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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-06-15 Daily Xml
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Succession Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (11:33): I move:

That this bill be now read a second time.

This is the Succession Bill and I am happy to move the second reading on behalf of the Deputy Premier. The bill represents some of the most extensive reforms to succession law in South Australia since the development of the Inheritance (Family Provision) Act in the 1970s. The process leading to the development of this bill started in 2011, when the then Attorney-General of South Australia the Hon. John Rau MP invited the South Australian Law Reform Institute to identify the areas of succession law that were most in need of review to conduct a review of each of these areas and to recommend reforms.

SALRI's advisory board identified several topics for review and established a succession law reference group to assist. The reports produced by SALRI between 2014 and December 2017 were 'Sureties' guarantees for letters of administration', 'State schemes for storing and locating wills', 'Administration of small deceased estates and resolution of minor succession law disputes', 'South Australian rules of intestacy', 'Management of the affairs of a missing person', 'Review of the Inheritance (Family Provision) Act 1972' and 'Who may inspect a will'.

I acknowledge the work of the former government, which introduced a version of this bill to parliament in late 2021. The current bill is largely the same as this previous iteration, updated to include the set of amendments filed by the previous government that dealt with some of the technical matters. I note that some further amendments to the bill were passed in the other place, largely as a result of the feedback provided by the Law Society, and the government also supported an amendment from SA-Best to include a clause to require a review of the Succession Act five years after commencement.

The bill enacts the recommendations from these seven SALRI reports that are legislative in nature and they have been accepted by the government. Most significantly, the bill repeals the Administration and Probate Act, the Wills Act and the Inheritance (Family Provision) Act and consolidates the provisions into one new substantive act. The bill also makes consequential and related amendments to 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 the usability of the legislation, particularly for laypeople who may have to act as an executor or an administrator of an estate. For many people, the death of a family member will be the first time they ever need to deal with new legislation, and it is important to make it as easy to understand as possible.

It became apparent during the drafting of the bill that many of the terms used in the legislation were significantly outdated, including, of course, a reference to the reign of King Charles II in the definition of 'will' and sometimes referred to common law concepts that no longer exist or practices that fell out of use many decades earlier.

This bill modernises and updates the language used where possible to make the legislation simpler and easier to understand. The bill reorganises the provisions that have been consolidated from other legislation so that the bill is set out in a logical manner. Part 1 contains the preliminary provisions, such as the interpretation provisions; part 2 contains provisions related to wills; part 3 deals with administration and probate; part 4 deals with the administration of deceased estates; part 5 with intestacy; and part 6 with claims for family provision, followed by miscellaneous provisions in part 7.

I will flag at this point that there are two government amendments to this bill that have been filed and I will briefly outline the amendments here with a fuller explanation to come during the committee stage. The first amendment relates to the qualifications of the Registrar of Probates in clause 51. This amendment is for the requirement that the Registrar or Acting Registrar of Probates must have been a legal practitioner for at least five years in order to be appointed; however, for the appointment of a Deputy Registrar of Probates, that person must only be a legal practitioner.

The amendment has been made to ensure that the office of the registrar can continue to employ junior legal practitioners with less than five years' post-admission experience to process simple applications for probate, which requires them to be appointed as an associate deputy registrar.

The second government amendment makes amendments to the Stamp Duties Act to provide for two new exemptions from stamp duty as recommended by SALRI. Firstly, it will exempt surviving spouses from paying stamp duty where they elect to purchase their deceased spouse's interest in the family home, where the deceased has died intestate. The second exemption will be where there is a property distribution in accordance with a new distribution agreement provided for in clause 111 of the bill.

Part 1 of the bill contains the preliminary provisions. Some of the definitions in the definition section have been modernised or simplified where possible. For example, the definition of 'will' has been modernised and is based on the definitions used in interstate legislation. Part 2 contains provisions that formerly made up the Wills Act. There were very few recommendations from SALRI that dealt with the provisions of the Wills Act; therefore, the changes in this part of the bill are focused on modernising and simplifying language where that has been possible.

One of the SALRI recommendations that does come with this part of the bill is a new provision that gives certain classes of persons a right to inspect a will of a deceased person. The classes of persons 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 for 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 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.

Part 3 of the bill contains provisions related to the granting of administration and probate and incorporates a small number of amendments arising from the SALRI recommendations. The court has been given the power to pass over applications for a grant of probate or administration, to appoint another person whom they consider to be appropriate and to vary or revoke a grant.

One of the other significant inclusions in part 3 of this bill are the provisions introducing a deemed grant model for the administration of small estates. This was a SALRI recommendation from the report on the administration of small deceased estates. These provisions allow the Public Trustee to give notice to the Registrar of Probates that they intend to administer a small estate of the value of $100,000 or less under the deemed grant provisions.

The Public Trustee will not have to apply for a formal grant of letters of administration and will instead be taken to have a deemed grant of administration. The Public Trustee will be required to gazette a notice that they are electing to administer an estate under the deemed grant provisions and also publish it on a website approved by the minister. This will make the process for the administration of small estates by the Public Trustee simpler and less costly, which is important for small estates so that the estate does not get unnecessarily reduced by fees and costs. It will also provide an alternative process for the Public Trustee to use rather than the Public Trustee administering small estates informally.

Part 4 of the bill deals with the process of administering deceased estates and contains a number of changes as recommended by SALRI. Some of the significant inclusions in part 4 give the court additional powers to hold executors and administrators to account in relation to the administration of estates. This includes new powers to require an executor or administrator to give an undertaking to the court as well as a wide range of powers to remedy loss if an executor or administrator fails to perform their duties. For example, the court may order the executor or administrator to pay into the estate an amount equivalent to the financial benefit obtained by the executor or administrator as a result of their failure.

The court may also order for the executor or administrator to compensate persons who have suffered loss or give any other order the court considers to be appropriate. These provisions provide an important mechanism to ensure the beneficiaries of estates can hold executors and administrators to account for failing to undertake their duties.

On SALRI's recommendation, the bill allows persons who hold small amounts of money or personal property of a deceased person to give it directly to the surviving close family of the deceased without needing a grant of probate or administration. This will apply to money or property up to the value of $15,000. This is intended to allow banks, for example, to transfer the money in a bank account belonging to the deceased to the person's surviving spouse in a much faster time frame than if a grant of probate were required. This money can often be vital for the surviving spouse's immediate day-to-day living expenses, and therefore it is so important that it can be accessed as quickly as possible.

An addition to the bill that came from stakeholder feedback is the inclusion of a provision to codify the application of assets in the payment of debts and liabilities in solvent estates. There are existing provisions dealing with insolvent estates, but South Australia currently relies on the common law for solvent estates. Reliance upon the common law has meant that the rules are more complex to apply in South Australia, and a clear, codified formula will be beneficial for executors and administrators when dealing with deceased estates. Therefore, a provision has been included at clause 83 based on the provisions used in the Victorian legislation.

Part 5 of the bill contains provisions that deal with intestate estates, which are estates where the deceased person died without a valid will. SALRI made a number of recommendations in their report on the laws of intestacy. However, a significant number of those recommendations endorsed maintaining the status quo and therefore no legislative amendments were required to implement those recommendations. One of the changes that was recommended was an increase in the amount of preferential legacy received by the surviving spouse of the intestate. A preferential legacy is a payment that a surviving spouse receives from the deceased estate. It has been increased from $100,000 to $120,000.

Another change is that the distribution of intestacy has had one additional degree of relatives—the grandchildren of relatives of the fourth degree, being the children of the first cousins of the intestate—included in the distribution order before the estate passes to the Crown. This change has been undertaken, as there was a strong preference expressed to SALRI during their public consultation that people would prefer their estate to pass to a more distant relative, if there is one, rather than for it to go to the Crown.

There is also a catch-all provision where a person with a just or moral claim can apply to receive the estate if there are no relatives in the chain of distribution. Therefore, there is a mechanism to allow even a distant relative to receive the estate instead of it passing to the Crown. Where there are a number of relatives in the chain of distribution, the distribution of the estate is on a per capita basis in equal proportions to children and grandchildren of the intestate but, on a per stirpes basis, inheriting a portion through your parent in all other cases.

It has also been clarified that a spouse or domestic partner of an intestate has no entitlement to any part of an intestate's estate if they are a party to a prescribed agreement or order. The intention of these changes is to provide that spouses or domestic partners who have separated but not legally ended their relationship through divorce or removal from the Relationships Register and have finalised the financial matters between them are removed from the order of inheritance for intestate estates.

Part 6 of the bill deals with claims for family provision and contains the provisions formerly in the Inheritance (Family Provision) Act. In the feedback received by SALRI during the preparation of their report into family provision, it was generally agreed that claims under the family provision act are too easy to make and that not enough weight is placed on the wishes of the testator.

There are often unmeritorious claims made by beneficiaries who do not need the financial support, and currently there is very little disincentive to making a claim, as costs are borne by the estate. Therefore, in order to rebalance the wishes of the testator with the right of beneficiaries to make a claim where they have not been provided for, the categories of claimant who are automatically entitled to bring a claim under the family provision sections of the bill have been narrowed.

Former spouses and domestic partners are excluded from making a claim for family provision if they have been a party to a prescribed agreement or order similar to the exclusion from the order of inheritance of intestate estates. This is to prevent long-divorced former spouses from making claims from the estate years after the marriage ended and the financial matters were settled.

The position in relation to adult stepchildren has also been clarified. In order to be eligible to make a claim, adult stepchildren have to demonstrate that:

they are disabled and significantly vulnerable by reason of their disability; or

they were genuinely dependent on the deceased at the time of their death; or

they cared for, or contributed to the maintenance of, the deceased immediately before their death; or

they significantly contributed to the estate of the deceased; or

assets accumulated by the stepchild's parents substantially contributed to the estate of the deceased person.

The last category of claims will ensure that adult stepchildren have a way to make a claim on their step-parents' estate where their own parent had left their assets to the spouse rather than directly provided for their children at the time of their own death. Additionally, stepchildren who are minors are entitled to make a claim if they satisfy the court that they were wholly or partly, or were legally entitled to be wholly or partly, maintained by the deceased immediately before their death.

Grandchildren of the deceased person will now have to satisfy the court either that the parent who was the direct relation to the deceased has died or that the grandchild was wholly or partly, or was legally entitled to be wholly or partly, maintained by the deceased before they will be able to make a claim.

Clause 116 now provides that when determining whether to make a family provision order the court's consideration is to be the wishes of the deceased person. The court may also order a party to 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 may be without merit or the party is unwilling to negotiate a settlement of a claim for provision. This amendment is aimed at discouraging unmeritorious claims.

Part 7 of the bill contains the miscellaneous provisions. One significant addition in this part is the provision that will codify the rules that apply when there are simultaneous deaths, or deaths where it is unclear who died first, of spouses or domestic partners. Currently, South Australia relies on common law rules in this situation, which means that the rules in South Australia are different from other Australian jurisdictions. The new provision in clause 127 states that where there are simultaneous deaths any jointly owned property will devolve in equal shares to each person's estate as if they were tenants in common.

An additional provision in part 7 has been included to codify the presumption of survivorship. The provision in clause 126 provides that where two or more persons have died in circumstances where it is not possible to determine the order of death the deaths will, for all purposes affecting title to property other than jointly owned property, be taken to have occurred in order of seniority, with the eldest having died first.

The Succession Bill 2022 represents the culmination of a significant number of years of work from SALRI, the Attorney-General's Department and parliamentary counsel on these reforms. I also acknowledge the work of the former government and the former Attorney-General, the Hon. Vickie Chapman, who introduced a version of this bill herself.

The passage of the Succession Bill will give South Australia a modern, usable piece of legislation that will have benefits for the legal profession, the courts, the Public Trustee and the general public. I commend the bill to the house.

Mr TEAGUE (Heysen) (11:54): If I might pick up where the minister left off, I do not propose to reiterate what has now been rehearsed a number of times in terms of the outline of the contents of the bill. We have heard the Attorney address those matters in another place on 20 October last year and we now have those remarks on the Hansard record of this house.

I pick up where the minister left off in taking a moment to pay tribute to the former Attorney-General and former Deputy Premier, the Hon. Vickie Chapman, who, in concluding her remarks outlining the bill in the course of the second reading in the previous parliament, really put the scope and nature of the work in context in terms of her contribution to the parliament on 23 June 2021.

In paying tribute to her work, I draw on and repeat her remarks. She first indicated that she was 'particularly proud of the establishment of an appeal court in South Australia'—indeed, a signature achievement. She goes on to say:

…if I were to pick out one other very large body of work of reform it would be in relation to succession law. A massive amount of research has been undertaken. It is centuries of developed common law and statute that we are bringing together in a modern piece of legislation that we hope will serve the people of South Australia well into the future.

The Hon. Vickie Chapman then went on to say, and I think this provides some context to that work:

I would just like to particularly thank the many people across South Australia, particularly in our regional areas, who came forward either individually or through their legal representatives to present to SALRI [the South Australian Law Reform Institute] during their statewide survey and invitation to South Australians to make a submission on this. It was a massive amount of work and I am deeply indebted to them.

She concludes, 'I am very satisfied that the parliament will be well served in being able to consider these reforms,' commending the bill to the house, as she did at that time. I am pleased to say as lead speaker for the opposition, and indicating of course the opposition's wholehearted support for the passage of the bill, that I am particularly conscious that I now stand here in the Fifty-Fifth Parliament as shadow attorney-general. If in some small way I can carry on to see, to endorse and to commend the fruition of that work, I hope relatively soon in this parliament—I hope in the coming hours—then I will be glad to have made that contribution to this significant body of work.

In terms of the time this has taken, I take on board what the Attorney said when he was addressing this in the course of the second reading in another place: that there is no particular anxious rush to see this passed by the parliament. I do just observe that that was in October last year, and there is every reason at this point, I suggest, for there to be no delay in the passage of the bill.

There have been one or two particularly discrete amendments to that 2021 bill that was completed and introduced by the Hon. Vickie Chapman in 2021, and there is nothing controversial about those matters. There are another couple of amendments that are, I understand on advice, necessarily introduced by way of amendment in this place at this time because they are money clauses and they relate to the treatment for stamp duty purposes of beneficiaries in those discrete circumstances.

So I understand why we have some work to do in terms of the final shape of the bill in this place, and I think we can do that promptly. I have been grateful for the opportunity to have briefings about that from the Attorney-General's office along the way, and I reiterate that there is wholehearted desire on this side to see the bill finally pass the parliament and to do so soon. I will provide a little bit of context about what the bill will be doing, because here we are again, and perhaps just make some remarks particularly about part 6.

We know that it has been a long time coming and that the result of the passage of this new bill will be to repeal and replace the Administration and Probate Act 1919, the Wills Act 1936 and the Inheritance (Family Provision) Act 1972 and consolidate all of those into this single act. It is also going to be making amendments to the Stamp Duties Act 1923 as the result of the amendments proposed to be introduced in this house; we will get to those in committee.

It might be acknowledged, by the way, that this work commenced as early as 2011 under the then Attorney, John Rau, and really very substantially has been driven by seven reports of the South Australian Law Reform Institute. Those have been the subject of reports, particularly between 2014 and 2017. The bulk of them in were 2016 and 2017, but they started with the sureties' guarantees report in 2013; the small deceased estates and minor succession law disputes report, 2016; who may inspect a will, 2017; missing persons, 2017; will register, 2016; intestacy, 2017; and family inheritance, 2017. We know that in all there are 113 recommendations.

The former Labor government, the Weatherill government, in 2014 adopted one of those, so the work was underway. Of the remaining 112 recommendations, the 2021 bill, as it was presented to the last parliament by the Hon. Vickie Chapman, saw 104 recommendations adopted in whole or in part. That is the context. It has been a long time coming. Important thanks needs to be made and recognised to SALRI as well as of course, as I have said, to the Hon. Vickie Chapman in her capacity as the Attorney in bringing all this together.

The bill addresses substantially in part 2, Wills; part 3, Probate and administration; part 4, Administration of deceased estates; part 5, Intestacy; part 6, Family provision; and a number of miscellaneous matters in part 7, all of which have been rehearsed now over the course of the debate both here and in another place. I particularly commend those who have followed the progress of the debate, as I have indicated earlier, to the second reading contribution of the Hon. Vickie Chapman on 23 June 2021.

I said that I would make some particular remarks about part 6. I want to do that because it also serves to illustrate some of the territory that was covered by SALRI and the range of matters and consideration that need to be taken on when seeking to consolidate a whole body of legislation and to look at where really does the balance fall in terms of the administration of deceased estates, what is the proper level of control of the testator, as opposed to reasonable expectations of those who might expect to be beneficiaries and so forth.

The minister has made reference to the fact that, as the result of this work, there has been a tightening of the categories of those who may be automatically entitled to bring a claim under the family provision sections. I want to make particular reference to clause 116(2)(a), which makes clear the overriding and primary concern of the court, and perhaps I will take a moment to emphasise it:

(2) In determining whether to make a family provision order—

(a) the wishes of the deceased person is the primary consideration of the Court.

I draw particular attention to that because it is a topic of current consideration, both the categories and the nature and priority of the court's consideration of the wishes of the testator. Clause 116(2) makes clear that the primary consideration of the court is the wishes of the testator.

Again, just to give some context about that, when SALRI were embarking upon their consideration of this in 2017 they considered a whole range of ways of dealing with those circumstances of what is occurring in the lead-up to death, what is to be found in terms of provision in the will and then the rights that might follow for family provision, notwithstanding a will.

One area of exploration highlights really where it came in to land in terms of the priority that is set out now in the bill at clause 116(2)(a) about the primary consideration being the wishes of the deceased person. SALRI considered and ultimately rejected the adoption of what we find in New South Wales, for example, that is, provisions that provide for a clawback regime, equivalent or consistent with what happens in an insolvency, where a testator shortly prior to their death makes certain dispositions. If that all happens close to death, the question is: should it somehow be regarded as part of the notional estate, the so-called notional estate provisions and clawback provisions?

SALRI, in embarking on its inquiry in that regard, made the observation that in most jurisdictions, including in South Australia, if a person gives away or otherwise disposes of their property prior to death then the Inheritance (Family Provision) regime has no role to play. The observation is made that in New South Wales a regime has been adopted that allows the court to treat that property that has been disposed of prior to death—not necessarily needing to characterise the purpose, but with the effect of avoiding family provision claims—as part of the person's estate when they died.

The consideration at that point went on to observe that the National Committee for Uniform Succession Laws had recommended that provisions be implemented based on these New South Wales laws to ensure that the primary object of the family provision laws could not be, as it was perceived, frustrated by people disposing of all their property immediately prior to death, but there was significant controversy about that.

The Victorian Law Reform Commission, in particular, had mixed views about the way in which people should be permitted to deal with their property while they are still alive. SALRI makes the observation that in its review of the Victorian provisions the commission noted that there were many reasons why someone might be dealing with their property in a certain way during their lifetime—and they might include tax considerations and provision for family members while they are alive—and that there was not sufficient evidence that dealing with assets during a lifetime was so overwhelmingly geared towards depriving family and others who might otherwise be eligible for provision within the Inheritance (Family Provision) regime.

SALRI was interested to explore that matter in the course of their work, particularly in the 2017 process. It ultimately came to the conclusion that perhaps the considerations of the Victorian Law Reform Commission, but otherwise in terms of the balance of matters of principle, were weighed in favour of the principle that is really there expressed at clause 116(2)(a). That principle is that in the course of a person's life, their decisions about the disposition of the estate ought to be their own decisions and ought not to be subject to clawback via any form of what has been termed 'notional estate provisions'. We see indeed that really emphasised in terms of clause 116(2)(a).

I highlight that particular aspect of the consideration for the purpose of identifying in some small way the significant range and scope of subject matter that SALRI navigated over the course of many years of its very significant contribution to what has ultimately been presented in terms of the 2021 bill that we now see complete and close to its passage through the parliament.

There will continue to be all kinds of competing private and public policy considerations that will play in terms of this area of law. I am glad to see that it has been possible to consolidate the law from a series of discrete and, in many cases, longstanding statutes, as well as aspects of the common law going back hundreds of years, as the Hon. Vickie Chapman observed, into a new and consolidated piece of legislation.

It would be a regret of mine to miss the opportunity otherwise to express my own thanks and recognition of those leaders of SALRI and those who were particularly involved in the work in the lead-up to this bill, not because they worked alongside me—I had very little involvement, if any, in the work leading up to the introduction of the bill in the last parliament—but I have certainly worked with SALRI and with those involved in the time before and during and very much since that time in mid-2021, and so I, too, particularly acknowledge the contributions of Professor John Williams; Dr David Plater; Dr Sylvia Villios; Louise Scarman; and also the Hon. Tom Gray KC, former Justice of the Supreme Court; Ms Dianne Gray; and, as I understand it, the law reform class at the University of Adelaide.

As the Hon. Vickie Chapman did, I also take the opportunity to note the valuable contribution of Helen Wighton, the founding deputy director of SALRI. As the Hon. Vickie Chapman observed in her contribution in 2021, Helen is acknowledged as having started the work on this important reference at SALRI but, sadly, passed away in 2014.

With those words, I again indicate the opposition's wholehearted support for the bill and for its passage finally through this parliament, contributed to as it has been by so many over such an extended period of time. It is my sincere wish that the new act will serve South Australians long into the future. I commend the bill to the house.

Ms HOOD (Adelaide) (12:20): I rise to speak in support of the Succession Bill. It is one of the many necessary tasks in life to ensure our affairs are in order before we depart this earth. I also acknowledge, though, that life can become complicated, relationships can be complex, family units now come in all shapes and sizes and that sometimes people just do not get around to the task of organising where their estate will go when they leave this life. Thus it is vitally important that we have strong succession laws in place to govern the execution of wills, inheritance and other important matters.

This bill represents some of the most extensive reform to succession law in South Australia since the Inheritance (Family Provision) Act in the 1970s and is a result of the SALRI review first undertaken by previous Attorney-General John Rau in 2011. The bill enacts the recommendations from the seven resulting SALRI reports that are legislative in nature and have been accepted by the government.

This bill repeals the Administration and Probate Act, the Wills Act, and the Inheritance (Family Provision) Act 1972 and consolidates the provisions from those acts into a single act. It also includes many modernisations and updates needed to language to address outdated references, and it also updates legislation to reflect modern society, such as that people would prefer inheritance to be kept in the family before going to the Crown.

Part 2 of the bill contains the provisions that formerly made up the Wills Act, with the changes in this part of the bill focused mainly on modernising and simplifying the language where that has been possible. One of the SALRI recommendations that has come within this part 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 persons 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.

Part 4 of the bill deals with the administration of deceased estates and contains a number of changes recommended in the SALRI reports. Some of the significant inclusions in part 4 are provisions that allow the court to require an executor or administrator to give an undertaking to the court related to how the estate is to be administered or in relation to other related matters.

The court has also been given a wide range of powers to remedy loss if an executor or administrator fails to perform their duties. The court may order the executor or administrator to pay into the estate an amount equivalent to the financial benefit obtained by the executor or administrator as a result of their failure and order for the executor or administrator to compensate persons who have suffered a loss or any other order the court considers to be appropriate.

The ability of the court to impose these types of orders is important, as the criminal offences related to the duties of executors and administrators have been removed from the legislation as a result of another SALRI recommendation.

Part 5 of the bill includes provisions that deal with a situation where the deceased has died without a valid will. This has been the subject of a number of recommendations from SALRI, with one of the main changes being in regard to the amount of the preferential legacy a surviving spouse is entitled to under the rules of intestacy, with the bill increasing this by $20,000 to $120,000.

Another main change is that the distribution on intestacy has had one additional degree of relatives included in the distribution order before the estate passes to the Crown, that being the grandchildren of relatives of the fourth degree, being the children of the first cousins of the intestate. This change has been undertaken as there was a strong preference expressed to SALRI during their public consultation that people would prefer their estate to pass to a more distant relative, if there is one, rather than go to the Crown.

Part 5 of the bill contains the miscellaneous provisions with one significant addition being the provision that will codify the rules governing the situation where there are simultaneous deaths of spouses or domestic partners. Currently, South Australia relies on common law rules in this situation, which means that the rules in South Australia are different from other Australian jurisdictions. The new provision states that where there are simultaneous deaths any jointly owned property will devolve in equal share to each person's estate as if they were tenants in common.

An additional provision in part 7 has been included to codify the presumption of survivorship. This provision provides that where two or more persons have died in circumstances where it is not possible to determine the order of deaths, the deaths will, for all purposes affecting title to property, be taken to have occurred in the order of seniority, with the eldest having died first.

I would like to acknowledge the enormous amount of work that has occurred to undertake significant reform and enact the recommendations of SALRI through this bill. I commend the bill to the house.

Mr WHETSTONE (Chaffey) (12:26): I would like to make a contribution to the Succession Bill for a couple of reasons. Obviously, it is an important amendment and also an important body of work that has been undertaken by a number of politicians, particularly the Hon. Vickie Chapman, the former Deputy Premier and first female Attorney-General of this state. The body of work and the tireless effort that she put into this bill came through her own experience and her passion to cumulate a serious body of work.

The bill also came about after eight years of work and research by the South Australian Law Reform Institute. I must commend all the members of the Law Reform Institute for their great work and their commitment to making sure that, as legislators, we are given all the detail needed to modernise this reform work. SALRI produced seven reports between 2013 and 2017 and made 113 recommendations.

Prior to 2014, the former Labor government adopted only one of the recommendations and, through this bill, the former Liberal government, led by the Hon. Vickie Chapman, adopted 104 recommendations in whole or in part. This body of work fell by the wayside and now we have it before the parliament. It is great to see some of the most extensive reform to the succession law in South Australia since the development of the Inheritance (Family Provision) Act in the 1970s.

It also consolidates South Australia's previous three succession laws into one act, setting out provisions in a logical and coherent manner, those previous laws being the Administration and Probate Act 1919, the Wills Act 1936 and the Inheritance (Family Provision) Act 1972. The bill will reshape the way succession laws work in South Australia, placing more weight on the wishes of the testators but still allowing eligible people to make claims where they have a genuine need to do so.

The definitions have been modified, simplified and are more consistent with the definitions of our interstate counterparts. The legislation will hopefully stand the test of time and reduce the complexity that many testators have encountered over many years. I can attest to that myself, having fallen to the complexities of being part of a will. Whether contested or not, it is always quite complex and it has always needed to be modernised.

When the former Liberal government introduced the bill, the deliberate intention was to ensure that the testator's wishes are the court's primary consideration in family provisions and claims. The threshold has been raised for such claims to reduce the number of trivial and speculative claims that currently bog down our court system.

The reform modernises succession law so that we no longer rely on outdated common law principles. The current provisions include outdated terms and common law principles that have not been used for decades. We are committed to keeping these laws current and relevant, reflecting the changing composition of South Australian families. Uniting current common law principles under one act will make handling deceased estates simpler for executors and administrators.

SALRI's extensive community consultation found that insufficient weight had been given to testators' wishes. To date, it has been far too easy for people to contest a will by making family provision claims. The cost of contesting a will is usually carried by the estate, meaning that there are not many disincentives for contesting a particular will. Placing more weight on a testator's wishes and narrowing the group of eligible persons will reduce the number of improper and opportunistic claims that bog down the court system. However, the court still retains the power to intervene when a will is unfair and a family member has not been adequately provided for. I think this modernised bill will go a long way.

Again, I want to pay tribute to the former Attorney for her great body of work and her dedication to modernising the Succession Bill. I think it is pertinent to mention that my contribution today is based on the great work and dedication of the former Attorney. This huge body of work that was undertaken to get us where we are today is a testament to the dedicated legislators we have here in South Australia. The former Attorney was an absolute anchor point in making sure that this modernised legislation has come to this place. I look forward to a steady pathway forward for the Succession Bill.

Mr BROWN (Florey) (12:32): I am pleased to speak today on the Succession Bill, representing as it does some of the most extensive reforms to succession law in South Australia since the development of the Inheritance (Family Provision) Act in the 1970s. I would like to begin by thanking the Attorney-General's office for their assistance and their provision of advice on this bill.

As we have already heard, the process leading to the development of this bill started in 2011, when the then Attorney-General the Hon. John Rau invited the South Australian Law Reform Institute to identify areas of succession law that were most in need of review, to conduct a review of each of these areas and to recommend reforms. SALRI's advisory board identified seven topics for review and established a succession law reference group to assist.

The reports produced by SALRI between 2014 and December 2017 contain a number of important recommendations that are worth considering in detail. While the reports are meritorious and informative, I do not intend to discuss in detail those reports that deal with surety guarantees for letters of administration and the proposed system for the state storage of wills. However, the report on small estates and minor succession disputes recommended:

1. That the deemed grant model be introduced and implemented in South Australia.

2. That features of the deemed grant model, as identified and recommended by the Victorian Law Reform Commission, be implemented subject to the following refinements:

(a) a threshold dollar value of estates that may be administered under the scheme to estates with a gross asset value of $100,000 indexed to reflect changes in the consumer price index;

(b) inserting a second safety net value expressed as a percentage of the threshold figure above which administrators would need to apply for a full grant to accommodate any underestimation of the value of the estate at the time of filing;

(c) adding a requirement to file the will, if there is one, which would alert the probate office to the expedited grant, with legislative clarification needed to ensure that the probate office would not be required to review any wills submitted as part of an expedited process;

(d) replacing the requirement to advertise in a newspaper with a requirement to advertise on the court's website, thereby creating a searchable record;

(e) it should specifically discharge from liability third parties who deal in good faith with the administrator; and

(f) it should require the administrator to keep accounts of the administration for a set period to be available for inspection by anyone with an interest in the distribution of the estate or otherwise by order of the Supreme Court.

3. In any event, the institute does not recommend the simplified procedures without a grant for lay administrators referred to in the issues paper, i.e. summary administration by collection affidavit, court-approved summary administration, verified summary administration or summary administration by declaration.

4. The Supreme Court retains its existing exclusive role in the administration of small estates.

5. The amendment of subsections (71) and (72) of the Administration and Probate Act 1919 (also known as the A&P Act) on the lines of the model provision in relation to protecting certain payments by third parties with an appropriate CPI adjusted monetary limit to allow payments of greater amounts in a wider range of circumstances to a wider range of survivors and with less formality. The institute considers that a maximum amount of $25,000 annually adjusted for CPI seems a reasonable monetary limit.

6. Provision for expedited dealings with land belonging to a deceased person based on the Queensland model, which is the Land Title Act 1994, not be introduced in South Australia.

7. There is a need for reform in some categories of a succession law dispute in which the estate is considered small. Those categories include claims for further provision pursuant to the Inheritance (Family Provision) Act 1972 and the validity and construction of wills.

8. All succession law disputes should at this stage continue to be determined by the Supreme Court, not only because of the court's jurisdiction in relation to probate matters conferred by statute but also as a result of the particular knowledge and expertise of Supreme Court judges, masters and court staff in such a specialised area as succession law and practice.

I seek leave to continue my remarks.

Leave granted; debate adjourned.

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