When a final will and testament is not final

Thursday, 23 February 2017

South Australians are being given their say on the state's family inheritance laws as part of a major review aimed at bringing those laws into the 21st century.

The review – being conducted by the independent South Australian Law Reform Institute, based at the University of Adelaide – will address some issues with the current laws, which have left the window open to certain family members wishing to contest a so-called "final" will and testament.

Members of the community are asked to contribute to the review via the yourSAy website from now until the end of April.

How "final" should someone's instructions be about how their property and money are distributed, as set out in their "final will and testament"? Should a court be able to order changes to this after a person dies, even when they leave a clear will? Should financially secure adult children no longer be able to make a claim against their parent’s estate? These are some of the questions the SA Law Reform Institute is asking in its inquiry into the Inheritance (Family Provision) Act 1972 (SA).

"Today's family inheritance and provision laws have their roots in the early 1900s, at a time when it was common for men to die without having an adequate will, leaving their widows and children penniless. The laws were established to help protect dependants who had no other source of income," says Sarah Moulds, researcher with the SA Law Reform Institute and PhD student at the University of Adelaide's Law School.

"However, in recent years these laws have become increasingly contentious, with changes in family structures, increasing wealth such as superannuation and rising house values, changes in social attitudes and high legal costs.

"These laws can give rise to 'opportunistic claims' against the will. One common example is a challenge by adult children who already have an independent source of income, seeking a bigger share of their deceased parent's estate. Such a challenge could be contrary to the express wishes of the parent's will," Ms Moulds says.

Other Australian jurisdictions have already made changes to their laws. The Institute will examine if the current South Australian law gets the balance right between protecting the rights of the person who writes the will, and providing for family members in need who are left out.

"It is important that our state's laws keep up with changes in modern society, and balance the 'deserving' in our community from the 'greedy'. To do this, we need to hear from everyone in the community with an interest or experience to share – not just lawyers – and we have many ways for you to share your thoughts with us. You don’t need to prepare a long, written submission, you can jump online and tell us quickly what you think," Ms Moulds says.

Further information – including the online survey, fact sheets and videos – can be found at: https://yoursay.sa.gov.au

Over the coming months, the Institute will also host a series of community meetings about these issues in Adelaide and in regional South Australia.


Contact Details

Ms Sarah Moulds
Email: sarah.moulds@adelaide.edu.au
Researcher, South Australian Law Reform Institute
The University of Adelaide
Mobile: +61 (0)401 132 544

Mr David Ellis
Email: david.ellis@adelaide.edu.au
Website: https://www.adelaide.edu.au/newsroom/
Deputy Director, Media and Corporate Relations
External Relations
The University of Adelaide
Business: +61 8 8313 5414
Mobile: +61 (0)421 612 762