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After a lengthy period of promulgation, the Succession Act
(SA) 2023 has been proclaimed and will come into operation on
1 January 2025. Advisers will need to be prepared
for this date which inconveniently falls in the midst of a
traditional holiday period.
The Succession Act represents a significant shift and
modernisation to important aspects of the succession law in South
Australia. It has repealed and consolidated into one Act some quite
dusty legislation being the:
Inheritance (Family Provision) Act (SA) 1972;
Administration and Probate Act (SA) 1919; and
Wills Act (SA) 1936.
Piper Alderman's Private Clients Team has reviewed the
changes and presents a three part Insight series into the affect
the Succession Act changes will make in this area.
The first in this series is a comparison of the applicants
eligible to make a claim for further provision against the estate
of a deceased person and the conditions which may attach to that
right to bring that claim.
Comparison of Eligible Applicants for Family
Provision
Category of applicant
Inheritance Family Provision Act 1972, section 6
(repealed Act)
Succession Act 2023, section 115
Spouse or Domestic Partner, s 115(1)
Eligible
Eligible
Former Spouse, s 115(2)
Eligible
Eligible subject to:
must satisfy the Court that immediately before death there has
not been a matrimonial property settlement or agreement between the
former spouse and the deceased and which is in force.
Former Domestic Partner, s 115(2)
Not eligible
Eligible subject to:
must satisfy the Court that there has not been a matrimonial
property settlement or agreement between the former domestic
partner and the deceased which is in force.
Child, s 115(1)
Eligible
Eligible
Step Child, s 115(3)
Eligible (being a child of a spouse or domestic partner),
subject to:
must be wholly or partly maintained or legally entitled to be
maintained by the deceased immediately before death.
Eligible (being a child of a spouse or domestic partner OR a
former spouse or domestic partner), subject to the
step child satisfying one of the following:
disabled and therefore significantly vulnerable;
dependent on the deceased at the date of death;
cared for, contributed to the maintenance of the deceased
immediately before date of death;
substantially contributed to the estate of the deceased
person;
step-child's parent substantially contributed to the estate
of the deceased person; or
a minor step-child, maintained wholly, partly or legally
entitled to be wholly or partly maintained by the deceased person
immediately prior to death.
Grandchild, s 115(4); 115(5)
Eligible
Eligible subject to:
the grandchild's parent (being a child of the deceased)
died before the deceased; or
the grandchild was wholly or partly maintained or legally
entitled to be maintained by the deceased immediately before
death.
Parent, s 115(6)
Eligible, subject to:
must satisfy the Court that the parent cared for or contributed
to the maintenance of the deceased during their life.
Eligible, subject to:
if the deceased died in a residential facility (as defined in
Aged Care Act (Cth)), the parent cared for or contributed
to the maintenance of the deceased immediately before they entered
the residential facility; or
otherwise, if:
the parent cared for, contributed to the maintenance of the
deceased immediately before death; or
the parent was wholly or partly maintained by the deceased
immediately before death.
Sibling , s115(7)
Eligible, subject to:
must satisfy the Court that the sibling cared for or
contributed to the maintenance of the deceased during their
life.
Eligible, subject to:
if the deceased died in a residential facility, the sibling
cared for or contributed to the maintenance of the deceased
immediately before they entered the residential facility; or
otherwise, if the sibling cared for, contributed to the
maintenance of the deceased immediately before death.
The Succession Act introduces some new concepts and terms that
will no doubt be the subject of further debate and clarification.
For example:
when will a matrimonial property settlement agreement be
regarded as " in force";
when will a step child be considered "significantly
vulnerable"
to what extent must a step child's parent have
"substantially contributed" to the estate of a
deceased person;
when does a grandchild become "entitled" to
be maintained by a deceased person;
to what extent must a parent or sibling have
"contributed to the maintenance" of a deceased
child or sibling.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
