Sarah Moulds, researcher with the SA Law Reform Institute and PhD student at the University of Adelaide's Law School points out today's family inheritance and provision laws have their roots in the early 1900s, at a time when it was common for men to die without having an adequate will, leaving their widows and children penniless.
“The laws were established to help protect dependants who had no other source of income,” she says. "However, in recent years these laws have become increasingly contentious, with changes in family structures, increasing wealth such as superannuation and rising house values, changes in social attitudes and high legal costs.”
Ms Moulds says these laws can give rise to 'opportunistic claims' against the will. “One common example is a challenge by adult children who already have an independent source of income, seeking a bigger share of their deceased parent's estate. Such a challenge could be contrary to the express wishes of the parent's will," she says.
The Institute will examine if the current South Australian law has the right balance between protecting the rights of the person who writes the will, and providing for family members in need who are left out of the will.
It will address some issues with the current laws, by asking questions such as:
- how ‘final’ should someone's instructions be about how their property and money are distributed, as set out in their ‘final will and testament’
- or should a court be able to order changes to a "final will and testament" after a person dies, even when they leave a clear will be examined
- should financially secure adult children no longer be able to make a claim against their parent’s estate?
"It is important that our state's laws keep up with changes in modern society, and balance the 'deserving' in our community from the 'greedy'. To do this, we need to hear from everyone in the community with an interest or experience to share – not just lawyers – and we have many ways for you to share your thoughts with us. You don’t need to prepare a long, written submission, you can jump online and tell us quickly what you think," Ms Moulds says.
If you would like to learn more about review and to give feedback, click here for more information.