Many of Thomson Reuters’ online customers may have heard the recent discussion of Australia’s complex inheritance laws on ABC Radio National’s The Law Report (21/9/2010). Despite a very long term project to make state-based succession laws consistent, that goal is yet to be achieved.
Australian Succession Law (ASL) is Thomson Reuters’ way of providing practitioners with guidance to this situation, in the form of the first and only subscription service currently available to address the laws with respect to wills, intestacy, administration and probate and family provision Australia-wide.
While customers get the benefit of a volume of topic-based commentary and two volumes of compiled state legislation regardless of whether they subscribe to looseleaf or online formats, increasingly the online format is offering more to users.
As with all Thomson Reuters online works, legislation updated more frequently than in hard copy, but come December, ASL online will also include a select archive of legislation that customers still need to access but which is no longer current. For example, it will include the wills legislation in NSW that had effect until the commencement of the Succession Act because it is still relevant for matters that pre-date 1 March 2008.
The authors of the service are:
- David Haines QC of Edmund Barton Chambers in Adelaide (wills and intestacy),
- Madeleine Harland of Lipman Karas in Adelaide (administration and probate), and
- Leonie Englefield from Owen Dixon Chambers East in Melbourne (family provision).
Starting in December this year, Peter Worrall of PWL in Hobart is coming on board to contribute commentary on estate planning to the service too.
David, Leonie and Peter are among the speakers at Thomson Reuters’ Wills and Estate Planning Forum in Sydney on 18-19 November which deals with the theme, Managing practical issues for effective estate planning. Visit www.thomsonreuters.com.au/willsandestates for more details.
Here, all four authors take a moment to tell Online Insider about the biggest issues they see in the current state of the law. As you will see, they each have a slightly different perspective.
Q: What do you see is the biggest change to affect succession law in the past five years?
DH: The introduction of uniform succession laws at long last. In 1991 the Attorney-General of Australia agreed that the concept of Uniform Succession Laws was appropriate for Australia. It then started but I suspect it will not be completed for three or so years.
MH: I agree with David that the introduction of the uniform succession laws has been the most significant change in recent years, beginning with the enactment of the Succession Act 2008 (NSW) in March 2008. New South Wales is leading the way on law reform in this area.
LE: The concept of family has broadened significantly, for example a domestic partner may not necessarily reside with the deceased, the definition of ‘child’ has been expanded in many jurisdictions and non-relatives may be in a ‘caring’ relationship that gives rise to certain rights.
PW: The general ageing of the population and the need, increasingly, to deal with declining testamentary capacity and the increasing rate of Alzheimer’s disease and other forms of illnesses that affect the mental state of Will-makers is currently, and will continue to be, of concern to estate planning private client lawyers. This is a population or societal change rather than a legal change, but it is nevertheless important. With this, there is an increasing reason to go to experienced estate planning lawyers for Wills in these circumstances, because of the increasingly high standards expected of Will drafters.
Q: When first writing the commentary for Australian Succession Law, what struck you most: the similarities or the differences between the different state laws?
DH: Similarities, as the law for each state and territory is based on English ecclesiastical law. Legislation also had the same base.
MH: The broad similarity between the states and territories is striking, however there are certainly idiosyncratic and subtle differences that will only be detected on careful analysis. The similarities are more obvious in circumstances when the Court is exercising its inherent jurisdiction. In this circumstance, similar considerations will influence the exercise of the Court’s discretion regardless of where the matter is being heard.
LE: In the field of family provision, the differences are more striking than the similarities, especially as some differences are only discernable upon very close analysis.
PW: In all of the fields covered by succession law and estate planning there is a range of very fine differences between the different jurisdictions, and these are essentially the traps when you come to draft documents for clients outside your jurisdiction. The general move towards having template legislation with each state adopting, in general, the template, but with their own state or territory-based nuances leads to a number of idiosyncratic differences. What this means for the estate planning private client lawyer, is that once you reach a certain level of understanding of the general law in a particular area, you must spend the time understanding the differences between the jurisdictions, as it is common enough that the estate of the person who dies will be across two or more jurisdictions, even without considering those clients who will have overseas estates. Similar considerations occur in Powers of Attorney, Guardianship and the jurisdictional base of inter vivos trusts.
Q: Do you think we will ever see true uniformity in succession laws across Australia?
DH: No, some states and the odd territory have been slow to accept recommendations from law reform commissions and that tardiness may be referable to reluctance to adopt those proposals
MH: Unfortunately, no – or at least for not for a very long time. Law reform in this area appears only to be on the agenda of certain States and Territories (primarily NSW, Qld and Vic) and has been largely ignored for many years in other States and Territories. I expect that this will continue to be the case for the foreseeable future.
LE: Yes. Diversity in succession law will become increasingly unacceptable as people move between jurisdictions, hold property in more than one jurisdiction and have more complex family structures. People will demand the certainty of consistent outcomes no matter where they or members of their family live or hold property at the time of their death.
PW: No. I think the pressures within states and territories – that is the lobbying from trustee companies, the public trustee, law societies, individual lawyers and other interested players – means that when legislation goes through Parliament it often has been pushed into a slightly different form than the template legislation. Because in succession law it takes many years to get even relatively simple reforms through Parliament, the pressure comes on to accept a compromise. I happen to think that a degree of diversity does not hurt, but you must remain nimble to look for these differences. Some of them are minor, and others are major. For example, it is unlikely that the other states will accept the New South Wales notional estate provisions in family provision legislation, or that New South Wales and Victoria will agree on a common form in family law provision for the class of potential applicants. There appears to be a common view in other states and territories that both New South Wales and Victoria have both got it wrong and that the strict and short list of applicants is a better form.