The distribution of assets and inheritance under a will is already causing considerable concern among Australian families, according to new research.
A survey by law firm Slater and Gordon found that more than one third (35 per cent) of Victorians have clashed with family members over the division of assets in a will or an inheritance, suggesting the need for proper planning when making a will and a justice system that helps families through difficult times.
Senior estate litigation lawyer Bibi Amidzic said the findings underlined why Victoria needed sound succession laws to help families resolve issues constructively.
“Dissatisfaction in the community and anxiety for families is likely to escalate even further if the Bill before the Victorian Upper House proceeds,” Ms Amidzic said.
“Victorians with reasonable and important issues will lose the right to even have their claims examined. They will have nowhere to go, no matter how unfairly they have been treated.
“Having a will - and being able to choose who to leave assets to - is an important right we all have, but it is also fundamental that the law continues to allow people who have been treated in an unjust and unreasonable way to have their concerns resolved.
“Proposed changes currently before the Victorian Parliament restrict the category of people who can challenge a will and in doing so takes away the rights of Victorians to have the law assist them – no other State or Territory in Australia has laws as harsh or draconian.
“The proposed changes are deeply flawed because they mean that no matter how much an adult child, for example, may have contributed to the life of the deceased, they will only be able to make a claim on a deceased’s estate if they are disabled or can demonstrate dependency at the time of death,” she said.
Slater and Gordon surveyed more than 2,000 Australians, many of whom thought that feuds could be prevented if there was greater communication and clearer instructions while the person was still alive.
“Making more information available to families and to will makers, thoughtful estate planning followed by the making of a comprehensive will which is kept up to date, makes future disputes over an estate less likely,” Ms Amidzic said.
“Changed financial circumstances such as the acquisition or sale of an asset, births, deaths, marriages, illnesses and divorces are just a few of the events that mean wills need to be kept up to date.”
The survey found the top cause of disputes was when family members thought assets were unfairly divided.
Respondents also expressed concern about the distribution of sentimental items; what the deceased person would have wanted; the use or maintenance of an asset such as a house; and an executor of a will be having unethically or unfairly.
“The answer is for the legal system to find better ways to help people resolve these problems quickly and with minimal cost, not to take away their rights,” Ms Amidzic said.
The new laws introduce a regime which will require claimants to fall within one of the prescribed relationship categories. Adult children will not be eligible to dispute a will unless they can demonstrate that they were wholly or partially dependant on the deceased at the date of death, no matter how much they may have contributed to the life of their parent.
The dependency requirement was expressly considered by the Victorian Law Reform Commission and not recommended. Dependency is not a requirement for eligibility in any other Australian jurisdiction.
The majority of claims are made by spouses and children. Having introduced the new laws in the Upper House, the Attorney-General has yet to explain his reasons for ignoring the recommendations made by the Victorian Law Reform Commission and proposing changes to family provision laws which effectively signal the end of an area of the law that has provided thousands of Victorians with access to justice over many years. The recommendations that would reduce costs have been largely ignored, instead the Government favours extinguishing rights and access to the justice system altogether.