The independent South Australian Law Reform Institute based at the Adelaide Law School, University of Adelaide, has released a Report recommending reforms to the law of intestacy and related matters, and a Report on management of the affairs of missing persons as part of its major reference into succession law. The Reports can be found on the SALRI website.
About one third of people over the age of 18 in South Australia do not have a will. People below the age of 50, and especially young people, are the most likely to not have a will. Most of them have a spouse, children or other relatives and some estate to leave to them. In these circumstances the law of intestacy determines who gets what from the estate. Some other people die with a will that is not effective to dispose of everything they own. What the will does not dispose of is distributed to family members according to the law of intestacy. This law is necessarily arbitrary; otherwise smaller estates could be swallowed up in disproportionate legal and other costs and take a long time to finalise.
In the 43 years since the law of intestacy was last reviewed in South Australia there have been many economic and social changes, including appreciation that British-based concepts of family may not always accord with Aboriginal society.
The Institute has undertaken detailed research and consultation with interested parties as part of its examination of the law of intestacy. The Institute makes a total of 58 recommendations.
Amongst its recommendations are:
- Some aspects of a model bill published by the New South Wales Law Reform Commission in 2007 should be accepted, but not all.
- Keeping the rule that the intestate’s spouse or domestic partner be given priority by receiving the deceased’s personal chattels (including motor vehicles), a sum of money or its equivalent and if anything is left, half of the remainder with the intestate’s children sharing equally the other half.
- The amount which the spouse receives as a priority should be increased and indexed so that it does not become inadequate over time.
- Reform of the law that automatically gives estranged spouses who have not divorced the lion’s share, or even all of the estate, even though they have formally settled their financial affairs by court order or agreement under family law or domestic partners property legislation.
- Changes should be made to enable and encourage families to agree on a distribution of the estate that suits their family’s circumstances and cultural obligations.
- There should be a procedure for appointing a suitable person to manage the affairs of a missing person, including providing maintenance from the estate for the missing person’s dependants.
As well as recommendations about important policy issues, there are many that are technical, but nevertheless important for the efficient and fair distribution of wholly or partially intestate estates.
The Reports are now with the South Australian Attorney-General. Any decision on accepting any recommendation is for the Government and Parliament.
The Institute is grateful for the insightful and dedicated work of Dianne Gray on this project and the generous support of the Law Foundation of South Australia.
As a linked project, the Institute is currently examining the role and operation of the Inheritance (Family Provision) Act 1972 and expects to release this Report later in the year.