letters

Reply From John Rau "AG" and Chloe Fox (the I'll pretend I'm doing something letter)

posted Jul 9, 2011, 12:13 AM by Greg Anastasi

So what does this mean?
Firstly its good that something in happening, but remember the legal profession has been "investigating" this nationally for 15 years and almost nothing has happened.
John Rau has  asked the Law Society's Probate Committee to review the laws which is great.  My concern is The Law Society's principal mission is to represent its members and the legal profession in general.  Does this mean they are qualified to develop policy for the government that reflect community values ?
Another good thing that is happening, although not mentioned in the letter? is that John Rau recently re-started the South Australian Law Reform Commission and one of its first tasks is to look at will law.  Hopefully it wont use NSW Succession ACT as a guide for reform, the NSW family provision Act as this is a complete debacle.  Hopefully they will use the THE SCOTTISH LAW COMMISSION method and use research intopublic views as a basis for reform.

So in short unless we continue to send Mr Rau letters outlining our concerns the process for change will stall and we can look forward to decades more of injustice.
I encourage you to write to the Attorney-General in support of changes to make the law restrict valid claimants to spouses, non adult children and those legally dependent on deceased at the time of death.
If you are not in SA you should be telling your local MP the same things.  Ideally we should have uniform national laws, its a bit of a joke that each state a territory has a different law of wills.
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Below is the letter from John Rau (Attorney-General)

                                                                                                                                                    Deputy Premier
                                                                                                                                                    Attorney-General
                                                                                                                                                    The Hon John Rau MP
3o March,2011


Miss Chloë Fox M.P.								                                                          Government
Member for Bright								                                                        of South Australia
7 Sturt Road									                                                                Deputy Premier
BRIGHTON S.A. 5048								
										                                                                         Attorney-General
    
										                                                                        Minister for Justice
										                                                                        Minister for Urban Development,
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										                                                                        Minister for Tourism
 										                                                                        Minister for Food Marketing
										                                                                        45 Pine Street
										                                                                       Adelaide SA 5000
 
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										                                                                       Adelaide SA 5001										                                                                                                                                              										                                                                       										                                                                                                                                                                                                                            
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										                                                                       Tel 0882071723
										                                                                       Fax 0882071736
										                                                                       attorney-general@agd.sa.gov.au

								

Dear Chloe
	


I write in response to your further letter on behalf of your constituent Mr Anastasi about the
Family Provisions Act 1972 (the Act).

I understand that Mr Anastasi objects to the way that the current law is being interpreted and
that he supports reform of the Act.

You may wish to let Mr Anastasi know that I recently asked the Law Society’s Probate
Committee to review the laws and provide me with their views about what, if any, provisions
of the Uniform Succession Laws may be appropriately incorporated into South Australian
law.

I will endeavour to keep you informed about the progress of this matter and I apologise for
the delay in providing this response.


Yours sincerely


John Rau
Deputy Premier
Attorney-General
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Below is the cover letter from Chloe Fox
Mr Greg Anastasi xx xxxxx xxxxx xxxxxx SA xxxx April 28, 2011 Dear Mr Anastasi, I am writing to you in relation to your concerns regarding certain aspects of the Family Provisions Act 1972. As you are aware, I contacted the Attorney-General, the Hon. John Rau MP, in relation to this issue. I have since received a response and enclose a copy for your information. I apologise for the delay in receiving a response from the Attorney-General. The response indicates the Attorney-General has asked the Law Society’s Probate Committee to review the laws and provide their views about which, if any, provisions of the Uniform Succession Laws may be incorporated into South Australian Law. It is my privilege to assist you as a member of State Parliament. Please contact my office anytime you wish to express an opinion on state laws or issues. Yours sincerely, CHLOE FOX MP Member for Bright

Reply To Attorney-General (that's not good enough letter)

posted Jul 9, 2011, 12:09 AM by Greg Anastasi

16-4-2010 - Contacted the office of Chloe fox In January and April, Now 6 Months and no reply from the AG ? 

This was forwarded to John Rau on the 21-10-2010 by the office of Chloë Fox  ( thanks Chloë !!!!!!!!!!!!!) I will follow it up in January.

Please contact Chloë Fox or John Rau if you want to help get this law fixed.

Or contact you own PM and get the ball rolling in your state.

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12 October 2010

 

The Hon John Rau MP                                                                                   Greg Anastasi

Attorney-General                                                                                            xxxxxxxxxxxxxxxx
Minister for Justice                                                                                         xxxxxxxxxxxxxxxx

Minister for Tourism                                                                                        xxxxxxxxxxxxxxxx

11th Floor                                                                                                        xxxxxxxxxxxxxx

45 Pirie Street

Adelaide SA 5000

 

GPO Box 464
Adelaide SA 5001

 

 

 

Dear Mr Rau

 

Thank you for your response to my objections to the Inheritance (Family Provision) Act. 

However, I believe you missed my point.  Your response is to the intent of the law and my objection is to how the law is currently being interpreted.  I have no issue with the intent of the law, my objections are the way the law is affecting beneficiaries today.

 

I feel the best way to respond to your letter is to discuss each point you made and why my research has shown that there is a case for reform.  The following pages contain your response in italics and my reply on bold

 

I also realise that most people neither know nor care about this law (until it affects them personally).  I like most people I had no knowledge of the FPA until my fathers death and subsequent challenge to his will.

I am in the process of orchestrating a national campaign for awareness and reform to this law.

I have not entered this cause lightly and intend to drive change.

I implore you to take a closer look at this issue.

If you have a look at my website “http://sites.google.com/site/changefamilyprovisionsact” you will find links to academic papers and law reform commission reports from many jurisdictions recommending reform to this law.  I have put all correspondence with your office and that of Chloe Fox on the web site for those following my campaign.

 

I am available to discuss this issue with you or your office at any time.

 

Sincerely

 

 

Greg Anastasi


 

I write in response to your letter dated 1 June, 2010 written on behalf of your constituent

Mr Greg Anastasi about aspects of inheritance law.

 

I note Mr Anastasi’s comments on the restrictions that the Inheritance (Family Provision) Act

1972 (the Act) places on testamentary freedom. The freedom to give your estate to whoever

you wish is a general principle of the law. However, this can be unfair and unjust,

 for example, when a spouse or child of the deceased suffers hardship as a result of the actions of the deceased, such as ignoring the needs of a dependant.

 

I am not questioning the need for neither spouses nor dependants to claim.

I am questioning the depletion of an estate through unmeritorious claims by adult children.

 

The Inheritance (Family Provision) Act 1972 seeks to strike a balance between these considerations.

 

This is a common misconception of the application versus the intent of the IFP.  In fact the SASC uses the bare fact of paternity as a right to claim and therefore to have the estate pay for your action.

 

Mr Anastasi considers that the definition of a child under the Act, should include an age limit.

I understand that, in dealing with matters under the Act, the courts take a number of factors

into account, including the age of the applicant.

 

 

I have attached a summary of cases back to 2006.  Of these cases none were dependants and only one was a juvenile (Grandson received $25K).

I would also like to point out that it is traditional for the estate (ergo the beneficiaries) to pay all costs.  As such the cases that were dismissed would have cost the estate up to $150,000.

 

I consider it is appropriate to leave the exercise of this discretion with the court as there would be a range of circumstances - for example, where the child of the deceased had, to their own financial detriment, been the primary care-giver to the deceased over a substantial period of time - where it would be equitable for the child to receive a part of the estate, regardless of age.

 

Unfortunately your example is the opposite of what is actually happening in the courts.  In the above case the child would be considered dependant under my proposed changes and therefore would be able to claim.  Under the current Act if she had a sibling that had abandoned the deceased and were in a poor financial position they would erode the estate through their claim.

I know of a case that may soon be before the SASC that is this exact scenario Rusek V Rusek.  In this case a daughter cared for her mother for over 15 years and was left a modest estate.  This will has been contested by her siblings.  I understand that you cannot comment on specific cases.  I supply these only in support of my case for review of the law.

 

Although I do not agree with all of the proposals of the “NSWLRC Report 110 (2005) - Uniform Succession Laws: Family Provision” one of them is to disallow adult children.

     6 Family members who are entitled to make applications

      

     (1)        The following members of the family of a deceased person may apply to the Court for a family provision order in respect of the estate of the deceased person:

                                      

                                     (a)  the wife or husband of the deceased person at the time of the deceased person’s death,

                                     (b)  a person who was, at the time of the deceased person’s death, the de facto partner of the deceased person,

                                     (c)  a non-adult child of the deceased person.

 

 

Also the NZLC (New Zealand Law Commission) recommended in its “Preliminary Paper 24 Succession Law Testamentary Claims”

(“The first limitation relates to the priority to be accorded to adult children’s claims. Whatever the test preferred, a new law should indicate when and to what extent an award on an adult child’s claim will be met relative to awards and orders on other claims. What priority should courts accord to awards on adult children’s claims?).”

 

In relation to the costs of matters in the Supreme Court, I understand this concern and we

continue to strive for affordability and accessibility across our justice system. However, costs

are also an inevitable aspect of a formal judicial system.

 

Yes the introduction of summary judgments for estates under $500,000 was a great move to reduce costs.

 

 I also note that only a small percentage of cases go to trial, and the use of alternative dispute resolution mechanisms, such as mediation, negotiation and conciliation is available in many cases.

 

I understand that 60 to 70 percent of cases are settled prior to court.  Although this is a measure of cost minimisation it is not a measure of justice.   The only reason that people choose to settle out of court is that it is seen as the lesser of two evils.  The choice would normally be to pay the plaintiff $100,000 or even if you win pay the lawyers $150,000 in costs.

 

I trust you will find this information useful.

 

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The IFPA in South Australia is basically the same as other states in Australia.  It is also similar to laws in New Zealand the England and Scotland.  All of these jurisdictions have conducted studies into succession and family Provision Acts as there was perceived a need for change.  All of these studied have recommended the urgent need for reform.

Due to public and political apathy (although there was attempted reform in NSW with the “Succession Amendment (Family Provision) Act 2008 No 75”) nothing has come of it.

 

If you go to my website at http://sites.google.com/site/changefamilyprovisionsact you will find links to academic papers and reports by law reform councils recommending change.

 

There is a hidden cost to this law and that cost is estates paying plaintiffs off to avoid high legal fees.  I can find little to no information regarding actual cost or number of cases settled out of court.  If the amount spent on advertising by legal firms to attract business though IFP claims, there are a great many claims.

 

Once again I ask that the Attorney-General’s department begin the process of reforming the Inheritance (Family Provision) Act.

 

I am available to discuss this issue with you or your office at any time.

 

Sincerely

 

 

GregAnastasi

Attachments (2)

  • ExamplecasesforHonJohnRau.doc - on Jul 7, 2011 1:18 PM by Greg Anastasi (version 1) Remove 
    33k View Download
  • RebuttaltoLetterfromJohnRau.doc - on Jul 7, 2011 1:18 PM by Greg Anastasi (version 1) Remove 
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Response From Attorney-General (the go away letter)

posted Jul 9, 2011, 12:07 AM by Greg Anastasi

TheHonJohnRauMP   

10A001575  
16 August, 2010.                                                                                                         Attorney-General
                                                                                                                                    Minister for Justice
                                                                                                                                   Minister for Tourism
Ms Chloe Fox M.P.                                                                                                     11th Floor
Member for Bright                                                                                                        45 Pirie Street
7 Sturt Road                                                                                                                Adelaide SA 5000
BRIGHTON S.A. 5048                                                                                                GPO Box 464
                                                                                                                                    Adelaide SA 5001
                                                                                                                                    DX 336
                                                                                                                                    Tel 088207 1723
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attorney-general@agd.sa.gov.au

Dear Ms Fox

I write in response to your letter dated 1 June, 2010 written on behalf of your constituent
Mr Greg Anastasi about aspects of inheritance law.

I note Mr Anastasi’s comments on the restrictions that the Inheritance (Family Provision) Act
1972 (the Act) places on testamentary freedom. The freedom to give your estate to whoever
you wish is a general principle of the law. However, this can be unfair and unjust, for
example, when a spouse or child of the deceased suffers hardship as a result of the actions of
the deceased, such as ignoring the needs of a dependant. The Inheritance (Family Provision)
Act 1972 seeks to strike a balance between these considerations.

Mr Anastasi considers that the definition of a child under the Act, should include an age limit.
I understand that, in dealing with matters under the Act, the courts take a number of factors
into account, including the age of the applicant. I consider it is appropriate to leave the
exercise of this discretion with the court as there would be a range of circumstances - for
example, where the child of the deceased had, to their own financial detriment, been the
primary care-giver to the deceased over a substantial period of time - where it would be
equitable for the child to receive a part of the estate, regardless of age.

In relation to the costs of matters in the Supreme Court, I understand this concern and we
continue to strive for affordability and accessibility across our justice system. However, costs
are also an inevitable aspect of a formal judicial system. I also note that only a small
percentage of cases go to trial, and the use of alternative dispute resolution mechanisms, such
as mediation, negotiation and conciliation is available in many cases.

I trust you will find this information useful.

Yours sincerely




John Rau
Attorney-General

First Letter

posted Jul 9, 2011, 12:04 AM by Greg Anastasi


Letter to Chloe Fox PM for Bright SA

Email received 1st June 2010 from the office of Cloe Fox's.



Dear Mr Anastasi,
 
Thankyou for providing us with a list of your concerns and suggestions in relation to the Family Provisions Act. Sorry for the delay in responding.
 
Chloe has taken this opportunity to write to the Attorney-General, the Hon John Rau MP, outlining your concerns. Once we recieve a response Chloe will be in touch with you again.
 
In the meantime, please do not hesitate to contact the office should you wish to discuss this matter further, or if we can be of any assistance.
 






Below is the email I sent to Chloe Fox ALP member for Bright SA (My local MP) 20 May 2010




Dear Ms Fox

In regard to our discussion on the 11-3-2010 regarding changes that I request to the "Inheritance (Family Provision) Act 1972"(3).

In our discussion you agreed in principal to support my application to change the Inheritance (Family Provision) Act.
At the time you suggested that I should forward an email outlining my request for change and that you would forward that to the appropriate area.
Here is my proposal,  you should also go to http://sites.google.com/site/changefamilyprovisionsact/
If you would prefer this submission in another form, Word etc or with more/less detail let me know.
Please advise me on what action you have taken as I shale follow this up shortly.


Thanks
Greg Anastasi

PS I read Bleak House and watched the BBC series as it was discussed in our phone conversation, Dickens was no fan of the courts ether .

[Address deleted here]
greg.anastasi@gmail.com


Allow me to give you some background on the FPA (Family Provisions Act)
.

The Act originally began its life in New Zealand as the "Family Protection Act 1908". The primary propose was the protection of widows and children from wills that would leave them destitute.
An example often cited is of a father that leaves his entire estate to the gentleman's club when he had a wife and young children that needed support.
One solution to this problem was to limit the freedom of how a will could distributed in an estate to 1/3 to the widow 1/3 to the children and 1/3 free for the deceased as they wish.
This solution was seen to be overly interfering with the freedom of a person to distribute their wealth as they saw fit.  As a compromise solution the Family Protection Act 1908 came into effect in New Zealand and later spread to Australia. I believe that when the Act was written the parliament expected the court to take a more general definition of children to only include those that you would expect the deceased to have responsibility's for. Over time, the definition of an eligible person expanded to accommodate changes in the make-up of the modern family (de-facto and the like).  Most would agree that this was a positive reflection of society's expectations.

The current situation is that the FPA is used to even out "The unfairness of life". The court is giving little weight to the wishes of the deceased or responsibility for actions taken by people claiming against the estate. The court will often say in judgments "does not empower the Court to re-write the deceased’s will in accordance with its own ideas of justice and fairness."(1) but then proceed to do just that.
Families will have their disagreements and people will be unhappy with the choices their children make. On the other hand, is it right to expect a person to be responsible for their children from cradle to grave?

Here is an fictional example of what we see in the courts today.

The deceased has two children, child 1 works and saves and places themselves well for their future.  Child 2 has a problem holding onto money and tends to waste what they do get.  Child 2 has also fallen out with their parent as they resent their advice and have not been in contact for 20 years.  Both children are both in their 40's. In the will, the parent leaves $300,000 to child 1 and $20,000 to child 2, saying in the will that "I give child 2 only $20,000 as they have abandoned me and have shown that to give them more would be a waste as they are not good with money"

Here are the probable outcomes if child 2 decides to contest the will.

Mediation:
Child 1 will be advised by their lawyers that child 2 has a good chance of winning in court and it would be best to pay them off.
Child 1 pays child 2 $100,000 plus $15,000 for child 2's lawyers, plus $15,000 for the estate lawyers, leaving child 1 with $170,000.

Court:
It is two years since the parents death.
Child 2 receives $100,000 because child 1 is better able to support themselves.
Child 1 has to pay the legal cost of child 2 which are now $40,000 child 1's costs are $45,000 child 1 receives $115,000,


In our discussion, I outlined some of the deficiencies in the FPA and in particular the definition of a child.
I believe that the Act does not reflect community expectation of testamentary freedom and this is causing harm in the community.
The law is being used to compensate for the failing of intestacy law and this costs estates and the government millions of dollars.
Only a fraction of claims go to the Supreme Court as the majority of estates will be extorted for large sums, (eg 20-30% of small estates less than $500K, and 10-15% of larger estates), in an attempt to mitigate large legal costs. 

As the NSW supreme Court tends to publish costs in their judgement I will use them as an example.
CaseEstate value and legal cost.
Thirkell v Cox [2010] NSWSC 99$298,000.00 cost $71,000
WHITINGTON v WHITINGTON & ANOR [2009] SASC 142$202,000 Cost $225,000    South aust
Moon v Abrahams [2010] NSWSC 69$125,000  Cost $147,000
Axiak v Axiak [2009] NSWSC 1319$2,500,000.00 Cost $109,000
Frizelle v Old [2009] NSWSC 1259$844,000.00 Cost $80,000


I request that the Act be changed to disallow adult children as recommended in "REPORT 110 Uniform succession laws:family provision"(2) by the New South Wales Law Reform Commission.
Sydney 2005 ISSN 1030-0244 (Report).

The NSWLRC has been working with governments across Australia since before 1997 with almost no tangible outcome.
This is a policy decision for government and if left to the legal fraternity, it will result in a compromise position guided by flawed precedent and esoteric argument.

State attorneys have failed to act on the recommendations of the NSWLRC for over 15 years. I believe that changing the legislation wording from child, to non-adult child, would be the best solution until uniform succession laws (checked by the legislature) can replace the current law. 


Please see below the minimal changes to the wording of the Act that I believe would better align the Act with community expectations.

Inheritance (Family Provision) Act 1972(3)



6—Persons entitled to claim under this Act
The following persons are, in respect of the estate of a deceased person, entitled to
claim the benefit of this Act:
(a)the spouse of the deceased person;
(b)a person who has been divorced from the deceased person;
(ba) the domestic partner of the deceased person;
(c)a child non-adult of the deceased person;
(g)a child of a spouse or domestic partner of the deceased person being a child non-adult
who was maintained wholly or partly or who was legally entitled to be
maintained wholly or partly by the deceased person immediately before his
death;
(h)a child of the child of the deceased person a child of the child of the deceased person being a child non-adult
who was maintained wholly or partly or who was legally entitled to be
maintained wholly or partly by the deceased person immediately before his
death;
(i)a parent of the deceased person who satisfies the court that he cared for, or
contributed to the maintenance of, the deceased person during his lifetime;
(j)a brother or sister of the deceased person who satisfies the court that he cared
for, or contributed to the maintenance of, the deceased person during his
lifetime.


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