The Succession Act 2023 (SA) (the Act) commenced operation in South Australia on 1 January 2025 and introduced a number of key changes to estate planning and the administration of deceased estates in South Australia.
The Act replaces the Wills Act 1936, the Administration and Probate Act 1919 and the Inheritance (Family Provision) Act 1972 to overhaul and modernise succession law in South Australia.
Whether you’re a seasoned estate planner who regularly updates their estate planning or someone who’s just started thinking about their will, these changes will likely affect you.
Some of the most notable changes include:
Right to inspect the Will
Under section 48 of the Act, certain people will be entitled to inspect the Will of a deceased person. This includes:
- A person named or referred to in the Will (whether as a beneficiary or not). This means that if you include a statement in your Will about a person who you have not benefitted in your Will, that person has the right to inspect the Will;
- A person named or referred to in an earlier Will;
- Surviving spouse and domestic partners, or former spouses and domestic partners;
- Parents or guardians of the deceased person; and
- A person who would be entitled to share in the estate of the deceased person if that person had died intestate.
Importantly, this right only arises when the will maker has died.
A person with possession or control of the Will must allow these people to inspect or be given copies of the Will.
Persons who have claims against the estate in law or equity may also inspect the Will in certain circumstances, but only with the permission of the Supreme Court.
Registration of interstate grants
Under section 57 of the Act, an interstate grant of probate or administration may be produced to the Registrar of Probates for registration, which will give it the same force and effect as if it had originally been granted in South Australia. This means it is not necessary for an interstate grant of probate or administration to be sealed by the Court.
In this new process, the executor or administrator will still be required to disclose to the Court the assets and liabilities of the deceased person at the time that the Grant was registered.
Duties of executors and administrators
Section 81 of the Act sets out the general duties of executors and administrators, which include:
- Collecting the estate and administering it according to law;
- Delivering up the grant of probate or administration to the Court when required to do so by the Court; and
- Distributing the estate as soon as practicable.
These duties do not limit any other duty that an administrator or executor may be subject to under the Act or other law.
Section 91 of the Act lists the remedies available if an executor fails to perform their duties, which include ordering that the executor/administrator pay compensation for any losses they have caused or any other order that the Court considers appropriate. An application under this section must be made within 3 years from the time the aggrieved person becomes aware of the failure.
While this is good news for beneficiaries who may otherwise have had to wait too long to receive their entitlement, it means that people taking on the role of executor need to take special care to avoid unnecessary delays, or otherwise face personal liability for any resulting loss. That said, general law principles that applied to executors prior to these statutory changes essentially required the same thing.
For assistance in administering an estate, call us on 1300 654 590 or email us at wehelp@adlvlaw.com.au.
Payment of money and personal property without a grant of probate or administration
Under section 100 of the Act, a person who holds money or personal property for a deceased person of $15,000 or less may pay the money (or transfer the property) to any of the spouse/domestic partner or child of the deceased person if they have legal capacity) without requiring a grant of probate or administration.
This does not necessarily mean that the spouse or child is entitled to receive, keep or use the money. That is still a matter for the Will and testamentary law.
Increase to legacy payable to spouse on intestacy
Under the previous legislation, if a person died without a Will and left behind both a spouse and children, their spouse was entitled to the first $100,000 from the estate.
Section 105 of the Act increases this amount to $120,000, or such higher amount set by the regulations.
Note that if a person has a Will, then in the first instance the terms of the Will override this statutory entitlement. If the spouse believes they have not been adequately provided for in the Will, then they need to make a family provision claim.
Revamping Family Provision Claims
One of the standout features of the Act is an overhaul of family provision claims. This is the claim that someone makes if they believe that they have not been adequately provided for under either the rules of intestacy or under the deceased person’s Will.
Who can claim?
Under section 115(1)(a) of the Act the following people are entitled to make a claim against the estate of a deceased person:
- Spouse or domestic partner
- Former spouse or domestic partner (with qualifications)
- A child
- A stepchild (with qualifications)
- A grandchild (with qualifications)
- A parent (with qualifications)
- A sibling (with qualifications)
A former spouse or domestic partner can only make a claim if they can satisfy the Court that immediately before the death of the deceased person there was no agreement or order in force that dealt with their interests in property (i.e. consent orders or binding financial agreement under the Family Law Act 1975). This is another reason for spouses who have split-up to formally document a property settlement, even if they have agreed on an amicable division of their assets.
A stepchild is only entitled to claim if they can satisfy the Court that:
- They are disabled and are significantly vulnerable by reason of their disability;
- They were dependent on the deceased person at the time of the deceased person’s death;
- They cared for or contributed to the maintenance of the deceased person immediately before their death;
- They substantially contributed to the estate of the deceased person; or
- Assets accumulated by the parent of the step-child (other than the step-parent) substantially contributed to the estate of the deceased person.
A grandchild is only entitled to claim if:
- Their parent (being the child of the deceased person) died before the deceased person. This is an important limitation; or
- The grandchild was maintained wholly or partly (or was legally entitled to be maintained whole or partly) by the deceased person immediately before their death.
A parent or sibling is only entitled to claim if they can show they cared for or contributed to the maintenance of the deceased person either immediately before their death or, if a person died in a residential facility, immediately before the person entered the residential facility. A parent can also make a claim if they were maintained wholly or partly by the deceased person immediately before their death.
What does the Court consider?
Under section 116(2) of the Act, in making a family provision order:
- The wishes of the deceased person is the primary consideration of the Court. This is an important change that reflects a growing feeling in the community that people should be able to give their assets to who they choose; and
- The Court must have regard to:
- Evidence of the deceased person’s reasons for making the dispositions in their Will;
- The applicant’s vulnerability and dependence on the deceased person;
- The applicant’s contribution to the deceased person’s estate; and
- The character and conduct of the applicant; and
- The Court may have regard to any other matter it considers relevant.
This brings further relevance to our practice of encouraging our clients to formally document the reasons for leaving people out of their Will who may expect to be included, or when one or more children are favoured over others.
Simultaneous death
Under section 126 of the Act, if two or more people die in circumstances that mean it is uncertain which of them survived the other, then the deaths will be taken to have occurred in order of seniority and the younger person will be taken to have survived the elder person by 1 day.
However, under section 127 of the Act, if property is owned jointly and exclusively by 2 or more people (other than as trustees) and all owners die in an order that is uncertain, then the property is distributed as if the owners had owned the property as tenants in common in equal shares (i.e. an equal portion of the property will pass through each owner’s estate). This is not always in line with what people may expect, and will need to be carefully taken into account when drafting Wills that are not ‘mirror Wills’.
What does this mean for you?
Given these changes have now operational, now is the perfect time to review your Will and other estate planning documents to ensure that it aligns with what you intend to happen when you die.
Don’t wait until the last minute to understand how these changes might affect you. Call us on 1300 654 590 or email us at wehelp@adlvlaw.com.au to discuss how the Succession Act 2023 impacts your estate planning or the administration of a loved one’s estate.
Staying informed and proactive can save you (and your estate) time, money, and a lot of hassle down the road.
Happy planning!
The information contained in this post is current at the date of editing – 9 January 2025.
