Looking After One Another: Family provision laws in South Australia

About

This engagement has concluded

The South Australian Law Reform Institute (SALRI) wants your views on whether the current laws that govern who can contest a will when a family member dies are working fairly or should be changed.

Should court be able to change who gets property after a person dies, even when they leave a clear will? Should adult children be able to make a claim that they didn’t receive a fair share of their parent’s estate? These are some of the questions we want to hear your thoughts on.

SALRI was asked to look into these laws, which are contained in the Inheritance (Family Provision) Act 1972 (SA), by the Attorney General. After conducting research, working with experts and listening to your views, SALRI will present its independent recommendations to the South Australian Government who will then make up its own mind about whether the laws should change.

Check out our short video to find out what this is all about!

PLEASE NOTE: SALRI does not provide legal advice. It listens to your views on how the laws are working now, and what options could be worth considering for changes in the future.

SALRI acknowledges the assistance of the Law Foundation of South Australia Inc. in providing grant funding for this project.

How can your input influence this research?

SALRI wants to hear from you about your experiences with the Inheritance (Family Provision) Act 1972 (SA) and the laws governing whether or not family members can contest a will and claim that they have not been adequately provided for.

We want to hear from you about this important work, by answering questions such as:

• Do you think these laws get the balance right between protecting the rights of the person who writes the will, and providing for family members in need who are left behind?
• Who you think should be able to make a claim under the laws, and in what circumstances?
• How should matters such as legal costs and timing of claims be dealt with?

Your personal experiences and views on the current law are a vital part of SALRI’s consultation process. There are a number of ways you can share your thoughts with SALRI:

• Answer our online survey or post on the discussion forum.

• Send us a written submission via salri@adelaide.edu.au or post to 'South Australian Law Reform Institute, Ligertwood Building, University of Adelaide, South Australia 5005 – check out our Fact Sheets and videos to see the type of issues and questions we’d love you to address.
• Request a one-on-one private meeting with the SALRI team - email salri@adelaide.edu.au.The SALRI team is travelling to Mt Gambier on Friday 7 April and Berri on 10 April to hear community views on family inheritance law and would love to hear from you! Please contact
• SALRI thanks all the lawyers and community members who joined us for Roundtable Discussions in Mt Gambier on Friday 7 April and Berri 10 April. Your input is most valuable! We look forward to hearing from your friends and family too.

Find out more about these questions in our plain English fact sheets:

Fact Sheet 1: Background Information and Terminology (PDF 544KB)

Fact Sheet 2: The Policy Behind Family Provision Laws (PDF 447KB)
Watch the video - Fact Sheet 2: Policy

Fact Sheet 3: Testamentary Freedom (PDF 440KB)
Watch the video - Fact Sheet 3 Testamentary Freedom

Fact Sheet 4: Who should be able to make a claim? (PDF 456KB)
Watch the video - Fact Sheet 4: Who can make a claim?

Fact Sheet 5: What other criteria should apply? (PDF 463KB)
Watch the video - Fact Sheet 5: What criteria should apply?

Fact Sheet 6: Timing and Costs (PDF 530KB)
Watch the videos - Fact Sheets 6A: Timing and 6B: Costs

Fact Sheet 7: Notional Estate and Clawback Provisions (PDF 441KB)
Watch the video - Fact Sheet 7: Notional Estate and Clawback Provisions

A more detailed Background Paper (PDF 1.5MB) is also available for legal practitioners or those seeking more information about the issues arising in this Reference.

You can hear about a couple of case study examples below:

How will your feedback be used?

When SALRI receives your feedback it will consider your views alongside those collected from other members of the community, and information obtained through legal experts and legal research. SALRI will then draft a report and a series of recommendations which will be published on the SALRI website and noted on this site. It is then up to Government to determine whether or not to change the law in line with SALRI’s recommendations.

SALRI takes your privacy seriously. We will not disclose your personal information to anyone and we will not publish any material that could identify you or other people. Please let us know if you would not like to have your comments or submissions referred to in our report or listed on our website.

Please remember, SALRI does not provide legal advice. If you need help with a legal matter, contact a lawyer or community legal service. The Law Society of South Australia has a free referral service if you need help finding a lawyer: http://www.lawsocietysa.asn.au.

Background

The History behind the engagement

SALRI's latest reference is topical and one that has relevance for the lives of many South Australians. It is about investigating whether the current laws that apply to the division of a person’s estate upon his or her death are fair and effective and are working as intended. These laws are contained in the Inheritance (Family Provision) Act 1972 (SA). Under the current law, when a person dies with a will, certain people within that person’s family may be able to contest the will if they claim that they have not been adequately provided for in the will or under the law of intestacy. While originally designed with good intentions in mind, this law can now have unwelcome results in practice, particularly as modern families become more complex, family property becomes more valuable with increases in house prices and superannuation. Claims against the will, depending on the perspective, may be viewed as justified or opportunistic and greedy.

This Reference is designed to identify the problems or concerns with the current law, gather the views of the South Australian community about how the law could be improved, and consider alternative options implemented in other Australian jurisdictions. SALRI will then provide a Report with recommendations for Government about how the law can be improved. This Report is due to be provided by the end of June 2017.

Description of SALRI

The South Australian Law Reform Institute (SALRI) is an independent law reform body which conducts inquiries—also known as references—into areas of law.

The areas of law are determined by the SALRI Advisory Board and sometimes at the request of the Attorney-General of South Australia. SALRI looks at how the law works in other places, any research and speaks to the community and interested parties. Based on its research and consultation throughout an inquiry, SALRI then makes recommendations to the State Government so that the Government can make informed decisions about any law reform. SALRI's recommendations do not automatically become law, but they may be acted upon and accepted by the Government and Parliament.

SALRI was established in December 2010 under an 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 Law School.

More information about SALRI, including its Board and past projects, is available at https://law.adelaide.edu.au/research/law-reform-institute.