On 1 January 2025, the new Succession Act 2023 (SA) (Succession Act) will come into effect. The Act presents the most significant change to South Australian succession law in decades, replacing the Administration and Probate Act 1919 (SA), the Inheritance (Family Provision) Act 1972 (SA) and the Wills Act 1936 (SA), and amending several others.[1]
In the first of a series of Insights articles, LK Law will explore the reasons for the update to South Australian succession laws, as well as highlight the key reforms.
Background to the Succession Act
Prior to reform, succession law in South Australia was largely governed by a combination of the Administration and Probate Act, the Inheritance (Family Provision) Act and the Wills Act. As compared with other jurisdictions, these laws were complicated and often did not take account of changes in societal norms since the last review in the 1970s.[2]
Identifying this problem, at the invitation of the then Attorney-General in 2011, the South Australian Law Reform Institute (SALRI) conducted a detailed review of succession law in South Australia. The review was undertaken by a Succession Law Reference Group to assist the SALRI.
Between 2013 and 2017, this review resulted in SALRI publishing seven final reports.[3] These reports were the culmination of extensive consultation by the SALRI with the community, lawyers, and other interested parties. Across its reports, the SALRI made 113 recommendations for change.
In June 2021, the Succession Bill 2021 was tabled in Parliament and read a second time under the then Attorney-General, Vickie Chapman MP. The Bill lapsed when the SA Parliament was prorogued and the House of Assembly was dissolved in February 2022 in advance of the SA State election.
In October 2022, the Succession Bill 2022[4] was introduced into Parliament and read for a second time under the current Attorney-General, Kyam Maher MLC. It passed both houses of Parliament and received assent in October 2023.
The Succession Bill 2022 adopted 104 of the 113 recommendations made by the SALRI. In addition, the changes followed similar holistic reforms in succession legislation in other states and territories in Australia.[5]
As was explained in the course of parliamentary debate:[6]
‘The definitions have been modified, simplified and are more consistent with the definitions of our interstate counterparts. The legislation will hopefully stand the test of time and reduce the complexity that many testators have encountered over many years. …
The reform modernises succession law so that we no longer rely on outdated common law principles. The current provisions include outdated terms and common law principles that have not been used for decades. We are committed to keeping these laws current and relevant, reflecting the changing composition of South Australian families. Uniting current common law principles under one act will make handling deceased estates simpler for executors and administrators. …
The Succession Bill proposes amendments to the existing succession laws which bring them up to date with progressive principles and values. These provisions target the plight of people in non-traditional and complex family structures while eliminating the legal complexities and difficulties that arise during an estate’s administration. …
While these amendments are legislative and technical in nature, the bill focuses on modernising and simplifying the language where possible. …
Whilst the current succession laws have served South Australia reasonably well they do require reform to bring them in line with community expectations and certainly to modernise them. The current law fails to consider evolving familial and social structures and has caused some significant issues, particularly in intestacy situations, where the unfortunate death of a family member occurs without a will.’
Key Reforms in the Succession Act
In addition to the consolidation and modernisation of statutory language, the Succession Act brings about reform in three key areas:
Wills:
Family provision:
Administration of estates:
This series of Insights articles will address each of these areas of reform in greater detail.
When Things Go Wrong
The complexity of succession laws and the difficulties arising from fragmented legislation can lead to cost and time intensive disputes. A recent example is considered below.
The Tong v Tong proceedings in the Supreme Court of the Australian Capital Territory (SC 655 of 2019), recently concluded in August 2024, took over five years to resolve and resulted in three lengthy court decisions of the ACT Supreme Court and Court of Appeal. Such time and cost was incurred where the net value of the deceased’s estate at the time of the grant of Probate was only approximately $340,000.
The proceedings considered the intersection of principles of equity, the Administration and Probate Act 1929 (ACT), the Family Provision Act 1969 (ACT), and the Trustee Act 1925 (ACT), and resolved complex issues as to beneficial ownership of assets, undue influence in both the inter vivos and testamentary contexts, family provision, and removal of an executor and the trustee of a trust.[7]
In the course of her primary reasons, McWilliam J made observations as to the fact that “all aspects” of the proceedings would have been “less costly, less complex and more efficiently managed” if legislative reforms had been undertaken.[8]
The Succession Act reforms aim to modernise South Australian succession law so that it reflects modern familial relationships and values, as well as changes to perceptions of the role of the welfare state. In particular, the reforms aim to reduce the number of “trivial and speculative” and “improper and opportunistic” claims which “bog down the court system”.[9]
A central piece of omnibus legislation which aims to strengthen public confidence in a critical area of law which impacts the lives of everyone is most welcome.
As with any new legislative scheme, it will be prudent for personal representatives, beneficiaries and other claimants to the deceased estate to seek early advice to navigate legal risks, avoid unnecessary roadblocks and minimise costs.
Stand by for Part 2 on the new reforms in the area of Wills …
[1] Among the legislation amended by the Succession Act 2023 (SA) is the Trustee Act 1936 (SA), which deals, among other things, with the administration of charitable trusts. LK has recently published a standalone Insights post on that topic, available here: https://www.lk.law/2024/09/they-will-work-it-out-cy-pres-administration-and-trust-variation-schemes-for-charitable-bequests/
[2] The 1970s review led to a suite of legislative changes affecting the Administration and Probate Act, Succession Duties Act, and Wills Act, as well as introducing the Inheritance (Family Provision) Act.
[3] Sureties’ Guarantees for Letters of Administration (August 2013); State Schemes for Storing and Locating Wills (October 2016); Administration of Small Deceased Estates and Resolution of Minor Succession Law Disputes in South Australia (December 2016); South Australian Rules of Intestacy (July 2017); Management of the Affairs of a Missing Person (July 2017); ‘Distinguishing between the Deserving and the Undeserving’: Family Provision Laws in South Australia (December 2017); Who May Inspect a Will? (December 2017).
[4] Which, aside from a couple of discrete amendments, was materially in the same terms as the 2021 Bill.
[5] For example, the Succession Act 2006 (NSW) and the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (Vic).
[6] See Parliamentary Debates, House of Assembly, 15 June 2023, 4407 and Parliamentary Debates, House of Assembly, 14 September 2023, 5380-5381.
[7] See Tong v Tong [2023] ACTSC 163; Tong v Tong (No 2) [2023] ACTSC 336; Tong v Tong [2024] ACTCA 27.
[8] Tong v Tong [2023] ACTSC 163 at [276]. The legislative reforms identified by McWilliam J concerned the concept of the notional estate and clawback provisions. Notably, adopting SALRI’s Recommendation 27, the Succession Act 2023 (SA) does not adopt any notional estate or clawback provisions, on the basis that the overriding consideration should be the wishes of the deceased person as the primary consideration. This is consistent with the position in Victoria: see Parliamentary debates, House of Assembly, 15 June 2023, 4004 and Parliamentary debates 28 September 2023, 5584.
[9] See Parliamentary Debates, House of Assembly, 15 June 2023, 4407 and Parliamentary Debates, House of Assembly, 14 September 2023, 5380-5381.
