The Succession Act 2023, assented on 28 September 2023, makes significant reforms to South Australia’s succession laws. When it comes into effect - on a date yet to be set - it will repeal three Acts (the Administration and Probate Act 1919 (SA), the Inheritance (Family Provision) Act 1972 (SA) and the Wills Act 1936 (SA)) and amend several others that overlap with this area of law.
We spoke with DBH Lawyers partner, Estates lawyer and College of Law Adjunct Lecturer, Megan Horsell, about how the law is changing, as well as what practitioners need to know about the new Act.
Given these are the most significant changes to South Australia’s succession laws since the early 1970s when the Inheritance (Family Provision) Act 1972 (SA) came into effect, it is important to be aware of what these upcoming reforms will look like.
What you need to know
The major changes to the state's succession laws that will occur with the South Australian Succession Act 2023 will bring the state’s laws more closely in line with other jurisdictions, such as NSW and Victoria. The changes are numerous, and some key changes are outlined below.
Defined classes of people will now be given the express right to inspect a copy of a deceased person's 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;
- A former spouse or domestic partner 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’.
- The Act states that “the wishes of the deceased person is the primary consideration of the Court” when determining whether to make a family provision order from an estate. This is a significant change, the effect of which is unknown until the Act comes into force and cases are heard before the Courts.
- The classes of people eligible to claim against the deceased’s estate and/or 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 only be eligible to claim if they have not entered into a property order or agreement of a prescribed kind immediately before the death of the deceased. For example, they 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 aren’t divorced from them.
- Subject to certain criteria, step-children will be more easily able to make a claim against their step-parent’s estate than under the current laws.
- Grandchildren, currently able to claim against an estate by virtue of their relationship will now have the additional criteria of only being eligible to claim if their parent is deceased and they were being maintained by the deceased at the date of death.
- Parents and siblings, who were previously required to show only that they had contributed to the care and maintenance of the deceased during their lifetime are now required to establish that this support was being provided to the deceased at the date of death.
Administration of Estates
- The Act will codify the rules around payment of the deceased’s debts. These were previously governed by complicated common law rules.
- A party holding money or personal property of the deceased with a value of up to $15,000 is permitted to pay or transfer the property directly to the deceased’s spouse, domestic partner or child without the requirement of a Grant of Probate or Letters of Administration.
- Making statutory provision for the order of deaths where two or more people owning property jointly have died and the order of their deaths was uncertain. In these circumstances, the property will be dealt with as if owned as tenants in common in equal shares.
- On intestacy, a spouse’s ‘preferential legacy’ will increase from $100,000 to $120,000.
- Remedies for executors in breach of their duties are clearly set out, along with the general duties of executors and administrators creating greater clarity for executors and aggrieved beneficiaries during the estate administration.
What led to these reforms?
Megan Horsell says the changes to South Australia’s succession laws will be the most significant since the 1970s and have been considered long overdue.
“There is a widespread feeling in the profession that South Australia’s existing laws are both outdated and often complicated, especially when compared to the laws in other jurisdictions. For instance, NSW made similar changes back in 2006,” Megan explains.
“The necessity for consolidation and change was also the conclusion of the South Australian Law Reform Institute (SALRI), which conducted several reviews into the State’s succession laws, consulting with the judiciary, the legal profession, representatives from legal bodies, and the general public.”
The new Act will help bring the succession laws up to date in several ways.
“The last review of South Australia’s succession laws was in the 1970s, and societal norms have also changed dramatically since then. For instance, the existing laws don’t account for adult step-children, 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,” Megan says.
What do practitioners need to do to get ready?
The Act received assent in September 2023 and there has been no confirmation on when it may come into force. Commencement could be up to 18 months away.
“When the Act comes into effect it should provide greater certainty and also make the succession laws easier to understand for everybody,” Megan explains. “Practitioners should be mindful of the changes being made when advising clients both when it comes to drafting a will and bringing a claim against an estate.”
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