WORDS: Amy Nikolovski, Managing Partner, DBH Lawyers
The major changes to the succession laws in South Australia that will be made from 1 January 2025 will bring our laws into line with those in other Australian jurisdictions, namely New South Wales, Victoria and Queensland.
Changes to the laws relating to Wills
There will be a change as to who can inspect a Will, which will mean certain people (including a former spouse or domestic partner of the deceased person) will have the right to inspect a Will.
This change is significant and should be considered when making a Will and also where copies of your Will are held.
Changes to the laws relating to Administration of Estates
Significant changes to the laws relating to the administration of estates will be made that affect executors, administrators and beneficiaries rights in general and on intestacy. The changes to this area are numerous with some key changes including:
- A party holding the money or personal property of a deceased is permitted to pay or transfer the property directly to the deceased’s spouse, domestic partner or child without the requirement of a Grant of Probate or Letters of Administration if the property has a value of up to $15,000.
- Making statutory provision for the order of deaths where two or more people owning property jointly have died and the order of their deaths was uncertain and unable to be determined. In these circumstances, the property will be dealt with as if owned as tenants in common in equal shares under the Act whereas the current position is that a complicated and expensive process must be followed.
- Codification of the rules surrounding payment of a deceased persons debts, currently governed by complicated common law.
- On intestacy, a spouse or domestic partners ‘preferential legacy’ increases from $100,000 to $120,000.
- The general duties of executors and administrators will be codified which will create further clarity for executors of their obligations during the estate administration in addition to providing a clear pathway for disgruntled beneficiaries to take if they are of the view that an executor has breached their duties either to them or the estate.
Changes to the laws relating to Inheritance Claims
The laws relating to Inheritance Claims are perhaps the most significant, with 2 of the key changes summarised below:
- Under the Act, “the wishes of the deceased person is the primary consideration of the Court” when determining whether to make a family provision order from an estate. This is a significant change, the effect of which is unknown until cases are heard before the Courts.
- The classes of people eligible to claim against the deceased’s estate and/or the criteria they must satisfy to do so will change and include:
- A previous spouse or domestic partner, currently eligible to claim by virtue of their former relationship will now be able to claim only if they have not entered into a property order or agreement of a “prescribed kind” immediately before the death of the deceased. An example of this would be that a former spouse or domestic partner would be ineligible to claim against the estate if they are party to an agreement or court order with the deceased – i.e. they’ve separated from the deceased and have a financial agreement in place but had not divorced from them.
- Step-children will now be able to claim against the Estate of a deceased step-parent- previously that was only available if they were financially dependent on the deceased at the time of their death.
- Grandchildren will no longer be able to claim against their grand-parents estate, unless their parents have pre-deceased them.
- Parents and siblings, currently required to show only that they had contributed to the care and maintenance of the deceased during their lifetime will now be required to establish that this support was being provided to the deceased at the date of death.
In summary
While the Act is anticipated to provide greater certainty and make the administration of estates easier and more cost effective, some impacts of the Act will remain unknown until determined by the Courts. What is known, is that the Act will impact every South Australian in some way in due course and why it is important to contact us now to get your Estate in Order.
Amy Nikolovski is the Managing Partner of DBH Lawyers, former President of the SA Law Society and a leading lawyer across her field of expertise. Amy is a staunch advocate for women in business in all aspects of her professional life. Amy is also a proud mum to Niko and Amelia.
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