Major changes to the South Australian Succession Act will come into effect on 1st January 2025 with reforms designed to simplify estate matters, reflect modern family dynamics and bring South Australia in line with other states such as New South Wales, Victoria, and Queensland.
Now is the time to review your existing estate plan, or complete your estate planning, as the legislative changes will impact willmakers, those who benefit through a will, and those who wish to make an inadequate family provision claim if they have not been included in a will.
At Your Estate Lawyer, we encourage you to review the changes to the South Australian Succession Act to ensure you've created an estate plan that avoids avoidable problems. This means looking to the future and considering all potential claims that could be made against your estate on the basis of inadequate family provision.
Wills that are made to punish or reward by leaving people out who have a legal claim against your deceased estate leaves your executors and beneficiaries fighting a fight that may not be theirs, well after your death.
What changes to the South Australian Succession Act will mean for will-makers
Under the new laws, more individuals such as former spouses, stepchildren, and people named in previous wills, will have the right to inspect a deceased person's will before probate.
The following classes of people will be given the express right to inspect a copy of a deceased person's will:
- Any person named or referred to in the will (regardless of whether they are a beneficiary);
- Any person named as a beneficiary in an earlier will of the deceased person;
- A surviving spouse, domestic partner, child or step-child of the deceased;
- A former spouse or domestic partner of the deceased person;
- A person who would be entitled to share in the estate of the deceased on intestacy;
- A parent or guardian of a minor referred to in the deceased's will or who would be entitled to a share of the deceased's estate if they died intestate;
- A person committed with the management of the deceased's estate under an Administration Order immediately before the death of the deceased person; and
- Any other party who has a claim against the estate (at law or in equity), so long as they can demonstrate a 'proper interest in the matter' and inspection of the will is 'appropriate in the circumstances'.
What this means in plain English
Under the new laws, more individuals will have the right to inspect the will, including people named in earlier versions of the will, former spouses, stepchildren and those who would have inherited if the person had died intestate (without a will) - especially those with disabilities or those who contributed to the estate, to more easily claim from a step-parent's estate.
Previously, only certain individuals had this right, but now even those not named in the current will could access it, possibly leading to more legal disputes or claims.
Conversely, former spouses will have a harder time making claims unless no financial agreement was settled before the deceased’s passing.
Will-makers need to be more cautious when they update their wills and keep detailed records of why they are excluding or including certain individuals, as those decisions are now more likely to be scrutinized.
Here is an example
John recently passed away, leaving behind an estate that includes both his biological children and stepchildren. Under the new legislation, not only can John's biological children request to inspect his will, but so can his stepchildren, former spouse, and individuals named in earlier wills.
Had John not included his stepchildren in his will they can make a family provision claim against his estate if they can prove that they had contributed significantly to his care in his final years or their biological parent had contributed to the size of John’s deceased estate.
This means John's executor would need to allow his stepchildren access to his will and possibly face a contested claim which would delay the distribution of the assets, cost his estate money in legal fees and add to the administrative process.
What changes to the South Australian Succession Act will mean for estate administration
Significant changes have been made in relation to the administration of estates which will affect executors, administrators, and beneficiaries' rights in general and on intestacy.
These changes include:
- A party holding money or personal property of the deceased is permitted to pay or transfer directly to the deceased's spouse, domestic partner or child without the requirement of a Grant of Probate or Letters of Administration if the property has a value of up to $15,000.
- Making statutory provision for the order of death where two or more people owning property jointly have died and the other of their deaths was uncertain and unable to be determined. In these circumstances, the property will be dealt with as if owned as tenants in common in equal shares under the Act whereas the current position is that a complicated and expensive process must be followed.
- Codification of the rules surrounding payment of a deceased person's debts, currently governed by complicated common law.
- On intestacy (if the deceased does not have a will) a spouse or domestic partner's 'preferential legacy' increases to $120,000.
- The general duties of executors and administrators will be codified which will create further clarity for executors of their obligations during the administration of the estate.
- A clear pathway will be provided for disgruntled beneficiaries to take if they are of the view that an executor has breached their duties either to them or the estate.
What this means in plain English
Changes to the Succession Act will create more inclusive and complex processes for estate administration. Additionally, executors will hold more responsibility for managing expectations and ensuring compliance with the expanded rights and duties.
If an executor fails to handle their duties appropriately the court could impose penalties.
It will be more important than ever to ensure your executor is fit for the job. Choosing an executor is not a popularity contest and the person you nominate should be the person best able to manage the tasks required.
What changes to the South Australian Succession Act will mean for people making a claim against a deceased estate
The laws relating to inheritance claims are the most significant of all the changes to the Succession Act and will significantly impact claims against deceased estates, especially by stepchildren, former spouses, and others previously excluded from making such claims.
When considering claims against a deceased estate "The wishes of the deceased person is the primary consideration of the Court" when determining whether to make a family provision order however the effect of this change won't be known until cases are heard before the Courts.
The classes eligible to claim against the estate and the criteria they must satisfy to do so will change and include:
- A previous spouse or domestic partner, currently eligible to claim by virtue of their former relationship will now be able to claim only if they have not entered into a property order or agreement of a “prescribed kind” immediately before the death of the deceased. An example of this would be that a former spouse or domestic partner would be ineligible to claim against the estate if they are party to an agreement or court order with the deceased – i.e. they’ve separated from the deceased and have a financial agreement in place but had not divorced from them.
- Subject to specific criteria (such as being disabled or dependent on the deceased person at the time of death), step-children will be more easily able to make a claim against their deceased step-parent’s estate than under the current laws.
- Grandchildren will now have the additional criteria of being eligible to claim against a grandparent's estate only if their parent is deceased and they were being maintained by the deceased at the date of death.
- Parents and siblings, currently required to show only that they had contributed to the care and maintenance of the deceased during their lifetime will be required to establish that this support was being provided to the deceased at the date of death.
What this means in plain English
These changes will likely result in more claims against deceased estates, particularly from stepchildren and other family members who were not historically entitled to claim against the estate, while restricting claims from former spouses unless no settlement was made during divorce proceedings.
This will increase the complexity of estate management and litigation around contested wills in South Australia and puts the onus on willmakers to consider a greater potential for claims to be bought against their estate with increased pressure on executors to ensure they consider all eligible claimants when finalising or distributing the estate.
Conversely, former spouses will have a harder time making claims unless no financial agreement was settled prior to the deceased’s passing.
Here is an example of potential claims against an estate by a step-child
Judy cared for her stepfather, Peter, for many years before his death, even though she was not his biological child. In his will, Peter left his entire estate to his biological children, excluding Judy as under the previous law he had no requirement to include her unless she was financially dependent on him at the time of his death.
Under the new law, Judy can make a claim against the estate if she can demonstrate that she contributed to Peter’s care or maintenance, or if assets accumulated by her mother contributed to Peter's estate - with an increased likelihood of a successful claim.
Here is an example of a former spouse facing restrictions against claiming against an estate
At the time of Tim's death, Tim and Mary had been divorced for many years. As part of their divorce, they had finalised a property settlement under the Family Law Act. Tim had since remarried. Under the new legislation, Mary, as a former spouse, is likely to be excluded from making any claim against Tom’s estate. This change is designed to prevent former spouses from claiming benefits from estates long after their relationships have ended, particularly when financial matters have already been settled.