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

Succession Bill

Committee Stage

In committee (resumed on motion).

Clause 5.

The ACTING CHAIR (Mr Odenwalder): Perhaps I could get an indication whether there are indeed any questions or observations on clause 5.

Mr TEAGUE: I think I am waiting for an answer.

The Hon. S.E. CLOSE: A question was asked earlier about the similarity or otherwise of the section that refers to the way in which people with interests in the will have access to being able to see the will. I will give a quick summary of the conditions in other states.

Western Australia has no provision for that; it is on application only. New South Wales is the model that was used as the basis for the advice from SALRI to us, except that it does not include the special provision for creditors to have to go through the court. They are automatically on the list as being entitled to see the will. The ACT is similar again but does not mention creditors. The Northern Territory, Queensland, Tasmania and Victoria, again are very similar in all other respects and include having creditors having access to see the will.

Therefore, the South Australian position, although consistent in most respects with most other states, has forged a path where creditors are acknowledged but there is a special role for the way in which creditors are able to have access to seeing the will.

The ACTING CHAIR (Mr Odenwalder): That did not appear to be an answer on clause 5, so I will be generous and allow you three questions on clause 5, if that is the case. Having just stepped into the chair, that is where we are up to, I assume.

Mr TEAGUE: As I think the Deputy Premier has indicated, you are in charge of the chamber, absolutely and completely, Acting Chair. I respect that very much, as I do and appreciate the answer of the Deputy Premier just now. I make the observation that we might hopefully have a chance fairly shortly to get to it relevantly when we are at part 6.

It is actually interesting in substance, it seems to me, to be comparing the bill with particularly New South Wales because part 6 is another good example of where we have seen a departure from what is happening there. It is therefore perhaps helpful to note that there is that departure here for creditors. Yes, there is an extension of access to the will, but with a requirement that there first be a reference to the court. As we will get to, we also have not gone down the path, for example, of an insolvency-style clawback about wills made within six months of a testator's death.

So in terms of that access to inspect the will and the broader notion that there are interested parties involved at and around the time, we have preserved the important principle that there is no access prior to death and that there is no clawback for any period where a will is made shortly prior. We have also kept a category of interested party that needs the court's approval to get access.

That is just by way of appreciation, I suppose, of the answer and good to have that comparative on the record. In terms of other jurisdictions, as I understand therefore, Western Australia are now particularly the outlier in terms of uniformity.

Clause passed.

Clauses 6 to 33 passed.

Clause 34.

Mr TEAGUE: In relation to clause 34, and just a running reference point, there might be a series of opportunities to note where there is amendment—there are very few of them—either by reference to a SALRI recommendation or by reference to what was previously a provision in one of the acts comprising this new bill or indeed as an amendment from the previous government's version, and there are very few of those.

At clause 34, I note—and with appreciation to the Attorney-General's office in this regard—the indication that the Law Society by its 2023 submission for the reason that there are no succession duties or death duties was the source of a recommendation that the clause could be amended by removing the words 'to a valuation made or accepted for the purposes of assessing succession duty or any other form of death duty' and replacing them with 'to be made for the purposes of the will'.

It might be an opportunity to appreciate another party that has made a material contribution to the bill. I just ask the minister whether or not there has been any other source of reference to be sure indeed that that is a sufficient rationale for removing that previous reference that was there of longstanding regarding a valuation made for the purpose of assessing succession duty, or rather death duty, and that we can be sure that there is no other work for that to do and that we find clause 34 in the form that it is. That is, if a will refers expressly or by implication to a valuation to be made for the purposes of the will, that reference is to be construed as if it was a reference to a valuation made by a competent valuer.

The Hon. S.E. CLOSE: Yes, indeed. The Law Society did point out that there was reference to duties that no longer exist, and therefore we took that advice, having overlooked that previously.

Mr TEAGUE: It might be just underscoring this, but I suppose it is a statement of confidence—and a welcome one—that there is no prospect of such things re-emerging. That might be an optimistic note.

Perhaps I will just note that the Law Society was even more belts and braces than that. There was a further suggestion that I omitted, and I hope I will be forgiven for not referring to that more particularly. However, that was the substance of it, as I understood it.

Clause passed.

Clauses 35 to 38 passed.

Clause 39.

Mr TEAGUE: We are still within part 2, so we are talking about wills, and clause 39 concerns the validity of statutory wills made outside the state. Again, there is a contribution from the Law Society in its 2023 submission. Given the history of all this, it is interesting that we have these worthwhile submissions from the Law Society coming along in 2023 against the background of John Rau commencing a process in 2011 and then the bulk of the SALRI work being done over the years 2014 to 2017, and then a bill that was before the last parliament—all that sort of thing.

I do not know what the answer to that is. There might be a good answer as to why the Law Society has made these helpful and relevant suggestions just now in its 2023 submission, but there we are. Here is the second one of them.

Again, with thanks to the Attorney-General's office, the suggestion of the Law Society in that 2023 submission was that the words 'or domiciled' be added after the word 'resident' to allow for a situation where a statutory will has been made for a person in another jurisdiction where that person is domiciled but not currently resident, hence the recommendation to add those words 'or domiciled'. I am interested in any explanation of the government's consideration of that recommendation, and its satisfaction that that was appropriate to add at this late stage.

The Hon. S.E. CLOSE: I am not a lawyer, as I find myself saying frequently, and therefore I am not certain there is a common definition of the two words that require the repetition in the sense that, to my reading, it is not referring to having a status of residency such as might be conferred through a visa. Nonetheless, I am very pleased that we took advice from the Law Society that suggested adding 'domiciled', presumably in order to be sure that, if someone was not living somewhere in an ongoing sense but was there temporarily, that would be covered as well. Indeed, New South Wales is another jurisdiction that has chosen to use both words.

Clause passed.

Clauses 40 to 44 passed.

Clause 45.

Mr TEAGUE: Clause 45 concerns the will being deposited with the registrar, and provides that:

(1) A person may deposit a will with the Registrar.

(2) The deposit of a will under this section must be done in accordance with the rules.

My reference to the report recommendation being adopted is to the wills report at recommendation 3, but it is not a reference that I would have first got out. I will perhaps just ask the question: where are the recommendations relied upon for the purposes of adopting the clause in that form?

The Hon. S.E. CLOSE: My understanding is that it comes from the South Australian Law Reform Institute, Final Report 5, October 2016, 'State schemes for storing and locating wills', and that recommendation 3 recommends this form of capturing the language.

Mr TEAGUE: Thanks, that is an answer. I do not have any more questions until clause 48.

Clause passed.

Clauses 46 and 47 passed.

Clause 48.

Mr TEAGUE: Here is where I was jumping ahead earlier. We dealt with this really quite substantially in the course of dealing with clause 4 because that was really at the beginning of the relevant part about wills. This really very much substantially concerned clause 48 so far as SALRI and its reports on the topic were directed, and the entitlement to inspect. This might have been covered already in the answer that was given at the outset.

I note recommendation 3, which recommends extending access to those interested parties to include parties having a claim at law and equity against the estate of a deceased person to be able to expect the will be done by court order, including a creditor. That was informed by but departed from the situation in New South Wales where such interested persons would be entitled under that act to access.

I would just ask whether or not there was anything further that perhaps informed the government's consideration of that matter, knowing as we do that that recommendation, like the bulk of this, has been now well settled by that report going back six years. Has there been any consideration more recently, and is there anything that the minister would add to the answer that the minister gave at the beginning of this session?

The Hon. S.E. CLOSE: The SALRI report and process for preparing the report did undertake, as the member will be very well aware, an extensive amount of consultation and making sure that workshops and so on were available to be able to discuss these matters. The advice through that was that, although New South Wales has otherwise got a pretty good system, including creditors as being able to, as a matter of right, see the will was too much and that there was a preference to have some form of process that they needed to go through. There has not been anything more recent. We are still operating from that report.

Clause passed.

Clause 49 passed.

Clause 50.

Mr TEAGUE: Perhaps at clause 50 I might just for the record ask the question, because I am not sure: is that an amendment of some sort since the 2021 bill, or is it just an explanation in terms of the adoption of the smaller states' reported recommendation 4, and how did that pan out? That is a fairly open question. I am just not sure about what the genesis of that is at clause 50.

The Hon. S.E. CLOSE: We are glad you asked the question; this is interesting. The report recommendation indeed recommended that the Supreme Court retain jurisdiction for small deceased estates, but then it was discovered that the jurisdiction of the Supreme Court was defined differently in the Administration and Probate Act 1919 and the Supreme Court Act 1935, so there was some consultation with the report, and the decision was made to refer to the definition in the Supreme Court Act.

Mr TEAGUE: Yes, that solves it.

Clause passed.

Clause 51.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [DeputyPremier–1]—

Page 24, lines 20 and 21 [clause 51(3)]—Delete subclause (3) and substitute:

(3) A person is only eligible—

(a) for appointment as the Registrar or acting Registrar if the person is a legal practitioner of at least 5 years standing; or

(b) for appointment as a deputy if the person is a legal practitioner.

This amendment provides 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, and for the appointment of a deputy registrar of probates the person must be a legal practitioner. This amendment has been made to ensure that the office of the registrar can continue to employ junior legal practitioners—that is, 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.

I am advised that the Chief Justice wrote to the Attorney-General to raise that the current drafting of clause 51 in the bill might preclude the office of the registrar from continuing this practice in relation to appointing associate deputy registrars. The proposed amendment has been discussed with the registrar and I am advised that she has indicated her support of the change as drafted.

Mr TEAGUE: I appreciate the explanation just now and I appreciate the engagement, once again, of the Attorney-General's office. That is my understanding as well, that it is the current practice for the administration of probate to engage a junior practitioner, and so there is practical provision for the appointment of a deputy as a legal practitioner without the requirement for so many years standing. That amendment is supported and I note the explanation for it.

Amendment carried; clause as amended passed.

Clauses 52 to 72 passed.

Clause 73.

Mr TEAGUE: I note again there has been a minor modification here, adopting as it does, in part anyway, the recommendation of SALRI's small estates report.

The note on the table indicates that this was adopted in this form, with modifications arising from consultation with the Public Trustee, the court and the Registrar of Probates. I would just be interested if the minister can outline what, if any, practical matters were raised by the Public Trustee and the court and the Registrar of Probates that informed the adoption of that recommendation and those modifications?

The Hon. S.E. CLOSE: To the best of my adviser's recollection, there are two main areas where this bill differs from the advice that was given by the Public Trustee. The first is in subclause (1), where there is a maximum monetary value of property. The Public Trustee suggested that that be indexed and that the indexation be placed in the legislation. As can be seen, the decision was made that there would be a methodology that would be adopted essentially by regulation or by notice in the Gazette in order to allow more flexibility to the government of the day in how to administer that.

The second area is in the way in which notice is given. SALRI's report largely stuck with the idea of being available online, whereas as you can see the bill also countenances giving notice in the Gazette.

Mr TEAGUE: I appreciate the answer. The Gazette gets a good run in terms of those modifications. I just indicate an appreciation for that answer, that there is therefore, as I understand it, capacity to make a more substantial change to the monetary amount in (1)(a) if that might be desirable and, so far as notice is concerned, that the Gazette has a role as well.

Clause passed.

Clause 74.

Mr TEAGUE: With part 4 dealing with the administration of deceased estates, it is an opportunity to note the fact that this is one part of the new bill that SALRI really addressed very substantially, particularly in relation to intestacy. I note in this regard report 7, July 2017. That is the subject of 58 recommendations. There is a note at the outset of the report that the last systematic review at that stage was 43 years ago, so now getting on for 50 years ago, in 1974, that being the subject of the Law Reform Committee of South Australia's 'Relating to the reform of the law of intestacy and wills' report No. 28 of 1974, as if to emphasise that succession law should be reformed as needed to reflect change, social values and circumstances and modern expectations and needs.

I think SALRI was moved to footnote that observation and seek authority from the Victorian Law Reform Commission, but it might be said that that was otherwise plain. The review, particularly in relation to intestacy, was well and truly due even at the time that it was done. There was, therefore, a large body of work and a large number of recommendations that have found their way into the bill.

I recall the contribution of the member for Waite, for example, in the course of the second reading of the debate, exhorting people to consider taking steps to make a will and to ensure that they properly do that. The need to address that probably reflects the fact that there are many who will not have taken those steps. With SALRI's work in this regard considering the rules of intestacy, not only is there a long time between reviews but it speaks to a time where we have seen changes in practice. As in other areas of the bill, SALRI's work in this regard ought to be recognised and appreciated.

I think that probably amounts to a series of observations. I do not know that there is a question in there. In terms of dealing with the part, it might be possible to deal with the part more broadly in that course if the minister had anything to add about that helpful report No. 7 from July 2017. In terms of anything else that has come along more particularly that has been of assistance in terms of part 4, I invite the minister to take the opportunity now. There are a couple of references down the track—clause 83, for example—but we might be able to deal with it all in one go.

The Hon. S.E. CLOSE: We do not have a lot to add and there has not been anything since that report, as referenced by the member. I will note there are many recommendations in that report, but a high number of them recommend keeping the status quo. Although it looks like a lot of recommendations, it does not necessarily result in a lot of changes.

Clause passed.

Clauses 75 to 100 passed.

Clause 101.

Mr TEAGUE: I extend those remarks to part 5 as well. There is an interesting observation that might be made about the intestacy reported at recommendation 6 and the definition of personal chattels in the old act. As I understand it, for the purposes of all of part 5, recommendation 2 of that report is adopted, so there is no change to the property that is available for the distribution on intestacy. I think they are two separate observations about those defined terms at clause 101. The minister might just indicate whether there is any substantive change, the result of those two recommendations being adopted.

The Hon. S.E. CLOSE: No, there is no substantive change.

Clause passed.

Mr TEAGUE: I have an indication about amendments moved by the Attorney in another place that go back to March.

The ACTING CHAIR (Mr Odenwalder): My advice is that no further amendments have been filed in this place. Those amendments were in the upper house, but no further amendments have been filed here. The bill we have here incorporates the amendments made in the upper house. The next one is at schedule 2.

Mr TEAGUE: The next one in terms of this place is the money amendment, which needed to be made here, so that is the one we are dealing with. I just note the recent amendments, commencing at clauses 105, 114, 115—and there are several at 115—that reference a spouse or former domestic partner and former spouse and former domestic partner. There is a further amendment at 115(6)(b) that, again, relatively newly now, is inserting a modified reference to a parent who cared for or contributed to the maintenance of the deceased person immediately before the person's death, and the parent was maintained wholly or partly by the deceased person immediately before the deceased person's death.

Is it possible for the minister to indicate the reason for that? It might be convenient to do so for the amendments that we see more recently included at clauses 105, 114 and 115. Some of that is out of order, but it might be convenient to deal with that, coming up as it has en bloc earlier this year.

The Hon. S.E. CLOSE: It is an omnibus. All of them, as I understand it, arose from the Law Society's 2023 submission—the magic submission. I will explain each of them. For clause 105, the 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 the maximum flexibility to ensure the amount keeps pace with inflation. However, the Law Society, in their submission, indicated that prescribing the amount by regulation would allow for greater scrutiny. The government has accepted this feedback and so this amendment makes that change.

For clause 114, this amendment also arises as a result of the submission from the Law Society and acts to preserve the stepchild relationship after the dissolution of a marriage between the person's parent and step-parent for the purposes of making a claim for family provision. This is also the position taken in several other Australian jurisdictions.

For the amendment of clause 115, this amendment arises from the Law Society's submission and is intended to avoid any doubt that the reference in the section is intended to be read as 'former spouse' or 'former domestic partner'. I believe there are a few others that I think are consequential on that explanation.

Another one in clause 115 is the amendment arising from the Law Society submission that requires that a grandchild of a 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 both the grandchild's parents to be deceased.

A further alteration to clause 115, arising again from the Law Society: the Law Society indicated that they had concerns that parents who relied on their most likely adult child to support them financially may be left without a way to make a claim for family provision if they had not been providing care to that child before the death of the child.

This amendment does not restore parent as a category of automatic claimant, as exists currently. However, it does account for situations where the parents were being maintained by the child as a criterion to be eligible to make a claim for family provision. This will allow parents who have true need to make a claim for family provision to do so.

The ACTING CHAIR (Mr Odenwalder): In an effort to bring us back to the standing orders, unless you have any questions on any of the clauses before clause 116, I might put the clauses, or would you like to go back to a clause?

Mr TEAGUE: No, clause 116 is where it is at.

Clauses 102 to 115 passed.

Clause 116.

Mr TEAGUE: I recognise that we have moved into part 6—Family provision. Again, I will take the chance to recognise report 9 in particular from December 2017 from SALRI. This has been addressed, including by me in the course of the second reading debate most recently, and I will also address the fact that there has been this adherence to New South Wales as a model in all sorts of ways but not entirely. I draw particular attention to subclause (2) and that important point:

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

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

SALRI, in conducting its work in this regard, was really quite thorough, not only with the report but also in considering other mechanisms around the notion of interfering with the face of the will. SALRI gave some fairly thoroughgoing consideration to the concept of the notional estate and consideration of clawback provisions of the kind that I have talked about before.

Ultimately, SALRI landed with a view that such a mechanism ought not be adopted, really in the interests of that principle in clause 116(2)(a) that the wishes of the deceased person are the primary consideration. So, unlike in other jurisdictions, notably New South Wales, where there is this application of the notional estate and clawback provisions, it is not something that has been adopted in South Australia and it is one important aspect in which there is a distinctly different approach that has been adopted. I am really just emphasising that point. If the minister has anything to add about SALRI's contribution to coming in to land at that point, or the government's consideration about questions of the notional estate, I would certainly invite such observations.

The Hon. S.E. CLOSE: The SALRI recommendations relating to this provision are drawn on the Victorian legislation in this instance, rather than New South Wales, both in having a list of factors to which a court must have regard and also a recommendation that the overriding consideration be the wishes of the deceased person as being the primary consideration. That is the way it has been interpreted into the piece of legislation before us.

Clause passed.

Clauses 117 to 139 passed.

Clause 140.

Mr TEAGUE: I just indicate that my understanding is that the clause has been produced as a result of the work of the Hon. Connie Bonaros in another place. I note and commend that, although with some trepidation, indicating that there is now to be a review as a result of subsection (1) after the act has been in operation for a period of five years. Here we are, a dozen years after the initiation of the last review.

I am just observing that that is some relevant context. I have heard reference to consideration of intestacy going back 50 years between drinks. So here we are: we will be back at it, or at least the minister will be back at it, within five years. I do not know if the minister has anything to add to that, otherwise I just make the observation.

The Hon. S.E. CLOSE: Yes, I take the larger point that we are accelerating the speed of consideration, but the reason for five years rather than less than that—which a lot of reviews, particularly in the first iteration, ask for—is to wait to see if there is litigation in order to be able to see how the legislation has been tested.

Clause passed.

Schedule 1 passed.

Schedule 2.

The Hon. S.E. CLOSE: I move:

Amendment No 2 [DeputyPremier–1]—

Page 70, after line 20—After Part 4 insert:

Part 4A—Amendment of Stamp Duties Act 1923

8A—Amendment of section 71CB—Exemption from duty in respect of certain transfers between spouses etc or former spouses etc

(1) Section 71CB—after subsection (2) insert:

(2a) An instrument executed after the commencement of this subsection is exempt from stamp duty if the sole effect of the instrument is to transfer to the spouse or domestic partner of a deceased person an interest in a dwelling acquired by the spouse or domestic partner from the deceased's estate in consequence of an election made by the spouse or domestic partner under section 102 of the Succession Act 2022.

(2) Section 71CB(4)—after 'instrument' first occurring insert 'described in subsection (2)'

(3) Section 71CB(6)—delete 'This' and substitute 'Subject to subsection (2a), this'

8B—Amendment of Schedule 2—Stamp duties and exemptions

Schedule 2, Part 2, clause 16—after item 27 insert:

27A An agreement for the distribution of an intestate estate, or part of an intestate estate, approved by the Supreme Court under section 111 of the Succession Act 2022.

This amendment provides for two amendments to the Stamp Duties Act 1923 which will implement two recommendations from the report of the South Australian Law Reform Institute into the laws of intestacy. The amendments are being introduced here rather than in the other place because the nature of the amendments is such that they constitute money clauses, and therefore the typical practice is for such clauses to be introduced into the House of Assembly.

The two recommendations from the SALRI intestacy report that are being implemented in these amendments are recommendation 48 and recommendation 56. Recommendation 48 is:

The Stamp Duties Act should be amended to exempt from ad valorem stamp duty a transfer to the surviving spouse of the intestate's interest in the home in which the spouse was ordinarily resident at the time of the intestate's death pursuant to the exercise of the spouse's statutory right under the Administration and Probate Act 1919 to elect to acquire that interest.

Recommendation 48 seeks to rectify unequal treatment of surviving spouses in relation to stamp duty. When a surviving spouse inherits their spouse's share (where they are tenants-in-common) of a property under a will, they do not have to pay stamp duty. However, when a surviving spouse of a person who died intestate elects to purchase the deceased's share of the dwelling they are required to pay ad valorem stamp duty. Therefore, the surviving spouse is disadvantaged through no fault of their own because their spouse did not have a valid will in place.

The change described in recommendation 48, exempting surviving spouses electing to purchase the deceased's share of the family home, will ensure that they are treated equally in terms of stamp duty whether or not their spouse had a valid will in place. Recommendation 56 was:

The Stamp Duties Act should be amended to include an exemption from stamp duty for redistribution agreements.

Recommendation 56 relates to redistribution agreements. A process for formal redistribution agreements in intestate estates to be approved by the court has been introduced in clause 111 of the bill in response to another SALRI recommendation. This will allow an administrator and beneficiaries to agree to the distribution of an intestate estate and apply to the court for the agreement to be approved. It will then have the status of a court order.

SALRI made this related recommendation that property transfers in accordance with a redistribution agreement be exempted from stamp duty. There are already exemptions for property transfers pursuant to different types of court orders contemplated in the Stamp Duties Act. For example, property transfers pursuant to orders by the Family Court for a binding financial agreement are exempted from the payment of stamp duty. Therefore, this amendment will mean that the treatment of redistribution agreements in terms of liability for stamp duty will be consistent with other court-ordered property distribution.

Amendment carried; schedule as amended passed.

Remaining schedules (3 and 4) and title passed.

Bill reported with amendment.

Third Reading

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) (16:36): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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