Succession Laws: Report

Preface

The Attorney-General has asked the Commission to review various aspects of Victoria’s laws on succession after death, to ensure that they operate fairly and in accordance with community expectations.

Victoria’s succession laws have a long heritage and convey enduring values about the transfer of wealth from one generation to the next. These values shape community expectations but do not determine them. Community expectations are more responsive to changes in the world around us.

The change that has most affected community expectations about succession laws is the increase in life expectancy. Over the past 100 years, the average life expectancy has increased by 25 years. If parents live until children are well into middle age, an inheritance can be transformed from financial assistance that helps the children establish themselves in life into the guarantee of a financially secure retirement. More people are living to a frail age, dependent on others to assist them with their daily decisions and activities and vulnerable to pressure to leave property to those who care for them. They are leaving many more descendants, possibly from two or more relationships, who may feel entitled to a share of their property.

This reference has been a timely opportunity to consider how well succession laws protect will-makers from undue influence, recognise their significant relationships, safeguard the rights of beneficiaries and creditors and ensure that the estate is not depleted by unnecessary or unreasonable costs.

The Commissioner who led the reference, Dr Ian Hardingham QC, brought to the task his extensive experience in teaching, advising and writing about succession laws, as well as the benefit of many years of legal practice. I extend to him my thanks for his perceptive and practical insights into the operation of the law.

I wish to thank the many people who gave their time and expertise to assist the Commission during the reference. I thank in particular the members of the advisory committee: Richard Boaden, Associate Professor Matthew Groves, Michael Halpin, Justin Hartnett, Mark Maier, Stewart McNab, Richard Phillips, Carol Stuart, Michael Tsotsos, Professor Prue Vines and Kathy Wilson.

I would also like to thank my fellow Commissioners who, with Dr Hardingham and me, comprised the Division of the Commission with responsibility for this reference: the Hon. David Jones AM and Eamonn Moran PSM QC. They contributed significantly to the recommendations made in this report.

I extend my warm thanks to the Succession Laws team, most ably led by Lindy Smith and comprising Mia Hollick, Natalie Lilford and Joanna O’Donohue. The work of the team was carried out with much application and skill.

I commend the report to you.

The Hon. P. D. Cummins

Chair

August 2013