Often people making wills ask if they can leave particular people out? Those queries regularly relate to former spouses and step-children.
The law currently provides for certain eligible persons to make a claim for provision, or further provision, from a deceased person’s will.
A new Succession Act will be introduced as law in South Australia from 1 January 2025 and includes several important changes, particularly regarding the rights of step-children and former spouses to make claims for provision from a deceased estate. For a former spouse it will likely get harder. But for step-children the new laws might increase the potential for successful claims against an estate.
The Succession Act expands the eligibility criteria for step-children to make family provision claims (claims for further provision from the estate). Previously, step-children were only eligible if they were maintained, or were entitled to be maintained, by the deceased at the time of their death.
The new criteria includes an increased ability for a step-child to make a claim for provision in circumstances where the step-child is disabled, the step-child cared for or contributed to the maintenance of the deceased before death, the step-child substantially contributed to the estate of the deceased person, or where assets accumulated by a parent of the step-child substantially contributed to the estate of the deceased.
These changes reflect a broader and more inclusive approach to family provision claims, recognising the diverse nature of modern family structures and arrangements, and the varying contributions different individuals may have made to the deceased’s life and estate.
Importantly former spouses and domestic partners are excluded from making a claim for family provision if they had been a party to a prescribed agreement or order, similar to section 107. The specific agreements and orders will be prescribed, but again as outlined in distribution of property under the Family Law Act 1975 (Cth) and agreements under the Domestic Partners Property Act 1996 (SA). This provision is intended to prevent a former spouse or domestic partner, who has effectively ended their relationship and settled all financial matters between themselves and the testator, from making a family provision claim after the testator is deceased, perhaps a number of years after the end of the relationship.
Whilst the categories of potential claimants may change, so too will the focus of the Courts in assessing family provision claims and the terms of a will.
The Succession Act will place the deceased person’s wishes as the primary consideration for the Court when determining family provision claims. This means that the Court must primarily consider what the deceased intended when deciding on claims. For many that may seem well overdue.
When making your will it will likely be increasingly important to formulate and leave detailed reasons for your provisions. How else will the Court know?
Be sure to get specialist legal advice. It’s complicated. Call our lawyers on 08 8344 6422.