By Alison Tanzer

As of 1 January 2025, the Succession Act 2023 (SA) will come into operation, consolidating and updating the laws governing Wills, Estates, and Inheritance Claims (for further or better provision from an estate).

This new legislation will replace the Wills Act 1936 (SA), Probate and Administration Act 1919 (SA), and Inheritance (Family Provision) Act 1972 (SA). It’s the most significant reform in South Australian succession law since the 1970s, modernizing the legal framework and aligning it with contemporary case law.

While some provisions remain consistent with current laws and common law principles, there are several important changes we can assist you with. We’ve highlighted the key updates below:

1. Wills

The list of people who can request to inspect a copy of your will (after your passing) has expanded. This impacts where and how your prior and current wills are held. The following individuals are entitled to inspect your will(s):

• Any person named in any will you have made, even if they are not a beneficiary. This includes individuals receiving a gift or legacy, as well as executors or anyone else named in your current or prior wills.
• A current or former spouse or domestic partner, a parent or guardian of the deceased, or anyone entitled to inherit in the event of intestacy (i.e., if there is no will), including the guardian of a minor entitled on intestacy.
• An administrator appointed to manage your affairs during your lifetime by court order, whether an independent party or the Public Trustee.
• Any other person who can demonstrate a “proper interest in the matter” at law or equity and where inspection of the will is appropriate in the circumstances.

2. Estate Administration

Changes to the administration of estates include:

• In the rare case where two or more people die and the order of death cannot be determined, if they owned assets jointly, ownership will be divided as if they held the assets as “tenants in common.” This means each joint owner will be deemed to own an equal share of the assets in their sole name.
• If the value of the deceased’s assets is less than $15,000, any person holding those assets can transfer them to the deceased’s spouse, domestic partner, or child without obtaining a Grant of Probate (if there is a will) or a Grant of Letters of Administration (if there is no will).

3. Inheritance Claims

The most significant changes relate to claims brought by individuals seeking further or better provision from an estate (Inheritance Claims).

Notably, the Succession Act 2023 defines the class of persons and the circumstances under which they can bring a claim. The following individuals may now bring a claim:

• The spouse or domestic partner, and children of the deceased.
• A former spouse or domestic partner, provided they did not finalise a property settlement with the deceased (as outlined in the Act). If a property settlement was completed, a claim cannot be brought; if not, a claim may proceed.
• Stepchildren, if they can demonstrate they were disabled or dependent on the deceased at the time of death. Stepchildren may also apply for an Order confirming that their deceased parent and surviving stepparent were domestic partners at the time of death. If the stepparent and deceased parent were married, this step is unnecessary.
• Grandchildren, if their parent has died and the grandchild was being supported by the deceased at the time of death.
• Parents and siblings, if they contributed to the care and maintenance of the deceased at the time of death.

More changes to the Act will influence the Court’s consideration of various Estate matters and notably in as to what Inheritance claims will or won’t be successful.    We have, however, excluded Inheritance claims as we don’t yet know how the difference of the changes will impact the success of a claim until claimants litigate under the Act resulting in judgements of the Court. 

Generally, the legal profession has differing views as to the application and interpretation of the new Act. I speculate that the differences for Inheritance claims may not make a dramatic impact as some of the relevant sections in the Act are already common law principles. In other words, that the results for claimants may be similar under the Act even though the Court is applying some different considerations relevant to the success of the claimant. Others, consider that the changes will be strictly interpreted in a way that will limit the success of Inheritance claims to wholly or partly fail whereas the claims would, under the current laws, succeed.   

When the first cases are heard under the Act, it will be a very interesting time for Wills & Estates law in South Australia, and we look forward to providing further updates about the Courts interpretation of new laws.

Contact our Wills & Estates specialist team to better prepare for the Succession Act 2023 (SA) or to learn more about succession planning.