Urgent Alert for Will-makers

This could change everything

In 2023 South Australian law regarding Wills and estates is about to undergo a massive change.

For a long time, people have complained that it is too easy for gold-diggers to challenge a Will – especially adult children who are not deserving.

Think: estranged adult child who never visited or supported their old mum in any way, only turning up to claim a share of mum’s estate after she died.

Now South Australia’s new Succession Bill is one step closer to becoming law.

The Succession Bill passed the upper house of South Australian Parliament (the Legislative Council) on 2 May 2023.

The Bill represents an extensive modernisation of succession law in South Australia, seeking to consolidate South Australia’s Wills and estate legislation into a single, standalone Act.

This is the largest effort to modernise South Australia’s succession law in many decades.

The Succession Bill creates an Act to consolidate and amend the law relating to Wills, probate and the administration of deceased estates, intestacy and family provision, to repeal the Administration and Probate Act 1919, the Inheritance (Family Provision) Act 1972 and the Wills Act 1936, to make related amendments to various other Acts, and for other purposes.

It is by far the most reform in this area of the law in SA for many decades, and will address several areas where SA had been out of step with other jurisdictions.

It is expected that the lower house will rubber stamp this Bill mid-year.

So what’s the big change?

There is one key provision of the Bill regarding the challenging of Wills, which fixes the Will-maker’s (testator’s) intention as the “primary consideration of the court”.

This amendment will have profound implications for family provision claims into the future.

It means that the Court is required to give the testator’s wishes maximum weight when considering how to deal with any challenge to the Will or the estate.

It should mean that it will be harder to challenge a Will or an estate in future BUT ONLY IF the testator makes clear their intentions in their Will.

This in turn will require Wills to be written in a new way. Old-fashioned wording and DIY Wills are not likely to be effective.

It is also highly recommended that you keep your Will up to date.

This is not a ‘set and forget’ exercise. There is great value in keeping your Will up to date.

In the event of a challenge, the first thing the Court looks at is the date of the Will.

If it is more than about 5 years old at the date of your death, the Court is much more likely to conclude that it no longer accurately reflects your testamentary intentions at the date of your death.

If you are at all concerned about the possibility of someone contesting your Will after your death, the best protection you can give to your Will (and therefore to your family and your assets) is to have your Will professionally prepared to include special wording in line with the new legislation AND to refresh or remake your Will every 5 years or so to keep it up to date.

This is why every adult should seek the advice of a senior lawyer who specialises in Wills and estates to make sure that their Will is brought into line with the new legislation.

It is anticipated that the SA Succession Bill will be debated in the House of Assembly in the coming Parliamentary sitting weeks where it is likely to pass without amendment in about July 2023.

It won’t be long before the new laws are upon us. Will you be ready?

Part of getting ready is to look at putting all your affairs in order and explore your estate planning options, by contacting a specialist lawyer who is experienced in estate planning in South Australia.

Founded in 1848, Genders & Partners is the oldest law firm in South Australia.

They choose to specialise in just a few areas of law closest to most families, so that they can provide the legal services that matter most to you and your family.

Their experienced estate planning team can discuss many estate planning tools and techniques including:

• helping you to identify, understand and manage risks in your legal and financial affairs;
• guard against claims against your Will or estate;
• protect your digital assets;
• creation of protective trusts;
• titling of assets for joint ownership.

Choosing the right estate planning lawyers can make a huge difference in ensuring proper distribution of your assets after death, minimising or avoiding any legal issues that may arise, and protecting your hard-earned assets.

Most importantly, it helps save your family all the trouble, as well as thousands of dollars in legal fees and taxes, after your death.

Genders and Partners is the oldest law firm in South Australia, established 1848.

Contact them to learn how to protect yourself, your family and your assets through modern integrated estate planning solutions, by visiting our website today and schedule a free no obligation telephone consultation to find out how they can help you and yours.

To learn how to protect yourself, your family and your assets, by creating a professionally-made estate plan, claim your FREE 15 minute Telephone Consultation .

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