Inheritance (Family and Dependants Provision) Amendment Bill 2012

Extract from Hansard

Hon Sue Ellery; Hon Alison Xamon; Hon Michael Mischin

Second Reading

Resumed from 16 May.

HON ALISON XAMON (East Metropolitan) [9.11 pm]: The Greens support this legislation. The Inheritance (Family and Dependants Provision) Amendment Bill 2011 replaced the Inheritance (Family and Dependants Provision) Bill 2007 to allow stepchildren of a deceased to bring a claim for maintenance, support or education in two circumstances; firstly, when the stepchild in question is being or is entitled to be maintained wholly or partly by the deceased immediately before the deceased’s death, and, secondly, when the deceased had received or was entitled to receive property with a value greater than the prescribed amount from the estate of a parent of the stepchild. As a result of that bill, WA is no longer the only state or territory that does not provide for claims by stepchildren.

The policy behind the 2011 bill remains unchanged. As I indicated in that debate, the Greens were very supportive of that policy change. However, since that bill has been passed, the government has become aware of three potential interpretation problems in relation to claims by stepchildren under sections 9(1) and (2) of the 2011 legislation. This 2012 bill seeks to rectify the anticipated interpretation problems and clarify the intention of the 2011 act rather than leave the issues to be dealt with by the Supreme Court. I asked during a briefing whether any cases had come to the attention of the court that would otherwise have been captured by these provisions. I have been advised that was not the case. I hope this bill will be passed before any problems emerge.

This bill amends the definition of “stepchild” in section 5 of the 2011 act and it corrects two problems with the earlier definition. In the 2011 act a stepchild was defined as a child of “the” deceased spouse rather than “a” deceased spouse. This excluded a former spouse of the deceased, thereby impacting on stepchildren whose step-parent had subsequently remarried. In the 2011 act, a stepchild was defined as a child of a de facto partner of the deceased if the de facto partner was a person in whose favour the court could make an order under the Inheritance (Family and Dependants Provision) Act 1972. However, a de facto partner has standing to apply to a court only when that person was living as a de facto partner of the deceased person immediately before the death of the deceased person. As the parent necessarily has to have predeceased the de facto step-parent, this would not have operated effectively. The Inheritance (Family and Dependants Provision) Amendment Bill 2012 amends the circumstance in which stepchildren can make a claim and clarifies that the prescribed amount applies to the date of the death of the parent of the deceased’s stepchild. This bill amends the Inheritance (Family and Dependants Provision) Amendment Act 2011. I note that the 2011 legislation received royal assent on 25 October last year but will not become operative until a date fixed by proclamation. I have been advised that the government intends to delay the proclamation of that legislation until the amendments proposed by this bill are ready to be proclaimed. The 2012 bill deals just with matters of legal interpretation.

I will go into a bit more detail of the definition of “stepchild”. Clause 4 of the 2012 bill amends the definition of “stepchild” in section 5 of the 2011 act to mean —

… a person who was alive on the date on which the deceased married or entered into a de facto relationship with a parent of the person but who is not a child of the deceased;

This deals with two identified potential problems with section 5 of the 2011 act. Section 5 defines “stepchild” as a child of “the” deceased’s spouse rather than “a” deceased’s spouse. This could have excluded a former spouse of the deceased and had the potential to impact on stepchildren whose step-parent had remarried. It is important that the remarriage of a step-parent does not disqualify a stepchild from making a claim to family provision against the estate of a deceased step-parent. The Greens support this amendment and the clarification of the intention of the 2011 act. An amendment to section 5 of the Inheritance (Family and Dependants Provision) Act 1972 defines “stepchild” as a person —

who is a child of —

(i) the deceased’s spouse; or

(ii) a de facto partner of the deceased, if the de facto partner is one in whose favour the Court can make an order under this Act;

Under section 7 of the Inheritance (Family and Dependants Provision) Act 1972, a de facto has standing only to apply to a court when that person was living as a de facto partner of the deceased person immediately before the death of the deceased person. As the parent necessarily has to have predeceased the step-parent, this would have been applicable in very limited circumstances such as if both the natural parent and step-parent died in quick succession.

The second situation dealing with the issue of the time of application of prescribed amount allows stepchildren to make a claim when the deceased was the beneficiary of the estate of the stepchild’s parent and that share was otherwise worth more than the prescribed amount than as a creditor of a deceased parent’s estate. This addressed the situation in which a step-parent having benefited from a child’s parents’ estate leaves their own estate only to their natural children to the exclusion of any stepchildren. Clause 5 of the 2012 bill inserts an amendment to section 9 of the 2011 act to clarify that the prescribed amount applies at the date of the death of the parent of the deceased’s stepchild rather than at any other time. This would mean that when a property depreciates in value following the death of the stepchild’s natural patent, they will still be entitled to make a claim against the step-parent’s property entitlement when it exceeds the prescribed amount. The Greens support the 2012 bill, but, importantly, we also support its expeditious passage through this chamber.

Question put and passed.

Bill read a second time.

Leave granted to proceed forthwith to third reading.

Third Reading

Bill read a third time, on motion by Hon Michael Mischin (Parliamentary Secretary), and transmitted to the Assembly.