Changes in Succession Law

On 1 January 2025, the South Australian legislation relating to Wills and Estates changed, with the commencement of the Succession Act 2023 (‘The Act’). Previously in South Australia, Wills and Estates were legislated by the Wills Act 1936, the Administration and Probate Act 1919 and the Inheritance (Family Provision) Act 1972. These have been repealed and replaced by the Act. The key changes in relation to the new legislation include: • Greater emphasis on the wishes of the will-maker (‘testator’), • The ability for stepchildren to make a claim; • The class of people entitled to inspect a Will; and • Amounts received under Intestacy (when there is no Will). Inheritance Claims There are significant changes in relation to family provision orders and who is eligible to apply to the Court to contest a Will. This has been done in an attempt to eliminate claims lacking merit, and to better reflect the wishes of the testator. There is likely to be a greater limitation on the Court to intervene in cases where the testator has not provided for a family member. There are now greater restrictions for former spouses and partners, grandchildren, siblings and parents, when seeking a portion, or greater portion of the estate. The Court must consider any evidence of the testator’s reasons for making the dispositions in their will. This may include a statutory declaration or letter of wishes. The Court will also consider the applicant and their vulnerability and dependence on the deceased, their contribution to the estate and their character and conduct. It is yet to be seen and tested how the Court will balance a family member’s claims for a legitimate need, and the wishes of the testator. Stepchildren The Act increases the ability of stepchildren to make claims against their stepparent’s estate. While the testator’s wishes remain the primary consideration, there are now five main grounds on which a stepchild can make a claim. 1. The stepchild has a disability and is vulnerable as a result; 2. The stepchild was dependant on the stepparent when they died; 3. The stepchild cared for, or contributed to the maintenance of the stepparent when they died; 4. The stepchild substantially contributed to the stepparent’s estate; 5. The stepchild’s parent contributed substantially to the stepparent’s estate. People Entitled to Inspect a Will Previously there was no legal right for a person, other than an executor, to view a Will of the deceased prior to the Grant of Probate being issued. The new law has broadened the class of people who have the right to inspect a Will. Now the people entitled to inspect the document are: • 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; • 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 a share of the estate of the deceased died without a Will (“intestate”); • 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, as long as they can demonstrate a “proper interest in the matter” and obtain permission from the Court to inspect the Will. Changes to Intestacy If you pass away without a Will, the legacy amount for your spouse has increased from $100,000 to $120,000. If you leave behind a spouse and children, your spouse receives the first $120,000 of your estate, with your spouse entitled to half of the remainder and your children share equally the other half. Children of first cousins have now been added as a class of people entitled to inherit if someone has died without a valid Will. They will only inherit if the deceased partner had no living partner, children, parents or siblings or other close family at the time of death. Previously, the estate would have passed to the Government. For more information on the Succession Act, and what the changes mean for you, please contact us at Swan Family Lawyers on (08) 8227 1970.