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South Australian Law Reform Institute Report 9 December 2017 ‘How sharper than a serpent’s tooth it is to have a thankless child.’ William Shakespeare, King Lear (Act 1, Scene 4) South Australian Law Reform Institute ‘Distinguishing between the Deserving and the Undeserving’: Family Provision Laws in South Australia The South Australian Law Reform Institute was established in December 2010 by agreement between the Attorney-General of South Australia, the University of Adelaide and the Law Society of South Australia. It is based at the Adelaide University Law School. Postal address: SA Law Reform Institute Adelaide Law School University of Adelaide Australia 5005 Telephone: (08) 8313 5582 Email: [email protected] Webpage: http://law.adelaide.edu.au/research/la w-reform-institute/ SALRI publications, including this Report and the Issues Paper that preceded it, are available to download free of charge from the SALRI webpage under Publications: Reports and Papers. Contents Terms of reference ....................................................................................................................................................... vi Participants .................................................................................................................................................................... vi Acknowledgements ...................................................................................................................................................... vi Disclaimer ..................................................................................................................................................................... vii Abbreviations and Glossary ......................................................................................................................................viii Summary of Recommendations ................................................................................................................................. ix Part 1 – Background .......................................................................................................................... 1 The South Australian Law Reform Institute .................................................................................................... 1 Inheritance (Family Provision) Act 1972 reference ................................................................................................ 3 Consultation approach ......................................................................................................................................... 4 Features of family provision laws ...................................................................................................................... 6 Part 2 – History of Family Provision Laws ....................................................................................... 8 Part 3 – Testamentary Freedom ...................................................................................................... 20 Hearsay exception...............................................................................................................................................27 Question 1: Does the law have the balance right? ........................................................................................30 Question 2: Should there be exceptions where the law should intervene to improve fairness of a will? ....................................................................................................................................................................34 Question 3: The wishes of the testator ...........................................................................................................37 Question 4: Burden of welfare and other issues ............................................................................................38 Has the law got the balance right? ...................................................................................................................39 The wishes of the testator .................................................................................................................................40 Should there be exceptions where the law should intervene to improve fairness of a will? ..................42 Burden of welfare and other issues..................................................................................................................42 Part 4 – Who should be able to make a Claim? ............................................................................... 44 Spouses .................................................................................................................................................................47 Adult Children.....................................................................................................................................................47 Stepchildren .........................................................................................................................................................50 Other categories ..................................................................................................................................................51 Intestacy ...............................................................................................................................................................52 iii South Australia Law Reform Institute: Family Provision Laws in South Australia Scope of who can make a claim is too broad .................................................................................................54 Spouses .................................................................................................................................................................55 Children ................................................................................................................................................................56 Grandchildren, grandparents, parents and siblings .......................................................................................61 Other categories ..................................................................................................................................................63 Scope is too broad ..............................................................................................................................................63 Spouses .................................................................................................................................................................64 Children ................................................................................................................................................................64 Grandchildren, parents, siblings and other categories ..................................................................................66 Part 5 – Should Any Further Criteria Apply? ................................................................................... 69 Does the current test need to be changed? ....................................................................................................70 How should the test be changed? ....................................................................................................................75 What factors should the courts consider? ......................................................................................................76 Should South Australia adopt a list? ................................................................................................................77 Question 1: Does the current test need to be changed? ..............................................................................77 Question 2: How should the test be changed? ..............................................................................................78 Question 3: What factors should the courts consider?.................................................................................79 Question 4: Should South Australia adopt a list? ..........................................................................................80 Part 6 – Timing of Claims ............................................................................................................... 84 Question 1: Is the six months’ time frame appropriate? ..............................................................................85 Question 2: Applications for extensions of time ...........................................................................................85 Question 3: Reforming s 14(2) of the IFPA ..................................................................................................86 Applications for extensions of time ................................................................................................................87 Other issues .........................................................................................................................................................87 Part 7 – Costs and Court Processes ................................................................................................. 89 Costs in South Australia in general and probate ...........................................................................................89 iv Contents Question 1: Is the current approach working? ..............................................................................................98 Question 2: Preferred alternatives ...............................................................................................................
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