Experts fear planned changes to estate laws will encourage ‘gold diggers’
Herald Sun
PARENTS, carers and adult children of the deceased would be barred from contesting wills under radical reforms to Victorian succession laws.
Legal experts have slammed the crackdown, which they say would remove the power from courts to deal with complex family dynamics in settling will disputes.
The changes would create a four-stage test to making a claim and legislate that claimants be wholly or partly dependent on the deceased at the time of death.
The dependency reform comes despite strong objection by the Law Reform Commission.
In its Succession Laws Report published in August last year, the commission rejected the threshold test of dependency with just one of 46 submissions recommending the approach.
Attorney-General Robert Clark said the reform was about ending the free-for-all that could see a large part of a deceased’s estate eaten up in legal fees over claims made for a share of the estate.
“The legislation is about re-establishing the principle that a deceased’s person’s will ought to be respected unless it is shown they have failed in their duty to provide for someone they should have made provision for,” he said.
“Adult children leading independent lives will not be able to make a claim simply because they believe their parent should have left them more.”
The government introduced the changes in the Justice Legislation Amendment (Succession and Surrogacy Bill) 2014 in Parliament last week.
Under the proposed changes, people eligible to contest a will would be limited to children and stepchildren who had a disability, were under 18, or under 25 but studying.
Grandchildren and spouses or domestic partners at the time of death, and former spouses who are not yet divorced, would also be eligible.
Presently there are no limits on who can challenge a will, but they are most regularly contested by spouses or children of deceased.
If successful, the Supreme Court can make an order varying the terms of the will of the deceased.
The proposal would roll back Victoria’s succession laws to be more restrictive than almost two decades ago.
In 1997 the legislation was amended to remove any requirement for a specific relations with a deceased.
Original legislation provided only for claims to be made by widows and orphans.
Experts say the proposed changes would encourage “gold digging”.
“If you know you can get some old widower to change their will and their family won’t be able to contest it, you’d give it a go,” one said.
Arnold, Thomas & Becker senior practitioner for wills and estates Michel Margalit said the new requirements would prevent those who had been ostracised, or had a falling out with the deceased shortly before their death, from bringing a claim.
“The proposed changes really are appalling,” she said.
“They leave the more isolated and vulnerable members of our society out in the cold.”
Under the changes, Rebecca Cowan, 19, could be banned from bringing an action against her late father’s estate.
Ms Cowan, her father’s only child, lived with him for most of her life until he took his own life in December last year.
She was left a bequest worth just 3 per cent of the $650,000 estate.
Shadow Attorney-General Martin Pakula said he would be briefed on the proposal on Wednesday ahead of it being put to the shadow cabinet on Monday.
“There’s no doubt that the response from the legal fraternity has been visceral, it’s been extraordinary and unanimous,” he said.
“The changes that the government are proposing at first blush seem inexplicable and completely unfair.
“The government really needs to explain what has brought this on and why they are proposing to make a change which on its face seems to fundamentally infringe on the rights of the children of deceased people to contest a will.”
Herald Sun
26 August 2014
Shannon Deery