Post date: 09-Jul-2011 07:07:15
TheHonJohnRauMP
10A001575
16 August, 2010. Attorney-General
Minister for Justice
Minister for Tourism
Ms Chloe Fox M.P. 11th Floor
Member for Bright 45 Pirie Street
7 Sturt Road Adelaide SA 5000
BRIGHTON S.A. 5048 GPO Box 464
Adelaide SA 5001
DX 336
Tel 088207 1723
Fax 0882071736
attorney-general@agd.sa.gov.au
Dear Ms Fox
I write in response to your letter dated 1 June, 2010 written on behalf of your constituent
Mr Greg Anastasi about aspects of inheritance law.
I note Mr Anastasi’s comments on the restrictions that the Inheritance (Family Provision) Act
1972 (the Act) places on testamentary freedom. The freedom to give your estate to whoever
you wish is a general principle of the law. However, this can be unfair and unjust, for
example, when a spouse or child of the deceased suffers hardship as a result of the actions of
the deceased, such as ignoring the needs of a dependant. The Inheritance (Family Provision)
Act 1972 seeks to strike a balance between these considerations.
Mr Anastasi considers that the definition of a child under the Act, should include an age limit.
I understand that, in dealing with matters under the Act, the courts take a number of factors
into account, including the age of the applicant. I consider it is appropriate to leave the
exercise of this discretion with the court as there would be a range of circumstances - for
example, where the child of the deceased had, to their own financial detriment, been the
primary care-giver to the deceased over a substantial period of time - where it would be
equitable for the child to receive a part of the estate, regardless of age.
In relation to the costs of matters in the Supreme Court, I understand this concern and we
continue to strive for affordability and accessibility across our justice system. However, costs
are also an inevitable aspect of a formal judicial system. I also note that only a small
percentage of cases go to trial, and the use of alternative dispute resolution mechanisms, such
as mediation, negotiation and conciliation is available in many cases.
I trust you will find this information useful.
Yours sincerely
John Rau
Attorney-General