The Law Has Changed — Has Your Will?
South Australians saw major updates to wills and estates law from 1 January 2025, when the Succession Act 2023 (SA) (the Act) came into effect. The reform replaced three ageing Acts, the Wills Act 1936, the Administration and Probate Act 1919, and the Inheritance (Family Provision) Act 1972 and created a consolidated legislative framework for succession law in South Australia.
Key Changes under the Succession Act 2023
The Act sees substantial changes to succession laws, including:
- greater consideration to the deceased’s intentions in their will (section 116(2)).
- new rights for beneficiaries to inspect wills after death (section 48);
- updated eligibility for family provision claims (section 115).
The rise of testamentary freedom
Historically, the balance between giving people freedom to determine how their estate should be distributed in the event of their passing (testamentary freedom), and the “moral” obligation to provide for specific dependant relatives has been heavily in favour of the “moral” obligation.
That balance is shifting, and the pendulum swings back breathing new life into testamentary freedom.
In determining in whether to alter a will, the Court must now consider the wishes of the deceased person to be the primary consideration (s 116(2)(a)).
Further the Act now provides a clear list of criteria that the Court must consider, which confirms the considerations previously at common law (law created by judges).
These reforms mean that challenges to wills are likely to become more focused and less frequent because the deceased’s wishes now carry greater weight.
Claims that would previously have succeeded may no longer meet the threshold.
Our expert team is here to help you navigate the important and significant changes to succession law, and to ensure your estate planning reflects your wishes with clarity and confidence. Whether you need to update your will, understand your rights under the new Act, or seek guidance as an executor or potential applicant, we can provide tailored advice to support your situation. Plan today, to protect tomorrow.
Inspecting wills
Section 48 of the Act provides that a person who has possession or control of a will of a deceased person must provide copies of the will, or allow inspection of those documents. The Act gives these rights to:
- a person named or referred to in the will (whether as a beneficiary or not);
- a person named or referred to in an earlier will as a beneficiary of the deceased person;
- the surviving spouse, domestic partner or child or stepchild of the deceased person;
- a former spouse or domestic partner of the deceased;
- a parent or guardian of the deceased person.
This legislative introduction may allow persons with an interest in a will to quickly determine their rights and responsibilities and understand how the estate is intended to be distributed.
Critically, a person holding a will must also produce copies of a will, all revoked wills, any document that claims to be a will, and/or a portion of a will.
This means that earlier drafts, partial documents, or revoked wills, all of which may shed light on the deceased’s intentions or help resolve disputes, can be inspected where appropriate.
If you are unsure whether you have the right to inspect a will or access estate documents under the new laws, our expert team can guide you through your entitlements. Please contact us for advice tailored to your situation.
