A Major Shift in Estate Law
The introduction of the Succession Act 2023 (SA) significantly changed succession law in South Australia, including who may be entitled to challenge a will.
Under the previous legislation, the Inheritance (Family Provision) Act 1972 (SA), stepchildren were not entitled to make family provision claims against a deceased estate. That position has changed.
Stepchildren Now Have Rights to Contest Wills
From 1 January 2025, eligible stepchildren may bring a claim against an estate in certain circumstances under the new Act. The reform reflects the reality of modern family structures, where stepchildren are often financially dependent on, or closely connected with, a deceased step-parent, which represent up to 16% of modern families.
However, not every stepchild will automatically have a right to contest a will. A stepchild must establish at least one of the following:
- the stepchild is disabled and significantly vulnerable because of that disability;
- the stepchild was dependent on the deceased at the time of death;
- the stepchild cared for, or contributed to the maintenance of, the deceased immediately before death;
- the stepchild substantially contributed to the deceased’s estate; or
- assets accumulated by the stepchild’s biological parent substantially contributed to the deceased’s estate.
Importantly, the legislation also extends protection to minors where the deceased maintained, or was legally liable to maintain, the stepchild wholly or partly.
Practical Implications
These changes are likely to create a broader category of potential claimants in estate disputes. In blended families, it is increasingly common for stepchildren to have longstanding parental relationships with a deceased person where no biological connection exists. The new legislation recognises those relationships may create legitimate expectations of provision from an estate.
At the same time, the reforms do not guarantee that a stepchild will succeed in a claim against an estate. The changes simply allow eligible stepchildren to bring their claim before the Court, where they were previously excluded altogether.
The Court must still carefully assess the circumstances of each case to determine whether adequate provision has been made for the applicant. This includes considering the deceased’s intentions, the nature of the relationship between the stepchild and the deceased, the financial needs and resources of the applicant, the size of the estate, and any competing claims by other beneficiaries or dependants.
Accordingly, while the reforms expand who may apply, they do not create an automatic entitlement to further provision from an estate.
How Wadlow Solicitors can Help
For those preparing or updating a will, the changes highlight the importance of careful estate planning. Failing to properly consider stepchildren, particularly where there has been financial dependence or a close parental relationship, may increase the risk of a future claim against the estate.
The expert team at Wadlow Solicitors can assist with estate planning, defending or bringing family provision claims and disputed estates, and ensuring your wishes are protected under South Australia’s new succession laws.
If this topic interests you, for a broader overview of the significant changes introduced by the Succession Act 2023 (SA), including changes to testamentary freedom and family provision claims, see my previous article: Succession Act 2023: Key Changes and Implications.
For a closer look into who has the right to see the will, see our other article by Charlie Caldwell: The Right to See the Will: Who Has Standing in South Australia?
For over 45 years, Wadlow Solicitors has helped individuals and companies overcome adversity. We provide comprehensive legal services in Adelaide's CBD, cultivating dedicated and lasting client relationships. Contact Wadlow Solicitors or call (08) 8212 2955 to schedule an appointment.
