Introduction

Effective from 1 January 2025, the South Australian Succession Act 2023 (SA) introduces the most significant reforms to wills and estates law in decades. This new succession law consolidates and modernises three separate acts, aiming to simplify the legal framework and reflect contemporary family dynamics for all South Australians.

These key changes to succession law in South Australia will affect how wills are interpreted, how estates are administered, and how family provision claims are handled. This guide provides essential information on these updates to help will-makers, beneficiaries, and executors and administrators understand their rights and responsibilities under the new legislation.

Expanded Rights to Inspect a Will for South Australians

New Statutory Right Under the Succession Act 2023 (SA)

The Succession Act 2023 (SA) introduces a significant change to wills and estates law in South Australia by creating a new statutory right for certain individuals to inspect a will after a person has died. This new provision aims to increase transparency during the early stages of estate administration.

Previously, there was no legal right to see a will until after the Supreme Court issued a grant of probate, which often caused frustration and uncertainty for those with an interest in the estate. However, under section 48 of the Succession Act 2023 (SA), anyone in possession or control of a deceased person’s will is now required to allow specific individuals to inspect it or receive copies.

This right becomes available after the will-maker has passed away but before a grant of probate is made.

Who Can Inspect a Will?

The Act clearly defines classes of people who have an automatic right to view the will, including:

• Any person named or referred to in the will, regardless of whether they are a beneficiary
• A person named as a beneficiary in an earlier will of the deceased
• The surviving spouse, domestic partner, child, or step-child of the deceased
• A former spouse or domestic partner of the deceased
• A parent or guardian of the deceased person
• Anyone who would be entitled to a share of the estate if the person had died without a will (intestate)
• A parent or guardian of a minor who is mentioned in the will or who would be entitled to a share of the estate on intestacy
• A person who was responsible for managing the deceased’s estate immediately before their death

Importantly, the definition of a ‘will’ under this provision is broad. It includes revoked wills, copies of wills, and documents that appear to be wills, which can provide crucial information to individuals assessing whether to contest a will.

For other parties, such as creditors or those who believe they have a legal claim, the Act allows them to apply to the Supreme Court for permission to inspect the will if they can demonstrate a proper interest.

The Deceased’s Wishes as the Primary Consideration in Your Estate

A significant reform introduced by the Succession Act 2023 (SA) relates to family provision claims, which are legal applications by eligible individuals who believe a will does not adequately provide for them. The new succession law shifts the court’s focus when assessing these claims. Under section 116(2) of the Act, the wishes of the deceased person are now the “primary consideration” for the court.

This change strengthens the principle of testamentary freedom, which is a person’s right to distribute their estate as they see fit. While the court still considers an applicant’s needs, the new law requires it to prioritise the will-maker’s intentions.

When evaluating family provision claims, the court must have regard to several factors, including:

• Any evidence of the deceased person’s reasons for the dispositions made in their           will
• The applicant’s vulnerability and dependence on the deceased
• The applicant’s contribution to the deceased person’s estate
• The character and conduct of the applicant

Changes to Eligibility for Spouses, Step-children & Other Relatives

The Succession Act 2023 (SA) has revised the criteria for who is eligible to make a family provision claim against an estate. While the general categories of claimants remain, new qualifications and restrictions have been introduced for certain relatives.

Relative	Summary of Eligibility Changes for Family Provision Claims
Former Spouse / Domestic Partner	May be ineligible if a formal property settlement or court order under the Family Law Act 1975 (Cth) was in force immediately before the deceased’s death.
Step-child	Eligibility is broadened, which is highly relevant for stepchildren contesting wills, as a claim may be possible if the step-child was dependent on the deceased, cared for them, is disabled and vulnerable, or made substantial contributions to the estate, among other criteria.
Grandchild	Eligibility is narrowed. A claim is generally only possible if their parent (the deceased’s child) died before the deceased, or if they were being maintained by the deceased immediately before death.
Parent / Sibling	Eligibility is narrowed. Must now demonstrate that they cared for or contributed to the maintenance of the deceased immediately before their death or entry into a residential facility.

How the Succession Act 2023 (SA) Affects Intestacy & Joint Property

Increased Spousal Legacy & Changes to Inheritance Rules

The Succession Act 2023 (SA) introduces important updates for how an estate is distributed when a person dies without a valid will, a situation known as intestacy. A key change involves the preferential legacy for a surviving spouse or domestic partner. This entitlement has increased from $100,000 to $120,000 for anyone who dies intestate on or after 1 January 2025.

When an estate’s value exceeds this amount, the distribution follows a clear formula under the new succession law:

• The surviving spouse or partner receives the first $120,000, along with household furniture and personal effects.
• The remainder of the estate is then divided, with half allocated to the spouse or partner and the other half shared equally among the deceased’s children.

Furthermore, the Succession Act 2023 (SA) expands the pool of potential inheritors in an intestate estate. More distant relatives, specifically the children of first cousins, may now inherit. However, this provision applies only when the deceased has no surviving spouse, children, parents, siblings, or other closer family members.

New Rules for Simultaneous Deaths & Jointly Owned Property

The new succession law clarifies how jointly owned property is handled when co-owners die in circumstances where the order of death is uncertain. Under section 127 of the Succession Act 2023 (SA), if joint owners die and it cannot be determined who survived whom, the property is treated differently than before.

The property is now presumed to have been held as tenants in common in equal shares. This means each owner’s share will pass to their own estate and be distributed according to:

• Their will, if they had one
• The rules of intestacy, if they died without a will

This change prevents the entire property from automatically transferring to the younger owner’s estate, which was a previous presumption.

For situations not involving jointly owned property, the Act establishes a general rule for simultaneous deaths. Section 126 of the Succession Act 2023 (SA) states that deaths are presumed to have occurred in order of seniority. To illustrate, the younger person is legally considered to have survived the elder person by one day.

New Responsibilities & Powers for Executors & Administrators

Codified Duties for an Executor & New Remedies for Beneficiaries

The Succession Act 2023 (SA) introduces a clearer legal framework for the responsibilities of executors and administrators in South Australia. Section 81 of the new succession law formally outlines their general duties, which were previously governed by complex common law. This codification creates greater clarity for both executors and beneficiaries during the estate administration process.

Key duties for executors and administrators now include:

• Collecting and administering the deceased person’s estate according to the law
• Distributing the estate to the rightful beneficiaries “as soon as practicable”
• Delivering the grant of probate or administration to the Supreme Court if required

To ensure these duties are met, the Succession Act 2023 (SA) grants the Supreme Court enhanced powers to hold executors and administrators accountable. Under section 98, a new statutory remedy is available to any “person aggrieved” by an executor’s failure to perform their duties, which is a key aspect of the rights as a beneficiary.

If an executor or administrator fails to comply with their obligations, the Court can make various orders, including requiring them to compensate any person who has suffered a loss as a result of the breach. Additionally, an application for such an order must be made within three years from when the person becomes aware of the failure.

Simplified Processes for Small Estates & Debts

The new succession law also streamlines the administration of smaller estates to allow for quicker access to funds for immediate family. Under section 100 of the Succession Act 2023 (SA), a person or entity, such as a bank, holding money or personal property valued at $15,000 or less for a deceased person is permitted to pay or transfer it directly to a surviving spouse, domestic partner, or child.

This change eliminates the need for a formal grant of probate or letters of administration for these small amounts. The provision is designed to simplify and expedite the process, although it does not change who is ultimately entitled to the assets under the will or intestacy rules.

Furthermore, the Act codifies the rules for paying a deceased person’s debts, providing executors with clearer guidance and reducing potential delays in estate administration.

Conclusion

The Succession Act 2023 (SA) introduces significant reforms to South Australia’s wills and estates law, affecting everything from who can inspect a will to how family provision claims are assessed. These key changes also update intestacy rules, clarify the duties of executors, and establish new guidelines for jointly owned property, modernising the legal framework for all South Australians.

With these substantial changes now in effect, ensuring your estate plan is current and compliant is more critical than ever. For trusted expertise in navigating the new succession law, contact the specialised wills and estates law firm, PBL Law Group, today to review your will and secure your family’s future.

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