Most extensive reforms to succession law in South Australia since the 1970’s

The Succession Act 2023 (SA) (‘the Act’) has now been assented to, but not yet proclaimed. The Act represents the most extensive reforms to succession law in South Australia since the development of the Inheritance (Family Provision) Act in the 1970s.

This legislation will consolidate and amend the law relating to wills, probate and administration, administration of deceased estates, intestacy and family provision claims.   Introduction of the Act will repeal the Wills Act 1936, the Administration and Probate Act 1919 and the Inheritance (Family Provision) Act 1972.

Some of the major reforms include the following:

Section 48 – the following classes of people now have the right to inspect or be given a copy of a will of a deceased person:

1. a person named or referred to in the will (whether as a beneficiary or not);
2. a person named or referred to in an earlier will as a beneficiary of the deceased person;
3. the surviving spouse, domestic partner or child or stepchild of the deceased person;
4. a former spouse or domestic partner of the deceased;
5. a parent or guardian of the deceased person;
6. a person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;
7. a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate;
8. a person committed with the management of the deceased person’s estate under the Guardianship and Administration Act 1993 immediately before the death of the deceased person.

Persons with claims against the estate in law or equity can also inspect the will, but only with the permission of the Supreme Court if they have a proper interest in the matter and it is appropriate for them to do so.

Section 67 – the Court has the power to grant probate or administration to a person or persons other than those otherwise entitled, if it thinks appropriate.

Section 73 – small estates consisting of personal property only up to a value of $100,000, may be administered with a deemed grant by the Public Trustee.

Section 83 – provides the order for the payment of debts by an executor or administrator of a solvent estate (previously subject to complex common law provisions).

Section 84 – unless contrary intention is expressed, property debts such as mortgages and charges on land are not to be paid from the deceased’s residuary or personal estate.

Section 97 – the Court may require the executor or administrator of an estate to give an undertaking as to how the estate is to be conducted or accounted for.

Section 98 – the Court can make an order against the executor or administrator personally, for failure to comply with duties, undertakings or directions, to remedy the breach.  After becoming aware of such a failure, an aggrieved party has three years to make an application for a remedy.

Section 100 – persons who hold money or personal property for a deceased person up to a value of $15,000 may pay the money or transfer the property directly to a surviving spouse, domestic partner, or child of the deceased without a grant of probate or administration. This is intended to allow, for example, banks to transfer money from a bank account belonging to the deceased to the person’s surviving spouse in a much faster time frame than where a grant of probate is required.

Section 105(2)(a) – preferential legacy received by a surviving spouse of a person dying intestate (without a Will) is increased from $100,000 to $120,000.

Section 107 – a spouse or domestic partner of a person dying intestate will not benefit from the estate if an agreement or order of a “prescribed kind” had been made prior to death. Such agreements and orders are to be prescribed by regulation. This intends to provide that spouses or domestic partners who have separated (but not legally ended their relationship through divorce or it being removed from the relationships register) and have finalised the financial matters between them are removed from the order of inheritance for intestate estates.

Section 109 – children of the first cousins of the intestate are added to the persons who may benefit on intestacy, before the estate of a person dying intestate passes to the Crown.

Section 115(1)(f) – stepchildren are specifically added as eligible to make a claim against a deceased’s estate, subject to later provisions of the Act.

Section 115 (2) – former spouses and former domestic partners are excluded from making a claim for family provision against a deceased’s estate if they have been party to a prescribed agreement or order, similar to the exclusion from the order of inheritance of intestate estates.  This clarifies the position of former spouses and domestic partners who have settled financial matters following a divorce or separation.

Section 115(3) – to be eligible to make a claim, adult stepchildren have to demonstrate that they are disabled and significantly vulnerable by reason of their disability, or they were dependent on the deceased at the time of death, or they cared for or contributed to the maintenance of the deceased immediately before their death, or they significantly contributed to the estate of the deceased, or assets accumulated by the stepchild’s natural parent substantially contributed to the estate of the deceased person. Stepchildren who are minors are entitled to make a claim if they satisfy the court that they are wholly or partly, or legally entitled to be wholly or partly, maintained by the deceased immediately before their death. This is a significant change, allowing a step child to make a claim against a deceased’s estate if the natural parent had substantially contributed to the estate of the step-parent in lifetime or on death.

Section 115(5) – grandchildren are now eligible to claim if one parent, rather than both parents have died.

Section 116(2) – when deciding whether to make a family provision order, the wishes of the deceased person must now be the primary consideration of the Court.  This is a significant change in favour of freedom of testamentary disposition and the wishes of the deceased.

Section 117 – the Court may order a party to proceedings to give security for costs that may be awarded against a party if it appears to the Court that the claim for family provision may be without merit, or the party is unwilling to negotiate a settlement of claim for provision. This is aimed at discouraging unmeritorious claims.

Section 126 – where two or more persons have died in circumstances where it is not possible to determine the order of death, the deaths will, for the purposes affecting title to property, be taken to have occurred in order of seniority, with the eldest having died first. In short, if a husband and wife both die in a car accident and the husband is older than the wife, the husband is presumed to have died first, even if it is unclear from the accident which one might have died first.  This brings South Australia into line with other jurisdictions who have statutory provision for the order of deaths where the order of death is uncertain.

Section 127 – if there are simultaneous deaths, any jointly owned property will devolve in equal shares to each person’s estate as if they were tenants in common.

If you have questions regarding the Succession Act or if you would like assistance with succession planning, please contact Nikki Owen, Partner, at nikki.owen@finlaysons.com.au or 8235 7400.

This Alert is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters.