A family provision claim does not authorise the court to equalise distributions between children. Section 7 of the Inheritance (Family Provision) Act 1972 (SA) requires the court to determine whether an eligible applicant has received adequate provision for proper maintenance, education, or advancement in life, having regard to their circumstances and the statutory criteria.
In South Australia after 1 January 2025, claims are governed by Part 6 of the Succession Act 2023 (SA). Both Acts require adequate provision for eligible applicants. However, there are several key differences between the two Acts. The Succession Act 2023 (SA) changes
- the categories of eligible persons,
- refines the definition of dependants, and
- sets out more detailed criteria for needs assessment.
For example, under the Succession Act 2023, eligibility is broadened to include certain stepchildren and domestic partners who were not previously eligible. Placing greater emphasis on assessing an applicant’s current and future financial needs, with specific reference to prescribed statutory factors. Introducing clearer guidelines for considering competing claims and offers additional guidance for transitional claims commenced around the legislative change.
In summary, while the Inheritance (Family Provision) Act 1972 (SA) took a narrower approach to eligibility and focused on general adequacy, the Succession Act 2023 (SA) expands the pool of eligible applicants. It provides more prescriptive criteria for assessing claims. For instance, a stepchild who could not bring a claim under the old Act may now be eligible and must be assessed against specific statutory factors. Practitioners should be aware of these key differences to ensure accurate advice, particularly for transitional matters and future claims.
The relevant date to determine which Act applies to a particular family provision claim, is when the deceased passed away and when probate or administration is granted. Generally, if the deceased died before 1 January 2025 and probate or administration was granted under the Inheritance (Family Provision) Act 1972 (SA), that Act continues to apply.
If the death occurs on or after 1 January 2025, or probate or administration is granted on or after this date, the Succession Act 2023 (SA) will usually govern the claim. Transitional provisions in the Succession Act 2023 (SA) provide guidance for cases spanning the commencement date. Schedule 1 of the Succession Act 2023 (SA) provides detailed transitional rules to ensure the correct legislative framework applies.
For example, if a person died in December 2024 but probate is not granted until February 2025, the transitional provisions determine which Act will apply to any family provision claim. In such a case, Schedule 1 may provide that the Inheritance (Family Provision) Act 1972 (SA) continues to govern claims where the death occurred before 1 January 2025, even if probate is granted later. Conversely, if both the death and the granting of probate occur after 1 January 2025, the Succession Act 2023 (SA) will govern the claim. Review the transitional rules carefully in cases involving deaths or probate dates close to the legislative change to ensure they identify the correct Act for each matter.
Where a testator allocates a larger share to a child with significant disabilities, the Court’s role is confined to determining whether adequate provision has been made for each eligible applicant. This assessment is based on an applicant’s individual needs and circumstances, rather than equalising distributions.
The Matter
Paterson v Paterson [2026] SASC 82 concerned an application by Linda Paterson (the applicant) under s 6(c) of the Inheritance (Family Provision) Act 1972 (SA) (the Act) as a child of Barry William Paterson (the deceased) for maintenance, education, and advancement in life out of the estate in the Supreme Court of South Australia. The deceased’s sons, Graeme William Paterson and Ian Barry Paterson (the respondents), as executors and beneficiaries submitted that adequate provision had been made. The parties agreed that the claim fell under s 7 of the Act, as probate was granted under the superseded legislation.
Kourakis CJ found the applicant had not received adequate provision for proper maintenance and advancement in life. The inadequacy was modest. The Court ordered an additional $150,000 from the residue. The specific devises under the Will were unchanged.
Key Case Details
Claim: The deceased’s adult daughter sought further provision from the estate.
Existing provision: The applicant received a specific devise valued at approximately $546,000 from an estate of $1,207,718. The residue was divided between three siblings.
Ruling: The Court found the original provision modestly inadequate and ordered an additional $150,000 from the residue. The specific devises under the Will remained unchanged.
In Paterson v Paterson & Ors [2026] SASCA 129, the South Australian Court of Appeal considered an appeal by an applicant seeking further provision from the estate. The appellant had previously been awarded an additional $150,000 at trial and sought a further $140,000, relying on principles of equality.
In dismissing the appeal the Court of Appeal distinguished the statutory requirement of adequate provision from a beneficiary’s perception of fairness or equality.
The deceased’s Will
Under the deceased’s Will, the appellant received assets worth approximately $550,000, together with one-third of the residue.
The appellant sought further provision under the Inheritance (Family Provision) Act 1972 (SA), which governed the claim. Kourakis CJ accepted that she should receive an additional $150,000 from the residue.
The appellant’s circumstances included limited employment prospects, receipt of a disability support pension, and modest assets aside from the inheritance. The appellant was diagnosed with autism, received psychological treatment, and was assessed as unlikely to engage in employment in the future.
Kourakis CJ also considered the applicant’s relatively stable accommodation and the substantial assets received under the Will. The additional award was intended to provide a financial buffer should accommodation or other needs change.
His Honour also considered the respondents’ contributions, including significant assistance to the deceased during his lifetime. One respondent had sustained a brain injury. The statutory requirement of adequate provision does not mandate equal division among beneficiaries. The Court of Appeal endorsed Kourakis CJ’s application of the conventional two-stage approach to family provision.
- The first question was whether the daughter had been left without adequate provision for her proper maintenance, education, or advancement in life. The trial judge answered this in her favour and then determined what further provision should be made.
- The second stage required consideration of the applicant’s circumstances, competing claims on the estate, and the testator’s freedom to dispose of property by will.
Emphasising that family provision legislation does not permit the Court to substitute its own distribution for the testator’s. An inheritance may meet the statutory adequacy requirement even if it does not reflect a beneficiary’s preferences. In assessing adequacy, the Court applies the statutory criteria in s 7 of the Act, including the applicant’s financial position, earning capacity, age, health, the size and nature of the estate, the relationship with the deceased, any obligations or responsibilities of the deceased, the needs of other beneficiaries, and any contributions by the applicant. These statutory factors, rather than equality among beneficiaries, determine the assessment.
A disparity between siblings’ inheritances does not establish an entitlement to further provision. The statutory inquiry is whether the applicant requires additional provision and, if so, to what extent.
Alleged Discrimination
The applicant argued that the legislation should be interpreted consistently with the Convention on the Elimination of All Forms of Discrimination Against Women. The assessment of entitlement failed to reflect principles of equality and non-discrimination.
His Honour rejected that argument.
The Convention did not confer an enforceable cause of action or require equal division of the estate. Contemporary social standards may inform the assessment of adequate and proper provision but do not convert the statutory claim into a right to equal inheritance.
Kourakis CJ was entitled to focus on the applicant’s needs and foreseeable contingencies, including the possibility that they might need to change accommodation.
The separate claims
The applicant also sought to revive claims summarily dismissed in July 2024, including allegations of undisclosed estate assets, a claimed interest in a Wallaroo property, and claims against legal practitioners and public authorities. The Court found these claims lacked evidentiary support or did not disclose a reasonable cause of action. Allegations regarding undisclosed assets were not supported by credible evidence. The claimed interest in the Wallaroo property was not substantiated by documentation or evidence of prior ownership.
No identified legal basis or actionable misconduct supported the applicant’s claims against legal practitioners and public authorities. The Court’s findings highlight the necessity for claims to be supported by admissible evidence and a proper legal foundation. Practitioners should ensure that claims are substantiated by verifiable facts and established legal principles. Examples of admissible evidence include current title searches, certified copies of relevant property documents, contemporaneous correspondence, bank statements linking assets to the deceased, written valuations, and formal medical or expert reports.
A systematic approach to gathering and logging evidence not only saves time but also strengthens the submission and enables a prompt response to Court queries. Using a standard evidence log or checklist throughout case preparation to collect and organise this evidence efficiently. Keeping records of obtained documents up to date and regularly cross-referencing them with the statutory criteria can help identify gaps early. Storing scanned copies and summaries in an indexed file or digital folder makes retrieval easier.
Checklist: Evidence Required for Family Provision Claims
To assist practitioners, a checklist of evidence types required for each statutory criterion is set out below:
- Financial Position:
- Bank statements showing account balances and asset holdings
- Recent valuations of real estate and significant assets
- Details of liabilities (e.g., loan statements, credit card statements)
- Income records (e.g., pay slips, Centrelink statements, tax returns)
- Health and Earning Capacity:
- Medical or specialist reports outlining physical and mental health conditions
- Evidence of disability or incapacity (e.g., government or pension documentation)
- Reports from treating practitioners or specialists about ability to work
- Needs and Obligations:
- Invoices or estimates for ongoing or anticipated expenses (e.g., rent, care, medical treatment)
- Written statements explaining special needs or requirements
- Documentary evidence of childcare or other dependents
- Competing Claims:
- Evidence relating to the financial position and needs of other beneficiaries (where relevant)
- Records of contributions by beneficiaries to the deceased or estate (correspondence, declarations, statements of service)
- Estate Assets and Liabilities:
- Probate documents
- Certified title searches
- Inventory of estate assets and formal valuations
Addressing each statutory criterion with supporting admissible evidence assists the Court’s determination and strengthens submissions. Documentation errors include missing official records, reliance on hearsay or unverified statements, omission of asset tracing, and general assertions lacking primary evidence. Systematic collation and review of original documents enhance a claim’s credibility and prospects.
Extension of Time
Under s 8 of the Inheritance (Family Provision) Act 1972 the court may grant an extension of time to file a claim if it sees fit; however this may not occur after final distribution of the estate has been made. The applicant sought an extension of approximately two years to pursue the appeal. Kourakis CJ considered the applicant’s vulnerability, disability, and reported communication difficulties with Registry staff as insufficient to explain the delay.
Courts determine applications for an extension of time in appellate proceedings based on the length and reason for the delay, the merits of the proposed appeal, potential prejudice to the respondent, and the interests of justice. A satisfactory explanation for the delay is generally required. Where the delay is lengthy and unexplained, extensions are unlikely. The threshold for obtaining an extension remains high. The applicant must demonstrate a reasonable excuse for the delay and that the interests of justice support the extension. In Paterson v Paterson [2026] SASC 82, the proposed claims did not disclose apparent legal merit. Despite previous opportunities to obtain advice and amend the case, no sustainable causes of action were identified. The Court refused the extension of time.
Summary: Practical Steps and Criteria for Seeking an Extension of Time
The following practical steps assist practitioners advising clients and preparing extension applications :
- Identify the statutory or rule-based time limit for filing the appeal or application and determine the length of the delay.
- Set out a clear, detailed explanation for the delay, including supporting documentation where available (such as evidence of illness, administrative error, or other relevant circumstances).
- Assess and summarise the merits of the proposed appeal or case, identifying whether there is a reasonable prospect of success.
- Consider and address any prejudice to the respondent or other parties if the extension were granted.
- Clearly explain why granting the extension would serve the interests of justice in the circumstances.
- Gather any evidence supporting the reasons for the delay, such as correspondence, medical certificates, or affidavits.
- Prepare submissions that address each of the above criteria, with reference to relevant procedural rules and case law on extensions of time.
A well-structured application that addresses these criteria assists the Court in determining whether to grant an extension.
Why the additional award stood
An appeal against the quantum of a family provision award requires identification of an error warranting appellate intervention. Mere disagreement with the outcome is insufficient.
The Court of Appeal upheld the additional $150,000 award. Paterson v Paterson & Ors [2026] SASCA 129 confirms the need to frame family provision claims by reference to statutory criteria and supporting evidence. Addressing the applicant’s needs, resources, and likely future circumstances, rather than focusing on equality. Written submissions using clear headings for each statutory factor and matching each criterion with specific supporting evidence.
The remaining grounds did not disclose any error justifying appellate intervention. Allegations of suspicious circumstances and disputed estate property concerned matters already dismissed. Kourakis CJ was not required to address these within the family provision claim. Minor errors, such as a typographical mistake concerning a guitar’s value, did not affect the outcome. Claims for exemplary or punitive damages were outside the scope of the proceeding.
Court of Appeal Decision
In refusing an extension of time to seek leave to appeal and dismissing the appeal the Court of Appeal held:
- In each case, the appellant has failed to demonstrate material error warranting intervention on appeal.
- No satisfactory explanation for the appellant’s delay has been given. Whilst the appellant has referred to her vulnerability and disability, that is difficult to accept given that she represented herself in the Inheritance (Family Provision) Act 1972 claim.
- The appellant has not proffered a tenable pleading against the respondents, in circumstances where it is difficult to imagine how any duty or cause of action might be framed in her favour. The appellant’s contentions against the fifth, sixth, and seventh respondents lack apparent legal merit.
- The Convention on the Elimination of all Forms of Discrimination Against Women confers no right of action and did not control an assessment of “adequate provision for the proper maintenance, education or advancement in life” of the appellant for the purposes of the IFP claim.
- Concerning the circumstances described by Koukakis CJ and the appellant’s arguments on appeal, the appellant has not demonstrated that the decision made on the Inheritance (Family Provision) Act 1972 claim is wrong or that the award should be increased. The award cannot be said to be unreasonable or plainly unjust.