Wednesday 29 September 2010
Hansard of the Legislative Council

Mr FINCH (Rosevears) - Firstly let me say, Madam President, that one out of three is not bad. There were actually three changes to this bill that I put forward on legal advice in August and the Attorney-General did accept one of them. I wanted to highlight that this opportunity for early input into bills like this leads me to think about public consultation and the process with this bill has been just about ideal.

This bill has been long in the making, starting with the establishment of the national committee to manage a uniform succession laws project in 1995. In March 2007 the national committee released its report on intestacy which included a draft model bill to the Standing Committee of Attorneys-General.

In July 2007 a summary of the recommendations contained in the report and the draft model bill were circulated in Tasmania and published on the Internet asking for comment. Then this bill was drafted and circulated to stakeholders last year, so no-one can really say about this that there was insufficient opportunity for public consultation and the way it should really be for public comment and consultation.

Just a point about the change to $350 000 - I did ask a question in the briefing from a lawyer friend, Bruce Dooley from Clarke and Gee, who actually brought this situation of intestacies to my attention in 2004. He highlighted the issue of the $50 000 that a home was actually worth at that time and he said that it was totally inadequate.

When I sought some advice from him for my presentation here he did say that with the majority of homes being valued at more than $250 000 this figure is still too low; it should probably be at least $500 000 and perhaps even higher. While we have gone to $350 000 he is of the opinion that it should be even more, although when we were dealing with it back in 2004 the figure was at $50 000, and I will refer to that again in a moment.

This particular bill, after the 2007 summary of recommendations was drafted and then circulated to stakeholders last year.

INTESTACY BILL 2010 (No. 19)

Second Reading

Resumed from page 15

[3.33 p.m.]
Mr FINCH - Madam President, the only real problem with this sort of default legislation is that it has to evaluate what happens with most wills to formulate what should happen where there is no legal bill and this is an imperfect process.

Mr Parkinson - No legal will, are you saying?

Mr FINCH - Yes.

Mr Parkinson - I thought you said bill.

Mr FINCH - I think the best result has been achieved here. I was somewhat surprised to find that the New South Wales Law Reform Commission found that in 75 per cent of cases where a person had a spouse and children and made a will, they left the whole estate to the spouse and the estate was shared between the spouse and children in only 2.3 per cent of the estates that were surveyed. If that is the case this bill should and does reflect that. Another assumption that had to be made was that children will ultimately receive a share of an intestate's estate through the surviving spouse and also conforms to that distribution that I mentioned. After many years a surviving spouse with children will get a reasonable share and enough to keep the family home. This at a non-indexed $50 000 has long been inadequate and I pointed that out in the GBE hearing into the Public Trustee in 2004.

Mr Parkinson - But now she gets the lot under this new system.

Mr FINCH - Yes, absolutely. I will just quote the Public Trustee CEO, Peter Maloney, from that 2004 session. He said:

'It is too low, and we were asked to make some submissions. I have a bit of history on this, I know a bit about this. This was on the SCAG agenda for 14 years, was it not? I think the issue is not just about the money, it is about do you restructure it completely. For example, I have seen things that say you should leave everything to the spouse, nothing to the kids because they have found that in Queensland when they did the research, most of the people who were left were ladies or women in their late ages, and the ladies need some certainty, so there were some suggestions that they should get a whopping great amount. So there are all those sorts of issues, but certainly $50 000 is terrible. You can get around it, but it costs. You can get around it if there are children; it only happens if there are children. If there are no children the spouse gets the lot, but I think it works out if there are children, the spouse gets the first $50 000 and then they divide it up ... So they have to sell the house, so what you can do is provided the children are 18 years old, there are no more kids coming along, they can agree a deed that mum gets it, or dad gets it, or what have you. You can get it, but that costs you money.'

That is the end of the quote from Peter Maloney. The bill actually rectifies that ridiculous situation. I made a speech about intestacies, this is back in 2006, and I know the former President will remember this because he was Mr President at the time.

Mr Wing - I do remember that was an outstanding contribution you made.

Mr FINCH - I remember I looked you in the eye and I said:

'Mr President, there is an urgent need for a revision of State laws on succession in intestacy. We have been overtaken by a recent rapid rise in property prices and families of people dying without a will are being treated unfairly. This problem arises because present legislation refers to fixed sums rather than percentages of property valuation when dealing with intestacy.

I would like to give an example of how inflation can totally distort all fairness.'

Mr Wilkinson - You can see, though, the President was not the only one listening, can you not, because look what has happened.

Mr FINCH - No, because I am telling you, I know, this story for the first time and I think you will find it interesting because -

'It is a case where a will was in fact made. Shortly after the end of the Second World War a north-west coast resident left a will which divided his estate of some £30 000 among numerous members of his family. There were bequests ranging from several thousand pounds down to £200; all were fixed sums. What remained of the estate was to go to charity. The will was not finally settled until after the man's wife died 15 years later, and by that time the estate was worth £500 000, but because the bequests had been worked out as fixed sums and not percentages of the estate, the man's family received something under the original estate valuation of £30 000 and the charity which was intended to receive a few thousand received a windfall of more than £450 000.'

Mr Wing - Which charity?

Mr FINCH - I do not know.

Mr Parkinson - Being a charity, they gave half of it back.

Mr FINCH - At long last, Madam President, the bill recognises inflation. So it is logical and fair to annually adjust the statutory legacy, based on house prices, in accordance with the CPI. All in all, Madam President, this is a well thought out and carefully considered piece of legislation with adequate consultation and input, mine included, and I have no hesitation in supporting the bill.

[3.39 p.m.]
Mr WILKINSON (Nelson) - Madam President, naturally I support the bill. I can indicate that the people I have spoken with in relation to it certainly believe it is good legislation. I know the honourable member for Rosevears has had an interest in it since 2006.

Mr Finch - 2004.

Mr WILKINSON - 2004. He was the one who lit the spark, I suppose, to start the fire and look where it finished. But the legislation is here now. Interestingly enough, and it is worth mentioning, I think what can come out of this debate is that each and everyone of us should be advising not only our family but our friends and acquaintances that the best way of properly dealing with our estate is to make a will.