The new Succession Act

On 1 January 2025, the Succession Act 2023 will come into effect. This Act will repeal and replace the Administrative and Probate Act 1919, Inheritance (Family Provision) Act 1972, Wills Act 1936 and the Administration and Probate Regulations 2009.

The provisions of the repealed Acts are replicated in the new Act but with some changes. Below we have outlined the most substantive changes that will come into effect on 1 January 2025.

Family Provision

Part 6 of the Succession Act 2023 deals with family provision claims against the estate of a deceased person, being a claim where a person believes they did not receive adequate provision under a will or pursuant to the laws of intestacy. This will replace the Inheritance (Family Provision) Act 1972.

The most significant changes to the law made by the Succession Act 2023 relate to family provision claims, and specifically, to the eligible claimants, and the substantive test for provision that the Supreme Court will apply to claims. These changes reflect the case law on these areas of law over the years.

Eligible Claimants

Section 115(1) of the Succession Act 2023 sets out the categories of persons who are entitled to make a family provision claim in respect of the estate of a deceased person. The persons entitled to make a claim are the:

• spouse or domestic partner;
• former spouse or domestic partner;
• children;
• stepchildren;
• grandchildren;
• parents; and
• siblings,

of a deceased person are entitled to make a family provision claim.

Sections 115(2)-(7) qualify the eligibility of the above categories of persons who are otherwise eligible to claim as follows:

• A former spouse or domestic partner who has a property settlement is not eligible to claim.
• The eligibility of stepchildren to claim is expanded. For example, stepchildren will be eligible to claim if they cared for or contributed to the maintenance of the deceased person immediately prior to their death, or if their parent’s assets substantially contributed to the estate of the deceased person.
• The eligibility of grandchildren to claim is reduced. Grandchildren will be eligible to claim if their parent died before the deceased person and they were maintained, or were legally entitled to be maintained, by the deceased person immediately prior to their death.
• Family provision claims by parents and siblings are relatively rare, but eligibility is now reduced to only limited circumstances.

Test for Family Provision

Entitlement to claim does not equal entitlement to an order.

Section 116(1) of the Succession Act 2023 sets out the criteria that a person entitled to make a family provision claim must satisfy to be granted an order. If a person is left without adequate provision for their proper maintenance, education or advancement in life, the Court may order that provision be made out of the deceased person’s estate for the maintenance, education or advancement of the person so entitled.

The wishes of the deceased person is the primary consideration of the Court in determining whether to make a family provision order. The Court must also have regard to any evidence of the deceased person’s reasons for making the dispositions in their will, the applicant’s vulnerability and dependence on the deceased, the applicant’s contribution to the estate of the deceased person and the character and conduct of the applicant. It may also have regard to any other matter that it considers relevant.

Right to Inspect and Copy a Will

Section 48 of the Succession Act 2023 creates a new statutory right to inspect and copy the will of a deceased person. Some classes of persons will have a right to inspect and copy the will. Other categories of persons may apply to the Supreme Court for an order requiring inspection of the will.

Section 48(1) deals with the first category of persons, with an automatic right of inspection and copying. A person who has possession or control of a will of a deceased person (usually the executor named in the will) must allow the following persons to inspect or be given copies of the will (or both) (at their own expense):

• 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;
• a person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;
• a parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate; and
• a person committed with the management of the deceased person's estate under the Guardianship and Administration Act 1993 immediately before the death of the deceased person.

Section 48(3) enables a person (including a creditor) who has or may have a claim against the estate of a deceased person to make an application to the Supreme Court for an order requiring a person who has possession or control of a will of a deceased person to allow the applicant to inspect and copy the will.

This new statutory right will assist in information gathering in circumstances where a person is contemplating making a family provision claim or if they are owed money from the estate of a deceased person or are concerned as to whether the estate of a deceased person is being properly administered.

Remedy Against Executor or Administrator

Section 98 of the Succession Act 2023 creates a new statutory remedy against the executor or administrator of the estate of a deceased person, if they fail to perform duties required of them, fail to comply with any undertaking to the Court or fail to comply with any direction of the Court or Registrar.

In those circumstances, the Court may make any order it considers appropriate if an application is made within 3 years from the time that the person aggrieved became aware of the failure. The Court may order that the executor or administrator pay into the estate an amount equivalent to any financial benefit obtained by them, that the executor or administrator compensate any person who has suffered loss or damage or make any other order that it considers appropriate to compensate persons who have suffered loss or damage.

This new statutory remedy may be useful where a person is concerned about the way in which the estate of a deceased person is being administered by the executor or administrator.

If you require any assistance with your estate planning or deceased estate matters (including estate litigation), please contact Stefanie Magliani on 08 8217 1373 or at smagliani@normans.com.au.