Since I put together my first article I've received a lot of questions about changes to the South Australian Succession Act due to come into effect from 1st January 2025.
As each question rolls in I'm finding my answers becoming more and more like a politician's response "On the face of it the new law says.... but I need to know more about your personal situation.... I suspect the answer is.... but honestly, nobody really knows."
As lawyers a a lot of things we know about the new Succession Act;
- It will bring South Australia in line with other jurisdictions
- Stop free-for-all, vexatious, and speculative family provision claims
- Streamline and set out processes in law; and
- Hold executors and administrators to account (meaning it will be easier for beneficiaries to get their share of the estate)
These are all good things.
BUT the reality is until estates start to be administered under the new Succession Act, or the legislation gets tested in court, we won't know how all of these new laws will play out in 'real life' (or is that real death?).
And that's what makes some of the questions so hard to answer.
We're about to enter a period where everyone, lawyers included, have a lot more questions than answers and not all of those answers will be clean, tidy, neat, kind or easy to come by.
Below are five questions I've received over the past few weeks that I am able to answer. Some questions require a more neaunced response and I welcome you to make an appointment to talk through your unique personal circumstances.
If you are:
- a member of a blended family (ie you are a step-parent or have step-children)
- have left someone out of your will
- have a will that's more than 2 years old
I encourage you to make an appointment to create a comprehensive estate plan, or review your current estate plan against your testamentary wishes and in light of my understanding of how the changes to the Succession Act will play out.
Question 1: Will a former spouse be entitled to view my will, even if we have already reached a settlement?
Yes, a former spouse is allowed to inspect a copy of your will. The new legislation does not differentiate between a former spouse with whom you have reached a settlement or not. A former spouse is also likely to fall into another class of people who can ask to inspect a copy of the will before a Grant of Probate is made, including:
- 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 person;
- A parent or guardian 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'.
It's worth noting the current legislation allows anyone the right to inspect a copy of your will after probate has been granted.
Question 2: How will the new laws impact step-children?
The changes to the Succession Act provide extra scope for step-children to make claims against the step-parent's estate with five key reasons why the court may allow a step-child to make a claim:
- The stepchild is disabled and is significantly vulnerable due to their disability;
- the stepchild was dependent on the stepparent when they died;
- the stepchild cared for or contributed to the maintenance of the stepparent when they died;
- the stepchild substantially contributed to the stepparent's estate; or
- assets accumulated by the stepchild's actual parent substantially contributed to the stepparent's estate.
The new laws say that parents and siblings need to demonstrate that they cared for or contributed to the maintenance of the deceased in the period immediately before their death (or immediately before they moved to a residential facility), in order to make an inheritance claim.
Question 3: Will it be harder to contest a will under the new Succession Act?
One of the main reasons for changes to the Succession Act is to eliminate frivolous, vexatious, and speculative inheritance claims that don't reflect how the will maker wanted to distribute their assets. Unfortunately, the extent to which this objective is achieved will only be apparent once these laws are tested, but it is likely that the new laws will make it more difficult to challenge a will on the basis that you don't believe you were adequately provided for.
The law continues to allow close family members to challenge a will on the basis that it did not adequately provide for their 'proper maintenance, education or advancement in life' - the will-maker still has an obligation to ensure that their estate is distributed in such a way that family members do not face undue financial hardship or create a greater public burden.
Question 4: Can my former spouse make an inheritance claim against my estate if we're separated but not divorced?
Under the new laws if you are separated from your former spouse and have formally settled financial matters, your former spouse cannot make an inheritance claim against your estate.
Question 5: If I, or a family member, dies without a will (intestate) how is the estate distributed under the new Succession laws?
From 1 January 2025, when the deceased person is survived by a spouse and children, the spouse is entitled to the first $120,000 of the estate plus household furniture and effects (including vehicles).
If the value of the estate is not more than $120,000 the spouse receives the entirety of the estate.
After the first $120,000 is distributed the spouse is entitled to half and the children are entitled to the other half of the estate. If the children are under 18 the Public Trustee will be appointed to manage the money for the benefit of the children until they turn 18 (the surviving spouse can make an application to the Court to manage the money on behalf of the children).
If the deceased person has no children, the entirety of the estate would go to the spouse. If the deceased person has children but no spouse the entirety of the estate would go to their children in equal shares. Where there are no children, relatives, or children of relatives, the estate will be forfeited to the State and the Public Trustee will administer the estate.