South Australia’s Succession Act: What it means for your Will and Estate Planning

From 1 January 2025, South Australia introduced major changes to its succession law through the commencement of the Succession Act 2023 (SA).

The Succession Act repeals and consolidates three older Acts that previously governed Wills, probate and family provision claims, bringing everything together into one modern piece of legislation, whilst also making some significant changes.

Do existing Wills still apply?

Yes, if you already have a valid Will, it remains valid under the new legislation. You do not automatically need to prepare a new Will simply because the law changed.

However, the implementation of the Succession Act is an important reason to review your Will, especially if:

• your family situation has changed;

• you have since separated from your partner/spouse;

• you have a blended family;

• your executor arrangements are outdated ;

• your Will is several years old; or

• your assets or business interests have changed.

What does the new law mean for people making new Wills?

Under the new Succession Act, in determining whether to make a family provision order, the wishes of the deceased testator Will now be the Court’s primary consideration.

The Court must, therefore, have regard to any evidence of or reasons behind those wishes in the deceased’s Will.

This highlights the importance of:

• having a professionally drafted Will;

• clearly explaining intentions;

• documenting reasons for unequal distributions if appropriate;

• regularly updating Estate documents.

  
  

It is therefore more important than ever to have a clear, carefully drafted Will, particularly where there is heightened risk of a family provision claim being made.

New rights to Inspect a Will

Section 48 of the Succession Act now provides that certain people have a legal right to inspect a deceased person’s Will, even before probate in the deceased’s Estate is granted.

Those who may be entitled to inspect a deceased’s Will include:

• anyone named in the current Will (whether as a beneficiary or not);

• anyone named as a beneficiary in a previous Will of the deceased;

• spouses or domestic partners;

• children and stepchildren;

• parents or guardians; and

• anyone who may have been entitled to the deceased’s Estate had they passed without a valid Will.

Executors and administrators can now be held more accountable

The Succession Act has also introduced statutory remedies where an executor or administrator fails to properly perform their duties.

Under the new provisions, where an executor or administrator is deemed to have failed in the performance of their duties or to comply with an undertaking or direction of the Court, orders may be made:

• to require the executor or administrator to pay into the Estate any financial benefit obtained as a result of their failure;

• to require an executor to compensate the Estate or any person for losses suffered as a result of their failure; or

• as the Court otherwise deems appropriate, which could include an order for the executor or administrator to properly administer the Estate or provide an undertaking as to the management of the Estate.

  
  

The new provisions create a clearer statutory remedy against executors or administrators who delay matters, mishandle assets or fail to act in the interests of beneficiaries.

How Estate debts are settled

The new legislation also clarifies how debts and liabilities are dealt with when administering a solvent Estate.

Generally, before beneficiaries receive inheritances, the Estate must first pay:

• funeral expenses;

• taxes;

• secured debts;

• outstanding liabilities;

• administration costs.

  
  

The reforms provide clearer guidance around the order of payment and Estate administration responsibilities.

Changes to family provision claims

The Succession Act has expanded the categories of those entitled to make a family provision claim to include a step child of the deceased.

However, that entitlement arises where the step child can satisfy the Court that:

• the step-child is disabled and is significantly vulnerable by reason 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; or

• assets accumulated by a parent of the step-child substantially contributed to the Estate of the deceased person.

These changes are particularly important for those in blended families.

Other key changes

Additional reforms include:

• increasing the statutory legacy for surviving spouses or partners from $100,000 to $120,000 in intestate Estates;

• clearer rules where two people die at the same time;

• updated provisions dealing with jointly owned property;

• simpler language around Will-making requirements;

• easier transfer of small Estates under $15,000 without requiring probate in some cases.

South Australia’s Succession Laws represent the biggest overhaul of Wills and Estates legislation in decades. While many existing wills remain valid, the reforms highlight the importance of reviewing Estate planning documents to ensure they still reflect your wishes and family circumstances.

For many people, a simple review of their Will, Powers of Attorney and executor arrangements may now be worthwhile - particularly given the stronger focus on transparency, accountability and modern family structures under the new Act.

Need to make, or review Estate plan?

Whether you are preparing your first Will, updating an existing one, or acting as an executor, obtaining clear legal advice can help ensure your wishes are properly protected and your Estate is managed smoothly.

Contact CPC Lawyers to discuss your Estate planning needs or to arrange a review of your current Will and succession arrangements.