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Megan Horsell

- 11 Jul 2024
  • News

  • Wills & Estates

The time is now to get your Estate in order- the new Succession Act comes into effect on 1 January 2025 and it will affect you and your family!

Significant reforms to South Australia’s succession laws will be made when the Succession Act 2023 (“the Act”) comes into force on 1 January 2025. As of the first day of the new year, the three Acts that govern this area of law in South Australia- the Administration and Probate Act 1919, the Inheritance (Family Provision) Act 1972  and the Wills Act 1936  will be repealed and several other Acts that intersect with this area of law will be amended creating significant change that will impact on the drafting of wills, claims against estates and estate administration among other things.

What is changing?

The major changes to the succession laws in South Australia that will be made in the new year will bring the laws here more in line with other Australian jurisdictions such as New South Wales, Victoria and Queensland.
The changes are significant with some of the key changes being outlined below.

Changes to the laws relating to Wills
The entitlement of a party to inspect a copy of a deceased person’s Will is not currently straightforward with the current position being inconsistent and unclear. Under the Act, the following classes of people will be given the express right to inspect a copy of a deceased person’s will:

  • 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 of the deceased person;
  • 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 share in the estate of the deceased on intestacy;
  • 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 (at law or in equity), so long as they can demonstrate a ‘proper interest in the matter’ and inspection of the will is ‘appropriate in the circumstances’.

This new entitlement should be considered when making a Will and also where copies of Wills are held.

Changes to the laws relating to the Administration of Estates

Significant changes to the laws relating to the administration of estates will be made that affect executors, administrators and beneficiaries rights in general and on intestacy. The changes to this area are numerous with some key changes including:

  • A party holding the money or personal property of a deceased is permitted to pay or transfer the property directly to the deceased’s spouse, domestic partner or child without the requirement of a Grant of Probate or Letters of Administration if the property has a value of up to $15,000.
  • Making statutory provision for the order of deaths where two or more people owning property jointly have died and the order of their deaths was uncertain and unable to be determined. In these circumstances, the property will be dealt with as if owned as tenants in common in equal shares under the Act whereas the current position is that a complicated and expensive process must be followed.
  • Codification of the rules surrounding payment of a deceased persons debts, currently governed by complicated common law.
  • On intestacy, a spouse or domestic partners ‘preferential legacy’ increases from $100,000 to $120,000.
  • The general duties of executors and administrators will be codified which will create further clarity for executors of their obligations during the estate administration in addition to providing a clear pathway for disgruntled beneficiaries to take if they are of the view that an executor has breached their duties either to them or the estate.

Changes to the laws relating to Inheritance Claims

The laws relating to Inheritance Claims are perhaps the most significant, with 2 of the key changes summarised below:

  • Under the Act, “the wishes of the deceased person is the primary consideration of the Court” when determining whether to make a family provision order from an estate. This is a significant change, the effect of which is unknown until cases are heard before the Courts.
  • The classes of people eligible to claim against the deceased’s estate and/or the criteria they must satisfy to do so will change and include:
    • A previous spouse or domestic partner, currently eligible to claim by virtue of their former relationship will now be able to claim only if they have not entered into a property order or agreement of a “prescribed kind” immediately before the death of the deceased. An example of this would be that a former spouse or domestic partner would be ineligible to claim against the estate if they are party to an agreement or court order with the deceased – i.e. they’ve separated from the deceased and have a financial agreement in place but had not divorced from them.
    • Subject to specific criteria (such as being disabled or dependent on the decease person at the time of death), step-children will be more easily able to make a claim against their deceased step-parent’s estate than under the current laws.
    • Grandchildren, will now have the additional criteria of being eligible to claim against a grandparents estate only if their parent is deceased and they were being maintained by the deceased at the date of death.
    • Parents and siblings, currently required to show only that they had contributed to the care and maintenance of the deceased during their lifetime will be required to establish that this support was being provided to the deceased at the date of death.

In summary

While the Act is anticipated to provide greater certainty and make the administration of estates easier and more cost effective, some impacts of the Act will remain unknown until determined by the Courts. What is known, is that the Act will impact every South Australian in some way in due course.

Contact us for advice on how you and your loved ones may be affected by the Act.