If you have a Will, are the beneficiary under a Will, or believe you may have a claim against an estate, it is crucial to understand how changes to South Australia’s succession laws could affect you. From 1 January 2025, new laws impact how Wills are interpreted, estates are administered, and inheritance claims are made and decided. These changes represent the most significant reform to South Australia’s succession laws in decades. Now is the time to review your estate planning to ensure your wishes are upheld and your loved ones are protected.

What Is the Succession Act 2023?

The Succession Act 2023 consolidates and modernises South Australia’s succession laws, replacing three key pieces of legislation: the Wills Act 1936, the Administration and Probate Act 1919, and the Inheritance (Family Provision) Act 1972. The Act aims to simplify the legal framework, align South Australia’s laws with other Australian jurisdictions, and reflect modern family dynamics.

While many aspects of succession law remain unchanged, the Act introduces several important reforms that will affect Will-makers, beneficiaries, executors, and those seeking to challenge a Will. Below, we break down the key changes and what they mean for you.

Key Changes to Wills

Up until these changes, a real frustration for many who have had an interest in a deceased estate, such as beneficiaries under the Will, has been the fact that they did not have a right to see the Will.  An executor (the person named in the Will to carry out the wishes of the deceased) might in the past have refused to divulge the contents of the Will for a variety of reasons.

Under the new laws, more people have the right to inspect a deceased person’s Will. This includes:

• People named in the Will, even if they are not beneficiaries.
• Beneficiaries under earlier Wills.
• Immediate family members such as spouses, domestic partners, children, and stepchildren.
• Former spouses or domestic partners under certain conditions.
• Parents or guardians of minors who would inherit under intestacy laws.
• Anyone with a legal claim against the estate, provided they obtain court permission.

The list is not exhaustive, and the categories of people entitled to inspect a Will are broad and inclusive. Importantly, the term ‘Will’ under this provision includes revoked Wills, documents purporting to be Wills, parts of Wills, and copies of Wills. This means that someone contesting a Will may gain access to earlier Wills of the deceased, which could shed light on whether the document being presented as the most recent Will truly reflects the testator’s intentions.

This expanded access aims to increase transparency but could also lead to more disputes over estates. If you are a Will-maker, it is essential to document your reasons for including or excluding certain individuals to minimise potential challenges.

Testamentary Freedom vs. Family Provision Claims

A family provision claim is a legal application made by an eligible person who believes they have not been adequately provided for in a deceased person’s Will or estate. These claims were brought under laws designed to ensure that certain family members or dependants receive proper maintenance, education, or advancement in life from the estate. While testamentary freedom allows a person to distribute their assets as they wish, family provision laws impose a duty to provide for those who have a legitimate need.

One of the most significant changes is the emphasis on respecting the wishes of the deceased. When determining family provision claims, the Court must now treat the deceased’s wishes as the primary consideration. This marks a shift from the current approach, where the Court balances the testator’s wishes with the claimant’s needs.

While this change strengthens testamentary freedom, it also places greater importance on clear and well-drafted Wills. If you want to ensure your estate is distributed according to your wishes, it is vital to seek professional advice when drafting or updating your Will.

Payment of Debts

Currently, the rules for paying off a deceased person’s debts in South Australia are governed by complex common law principles. Executors often face uncertainty about the order in which debts should be paid and whether certain assets are protected from creditors.

The Succession Act 2023 introduces a codified formula for paying debts insolvent estates, replacing these outdated common law rules. This change provides executors with clearer guidance, reducing delays and disputes in estate administration.

Simultaneous Deaths

The terms ‘joint tenants’ and ‘tenants in common’ refer to different ways of owning property with another person:

• Joint tenants: Each owner owns the entire interest in the property, and when one owner dies, their share automatically passes to the surviving owner(s) through the right of survivorship. This means the deceased’s share does not form part of their estate.
• Tenants in common: Each owner has a distinct share of the property, which can be unequal. When one owner dies, their share forms part of their estate and is distributed according to their Will or intestacy laws.

Under the new laws, if joint property owners die simultaneously and the order of death cannot be determined, the property will be treated as if owned as tenants in common. This ensures each person’s share passes to their respective estates rather than automatically to the other joint owner.

Intestacy Rules

When a person dies without leaving a valid Will, their estate is distributed according to intestacy laws. These laws specify how the estate is divided among surviving family members, starting with the spouse or domestic partner and children.

A preferential legacy refers to a fixed amount of money or assets that a surviving spouse or domestic partner is entitled to receive from an intestate estate before it is divided among other beneficiaries. Under the new laws, this amount will increase from $100,000 to $120,000, reflecting inflation and modern living costs.

The increase in the preferential legacy has significant implications for other beneficiaries:

• Children: If the estate exceeds $120,000, the spouse or domestic partner receives the first $120,000 plus household items and personal effects. The remaining balance is then divided, with half going to the spouse or domestic partner and the other half shared equally among the children. This reduces the residual estate available for children, particularly in smaller estates.
• Siblings and Other Relatives: Siblings and more distant relatives are lower in priority under intestacy laws and are only entitled to inherit if there is no surviving spouse, domestic partner, or children. The higher preferential legacy means that estates must be larger before these relatives can inherit anything.

These changes highlight the importance of having a valid Will to ensure your estate is distributed according to your wishes and to avoid unintended consequences for your beneficiaries.

Why You Should Act Now

The Succession Act 2023 introduces significant changes that could affect your estate planning, your rights as a beneficiary, or your ability to make a claim against an estate. Here’s why you should act now:

1. Review Your Will: Ensure your Will reflects your current wishes and accounts for potential challenges under the new laws.
2. Document Your Intentions: Clearly explain your reasons for including or excluding certain individuals to minimise disputes.
3. Seek Professional Advice: The new laws are complex, and professional guidance is essential to navigate them effectively.

How Websters Lawyers Can Help

At Websters Lawyers, our experienced solicitors specialise in Wills, estates, and inheritance matters. Whether you need to draft or update your Will, contest an estate, or understand your entitlements under the new laws, we are here to help. Contact us today on 8231 1363 to arrange a free telephone discussion about your concerns. Let us guide you through these changes and ensure your estate planning is secure for the future.