Do you have a Will? Is it Valid?
3 December 2021
Small changes to WA’s laws when people die without a valid will to have a big impact
by Jocelyne Boujos, President of the Law Society of Western Australia
Originally published in The West Australian – 22 September 2021
Updated edit on 3 December 2021
I was delighted that legislation in WA that affects people who die without a valid will — which is nearly half of our community — was allocated priority in this sitting of Parliament.
It is in the practice of my professional area of estates, taxation and superannuation that I became aware of the significant impact on the general community of the woefully antiquated amounts dictated by the Administration Amendment Act 1903 (WA), which are applied when people died without a valid will. Many people were affected in sad and frustrating ways. For example, a wife of 17 years had to share the bulk of her husband’s estate (consisting of his superannuation) with an estranged but independently wealthy stepchild while she did not receive sufficient to pay out the mortgage on the family home; a parent helpless when a child “frittered” the considerable sum received from their father’s estate; a parent powerless as an ice-addicted stepchild received a payout of a quarter of million dollars when her husband died. It is a sad fact that the survivor was often put in the position of coming to an arrangement with their children and/or stepchildren (i.e. the children of the deceased spouse or partner) or in some cases bringing proceedings under the Family Provision Act 1972. If any of those children and/or stepchildren were minors, this further complicated matters as children cannot reach any agreement without the approval of the Supreme Court.
If you die without a valid will, the State government will decide what happens to your property. The law will now be changed so that the statutory scheme for the distribution of property when a person dies without a valid will is now, and into the future, equitable for their survivors. The changes increase the payment to a surviving spouse or partner (of a person who dies without a valid will) from $50,000 to $472 000 if the deceased had children. If the deceased had no children, the amount is increased from $75,000 to $705 000. This change includes de-facto or same sex partners. This amendment to the law is long overdue as the current amounts, as noted by the Attorney-General on August 19, 2021, “are grossly inadequate”. This will bring the situation in WA into line with that in the other states.
This change is very important to the WA community as nearly 50 per cent of West Australians die without a will (legally referred to as intestate). Intestacy can occur if the person does not have a will, if their will is not valid or if their will only disposes of some of their property. Many people shrug their shoulders and say: “So what? The house goes to my spouse, and I have nothing much else of value to leave.” However, in an economic environment where a significant part of an individual’s estate is often the insurance payout from compulsory superannuation, it is an immediate and significant problem. Because statistically women live longer than men the current law severely disadvantages them. The Law Society has campaigned vigorously, advocating for many years, that the State government change the law, and was disappointed when the legislation lapsed at such a late stage last year. In no other State or Territory of Australia is the statutory legacy as low as it is in WA.
The current statutory legacy is simply insufficient where the surviving partner is not on the certificate of title for the residential property. The little-known Administration Amendment Bill has had its third reading in Parliament but remains in the Legislative Council. The Law Society had anticipated that the changes would be legislated this year. However, as happened last year, the government wants to prioritise other laws – e.g. wheel clamping, ticket scalping ahead of a law that will change ordinary peoples’ lives. The number of individual members of our community that may be affected by the continued delay are around 20 persons a day! Imagine how many WA citizens could have been helped if the law had been amended 30 years ago when the then Premier, Carmen Laurence said it would be! No other state disadvantages its community to this extent.
These amendments are set out in only seven pages, and there are five clauses, so is indeed small in size but with the potential to alleviate serious financial problems for almost half of the WA community, some at their most vulnerable, during a deeply sad time of their lives. It will truly have a “large impact”, as noted by the Attorney-General when introducing the bill, if the Legislative Council attends to this business promptly – and not, as I have been told – next year! There has been over thirty years delay in making this change.
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About us: The Law Society of Western Australia is the peak professional association for lawyers in the State. The Society is a not-for-profit association dedicated to the representation of its more than 4,000 members. The Society enhances the legal profession through its position as a respected leader and contributor on law reform, access to justice and the rule of law. The Society is widely acknowledged by the legal profession, government and the community as the voice of the legal profession in Western Australia.