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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-02-18 Daily Xml
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ADMINISTRATION AND PROBATE (DISTRIBUTION ON INTESTACY) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 February 2009. Page 1225.)

The Hon. R.D. LAWSON (22:02): I indicate that Liberal members will support the second reading and passage of this bill. The Administration and Probate Act 1919, as amended in 1975, provides that, in a case where a married person dies without having made a will, the estate of that person will pass to the person's spouse or domestic partner if that person does not have any children. However, if the person has both a spouse or domestic partner and children, the spouse receives the first $10,000 and one half of the balance of the estate, and the children receive the other half of the estate, that is, after the $10,000 is applied to the spouse or domestic partner. In other states the amount of $10,000 has been increased and $10,000 represents the lowest so-called statutory legacy in Australia.

In New South Wales and the ACT the figure is $200,000, in Queensland $150,000, the Northern Territory $120,000 (as mentioned in the minister's second reading explanation), and in Victoria the figure is $100,000. Both Western Australia and Tasmania have fixed the legacy at $50,000, although in those cases the spouse receives one third and the children two thirds of the balance. I note that the Tasmanian Law Reform Commission suggested that the figure of $50,000 in that state be increased.

The question is whether $100,000 is an appropriate amount. Clearly $10,000 is insufficient. If one takes the case of a person who dies, where the only property is a one half interest in a house that is held as tenants in common, the spouse, if there are not substantial other assets, could be left in considerable difficulty. We support increasing the figure to $100,000 as it is a reasonable balance. Less than $100,000 will, in today's terms, leave a spouse, who may well be left with young children, with inadequate resources.

One thing that I think ought to be mentioned and publicised is that these provisions apply only in relation to persons who die without having made a will. They indicate how important it is that people make a will to determine exactly how their estate is disposed of. In many cases, even with an intestacy, the matter is moot, because the major asset held is actually a property in joint tenancy, and the property will pass to the surviving joint tenant. But then the issue as to other assets the parties might have arises, frequently resulting in unhappiness and disputes.

So, the important lesson is—and the community ought be warned—that, if people wish their property to be disposed of in a particular manner, they should make a will to avoid all of these problems and to customise the distribution of their estate.

I note that the bill provides that the figure will be $100,000, or such other amount as is prescribed by regulation. The explanation being provided is that, if there are movements in the value of that amount, as inevitably happens over time with inflation, adjustments can be made without the necessity to bring back amendments to the legislation.

The Liberal Party ordinarily prefers that amounts of this kind be stipulated in legislation and that they come back to parliament for adjustment from time to time. However, we accept that it is a reasonable compromise to not simply provide for a CPI formula but to have a prescribed amount. I would ask the minister to indicate in his response one piece of information that I have not ascertained: that is, how many grants of letters of administration are made annually in South Australia? As most members would know, when a person dies intestate with an estate to be administered, the court grants letters of administration. If the person dies with a will, the will itself is admitted to probate. So, my question is: over the past few years, how many grants of administration have there been? This information will enable members to understand a little more of the background as to why an amendment of this kind is appropriate. We support the second reading.

Debate adjourned on motion of Hon J. Gazzola.

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