The Succession Act 2023 (SA) (Act), passed on 28 September 2023 and set to commence on 1 January 2025, serves to consolidate and amend succession law in South Australia. This new Act repeals the Administration and Probate Act 1919 (SA), the Inheritance (Family Provision) Act 1972 (SA), and the Wills Act 1936 (SA) while also amending various other acts.
Key changes under the Succession Act 2023 (SA)
Several key changes are introduced under this Act. Notably, it establishes a statutory right for certain individuals to inspect a Will (s 48) and permits the Court to grant probate or administration to individuals other than those traditionally entitled to it if deemed necessary (s 67). Furthermore, property debts, such as mortgages and charges on land, are not to be paid from the deceased’s residuary or personal estate unless there is an explicit contrary intention (s 84). The Act also introduces a statutory cause of action for aggrieved beneficiaries against the executor (s 98) and allows a person holding personal property of the deceased, valued at no more than $15,000, to transfer it to the deceased’s spouse or child without requiring probate or administration (s 100). It extends intestate estates to relatives of the first degree, such as cousins (s 109), and eliminates the need for separate proceedings to claim alternative distribution of an estate (s 111).
Changes to family provision orders now make the testator’s intention a primary consideration (s 116), and provisions have been made to include stepchildren if they were vulnerable, dependent, cared for, or if their parents contributed to the deceased or their estate (s 115). Parents and siblings must have cared for or contributed to the maintenance of the deceased at the time of death or at the time the deceased entered an aged care facility (s 115). Additionally, grandchildren are now only entitled if their parent (the deceased’s child) died before the deceased or if they were maintained by the deceased at the time of death (s 115). The Court is also empowered to order security for costs in applications that are without merit or vexatious (s 117). Lastly, the Act increases the amount of preferential legacy received by a surviving spouse of a person dying intestate from $100,000 to $120,000 (s 105(2)).
Who can access the Will of a deceased person?
Section 48 of the Succession Act 2023 (SA) specifies who can access a deceased person’s Will. The person in control of the Will must allow inspection or provide copies to various individuals, including those named or referred to in the Will, even if they are not beneficiaries, and those named in an earlier Will as beneficiaries. Additionally, the surviving spouse, domestic partner, child, stepchild, former spouse, domestic partner, parent, guardian, and individuals who would be entitled to a share on intestacy, as well as the parent or guardian of a minor referred to in the Will or entitled on intestacy, are entitled to access. Under the Act, the term 'will' encompasses codicils, any other testamentary dispositions, revoked Wills, documents purporting to be Wills, parts of Wills, and copies of Wills (s 48(5)). Furthermore, the Court may order a person who holds or controls the Will to permit an applicant, including a creditor with a legal or equitable claim against the estate, to inspect the Will.
Statutory remedies against executors who fail to comply with their duties
Section 81 outlines the general duties of executors and administrators, while section 98 provides statutory causes of action for breaches previously addressed at common law. Aggrieved beneficiaries can bring proceedings against an executor who fails to perform their duties or comply with Court directions. The Court may require the executor to pay any benefits obtained from their failure into the estate and can also order compensation or other appropriate remedies (s 98(2)). Claims must be initiated within three years from when the person was aggrieved (s 98(3)). This timeframe could be problematic if the failure is only discovered after the estate is distributed, potentially leaving the executor without recourse to estate assets.
Orders for the alternate distribution of intestate orders
Section 111 allows the Court to order that an intestate estate be distributed according to the terms of an approved agreement, provided that all persons entitled to share in the estate have been notified of the application. This process no longer requires a separate set of proceedings, simplifying the procedure compared to the previous Inheritance (Family Provision) Act 1972 (SA).
Intestate estates
Under section 109, the Act entitles relatives of the first degree, such as cousins, to the distribution of intestate estates.
Changes to family provision claims
In South Australia, a family provision claim allows eligible persons to contest a Will if they believe they have not received adequate provision from the deceased’s estate. Section 116(2) establishes that the testator’s intention is now the primary consideration for the Court, a significant change from the previous lack of criteria under the Inheritance (Family Provision) Act 1972 (SA). This means the Court no longer has broad discretion and may place increased emphasis on discovering evidence related to the testator’s intentions, such as files from the Will drafter. The Court will consider the deceased’s reasons for their testamentary dispositions, the applicant’s vulnerability and dependence, their contribution to the estate, and their conduct (s 116(2)). This focus on the testator’s intention might complicate challenges to Wills influenced by undue pressure or address estrangements that could exclude deserving family members.
Changes to categories of persons entitled to claim
Section 115(3) and (4) expands the categories of persons entitled to institute family provision claims to include stepchildren, specifically those who are children of a former spouse who meet one of several criteria: being disabled and significantly vulnerable, dependent on the deceased at the date of death, cared for or having contributed to the maintenance of the deceased, or having a parent who contributed assets to the deceased’s estate. Limits are placed on claims by grandchildren, siblings, and parents, who must prove they cared for or contributed to the deceased's maintenance at the relevant time (s 115(5), (7), (8)). Grandchildren can only claim if their parent, the deceased’s child, died before the deceased.
Security for costs in family provision claims
Section 117 allows the Court to order a party in a family provision proceeding to provide security for costs if the claim is deemed without merit or if the party is unwilling to negotiate a settlement.
Administration of estates
The Act simplifies rules governing the payment of the deceased’s debts, which were previously managed by complex common law rules. Section 100 permits the transfer of up to $15,000 in money or personal property to a surviving spouse, domestic partner, or child of the deceased without requiring a grant of probate or administration. Section 127 provides that if multiple people owning property die and the order of death is uncertain, the property will be treated as if owned in equal shares as tenants in common. Additionally, section 105(2) increases the preferential legacy amount for a surviving spouse of a person dying intestate from $100,000 to $120,000.
If you would like to discuss the key changes and the implications on your personal affairs, our Wills & Estates experts can help. Reviewing your current circumstances and updating your Will is a prudent step to ensure it will still achieve your desired objectives.
