The South Australian Parliament passed legislation to consolidate and modernise all succession law in South Australia under the Succession Act 2023 (SA) on 18 October 2023, with the Act receiving the Governor’s assent on 31 October 2023; however, it will only commence on a date yet to be proclaimed by notice in the Gazette.
This piece of legislation is the culmination of a large body of work that commenced sometime around 2011 when the South Australian Law Reform Institute identified areas of succession law that were most in need of review and recommended reform
The Succession Act 2023 (SA), repeals the
- Administration and Probate Act 1919 (SA),
- Inheritance (Family Provision) Act 1972 (SA)
- Wills Act 1936 (SA)
and includes revisions to the Aged and Infirm Persons’ Property Act 1940, the Guardianship and Administration Act 1993, the Law of Property Act 1936, the Public Trustee Act 1995, the Supreme Court Act 1935, and the Trustee Act 1936. The changes brought about by the Act make significant (and in some cases, long overdue) reforms in various areas, including
- who can access the Will of a deceased person,
- statutory remedies against executors who fail to comply with their duties,
- orders for the alternate distribution of intestate estates, and
- changes to family provision claims including who can make a claim, the factors the Court must take into account, and security for costs.
Section 48 of the Act lists persons entitled to inspect a deceased person’s Will. A “will” includes a revoked will, a purported or informal will, or even part of a will. Previously, access to copies of wills was guided mainly by practice and occasionally inconsistent conventions. The new list of entitled persons is broad and primarily reflects existing legislation in other Australian jurisdictions, including Queensland, Victoria, and New South Wales.
The persons entitled include:
- a person named or referred to in the Will, even if not a beneficiary;
- a person named or referred to in an earlier will as a beneficiary; the surviving spouse, domestic partner, child, or stepchild;
- a former spouse or domestic partner;
- a parent or guardian;
- a person entitled to a share on intestacy;
- a parent or guardian of a minor referred to in the Will or entitled on intestacy.
Those who hold original or copy wills must be aware of these provisions as they should expect requests to be made regularly under that section.
Notable Changes
Section 67: If deemed necessary, the Court can grant probate or administration to persons other than those who would usually be entitled to it.
Section 73: The Public Trustee can administer Estates that only consist of personal property worth up to $100,000 with a deemed grant.
Section 81 sets out an executor’s responsibilities in very general terms. The Court may make any or all of the following orders: requiring the executor/administrator to pay into the estate an amount equivalent to any financial benefit the executor/administrator has obtained (directly or indirectly) by their failure; requiring the executor/administrator to compensate any person who has suffered loss or damage; or any other order appropriate to compensate persons who have suffered loss or damage as a result of the failure of the executor/administrator. An arrived beneficiary must apply within three years of becoming aware of the failure.
This timeframe can potentially cause issues for executors as the aggrieved person becomes aware of the failure after the executor has finally distributed the estate. The executor would then be unable to rely on recourse to estate assets to defend the claim.
Section 83: The payment of debts by an executor or administrator of a solvent estate follows a specific order provided by this section, which replaces the previously complex common law provisions.
Section 84: Property debts, such as mortgages and charges on land, are not to be paid from the deceased’s residuary or personal estate unless there is an expressed contrary intention.
Section 97: The Court can request the executor or administrator of an estate to provide an undertaking on how the estate is to be conducted or accounted for.
Section 98 of the Act codifies causes of action and remedies available at common law. Still, it creates a clear statutory pathway for aggrieved beneficiaries to issue proceedings against an executor if they believe that the executor has failed to perform any duties or comply with any undertaking or direction of the Court.
Section 111 introduces an entirely new concept, allowing the Court to approve an agreement for the distribution or “re-distribution” of an intestate estate (or part of one) rather than to those family members or relatives specified by Division 3 of the Act. Previously, an applicant could only achieve this by contractual agreement or order under the Inheritance (Family Provision) Act 1972 (SA). The problem with the former was enforceability (requiring separate proceedings) and stamp duty implications in transferring dutiable property. The latter required potentially expensive and unnecessary proceedings (if all parties agreed).
Additionally, s111 has sought to remove some of those obstacles by creating a new process. Procedurally, the section requires the application to be made by the administrator of the intestate estate; all persons who are entitled to share in the distribution of the intestate estate (or part of the intestate estate) must be parties to the agreement and have notice of the application. The Court is to be satisfied that the terms of the agreement are, in all the circumstances, “just”. Satisfying the Court of those matters will no doubt require that all interested persons who are not sui juris have separate representation.
The law allows stepchildren to claim against a deceased’s estate under s115(1)(f), subject to the Act’s later provisions. Former spouses and domestic partners are not eligible to claim family provision against a deceased’s estate if they have previously settled with a prescribed agreement or order, similar to the exclusion from the order of inheritance of intestate estates, according to s115(2). Adult stepchildren must meet specific criteria to be eligible for a claim under s115(3), such as demonstrating that they are disabled and significantly vulnerable because of their disability, that they were dependent on the deceased at the time of the deceased’s death, or that they cared for or contributed to the maintenance of the deceased immediately before their death, or that they significantly contributed to the estate of the deceased, or that assets accumulated by the stepchild’s natural parent substantially contributed to the estate of the deceased person.
Additionally, minors who are stepchildren can claim if they can prove to the Court that they are wholly or partly maintained by the deceased immediately before their death. Section 115(5) extends the eligibility to claim to grandchildren if one parent has died instead of both parents.
Section 116(2) of the law now requires the Court to prioritise the wishes of the deceased when deciding whether to make a family provision order, a significant change favouring the freedom of testamentary disposition and the wishes of the deceased.
Section 117 aims to discourage unmeritorious claims by allowing the Court to order a party to give security for costs that may be awarded against them if their claim for family provision lacks merit or is unwilling to negotiate a settlement.
Section 126 establishes that when two or more persons die under circumstances where it is impossible to determine the order of death, their deaths will be assumed to have occurred in order of seniority. The eldest person will be presumed to have died first, even if it is unclear from the accident which person died first, aligning South Australia with other jurisdictions that have statutory provisions for the order of death when the order of death is uncertain.
Section 127 states that if there are simultaneous deaths, any jointly owned property will be divided into equal shares and devolved to each person’s estate as if they were tenants in common.
The South Australian parliament incorporated a conscious inclination towards the desires of the willmaker in family provision claims in its legislation. As a result, claimants will have to think more carefully about pursuing a claim, as they will be facing a more challenging environment. Indeed, freeing up the courts from consideration of less meritorious family provision claims may have been the imperative driving the change in focus of the legislation in South Australia. This inclination is evident in the wording of section 116(2)(a),
(2) In determining whether to make a family provision order
(a) the wishes of the deceased person is the primary consideration of the Court;
that the Court’s primary consideration in deciding whether to make a family provision order is the wishes of the deceased person.
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