An overview of Craig’s ongoing Ph.D project
All Australian states and territories use legislative intervention to limit freedom of testamentary disposition. The legislation attempts to remedy the injustice caused by testators leaving genuine dependants without adequate provision when they die leaving behind sufficient assets to do so. By testator’s family maintenance legislation (‘TFM’), aggrieved dependants may apply to a court of competent jurisdiction to increase the provision left for them. With the exception of New South Wales (‘NSW’), orders for increased provision can only be made out of assets which devolve upon the estate by operation of law. TFM legislation is easily defeated by inter vivos gifting, contracts, and other quasi-testamentary transactions. NSW is the only state in Australia to introduce a system of anti-avoidance commonly referred to as Notional Estate Provisions (‘NEP’). In NSW, where limited estate assets are available to make an effective order for increased provision, courts have a discretion to deem property received by third parties (for no valuable consideration) ‘notionally,’ as an estate asset. The notional estate is then available to the court to be applied towards dependants. No state government in Australia is prepared to implement a NSW style regime in the absence of proof that the current provisions are ‘effective’. The thesis examines the objects of Chapter 3 Part 3.3 of the Succession Act 2006 (NSW) in order to identify suitable criteria for evaluating the effectiveness of the legislation.
Law Society Succession and Elder Law Committee
Craig is a committee member of the Law Society of Western Australia’s The Elder Law and Succession Planning Committee. The committee’s particular areas of interest are:
- power of attorney reform, including interstate mutual recognition;
- legislative progress in succession law;
- probate practice; and
- the Family Provision Act 1972 (WA).
The Committee liaises with the Law Council of Australia National Elder Law and Succession Committee, and with the Supreme Court of Western Australia Probate Committee.
In 2017 the Committee contributed to the Law Council of Australia’s submission to the Australian Law Reform Commission’s Elder Abuse Inquiry discussion paper. The Law Society’s submission was noted by the Law Council of Australia in its submission.
The Committee continues to be consulted by the Law Society’s Costs Committee with regard to the Legal Costs Committee review of the Legal Practitioners (Non-Contentious Probate Costs) Determinations when reviews are conducted.
The Committee is conducting the following reviews:
- a review of the Report of the Statutory Review of the Guardianship and Administration Act 1990, Department of the Attorney General, with a view on making further submissions on the recommendations in the Report. At the Convenor’s meeting with the Attorney General, the question of amending the Guardianship and Administration Act 1990 to include specific provisions relating to ademption was raised and the Attorney General has advised that he will be putting that position forward to his Succession Law Working Group for review; and
- a review to extend Statutory Wills to minors.
The Committee also consulted with the Law Society’s Education Committee for CPD seminars on Estate Planning masterclass, Will drafting masterclass and Urgent wills and assessing a client’s mental capacity.