Major reform of SA’s succession laws By The Hon Vickie Chapman MP

Major Reform of South Australia’s Succession Laws

THE HON VICKIE CHAPMAN MP, ATTORNEY-GENERAL & DEPUTY PREMIER OF SA

South Australia’s succession laws will soon be overhauled.

Many of you will recall that the South Australian Law Reform Institute (SALRI) conducted a number of reviews into various areas of succession law that are most in need of reform. This was a huge body of work which involved extensive consultation with the South Australian judiciary, key legal stakeholders, the profession and the general public. SALRI published several reports focussing on the following topics: • Sureties guarantees and letters of administration • State schemes for storing and locating wills • Small estates and minor succession disputes • South Australian rules of intestacy • Management of the affairs of a missing person • Review of the Inheritance (Family

Provision) Act 1972 (SA) • Who may inspect a will

Together, these reports contain over 100 recommendations, the bulk of which have now been accepted by the Government. One of the most significant is that the numerous pieces of legislation that currently govern our succession laws will be amended and combined to form one, new, Succession Act.

This will involve combining the Administration and Probate Act 1919, the Wills Act 1936 and the Inheritance (Family Provision) Act 1972 as well as making amendments to the Public Trustee Act 1995, the Stamp Duties Act 1953 and the Law of Property Act 1936. By combining these into one consolidated Act, with better organised provisions, we hope to make the legislation much more user friendly and accessible, especially for laypersons. This will also provide an opportunity to update and modernise the language which has become outdated.

During consultation, a common view conveyed to SALRI was that our current family provision laws have served to dilute the notion of testamentary freedom, which has increased the number of family members pursuing opportunistic or vexatious claims. To address this, the draft Bill will place greater focus on deterring baseless, opportunistic or undeserving claims. It will also include a non-exhaustive list of factors for a court to have regard to when considering claims, with the lead item to be the views and reasons of the testator for distributing their estate in the way they did. This will help ensure there is an increased focus on the rights of the testator, while also providing greater clarity and guidance to the court when determining claims.

There have also been many social changes in recent times which are not currently reflected in our succession laws. The last systematic review regarding the rules of intestacy was conducted as long ago as 1974! Since then, we have seen a huge increase in the diversity of family structures with divorce and re-partnering now very common.

Despite this, adult stepchildren currently have no status to make a claim under the Inheritance (Family Provision) Act. A common case example is when a person’s natural parent remarries but predeceases their stepparent. The stepparent then makes a will but leaves no provision for their stepchildren, even though a large proportion of the stepparent’s estate may have been amassed by the child’s natural parent. A strong view presented to SALRI was that given the increase in blended families, there should be exemptions in place to address this.

The Government has accepted SALRI’s recommendation in this regard, and the Bill will be drafted to include adult stepchildren as a separate new category of claimant. However, their eligibility will be restricted to certain circumstances, for example if they are significantly vulnerable, if they significantly contributed to the testator’s wealth or wellbeing, if they were genuinely dependent on the testator at the time of their death, or if the assets accumulated by the stepchild’s natural parent significantly increased or contributed to the estate of the testator.

Work is now underway on the massive task of drafting a consolidated Bill. Once that is done, consultation on the draft Bill will commence. I will continue to keep you updated on this work as well as other things happening in my portfolio over the coming months. B