In October 2013, the Victorian Law Reform Commission’s report on succession laws was tabled in the Victorian Parliament by the Attorney-General, Robert Clark.
The report is the result of 18 months’ work by the Commission’s team, led by Dr Ian Hardingham QC. The purpose was to ensure that the laws of succession operate justly, fairly, and in accordance with community expectations.
The report contains 78 recommendations to reform the laws that affect what happens to the assets of Victorians after they die. They are grouped under six headings: wills, family provision, intestacy, executors, debts, and small estates.
Our recommendations aim to:
• reduce the costs of administering small estates, making it easier and cheaper to administer an estate when a person dies.
• make the law clearer about which family members can challenge a will under family provision laws.
• make the commissions and costs charged by executors more transparent, and provide new avenues for resolving disputes.
• provide better public information to help will-makers, administrators and executors of wills.
• bring Victoria in line with other states in relation to various succession laws.
The need for reform has long been recognised. In 1991, the Standing Committee of Attorneys General initiated a project to develop uniform succession law and practice across Australia. The current review was informed by the recommendations of the National Uniform Succession Laws Project.
Most of the law reviewed is contained in the Wills Act 1997 (Vic) and the Administration and Probate Act 1958 (Vic). The Commission consulted widely and received 46 submissions from individuals and organisations including seniors’ groups, carers’ groups, community legal centres, people from Indigenous and culturally diverse backgrounds and from rural and regional areas. From the legal and financial sectors, submissions were received from legal practitioners, State Trustees, financial institutions and superannuation companies.
Victoria’s succession laws have a long heritage and convey enduring values about the transfer of wealth from one generation to the next. However, there have been significant changes to society which make a review of succession laws timely.
One change is the increase in life expectancy, which has increased by 25 years over the past century. As people are living longer, their descendants will not inherit until much later in life – often not until they too are of retirement age. By that stage, their parents may be frail and dependant, and possibly vulnerable to pressure to leave property to their carers.
A second factor is the massive intergenerational wealth transfer that is taking place between the baby boomers and their parents. This wealth may be spread across many different assets – it is not simply the house or the farm.
A third factor is the increasing complexity of families. Many people have several partners during their lives, and descendants from multiple relationships, which can lead to conflict when it comes to administering the estate – as some high-profile cases have amply demonstrated in recent times.
Given these factors, succession laws need to assist Victorians to transfer their assets from one generation to the next with minimal conflict, or if disputes are unavoidable, at least provide legal clarity and keep the costs down.
When a loved one dies, the experience is already stressful enough. Confusing succession arrangements and excessive costs only add to this stress. The recommendations we have made in this report go some way to making a difficult process clearer and less expensive.
The report, including all the recommendations, can be accessed at http://www.lawreform.vic.gov.au/all-projects/succession-laws.