Understanding Major Changes to

Succession Legislation

By Robyn Nayda

The Succession Bill 2022 is expected to be enacted as legislation in the near future. The Bill proposes the most comprehensive overhaul of legislation relating to wills, deceased estates and estate litigation in over 30 years.

Whilst the Bill proposes wide-reaching changes relating to succession law as it currently stands, the most significant changes relate to intestate estates (where someone dies without leaving a valid will) and family provision claims (where a valid will exists, but someone claims to have not been adequately provided for).

Intestate estates

Current legislation sets out a hierarchy of family members entitled to the estate when there is no valid will. If that list of family members is exhausted, the estate is paid to the Crown. The Bill proposes that the following classes of family members be included in that hierarchy:

• A cousin of the deceased (but only after a spouse, child, parent, sibling, grandparent, aunt and uncle have all been exhausted) and
• An adult stepchild of the deceased, but only where that stepchild is vulnerable, was a dependent of the deceased, or the stepchild’s natural parent accumulated significant assets that increased or contributed to the deceased’s estate.

Family provision claims

It is common, even where there is a valid will, for a party to feel like they should have been provided for or should have been better provided for in a family member’s will. Traditionally, the Court focussed on ensuring eligible family members were adequately provided for, sometimes in direct contradiction to the deceased’s will. In contrast, the Bill proposes that the deceased’s wishes be prioritised and be the primary consideration of the Court.

Stamp duty amendments

In addition to the above, the Bill suggests amendments to the Stamp Duties Act 1923 (SA), allowing additional stamp duty exemptions. These will allow beneficiaries more freedom to disclaim or transfer their interest in favour of another family member or redistribute the estate without incurring stamp duty.

The changes sought by the Bill are long overdue. We wait with interest for it to be tested in the Courts once it has been enacted.