Letter 1

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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