If you’ve made a Will or you’re responsible for administering someone else’s estate, you might be concerned about the possibility of a challenge. Will a disgruntled family member make a claim? Could it result in lengthy court proceedings or large legal bills?
South Australia’s new Succession Act 2023 (SA) (the Act) gives clear guidance on who can make a family provision claim and under what circumstances. But importantly for Will-makers and executors, the Act also introduces stronger provisions around legal costs, including when a court may require a claimant to provide security for costs upfront, and how legal costs should be allocated at the end of proceedings.
This article explains the key risks, protections, and how we can help safeguard your estate or guide you through a potential dispute.
Who Can Make a Claim?
Under Section 115 of the Act, the following people may apply for provision (or increased provision) from a deceased person’s estate:
- A spouse or former spouse of the deceased
- A domestic partner or former domestic partner
- A child of the deceased
- A stepchild of the deceased
- A grandchild of the deceased
- A parent of the deceased
- A sibling of the deceased
Being eligible means the court will consider your application, but it does not guarantee success. To obtain an order, the court must be satisfied that:
- The deceased did not make adequate provision for your proper maintenance, education or advancement in life; and
- It is appropriate in all of the circumstances for the court to make an order.
The court will look at many factors, including the applicant’s financial position, their relationship with the deceased, any competing claims, and the size of the estate.
Contact us today on 1300 654 590 or email us for more advice on who is eligible to apply for provision.
What Does the Law Say About Costs?
The Act introduces new provisions aimed at protecting estates from speculative or unmeritorious claims.
Security for Costs: Section 117 gives the Court the power to order a claimant to provide security for costs—that is, to pay money upfront or offer a financial guarantee to cover legal expenses, in case their claim is unsuccessful. This applies where the Court believes that:
- The party’s claim for provision may be without merit; and
- The party is unwilling to negotiate a settlement.
This provision acts as a deterrent against weak or opportunistic claims, particularly in smaller estates where the cost of litigation can quickly deplete estate assets.
While security for costs were already available under the Uniform Civil Rules 2020 (SA), they’ve been rarely used in family provision cases. Section 117 now makes this safeguard more explicit and accessible to executors and beneficiaries who may need protection from costly and unjustified claims.
General Costs: Section Section 119(8) allows the Court to determine how legal costs are to be paid in family provision matters. This includes whether:
- The estate should cover the legal costs of a party;
- Each party should bear their own costs; or
- One party should pay the other’s costs.
The Court will assess this based on the conduct of the parties, the merit of the claim, and the overall fairness of the proceedings. Essentially, what it considers to be ‘just’.
What This Means for Will-Makers and Executors
These provisions are good news for those who want to ensure their wishes are respected and the estate is not drained by legal fees.
As a Will-maker, it means you can have greater confidence that your estate won’t be easily diminished by baseless claims.
However, this does not replace taking steps to ensure your Will is carefully drafted and well-documented, especially when excluding someone who might otherwise expect provision. You should also consider strategies around how you hold your assets to keep them out of your personal estate and therefore less vulnerable to a claim.
As an executor or beneficiary, it means:
- You can apply to the Court for security for costs if you believe a claim is unmeritorious and the claimant is refusing to settle.
- You can request that the Court consider a costs order against a claimant who acts unreasonably or pursues a speculative claim.
Ultimately, the changes signal a more balanced approach: while genuine claimants still have a right to be heard, the law now offers clearer protections against claims that are opportunistic, unsupported, or driven by family conflict rather than need.
You Don’t Have to Face It Alone
Whether you’re a will-maker looking to minimise the risk of future disputes, or an executor faced with a claim against the estate, it’s important to understand your legal rights and responsibilities.
We can help:
- Help clients draft strong, defensible Wills;
- Advise executors and beneficiaries on how to respond to family provision claims;
- Apply for security for costs orders where appropriate; and
- Support you through negotiations or court proceedings with clear, strategic guidance
We work to protect your intentions and preserve the estate, so that you or your loved one’s final wishes are carried out fairly and lawfully.
Need advice? Contact us today on 1300 654 590 or email us for clear, confidential support.
The information contained in this post is current at the date of editing – 13 August 2025.
