendations, or why did the government not elect to follow the broader definition as opposed to the narrower definition in that respect?

The Hon. K.J. MAHER: I thank the honourable member for her question. Yes, it was part of the SALRI recommendations to narrow, essentially, the field of those potential claimants. The situation is that parents are currently automatically regarded as a class of people who can make a claim. Again, with the SALRI recommendations to narrow the field of potential claimants, parents as an automatic claimant were removed from having that ability after submissions from the Law Society. We will be discussing that later on, if we wish, but it might be taken care of in clause 1.

We filed government amendment No. 9 [AG-1] that restores part of a right for a parent to make a claim where that adult parent relied on the child to financially support them. We have made that amendment to the bill as a result of discussions with the Law Society, but it certainly was part of the SALRI recommendations to effectively narrow those who were automatically entitled to make a claim.

The Hon. C. BONAROS: Just going back a couple of provisions to clause 102, which relates to the election by the spouse or domestic partner to acquire an interest in the dwelling, there were recommendations made in relation to that also which I understand the government chose not to adopt. Was that in line with SALRI's recommendations or an executive decision by the government?

The Hon. K.J. MAHER: I thank the honourable member for her question about clause 102, the election by a spouse or domestic partner to acquire interest in a dwelling. I am happy to inform the member that they came about as a result of the SALRI report on intestacy, particularly recommendations 27, 30, 31, 35 and 37; and in relation to 102, particularly 102(8) and recommendation 38 in relation to 102(2)(b); and recommendation 39 also informed other parts of clause 102.

The Law Society in their 2023 submission submitted that the form of the notice in relation to this should be included in the act as opposed to the regulations. Forms and notices are, unusually, included in the act rather than the regulations partly so they can change over time more easily. We did not support the Law Society's submission to suggest that the change to the form and notice be included in the legislation rather than the regulations, so we departed from the view of the Law Society in relation to whether the form of that notice should be in the act or the regulations. We think it is better placed, as it would be usually, in regulations.

The Hon. C. BONAROS: One of the other issues that I raised during my second reading contribution was the issue of stepchildren and also step-parents. I note that there were concerns raised about the definition, or the lack thereof, of step-parent. Was that also a SALRI recommendation, or is that something that the government thinks does not need to be addressed?

The Hon. K.J. MAHER: I thank the member for her question. We have in the legislation defined stepchild, so by extension the definition of step-parent is gained from the parent of a stepchild. So it would be redundant to define that as well in the interpretation section, but we have defined stepchild.

The Hon. C. BONAROS: I just note the concerns raised by the society about a stepchild not being able to be a child of a former spouse or former domestic partner. That is canvassed in the correspondence that I have tabled already.

The Hon. K.J. MAHER: Before the honourable member goes on, in relation to the issue that the Law Society raised in terms of a stepchild of a former spouse or former domestic partner, we have taken into account the Law Society's concerns with amendment No. 4 to take into account the concerns that the Law Society have raised.

The Hon. C. BONAROS: If I can just turn to those two letters that I tabled earlier, perhaps the Attorney can provide some clarity, because it is extraordinarily complex. Even the correspondence is extraordinarily complex, so I think for the record it would be useful if the Attorney could provide some clarity around that issue of survivorship and simultaneous deaths and also the joint ownership provisions that are equally relevant.

The Hon. K.J. MAHER: I thank the honourable member for her question. Clause 126 in relation to survivorship is a suggestion that was made by correspondence back in 2020 from the Law Society, which is included in the bill. I think it was in February of this year that the Law Society wrote to me as Attorney-General and, I assume, to other members, asking why section 126 is in the bill, to which we responded, 'Because you asked for it back in 2020.' The Law Society, to summarise, said, 'Yes, okay, we did ask for that back in 2020 and we understand why that's in there.'

However, a question was raised in relation to non jointly owned property, and we have an amendment at amendment No. 11 that is an abundance of caution amendment to take into account the views of the Law Society most recently, earlier this year. That is a note that says, 'This section applies subject to the operation of section 127 in respect of jointly owned property.' It is possibly strictly not necessary, but we think it reflects the views as put forward most recently, this year, by the Law Society in relation to the issue of survivorship.

The Hon. C. BONAROS: I think that is important, just for the record, because of the confusion in the correspondence.

The Hon. K.J. Maher: Yes. I got confused when they wrote in against their previous submission.

The Hon. C. BONAROS: I have one question in relation to clauses 18 and 19 of the bill, which talk about the end of a marriage. I do not know if we can answer this one or not, but the question that has been put to me is whether that applies at the time of separation or divorce, or whether we have any guidance in relation to whether that applies at the time of separation or divorce? It simply talks about the ending of a marriage.

The Hon. K.J. MAHER: I am happy to take that on notice for the honourable member. This is not something that was canvassed in any of the SALRI reports, and has been carried over from how the language was used in previous legislation. I suspect it might be that it is producing evidence to a court for the end of a marriage rather than the different stages through the dissolution of a marriage. However, we will take that on notice and bring back a response because like most of these things, and given it has carried over from language that has previously been used, I am sure it has been the subject of litigation. We are happy to provide an answer to the honourable member.

The Hon. C. BONAROS: Thank you. The remainder of my questions—there are only three—relate to whether there are any anticipated costs for the courts in relation to the changes and, if so, do we have any idea what they may be? Also, again this is not specifically canvassed by the bill, but two issues have certainly been raised. One is consideration of a will's register, and also e-wills. What consideration has been given to those, if any, by the government?

The Hon. K.J. MAHER: I thank the honourable member for her question. We are not aware of any anticipated additional cost for courts on top of what courts already do in this area. Certainly, with most pieces of legislation, including this one, courts are consulted about legislation. Also, once legislation passes, courts are then consulted about implementation.

One area that is likely to be required is some form of information or education for practitioners in relation to the changes. This is an area where there are specialist practitioners, but it is certainly an area where generalists who practice law come into contact with the area of wills and estates occasionally—some more frequently than others—so education of practitioners and the production of brochures is something that is being considered in this area. There is not a global wills register, but my advice is that the Law Society maintains for wills that are drafted by practitioners a register of wills.

One other thing that was contemplated but excluded in the SALRI review was the prospect of e-wills, which may help with the ease of registry but was not recommended by the SALRI review, and obviously for good reason: the authenticity of these sorts of documents is paramount. I hope that answers the honourable member's question in relation to the cost of registering.

The Hon. C. BONAROS: Certainly, and those comments in relation to e-wills as well. Finally, one of the issues that was in the public just recently and falls within the realm of these disputes, I suppose, concerned an argument over the body or ashes of a deceased person. I think we have heard recently a case where there was an argument between the living parents of the deceased and the widow of the deceased and ultimately the court decided to share the ashes equally between both parties because it was very convoluted and complicated.

That issue falls within the realm of this but also within funeral industry reforms, potentially. Is that something that was canvassed during the context of this debate at all, or something that is on the government's radar in terms of addressing?

The Hon. K.J. MAHER: It is something that we could consider in the future, and certainly how the funeral industry is regulated is much more the area that this would be considered in. That was not considered as part of these reviews. Human remains, as I am advised, are not considered property in terms of wills and probate. Testators often express an intention of what their desires would be, which certainly will help inform next of kin and family, but that is not a binding part of the property that is dealt with under a will.

Clause passed.

Clauses 2 to 33 passed.

Clause 34.

The Hon. K.J. MAHER: I move:

Amendment No 1 [AG–1]—

Page 20, lines 2 to 5—

Delete 'made or accepted for the purpose of assessing succession duty or any other form of death duty, that reference is, if the valuation contemplated by the reference is not required under the law of this State or of any other place,' and substitute:

to be made for the purposes of the will, that reference is

I advise that this government amendment to the bill is being undertaken as a result of feedback received from the Law Society. This provision was replicated from the existing legislation, however, the Law Society noted that succession and death duties no longer exist and so it suggested that this provision could be reworded so it refers to valuations for the purposes of the will, and we have done so in the form of this amendment.

The Hon. J.M.A. LENSINK: My understanding is that this amendment, as the Attorney has indicated, is at the urging of the Law Society and I understand that a number of other amendments are also at the request of the Law Society and the Liberal Party will be supporting them.

The Hon. C. BONAROS: For the benefit of the chamber, our position is the same. We will be supporting the package of amendments that is going to be put by the government.

Amendment carried; clause as amended passed.

Clauses 35 to 38 passed.

Clause 39.

The Hon. K.J. MAHER: I move:

Amendment No 2 [AG–1]—

Page 21, line 28—After 'resident' insert 'or domiciled'

Again, this is an amendment after our submissions and discussions with the Law Society, noting that a person may not be a resident and in place of it may be domiciled there, so this amendment incorporates that, noting the approach taken in other jurisdictions, such as New South Wales.

Amendment carried; clause as amended passed.

Clauses 40 to 104 passed.

Clause 105.

The Hon. K.J. MAHER: I move:

Amendment No 3 [AG–1]—

Page 50, line 1 [clause 105(2)(b)(ii)]—Delete 'Minister has, by notice in the Gazette, determined' and substitute 'regulations prescribe'

This provision was drafted so that the amount of the preferential legacy could be increased by notice in the Gazette. This approach was taken to allow for maximum flexibility to ensure that the amount keeps pace with increased costs generally to keep pace with inflation. The Law Society in their submission indicated that prescribing the amount by regulation would allow for greater scrutiny than a notice in the Gazette, including disallowance by this or the other chamber. The government has accepted this feedback, so this amendment makes the change by allowing for this to be prescribed by regulation rather than by notice in the Gazette.

Amendment carried; clause as amended passed.

Clauses 106 to 113 passed.

Clause 114.

The Hon. K.J. MAHER: This was an area that was canvassed by the Hon. Connie Bonaros in clause 1. I move:

Amendment No 4 [AG–1]—

Page 55, line 15 [clause 114(1), definition of step child]—After 'partner' insert ', or of a former spouse or former domestic partner,'

Amendment carried; clause as amended passed.

Clause 115.

The Hon. K.J. MAHER: I move:

Amendment No 5 [AG–1]—

Page 56, line 1 [clause 115(2)]—After 'A former spouse or' insert 'former'

This amendment is very similar to amendment No. 4; that is, after 'A former spouse or' insert 'former'. This amendment arises from the Law Society submission and it is intended to avoid any doubt that reference to the section is intended to be read as a former spouse or a former domestic partner.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 6 [AG–1]—

Page 56, line 2 [clause 115(2)]—Delete 'spouse or domestic' and substitute 'former spouse or former domestic'

Amendment No 7 [AG–1]—

Page 56, line 4 [clause 115(2)]—Delete 'spouse or domestic' and substitute 'former spouse or former domestic'

Again, these amendments are very similar. They do the same thing: they delete 'spouse or domestic' and insert 'former spouse or former domestic' partner to make abundantly clear it refers to both of those rather than having to read it as both of those by virtue of them being together. So it is a wording change, as suggested in consultation with the Law Society.

Amendments carried.

The Hon. K.J. MAHER: I move:

Amendment No 8 [AG–1]—

Page 56, line 23 [clause 115(5)(a)]—Delete 'parents died' and substitute 'parent, being a child of the deceased person, died'

This amendment to clause 115, which we have canvassed briefly in discussions already—and it arises from the Law Society submission—provides that a grandchild of the deceased person is eligible to make a claim for family provision where the parent who was the child of the deceased person has died, rather than requiring that both the grandchild's parents are deceased.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 9 [AG–1]—

Page 56, lines 32 and 33 [clause 115(6)(b)]—Delete paragraph (b) and substitute:

(b) in any other case—

(i) the parent cared for, or contributed to the maintenance of, the deceased person immediately before the person's death; or

(ii) the parent was maintained wholly or partly by the deceased person immediately before the deceased person's death.

This amendment again is as a result of submissions of the Law Society, which indicated that they had concerns that parents who relied on their adult child, most likely to support them financially, may be left without a way to make a claim for family provision if they had not been providing care for the child at the time of the death of the child. We canvassed this in clause 1, with the Hon. Connie Bonaros raising questions.

Amendment carried; clause as amended passed.

Clauses 116 and 117 passed.

Clause 118.

The Hon. K.J. MAHER: I move:

Amendment No 10 [AG–1]—

Page 58, lines 32 to 38 [clause 118(7) and (8)]—Delete subclauses (7) and (8) and substitute:

(7) A copy of an application for a family provision order must be served on all parties to the proceedings in accordance with the rules of court.

Again, this came by way of representations of the Law Society. This amendment changes the provision dealing with the service of applications for family provisions. For consistency and simplicity it will refer back to the service provisions in the court rules that apply to family provisions claims.

Amendment carried; clause as amended passed.

Clauses 119 to 125 passed.

Clause 126.

The Hon. K.J. MAHER: I move:

Amendment No 11 [AG–1]—

Page 61, after line 6—Insert:


This section applies subject to the operation of section 127 in respect of jointly-owned property.

This is the explanatory note that was canvassed in clause 1 to make it clear that this section applies subject to the operation of the next section in respect of jointly owned property.

Amendment carried; clause as amended passed.

Clause 127.

The Hon. K.J. MAHER: I move:

Amendment No 12 [AG–1]—

Page 61, line 7 [heading to clause 127]—Delete 'in case of simultaneous deaths' and substitute 'where order of death uncertain'

This is simply an amendment to the section heading to more accurately reflect the contents of the provision.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 13 [AG–1]—

Page 61, line 9—Delete 'within 30 days of each other or'

This amendment to clause 127 is being undertaken after consultation with the Law Society. It removes the 30-day survivorship period, which was part of the relevant recommendation from SALRI. This formulation without the 30-day period is a closer codification of the current law used in South Australia.

Amendment carried; clause as amended passed.

Clauses 128 to 139 passed.

New clause 140.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–3]—

Page 64, after line 20—Insert:

140—Review of Act

(1) The Minister must cause a review of the operation of this Act to be conducted, and a report on the review to be prepared and submitted to the Minister, after this Act has been in operation for a period of 5 years.

(2) The Minister must cause a copy of a report submitted under subsection (1) to be laid before both Houses of Parliament within 12 sitting days after receiving the report.

I note that I will not be moving the other amendment that was filed. It is self-explanatory. I have spoken to it already. It requires a review of the operation of the changes and the reforms in a five-year period. I think five years is a more appropriate time frame given the complexity and significant nature of these changes. It would be good to make sure that we come back here and ensure that we have got it right.

The Hon. R.A. SIMMS: I briefly indicate that the Greens are supportive of the amendment for the reasons the Hon. Connie Bonaros has indicated. In our view it does make sense to review a substantial change like this after five years. Given the potential implications, it gives us an opportunity to make changes if we have got anything wrong, so a review certainly makes sense from our perspective.

The CHAIR: The Hon. Ms Lensink?

The Hon. J.M.A. LENSINK: Ditto.

The Hon. K.J. MAHER: I indicate that the opposition and crossbenchers are very fond of these calls for reviews, as occasionally are governments, and we will be supporting this amendment.

New clause inserted.

Schedules (1 to 4) and title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:02): I move:

That this bill be now read a third time.

Bill read a third time and passed.