RECENTLY the state government introduced to the Upper House proposed amendments to the Administration and Probate Act 1958.
The Bill follows a report from the Victorian Law Reform Commission of a review of succession laws.
The commission was asked to consider whether the current laws allowed opportunistic claims and whether there should be a general tightening up of eligibility.
The commission recommended that NSW law be adopted by Victoria and introduce a "responsibility" eligibility test.
The recommendations were designed to reflect a greater certainty for legal practitioners and applicants while ensuring most claims in typical situations were not excluded.
The commission concluded that while there were examples of opportunistic or non-genuine claims, the extent of the problem was unclear and the NSW model was considered by both the Judiciary and the public and legal profession to be working well.
However, the Victorian government is proposing restrictions that are not only considered harsh but go beyond many other states or territories in Australia and would result in Victoria being out of step with succession laws
Fundamentally, the restrictions are so severe that they go beyond the restrictions in many international countries. The fundamental issue with the Bill is that it restricts any eligible beneficiary from making a claim unless they are wholly or partially dependent upon the deceased person at the date of the deceased's death.
As an example, under the Bill, a farmer who had two sons and three daughters would be able to leave his property solely to the farming son and exclude the remaining children if they were not wholly or partially dependant on the deceased.
Often the harsh economics of farm life often mean that only one son can work of the farm and his other siblings have to leave to seek employment in other places. While the working son should be entitled to a significant share of his father's estate, we do not believe it to be a fair proposition that all the other siblings be excluded.
The Bill fails to reflect the nature of will making. In our experience, it is not uncommon for older will-makers to find themselves in disagreements with siblings and family members who are acting as primary care givers, with the result that the will-maker does not make provision for them in the will, even though the will-maker would be considered to have a responsibility to do so.
Similarly, this legislation leaves it open for elderly people to be influenced by non-family members to an extent that the will-maker will have an unfettered right to leave all of his estate to a non-family member who may have wrongly influenced the will-maker to make such a provision.
We consider that as a starting principle, a person ought to have the right to determine how property should be distributed after death.
However, the law in this state and across Australia has always made safeguards to make sure that a will-maker takes into consideration under the concept of' moral obligation" the extent all eligible beneficiaries parties should benefit in a share the will maker's estate.
The Bill will be debated in the Lower House on September 3. Concerned readers should approach their local parliamentary representative.
Disclaimer: Readers should seek independent legal advice as this article is for information purposes only. Geoff Bowyer is a director at Beck Legal, Bendigo.