Reply To Attorney-General

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

ĉ
Greg Anastasi,
Jul 6, 2011, 8:48 PM
ĉ
Greg Anastasi,
Jul 6, 2011, 8:48 PM
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