SA's inheritance laws are under review. Here are the key considerations.

Sweeping reforms to South Australia’s succession laws are soon to be debated in parliament. If the Succession Bill 2021 (the Bill) is passed, it will consolidate and amend existing laws relating to Wills, probate and administration, the administration of deceased estates, intestacy, and family provision.

Of all the proposed changes, perhaps the most contentious relate to family provision. The new inheritance laws are designed to prioritise the wishes of the testator (the person making the Will).

The existing Inheritance (Family Provision) Act 1972 (SA) (Act) is intended to strike a balance between the wishes of the testator to have their property distributed as they wish after they die, and the idea that people also have a responsibility to provide for certain people after their death. However, with the rise in “frivolous”, “greedy” or “opportunistic” claims currently clogging up the courts there is a growing appetite for reform. There is no perfect solution.

Those that have the most to lose by the proposed changes include former spouses and domestic partners, siblings, grandchildren, and stepchildren of the deceased. Under existing laws these persons can make a claim if they can demonstrate that they had been left without adequate provision for their proper maintenance, education, or advancement in life.

The Bill would severely limit claims to those who can satisfy the court that they qualify to make a claim. For example, if the relative can prove that they cared for, or contributed to the maintenance of, the deceased person, immediately before their death; or that they were wholly or partly maintained by the deceased person immediately before their death.

Whilst the proposed changes are well-intentioned, the Bill has raised concerns that the reforms go too far, with the view that the current Act and the legal system as it is, serves the community well in that regard.  The proposed changes would reduce the rights of certain relatives, as well as limit the ability for the courts to step in if the deceased had failed to properly provide for a relative with a valid need, such as a minor or a vulnerable person.

Unfortunately, it is very common for a particular person (child, relative, carer, housekeeper, and others) to deliberately ingratiate themselves with an ageing or disabled person. They do so with the intention of inheriting some (or all) of the estate. This often is a fraud perpetrated upon other family members who have a proper claim on the estate. Under the proposed laws which give priority to the deceased’s wishes, such fraud will be successful most of the time. There are separate laws regarding undue influence, but they are ineffectual in this context.

What remains central to ensuring someone’s wishes are carefully thought through, is to have a Will in place (over half of South Australians do not), and to have it drafted by a knowledgeable and experienced legal practitioner who can ensure it is legally valid and viable.

For further information about Scammell & Co's Wills and Estates services please follow the link here

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

A Family Provision Claim may resolve a dispute over a Will or deceased estate

Shock, hurt and anger are some of the emotions that may be felt by someone whose only remaining parent recently died, and the child of the deceased learns that they have been deliberately left out of their parent's Will. If this happens, there may be a course of action available to you. Here's what's involved.

If someone decides that they do not wish to leave any part of their estate to one of their children or dependents, then they are entitled to stipulate this in their Will. However, as a child (amongst other eligible persons) of the deceased, if you believe they have failed to make adequate provision for your proper maintenance, education or advancement in life, you may be eligible to make a family provision claim.

The first steps to making a family provision claim are:

It is important to act quickly as there is a risk that the deceased’s estate could be distributed to someone else and strict time limits apply in which to contest a Will. In accordance with the Inheritance (Family Provision Act 1972 (SA), an application must be made within 6 months after the grant of probate or letters of administration.

An initial consultation with a Scammell & Co Wills and Estates lawyer will provide the opportunity to discuss the nature of your dispute or grievance; identify and assess the size and nature of the deceased’s estate (and any competing claims). They can then advise whether you have grounds to bring a claim against the estate, and the best way to resolve your dispute.

If you have a genuine claim, they will prepare the necessary court documents including evidence confirming your relationship with the deceased, your financial circumstances, and your current and future needs. These will be filed on your behalf to formally commence legal proceedings.

Your lawyer will conduct your case in court in a way which ensures that the dispute is finalised as quickly as possible with a minimum of costs and fuss. In this regard, it is generally compulsory for all matters to go to mediation before significant legal costs are incurred.

Scammell & Co understands that the loss of a loved one is an emotional and stressful time, made more difficult when you have been left out of your parent’s Will, or your parent’s estate is to be distributed unfairly. Therefore, our lawyers will handle your claim with compassion, understanding and respect, whilst ensuring you get your fair entitlements.

For further information about our contested Wills and Estates services click here.

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

Couples with blended families have unique considerations when preparing a will

Both my spouse and I have children from previous relationships. How do we ensure there are no disputes over our estate after we die?

Unfortunately, blended family disputes over wills and estates are on the increase. This is a result of more relationships dissolving (due to separation, divorce or the death of a partner) and many people moving on to new relationships - often forming a blended family in the process, of which there are several types:

There has also been an increase in grandparent-led families, and the emergence of families parented by lesbian, gay, bisexual, transgender or intersex couples.

Ways for testators to avoid disputes is to restructure their financial affairs, sort out ownership of assets and discuss with blended family members what they can expect from their estate.

Traditionally, a couple have made wills that gives each person’s interest in the family home and other assets – to each other. Upon the death of the surviving partner, the combined estates of both families are split between all children. However, there is a risk that after one partner dies the surviving partner changes his or her will to benefit only their children. This can be prevented with a “mutual wills agreement” that cannot be altered.

Alternatively, the will of the deceased spouse can establish a trust over the assets. This puts in place mechanisms for protecting children of a previous relationship whilst providing for the needs of the current spouse – such as an ongoing income.

Chantelle Moore
Solicitor
Wills & Estates | Family Law | Commercial Law
cmoore@scammell.com.au

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

Beware the token Will provision for family members

I have heard that leaving my son a dollar in my Will prevents him from contesting my estate. Is this true?

It is a commonly held belief that if you have a legally drafted Will which includes a token provision for a family member, then that person can’t bring a claim against the estate. This is not the case.

Even though you have left your son a legacy in your Will, your son is still entitled to make a claim against your estate as an eligible family member under the South Australian Inheritance (Family Provision) Act 1972. Your son will have six months from the date that Probate is granted in which to make such a claim, noting that the Court may grant an extension of this timeframe.

If your son chooses to make a claim he will need to establish that he has not been adequately provided for. The Court will consider whether this is the case taking into account circumstances of the family dynamics, the estate assets and the individual circumstances of the person making the claim, including his proper maintenance, education or advancement in life.

The Court may refuse to make an order in favour of your son on the grounds that his character or conduct disentitles him to an increased benefit from your estate.

An experienced Wills & Estate Planning solicitor can assist with strategies to mitigate the possibility of a claim being made on your estate. These may include asset structures, binding superannuation nominations and advice on what constitutes “adequate provision” to the family member involved.

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.