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 Fax 0882071736attorney-general@agd.sa.gov.au Dear Ms FoxI 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 |
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