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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-09-28 Daily Xml
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Succession Bill

Second Reading

Adjourned debate on second reading.

(Continued from 14 September 2023.)

Ms HUTCHESSON (Waite) (12:19): I rise in support of the Succession Bill 2022 and straight up remind everyone that they need a will. Whilst it is a morbid topic, being prepared so that your family knows what you want to happen with your estate will free them up to grieve, rather than having to chase around and deal with the many acts this bill seeks to condense. This bill represents some of the most extensive law reform ever undertaken in South Australia since the development of the Inheritance (Family Provision) Act in the seventies.

As someone who has had to navigate the system when my husband died without a will, I cannot emphasise enough the importance of having a will and, with these changes, ensuring your directions are clear. This bill has been designed in conjunction with the recommendations from the South Australian Law Reform Institute to identify areas of succession law that were most in need of review. The bill enacts the recommendations from the SALRI reports that are legislative in nature and have been accepted by government. Most significantly, this bill repeals the Administration and Probate Act, the Wills Act and the Inheritance (Family Provision) Act and consolidates the provisions into this one new act.

This bill seeks to amend the Aged and Infirm Persons' Property Act, the Guardianship and Administration Act, the Law of Property Act, the Public Trustee Act, the Supreme Court Act and the Trustee Act. Having one piece of legislation to deal with all aspects of succession law will greatly enhance usability of the legislation. Updates to language will make it easier to understand given the sensitive time that one may have to seek to understand the law.

The bill organises the provisions that are to be consolidated from other legislation so that the bill is set out in a logical manner, something that cannot be said for the depth of related legislation that exists currently. I will not enter into all the changes and provisions today, as the bill is very long and has many parts, but briefly part 1 contains the preliminary provisions. In the definitions section, some of the definitions have been modernised or simplified. Part 2 contains the provisions that formerly made up the Wills Act.

Part 3 of the bill contains provisions relating to the granting of administration or probate and incorporates a small number of amendments arising from the SALRI recommendations. Part 4 of the bill deals with the process of administering deceased estates and contains a number of changes recommended by SALRI. Part 5 of the bill contains the provisions that deal with intestate estates, which is an estate where the deceased person has died without a valid will. Part 6 of the bill deals with claims for family provision and contains the provisions formerly in the Inheritance (Family Provision) Act. Part 7 of the bill contains the miscellaneous provisions.

The Succession Bill 2022 represents the culmination of a number of years work from SALRI, the Attorney-General's Department and parliamentary counsel on these reforms. It is sadly the case that sometimes when someone dies the family can disagree on the contents and meaning of a person's will. Whilst the deceased may have nominated their executor, other family members may wish to view the will to ensure they are happy with the distribution and outcome.

One of the SALRI recommendations that does come with part 2 of the bill is a new provision that gives certain classes of persons the right to inspect a 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 a share of the estate under the rules of intestacy had the person died intestate. Persons with claims against the estate in law or equity can also inspect the will but only with the permission of the Supreme Court if they have a proper interest in the matter and it is appropriate for them to do so.

This is an important change for those who are wishing to better understand the deceased person's wishes. I return to my original comments that one should always have a will. To be honest, I am probably speaking to myself right now. Whilst I know I have one somewhere, it definitely needs updating.

Part 6 of the bill addresses family provision. The feedback collated to SALRI during the review of the Inheritance (Family Provision) Act was generally supportive of the notion that claims under the act were too easy to make and not enough weight was placed on the wishes of the testator. A lawyer in my electorate has reported to me that this part will provide a vast improvement to his clients in the future. Within the new bill specifically he suggests that section 116 is a big change for inheritance claims. It now provides that when determining whether to make a family provision order the court's primary consideration is the wishes of the deceased person.

The court may also order a party to the proceedings to give security for costs that may be awarded against the party if it appears to the court that the party's claim for family provision is made without merit or the party is unwilling to negotiate a settlement of a claim for provision. This amendment is aimed at discouraging unmeritorious claims. This means that when we write our wills we need to be clear on the reasons why we are making these wishes and why they are noted. The bill sets out a framework for what should be contained in those wishes.

So it is the case that we will need a will. We all need to be clear about what our wishes are and when we need to communicate them effectively. This bill contains a huge amount of work, and I would like to thank the Attorney-General and his team and the members of the SALRI review committee for bringing it to completion. I commend the bill to the house.

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Industry, Innovation and Science, Minister for Defence and Space Industries, Minister for Climate, Environment and Water) (12:24): I will not linger. This is a bill that I think enjoys support across the chamber in its intent. I thank all of the participants in the debate, particularly having just heard the most recent contribution in which the member gave a very nice summary of the purpose and the contents of the bill, and I commend it to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr TEAGUE: This is a bill that has been a long time coming. The history of the preparation of the bill has been canvassed once again in the course of the debate in the current parliament, both in this place and another place, as is the nature of things with the Attorney in another place in this parliament.

At the outset of the committee process, I will make some remarks by way of acknowledgement of and thanks to those who have worked on this over its many years in the coming together and now the consolidation of this wide range of legislation into a single document.

I acknowledge, to start with, the commencement of that process by former Attorney-General the Hon. John Rau in 2011 when he asked SALRI to identify those areas that were most in need. I was last spending some time with the Hon. John Rau in the context of SALRI's work at the university some weeks ago. It is not something I have taken the opportunity, however, to perhaps ask or remind him about whether or not he anticipated at the outset that that referral to SALRI might have led to quite as comprehensive a body of work as then transpired over the course of what then turned out to be many years.

As we know, the reports of SALRI have covered the field by seven separate reports in the period 2014 to 2017. It is those reports that have really been the body of work that has informed now the coming together in a single bill. As has been said, the bill enacts recommendations across the entirety of those seven SALRI reports. The former government had accepted the vast bulk of those recommendations in bringing the bill that was before the last parliament here, and that bill has been very substantially, though not quite comprehensively, replicated by this bill, the Succession Bill 2022.

It is often the case that we have occasion to thank SALRI for its contribution to areas of law reform and for promoting a thoughtful discourse on challenging areas. This is one case where it is of particular note to thank and express appreciation to SALRI for its wideranging work over those many years, particularly 2014 to 2017.

There have been some who have, hopefully, been identified in person before—I know some of them have been thanked by me in the course of my previous contributions—but it is well to repeat particular acknowledgement. Thanks for their contributions ought go, firstly, to Professor John Williams and to Dr David Plater, both of whom are longstanding and well-recognised leaders of SALRI. Also, over the course of those years significant contributions have been made by Dr Sylvia Villios, by Louise Scarman, by the Hon. Tom Gray KC (who is, of course, a former Justice of the Supreme Court), Ms Dianne Gray, and the law reform class at the University of Adelaide.

It was that class that, just a few weeks ago, was the occasion for me to cross paths with John Rau, which I referred to a moment ago. David Plater's leadership of that class, and the way he therefore engages those who are coming through with areas of reform that can be focused on, is an extension of SALRI and a tremendous one. As the previous Attorney did over the course of the last parliament, special acknowledgment for her valuable contribution needs to be made of Helen Wighton, the founding Deputy Director of SALRI. Helen was present at the start of this important reference but, as we are aware, sadly passed away in 2014.

It is often the case that legislation has a range of thoughtful inputs. It is particularly so for this one and so, as we commence to step through the body of the bill, I recognise SALRI in particular for its contribution.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

Mr TEAGUE: Clause 4 commences at part 2 which, as we know, contains those provisions that were formerly making up the Wills Act. Having just spoken at some length about SALRI and recognising SALRI's role, we would perhaps just recognise that there are very few of the SALRI recommendations that are dealing with the provisions of the Wills Act, so the changes here in this part of the bill are focused on, as we understand, modernising and simplifying the language where that has been possible, and I might come to SALRI's contribution to that part of the bill.

In terms of the approach to modernising and simplifying the language—we have a modernised definition of 'will' for example, and that has drawn on interstate legislation—is there anything that might be said in terms of informing the committee about the approach, in taking this opportunity to bring those provisions of long standing from the Wills Act into the new bill, that was taken in terms of drafting?

The Hon. S.E. CLOSE: I am advised that we took a fairly minimalist approach working with parliamentary counsel just to identify where it was absolutely necessary to modernise. So for part 2 largely it is as it was.

Mr TEAGUE: I would flag that this area was not entirely clear of SALRI input. Again, I am curious to note anything the minister might have to add further about the modernisation of the definition of 'will', so I invite any further observation about that.

In terms of the SALRI recommendation that is relevant here, there is now consideration for those classes of persons who now have the right to inspect a will of a deceased person. We know that those classes of person include those named in the will: beneficiaries, surviving spouses, former spouses, domestic partners, parents or guardians of the deceased and persons eligible to a share of the estate under the rules of intestacy, had the person died intestate.

We know persons who claim against the estate in law or equity can also inspect the will, but only with the permission of the Supreme Court if they have a proper interest in the matter and it is appropriate for them to do so. Is there anything that has guided, as it were, beyond taking up that work of SALRI in this respect, that broadening of the classes of person who are able to inspect the will and the purpose that that might now serve into the future?

The Hon. S.E. CLOSE: I think I understand that there are two areas that are being questioned here. One is about the definition and the other refers to the persons who are entitled to inspect the will. With the definition, the legislation was updated, given that the existing definition drew on and referred to the reign of King Charles II, which has an interesting balance in the title of our current monarch. Interstate definitions were looked at and used in determining a more modern and simple definition for what a will is.

Moving to clause 48—Persons entitled to inspect will of deceased person, this is where SALRI had a significant piece of advice to give. This substantially follows that advice, I am advised, in terms of making sure that anyone who has an interest or a potential claim is able to inspect the will but also introducing the element of a court application for people. This is in order to ensure that there is not a speculative approach, where creditors' businesses may just go looking at wills to see if there is any way in which they can insert themselves into having an interest. It needs to be able to be demonstrated through a court process.

Mr TEAGUE: I will perhaps just stay with that point. We might come back to it in a bit more detail when we get to clause 48 more particularly. I note that clause 48 spells out those who are now entitled to inspect a will, including the process of going to the court as may be necessary for those purposes. As I said at the outset, this is one of those parts of the bill that is largely bringing across those existing provisions, but it is that area of inspection that SALRI focused on, to the extent that it considered the area. That is, of course, caught by report No. 10 from December 2017, which is entitled 'Who may inspect a will?'

It is interesting to note that not this report, but the reports all have suitably historical images and some of them have quotes, including from Shakespeare, about the relevant subject matter, and, appropriately, report No. 10 appears to depict the reading of a will before those, presumably, beneficiaries of it. In terms of report No. 10 from December 2017, SALRI in fact made four recommendations. The first of those was to recommend that there be no change to the present law to allow inspection of a will prior to a testator's death, and that is subject to any existing limited situations contemplated by current law and practice, so no inspection prior to a testator's death.

In recommendation No. 2, SALRI recommended that the legislation, the reform aspect of it, ought to provide for entitlement to inspect a will after a testator's death based on the structure of the New South Wales act—the Succession Act 2006 in New South Wales—and, as such, provision should extend to six categories:

firstly, any person named or referred to in the will, whether as a beneficiary or not, or any person named or referred to in an earlier will as a beneficiary of the deceased person—that is so as to therefore broadly capture those beneficiaries in that extended way;

secondly, the surviving spouse or domestic partner, whether same sex or not, or child or stepchild of the deceased person;

thirdly, a parent or guardian of the deceased person;

fourthly, any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;

fifthly, any parent or guardian of a minor referred to in a will or who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate; and

sixthly, any person committed with the management of the deceased person's estate under the Guardianship and Administration Act 1993—that is the South Australian act—immediately before the death of the deceased person.

We know—and I am going back now to the national committee and its work in preparing a draft wills bill in 1997 that was intended to be adopted across Australia—that clause 52 of that bill dealt with the inspection of a will. The categories that I have outlined just now as being the subject of recommendation 2 by SALRI's report I think are consistent with those categories and based on the provisions of that bill.

Further, we understand that similar laws to that suggested by the national committee are now applied in New South Wales, the ACT, the Northern Territory, Queensland, Tasmania and Victoria, and that South Australia and Western Australia are the only outliers at the time of preparation for these types of provisions. I have only gone to recommendation 2 of four; I might come back to 3 and 4 when there is an opportunity.

Just in terms of their adoption, therefore, is there anything that the minister would add, including whether or not there is any update as to Western Australia's position? Are we now in a situation where we are now achieving uniformity across the country in terms of those categories? Partly because I think I am on my third question for the clause, but also because it might be convenient, I think the relevant provision is going further to divide those categories of person who have an automatic right to inspect the will and those who require a court order. Is that similarly now a matter of uniformity across the country?

The Hon. S.E. CLOSE: We do not have that information here, but given we are getting close to the close we will make sure we have an answer when we come back into committee.

The ACTING CHAIR (Mr Brown): Are there any other questions on clause 4? We have had three contributions, member for Heysen. You can make it brief.

Mr TEAGUE: Perhaps, just for the sake of Hansard, before 1pm and to complete the references to SALRIs work, if I may, otherwise I can perhaps address them in clause 5 if that is—

The ACTING CHAIR (Mr Brown): No, go ahead quickly.

Mr TEAGUE: I note then the balance of the recommendations that are found at the outset and summary of the report are:

…provision should be made for a party (including a creditor) who has or may have a claim at law or in equity against the estate of a deceased person to be able to inspect a will but only by order of a court—

and this is where we get to this second category—

and such an order should only be granted where the applicant has some proper interest and can establish why inspection of the will is appropriate.

The fourth recommendation recommends the consolidation of South Australia's succession law legislation into a single act. Here there is convenient reference to the advantage of doing so for these purposes, being to then incorporate reforms to the Inheritance (Family Provision) Act 1972 and then going back to SALRI's report relevantly on intestacy. SALRI had a fair bit to say specifically about the reform of the family provision legislation and we know happily that is included now in the single bill.

Hopefully, recommendation 3 catches those who are in that extended category, those who need to go to the court for an order to inspect but who will now have the opportunity to do so. Recommendation 4 reminds those who had been caught up in the work that it goes now very much directly to the kinds of persons who are going to be the subject of what was the Inheritance (Family Provision) Act 1972 and that is indeed what has occurred.

We perhaps do not need to come back to recommendation 4, but the answer in due course might then deal with the categories in recommendation 2 and, further, those other persons who are the subject of recommendation 3 and who will therefore now be able to access for inspection, but only with the benefit of any necessary court order. Unless there is anything to add in response at this stage, that is just perhaps to bookend what I might have said in the course of completing my third go at this stage.

Clause passed.

Progress reported; committee to sit again.

Sitting suspended from 12:59 to 14:00.

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