FAMILY PROVISION ACT
The timing of the passing and the introduction of reforms to the Inheritance (Family and Dependants Provision) Act 1972 (now known as the Family Provision Act 1972) have been beyond the control of the Working Party. The Inheritance (Family and Dependants Provision) (Amendment) Act 2007 was before State Parliament when it was prorogued for the elections in 2007. After the State elections the new State Government (the present State Government) naturally determines its own priorities for legislation. The State Government has shown its support for Succession Law Reform by introducing a revised Act, the Inheritance (Family and Dependents Provision) Amendment Act 2011 into State Parliament in the spring session of 2011. This Act passed both Houses of State Parliament and was assented to on 25 October 2011. Sections 1 and 2 came into operation on and from 25 October 2011. These sections changed the title of the Act to the Family Provision Act 1972, a change in accordance with the recommendations of the Model Act proposed by the Uniform Succession Law Project. This Act enlarged the categories of persons entitled to make a claim under s7 by adding step-children who are wholly or partially maintained by the deceased immediately before death. Not all step-children are entitled to claim and the enlargement of the persons entitled to claim has been very modest or limited. In other states the categories of persons entitled to claim under s7 have been enlarged considerably and in one State the list of persons entitled to claim has been abolished altogether allowing any person who feels aggrieved as a result of a testamentary disposition to be able to make a claim.
Problems were found with the defi nition of “step-child” contained in the 2011 Act and the remaining provisions of that Act have not been enacted. A revised Act called the Inheritance (Family and Dependants Provision) Amendment Bill 2012 is before State Parliament. It is hoped that this legislation will overcome the problems with the defi nition of “step-child” in the 2011 Act.
AMENDMENTS TO THE ADMINISTRATION ACT (AN INTESTACY ACT)
The Working Party has for some time focussed on an amendment to the Administration Act to overcome the injustice of the surviving spouse’s statutory legacy that has remained at $50,000 since 1982 and can only be adjusted by legislation. The State Government has given resources to enable these amendments to be drawn up by Parliamentary Counsel into an Administration Amendment Bill that was hoped to be placed before State Parliament in 2011 but may yet make the 2012 Parliamentary Sittings. There is considerable competition for Bills to be enacted in 2012 before the next State elections that will probably be held in February 2013.
The Administration Amendment Bill 2012 proposes to increase the statutory legacy from $50,000 to the median house price in Perth that is between $450,000- $470,000 at the present time. The amount of the statutory legacy will be, in future, adjusted by Regulation enabling adjustments more in accord with the price of houses and properties and the infl ation rate. The Administration Amendment Bill 2012 (an Intestacy Act) would go a long way towards ameliorating the injustice found in the 1903 Act. By increasing the statutory legacy to the median house price the surviving spouse (usually the female partner) will be given the matrimonial home or a suffi ciently large share of it to be able to purchase any remaining portion whether by mortgage or reverse mortgage from children of their late husband’s fi rst marriage. The surviving spouse will now receive the median house price ($450,000- $470,000) plus one-third of the estate, whereas children from their late husband’s fi rst marriage will receive two-thirds of the remaining estate.
The statutory legacy has been adjusted upwards but the fractional proportions to the surviving spouse (one-third) and to the children (two-thirds) has been maintained. These fractions are the same throughout Australia.
A NEW ADMINISTRATION ACT
There is a substantial case for a new Administration Act in WA. It is indeed a very old Act having passed Parliament in 1903. The estates of people who die in Western Australia are still governed by laws which refl ect the social conditions that prevailed in England before 1925 that never existed in WA. The 1925 reforms to the English legislation have never been adopted in WA. In other Australian states they have been adopted. The distribution of estates in WA are still governed by the “old order of assets”.
The Working Party has been carefully working through each section of the Administration Act and each section of the model law for some considerable period of time. The Working Party has almost fi nished its section by section consideration of the Administration Act and will soon write up its recommendations and forward those to the Attorney-General. It is hoped that the Attorney-General will fi nd these recommendations sensible and practical and recognise the need for reform of this long-standing Act. It is hoped that he will recommend that the valuable time of Parliamentary Counsel be diverted towards drafting a new Administration Act for WA.
CONCLUSION
Although the Attorney-General’s Working Party on succession law reform has to date achieved some modest success, it has put considerable work, time and eff ort, at no expense to the State, for a number of years. The outcome of the Committee’s recommendations is beyond the control of the Working Party. In a very short time it is quite possible for the results of the Working Party to be enacted into a Succession Act that incorporates the Wills Act, the Family Provision Act, and the Administration Act.
51
MAR–MAY 2012
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