In South Australia, the Succession Act 2023 (SA) was approved by both houses of Parliament late last year, but the commencement date was unclear until recently- the new Act will be effective from 1 January 2025.
This new Act consolidates and modifies the legislation regarding wills, probate and administration, the handling of deceased estates, intestacy, and family provision. It will repeal the Administration and Probate Act 1919, the Inheritance (Family Provision) Act 1972, and the Wills Act 1936 and introduce related amendments to various other Acts.
The last review of South Australia’s succession laws was in the 1970s, and societal norms have changed dramatically. For instance, the existing laws don’t account for adult stepchildren, so they typically have no standing to bring a claim. The new Act will rectify this and bring our laws more into line with current community expectations and changing family situations and circumstances,”
Currently, in South Australia, eligible individuals can file an application to the Supreme Court under the Inheritance (Family Provision) Act 1972 (SA) to request provision from a deceased person’s estate if they believe they have not received adequate provision in the deceased person’s will for their proper maintenance, education, or advancement.
The new Succession Act is designed to make the wishes of the deceased the paramount consideration of the Court. The Act requires evidence of why the deceased disposed of their estate in the manner set out in their will, a person’s vulnerability and dependence on the deceased, a person’s contribution to the deceased’s estate, and the character and conduct of the applicant.
Generally, the changes are well-intentioned and aim to prevent “frivolous” or “opportunistic” provision claims. Still, the legal community is concerned that they may unduly limit people with genuine needs from making claims. For example, the changes reduce the rights of certain relatives, including grandchildren and stepchildren of the deceased, who must meet a higher threshold to make a claim.
Sadly, a person’s will may not always reflect a deceased’s true wishes and may be used to address grievances in a family dispute. Considering that the new laws place significant and primary emphasis on the deceased person’s wishes as evidenced in a will, it may become more difficult for a Court to order that persons who have been expressly excluded from a will are provided for from a deceased estate, or that a will perpetuated by fraud should be unenforceable.
Some of the other main reforms in the Succession Act include granting specific persons the right to inspect a deceased person’s will, clarifying the application of the assets of a solvent estate in the payment of debts and liabilities, and increasing the amount of the preferential legacy received by a surviving spouse of a person dying intestate from $100,000 to $120,000.
The Succession Act 2023 (SA) was passed on 28 September 2023, bringing significant changes to succession law in South Australia. The Act repealed the Administration and Probate Act 1919, the Inheritance (Family Provision) Act 1972, and the Wills Act 1936, while also amending several other acts.
One of the notable changes is the entitlement to inspect the will of a deceased person, detailed in section 48 of the Act. This provision aligns with similar legislation in other Australian jurisdictions, broadening the scope of who is entitled to inspect or receive a copy of a deceased person’s will.
Another vital addition is introducing a new section 98, which provides a statutory pathway for aggrieved beneficiaries to take legal action against an executor if they believe the executor has failed to perform their duties. The court may issue orders to address these failures.
Additionally, the Act introduces a new concept in section 111 that allows the Court to approve an agreement for the distribution or “re-distribution” of an intestate estate. The aim is to simplify the process and address issues related to enforceability and stamp duty implications.
These changes aim to align South Australia’s succession legislation with those of other states and territories in Australia.