South Australia’s Succession Act 2023: An Overview of the Legal Reforms

 

South Australia will soon experience a significant overhaul of the laws that govern Wills and estates, with the new Succession Act 2023 set to commence on 1 January 2025.

 

What is the Succession Act 2023?

 

Currently, Wills and estates in South Australia are governed by the Wills Act 1936, the Administration and Probate Act 1919, the Inheritance (Family Provision) Act 1972, and the Administration and Probate Regulations 2024.

The Succession Act 2023 is a landmark piece of legislation which seeks to modernise and streamline the governance of Wills and estates in South Australia by:

• integrating all of the current legislation into one succinct Act,
• removing outdated provisions, and
• introducing new provisions to reflect societal changes.

The aims of the Act are to:

• simplify legal processes,
• enhance fairness concerning estate distribution, and
• provide clarity to executors and beneficiaries regarding their rights and responsibilities.

 

Key Changes Introduced by the Succession Act 2023

 

Entitlement to Inspect the Will of a Deceased Person

The Succession Act 2023 lists persons entitled to inspect or be given copies of the Will, or both, at their own expense including, but not limited to:

• a person named or referred to in the Will, whether as a beneficiary or not;
• a person named or referred to in an earlier Will as a beneficiary of the deceased person;
• the surviving spouse, domestic partner, or child or stepchild of the deceased person;
• a former spouse or domestic partner of the deceased;
• a parent or guardian of the deceased person;
• a person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;
• a parent or guardian of a minor referred to in the Will or who would be entitled to a share of the testator’s estate if the testator had died intestate.

 

Remedy if Executor or Administrator Fails to Perform Duties

The Succession Act 2023 sets out that if an executor or administrator fails to perform any duties required by law, to comply with any undertaking given to the Court, or to comply with any direction of the Court, the Court may, on the application of a person aggrieved by the failure, make any order it considers appropriate.

The Act also outlines that the Court may make any or all of the following orders:

• requiring an executor or administrator to pay into the estate of the deceased person an amount equivalent to any financial benefit the executor or administrator has obtained, in short requiring the executor or administrator to compensate any person who has suffered loss or damage;
• any other order(s) that the Court considers appropriate to compensate persons who have suffered loss or damage.

An application for an order(s) must be made within 3 years from the time that the person aggrieved by the failure of the executor or administrator becomes aware of the failure.

Bearing in mind that most estates are distributed approximately 6 months after probate has been obtained, executors and administrators face the risk of a claim being made against them long after distribution has taken place.

 

Distribution of Intestate Estates According to Court-Approved Agreements

The Succession Act 2023 provides that the Court may, on application by the administrator of an intestate estate, order that the intestate estate, or part of the intestate estate, be distributed by the terms of an agreement approved by the Court.

Additionally, the Act provides that an agreement for the distribution of an intestate estate, or part of an intestate estate, submitted to the Court may provide for shares or portions of the intestate estate, or part of the intestate estate, to be distributed to persons who are not relatives of the intestate by blood.

 

Updated Provisions for Family Provision Claims

The Succession Act 2023 revises the provisions for family provision claims.

The following persons are entitled to claim benefits:

• the spouse of the deceased person;
• the domestic partner of the deceased person;
• a former spouse of the deceased person;
• a former domestic partner of the deceased person;
• a child of the deceased person;
• a step-child of the deceased person;
• a grandchild of the deceased person;
• a parent of the deceased person;
• a sibling of the deceased person.

The Act further states that a step-child of a deceased person is only entitled to claim the benefit if the step-child satisfies the Court that:

• the step-child is disabled and is significantly vulnerable because of their disability;
• the step-child was dependent on the deceased person at the time of the deceased person’s death;
• the step-child cared for, or contributed to the maintenance of, the deceased person immediately before the person’s death;
• the step-child substantially contributed to the estate of the deceased person;
• assets accumulated by a parent of the step-child (other than a step-parent) substantially contributed to the deceased person’s estate.

The net effect of this is that the eligibility of step-children has expanded.

The Act also provides that the wishes of the deceased person are the primary consideration of the Court.

The Court must have regard to:

• any evidence of the deceased person’s reasons for making the dispositions in the deceased person’s Will if any;
• the applicant’s vulnerability and dependence on the deceased;
• the applicant’s contribution to the estate of the deceased person;
• the character and conduct of the applicant; and
• any other matter that the Court considers relevant.

Finally, the Succession Act 2023 allows the Court to order a party to proceedings to give security for the payment of costs that may be awarded against the party if it appears to the Court that the party’s claim for provision may be without merit or the party is unwilling to negotiate a settlement of a claim for provision.

 

Implications of the Succession Act 2023

 

The changes brought by the Succession Act 2023 are significant and are likely to impact everyone.

If you have a Will, it’s important to take a fresh look at it to ensure it aligns with the new laws.

The Act strongly focuses on protecting vulnerable beneficiaries and acknowledging de facto relationships, which means your situation and potential beneficiaries might need reassessment.

 

Contact Us

 

The Succession Act 2023 represents a significant overhaul of South Australia’s wills and deceased estates legislation.

By modernising and simplifying estate administration, enhancing protection for vulnerable beneficiaries, and recognising contemporary relationships and digital assets, the Act aims to provide a fairer and more efficient framework for the distribution of deceased estates.

We are committed to guiding our clients through these changes, ensuring their estate planning needs are met with expertise and precision.

For more information or to review your estate plans in light of the Succession Act 2023, please contact our team today. We offer a free, no-obligation 15-min consultation for all enquiries.

• Fill in our enquiry form here
• Call us on 08 8362 5269
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