Change is on the way for succession law in South Australia
Posted on February 26, 2024
South Australia’s succession law is set to be modernised with the Succession Act 2023 (SA) passing parliament on 28 September 2023. The new Act adopts recommendations from the South Australian Law Reform Institute and whilst many provisions of the existing legislation are substantially replicated, there are some notable changes.
As we wait for the Act to come into operation, it is a good time to have a look at some of the changes that will soon shape how we approach this area of law.
What’s changing?
- The existing Administration and Probate Act 1919 (SA), Inheritance (Family Provision) Act 1972 (SA) and Wills Act 1936 (SA) are repealed and replaced with the Succession Act 2023.
- There is a new, statutory right to inspect a deceased person’s Will.
- The categories of persons eligible to make a family provision claim are expanded and further qualified.
- The wishes of a deceased person regarding the distribution of their estate is to be the primary consideration of the Court when determining whether to make a family provision order.
- There are statutory remedies if an executor or administrator fails to perform their duties.
Entitlement to inspect Will of a deceased person
A new statutory right has been created in the Succession Act 2023, for certain persons to inspect the Will of a deceased person. This brings South Australia into line with NSW, ACT, Tasmania, Victoria and Queensland. Those who have a right to inspect and copy the Will include:
- A person named or referred to in the Will of the deceased, whether they are a beneficiary or not;
- A person named or referred to as a beneficiary in an earlier Will;
- The surviving spouse, domestic partner, child or stepchild of the deceased;
- A former spouse or domestic partner of the deceased;
- A parent or guardian of the deceased;
- A person who would be entitled to a share of the estate if the deceased person died intestate;
- A parent or guardian of a minor named in the Will of the deceased.
A person who has possession or control of the Will must allow any of the above persons to inspect or be given copies of the Will. In addition, any other person who may have a claim against the estate of the deceased person can apply to the Court for an Order to inspect the Will.
Family Provision claims
Part 6 of the Succession Act 2023 addresses family provision claims. The Succession Act 2023 adds to and then further qualifies the categories of persons who would be eligible to make a family provision claim.
Family provision claims are sometimes referred to as “inheritance” claims as they can usually be made by people who have a relationship of some kind to or with the deceased.
Eligibility to make a family provision claim
Former spouses or domestic partners of the deceased who have a property settlement agreement or Order of a prescribed kind, are excluded from making a claim. An agreement or Order of a prescribed kind is yet to be clarified, but it is likely to include a formal property settlement made under the Commonwealth Family Law Act 1975 or Domestic Partners Property Act 1996 (SA).
Where previously, step-children were only eligible to make a claim if they were, or were entitled to be, maintained wholly or partly by the deceased, this has been expanded to provide eligibility if the step-child satisfies any of the following:
- The step-child is disabled and significantly vulnerable as a result;
- The step-child was dependent on the deceased at the time of death;
- The step-child cared for or contributed to the maintenance of the deceased immediately before death;
- The step-child substantially contributed to the estate of the deceased; or
- Assets accumulated by a parent of the step-child substantially contributed to the estate of the deceased.
Grandchildren will only be eligible if their parent (the child of the deceased) dies before the deceased, or if the grandchild was, or was entitled to be, maintained by the deceased immediately before the death.
Where before, a parent needed only to demonstrate they had cared for or maintained the deceased during their lifetime, eligibility is now limited to parents who cared for or maintained the deceased immediately before the death (or before they entered a residential facility), or parents who were maintained wholly or partly by the deceased immediately before the death.
Siblings will face a similar requirement. That is, they will need to demonstrate that they cared for or maintained the deceased immediately before the death (or before the deceased entered a residential facility).
Wishes of the deceased are the ‘primary consideration’
The Succession Act 2023 now requires the Court to place the wishes of the deceased as the primary consideration when determining whether to make a family provision order (section 116(2)).
In other Australian states, similar legislation provides that the Courts may have regard to the reasons of the deceased for disposing of their estate in the way they have. The exception to this is Victoria where the Court must have regard to the terms of the deceased’s Will and any evidence of the reasons for disposing of their estate in the way they have.
The relevant section of the Succession Act 2023 provides a list of factors the Court must consider, including:
- any evidence of the deceased person’s reasons for making the dispositions in their will; and
- in relation to the applicant for a family provision order:
- the applicant’s vulnerability and dependence on the deceased;
- the applicant’s contribution to the estate of the deceased; and
- the character and conduct of the applicant.
Remedy for failure of executor or administrator to perform their duties
A new statutory remedy in section 98 Succession Act 2023 offers aggrieved persons a direct avenue to remedy, if they consider that an executor or administrator has failed to perform their duties in the administration of a deceased estate.
The Court may make any order it considers appropriate, including an order for the executor or administrator to compensate any person who has suffered loss, as a result of the executor or administrator’s failure.
An application for an order under section 98 must be made within three years from the time the aggrieved person becomes aware of the failure.
Conclusion
The reforms introduced by the Succession Act 2023 are likely to have a significant impact on this area of law. Our practitioners are experienced in all aspects, from advising on wills and estate planning; to estate administration and litigation. If you require assistance regarding these matters, please contact our Wills & Estates team to discuss how we can help you.
