ByLawyers News and Updates

Succession – SA

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New court rules and practice notes are in effect to reflect the Succession Act 2023 (SA) which extensively reframed South Australian succession law when it commenced on 1 January 2025.

Succession Act

The Succession Act consolidated and amended various legislation relating to:

  • wills;
  • probate and administration;
  • administration of deceased estates;
  • intestacy; and
  • family provision claims.

The Succession Act now contains all legislative provisions relating to those areas, having repealed the following existing Acts:

  • Administration and Probate Act 1919 (SA);
  • Inheritance (Family Provision) Act 1972 (SA);
  • Wills Act 1936 (SA).

Succession rules and practice note changes

New and revised court rules for probate, administration, contested wills, and family provision matters have been released to reflect the new legislation.

The rules are contained in the new Chapter 25 – Probate – Supreme Court of the Uniform Civil Rules 2020.

The Supreme Court’s practice notes reflecting the new Act and rules are:

Key changes made by the revised court rules and practice notes include:

  • making the electronic filing of all probate applications and documents mandatory;
  • setting out detailed requirements for scanning and submitting documents;
  • proceedings under Chapter 25 are to be commenced by way of originating application except for:
    • applications for grants of probate or letters of administration;
    • amendments of grants;
    • revocation of grants;
  • required wording in an administrator’s oath when clearing off all persons having a prior entitlement to the grant and for the description of the administrator;
  • required description of assets and liabilities of an estate;
  • required wording to describe the caveator and the person warning the caveat; and
  • 50 new probate forms.

Legislative changes

The key changes under the new legislation include:

  • the right of certain classes of person to inspect a will of a deceased person;
  • the power of the Supreme Court to pass over applicants for a grant of probate or administration and appoint another person it considers appropriate;
  • the removal of the need for a grant to administer smaller estates;
  • additional court powers to hold executors and administrators to account;
  • codification of the application of assets to payment of debts and liabilities in solvent estates;
  • the increase to the preferential legacy for a surviving spouse of an intestate;
  • the addition of the children of first cousins of an intestate to the distribution on intestacy;
  • no entitlement of a spouse or domestic partner of an intestate to any part of an intestate’s estate if they are a party to:
    • a binding financial agreement; or
    • orders for distribution of property under the Family Law Act 1975 (Cth);
  • primary consideration of the deceased’s wishes by the court when determining whether to make a family provision order; and
  • narrowing eligibility for family provision claims to:
    • exclude former partners and spouses when financial matters have already been settled;
    • require adult stepchildren to demonstrate they:
      • are disabled and vulnerable;
      • were genuinely dependent on the deceased;
      • cared for or maintained the deceased; or
      • contributed to the estate, or their parent substantially contributed to the estate;
    • require grandchildren to satisfy the court that:
      • their parents died before the deceased; or
      • they were wholly or partly maintained by the deceased.

Publication updates

The following By Lawyers publications have been updated for all these legislative, rules, and practice direction changes, with the new forms added to the matter plans as required:

Succession Act – SA

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The Succession Act 2023 (SA) extensively reframes South Australian succession law.

The Act commences on 1 January 2025.

It consolidates and amends existing laws relating to:

  • wills;
  • probate and administration;
  • administration of deceased estates;
  • intestacy; and
  • family provision claims.

The Succession Act contains all legislative provisions, including new provisions, relating to those areas. The new Act repeals three existing Acts:

Revised court rules and practice directions for probate, administration, contested wills, and family provision matters will follow the commencement of the new Act.

Key provisions of the new legislation include:

  • the right of certain classes of person to inspect a will of a deceased person;
  • the power of the Supreme Court to pass over applicants for a grant of probate or administration and appoint another person it considers appropriate;
  • the removal of the need for a grant to administer smaller estates;
  • additional court powers to hold executors and administrators to account;
  • codification of the application of assets to payment of debts and liabilities in solvent estates;
  • the increase to the preferential legacy for a surviving spouse of an intestate;
  • the addition of the children of first cousins of an intestate to the distribution on intestacy;
  • no entitlement of a spouse or domestic partner of an intestate to any part of an intestate’s estate if they are a party to:
    • a binding financial agreement; or
    • orders for distribution of property under the Family Law Act 1975 (Cth);
  • primary consideration of the deceased’s wishes by the court when determining whether to make a family provision order;
  • narrowing eligibility for family provision claims to:
    • exclude former partners and spouses when financial matters have already been settled;
    • require adult stepchildren to demonstrate they:
      • are disabled and vulnerable;
      • were genuinely dependent on the deceased;
      • cared for or maintained the deceased; or
      • contributed to the estate, or their parent substantially contributed to the estate;
    • require grandchildren to satisfy the court that:
      • their parents died before the deceased; or
      • they were wholly or partly maintained by the deceased.

The By Lawyers Wills (SA), Probate (SA), Letters of Administration (SA), and Family Provision Claims (SA) publications have been updated accordingly. Further updates will follow when the new court rules are available.

Foreign resident capital gains withholding – FED

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The foreign resident capital gains withholding tax regime is changing.

With effect from 1 January 2025:

  • the withholding rate increases from 12.5% to 15%; and
  • the $750,000 threshold is removed.

The foreign resident capital gains withholding regime applies to sales of taxable Australian property, including vacant land, residential property, and commercial property.

Until 1 January 2025, the regime applied only to properties valued at $750,000 or more. From 1 January it applies to all properties.

Buyers must withhold a percentage of the purchase price and pay it to the Australian Taxation Office (ATO) instead of to the seller unless the seller is an Australian resident and provides evidence of that fact by way of a clearance certificate from the ATO. Sellers who are foreign residents can apply to the ATO for a variation notice and potentially reduce the amount required to be withheld.

Without a clearance certificate or a variation notice, all buyers must withhold the required percentage of the purchase price, even if the seller is an Australian resident.

For sales of taxable real property before 1 January 2025, the foreign resident capital gains withholding amount was 12.5%. From 1 January 2025 it is 15%.

The effect of these amendments is that ALL sellers of real property in all states and territories, whether Australian residents or foreign residents, need to apply for a clearance certificate from the ATO and provide it to the buyer before the completion of the sale. If they do not, then the buyer must pay 15% of the purchase price to the Australian Taxation Office on settlement. For those jurisdictions with electronic conveyancing, this may be able to be done via the settlement platform.

All By Lawyers publications that cover foreign resident capital gains withholding have been updated to reflect this change. This includes the Conveyancing and Property and Estates guides in each state and territory, Retirement Villages (NSW), and 1001 Conveyancing Answers (VIC), (NSW), and (QLD).

Estate applications – QLD

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A new system for lodging estate applications online in the Supreme Court has commenced.

New e-lodgment portal

The Queensland Courts and Tribunals Online Services Portal allows legal practitioners to electronically lodge estate applications such as for grants of probate, letters of administration, caveats, renunciations, reseals, and revocations of grants of probate.

The court’s Guide to e-lodgment for legal practitioners assists practitioners in navigating the new e-lodgment portal. A log-in using a digital identity is required.

Law firms using the portal need to create an organisation profile, which allows individual users to be added and managed. To add a new user to the portal as part of a firm, an Organisation Request Code has to be created and entered.

Staff of a law firm who log into the portal have to identify themselves as a legal practitioner, paralegal, legal assistant, or administrative officer.

The home page of the new e-lodgment portal offers three services:

  • Probate search;
  • Wills and Estates;
  • Document verification.

Probate search

Searches for applications or grants and to locate wills and estate records can be conducted through the portal.

Wills and Estates

The wills and estates service enables the user to prepare and submit estate applications which can be saved in draft.

When the application is ready, it can be submitted choosing which location the application should be filed in: Brisbane, Cairns, Townsville, or Rockhampton.

Supporting documents must be uploaded in pdf format, with a size limit of 20MB per document, before an application can be submitted.

Once the application is submitted, a reference number will issue.

The original will must be provided to the Registry together with a covering letter and the reference number.

The portal does not currently accept payments. An invoice will be sent out with a link to pay online.

When the registry has filed the application, a court file number will be allocated to the matter. This is a different number to the reference number.

The registry will confirm by email when the application has been lodged and filed, and the grant has been issued. A link to download the court sealed documents will also be provided.

Document verification

The document verification service is for financial institutions to verify the authenticity of court-issued documents provided to them by administrators or customers.

Publication updates

The By Lawyers Probate (QLD) and Letters of Administration (QLD) publications have been updated accordingly.

Probate fees – VIC

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Probate fees for applications in the Supreme Court of Victoria have increased with effect from 18 November 2024.

Changes under the Supreme Court (Fees) Amendment Regulations 2024 have the effect of dramatically increasing, in many cases, the fees payable to file an application for probate or letters of administration at the Probate Office.

The changes to include:

  • new estate value brackets and corresponding fees;
  • changes to the advertising and small estate fees;
  • a new fee for re-advertising an application; and
  • a new fee for filing an amended originating motion.

The new estate value brackets and corresponding application fees are:

Gross value of estate for commencement of an application for a grant of representation Filing fee
$0 – $249,999.99 NIL
$250,000 – $499,999.99 $514.40
$500,000 – $999,999.99 $1,028.80
$1,000,000 – $1,999,999.99 $2,400.50
$2,000,000 – $2,999,999.99 $4,801.00
$3,000,000 – $4,999,999.99 $7,185.20
$5,000,000 – $6,999,999.99 $12,002.60
$7,000,000 and over $16,803.60

The full list of fees is available on the Supreme Court’s Probate Office fees webpage.

The By Lawyers Estates (VIC) publication has been updated, including the Retainer Instructions and Costs Agreements precedents, on the Probate and Letters of Administration matter plans.

These amendments come hot on the heels of a change to the way applications for probate, letters of administration, and reseal are advertised. See our recent News and Updates post concerning probate advertising for more information.

Probate advertising – VIC

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There is a new procedure for Probate advertising in Victoria from 11 November 2024.

Applications for probate and letters of administration from that date will be advertised via RedCrest-Probate instead of the Probate Online Advertising System (POAS). The intention of the change is to streamline the process and remove the need for information to be entered twice. Practitioners will only need to use one system to search, advertise, and apply for grants of representation in Victoria.

The POAS ceases to operate on 7 November, and no probate advertising will be possible from that date until Monday, 11 November, when the new system commences.

RedCrest-Probate is the Supreme Court’s existing online filing system for all applications for grants and all documents in relation to grants.

The first step in any application is a Notice of Intention to Apply. This is now lodged and advertised via RedCrest-Probate.

All advertisements previously published on POAS remain valid for three years from their date of publication. POAS advertisements will be searchable on RedCrest-Probate once the new system commences.

The Supreme Court (Administration and Probate) Rules 2023 set out the information that must be included in the Notice of Intention to apply. There are different requirements under the rules depending on whether the application is for probate, letters of administration on intestacy, letters of administration with the will attached, or resealing a grant from another jurisdiction.

The By Lawyers Probate (VIC) and Letters of Administration (VIC) will be updated accordingly for the commencement of the new probate advertising procedure.

Care planning – VIC

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Two new By Lawyers advance care planning precedents provide for an advance care directive and an appointment of medical decision-maker to be signed at the direction of the principal.

The Medical Treatment Planning and Decisions Act 2016 (the Act) gives statutory recognition to advance care directives and provides a mechanism of medical treatment decision-making for people without decision-making capacity. The legislative framework has three components:

  • Advance care directive – allows for specific instruction on the treatment that a person consents to, or refuses, and a statement of their preferences and values.
  • Medical treatment decision maker – allows a medical treatment decision-maker to make decisions on behalf of a person who no longer has decision-making capacity.
  • Support person appointment – allows for the appointment of a support person to assist someone to make decisions for themselves, by collecting and interpreting information, or by assisting the person in communicating their decisions.

There is no requirement under the Act to make an advance care directive at the same time as an appointment of a medical treatment decision-maker, but if making an advance care directive before or at the same time as the appointment of a medical treatment decision maker, the appointee has to confirm they have read and understood it.

As with any instrument, the principal can execute an advance care directive or an appointment of a medical decision-maker by directing someone to sign on their behalf. Given the nature of these documents, execution by direction is not uncommon. Precedents for this purpose have been added to the matter plan, with witness certifications drafted to take into account the change in the process if the appointment is signed by someone else at the direction of the person making the appointment.

These new advance care planning precedents Advance care directive – Signing by direction and Appointment of medical treatment decision maker – Signing by direction can be found in folder D. Advance care directive, medical treatment decision maker and support person appointment on the Powers of Attorney and Advance Care Directives (VIC) matter plan.

Enduring guardian – TAS

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Changes to appointments of enduring guardian under the Guardianship and Administration Amendment Act 2023 commenced on 1 September 2024.

New sections relating to appointments of enduring guardian

The amending Act inserts the following new sections into the Guardianship and Administration Act 1995 that relate to appointments of enduring guardian:

  • Section 5 defines the meaning of promoting a person’s personal and social well-being.
  • Section 6 inserts a definition of health and medical research.
  • Section 7 updates the Act’s objects to protect and promote the rights and dignity of persons who have impaired decision-making ability by reference to matters such as the Convention on the Rights of Persons with Disabilities, principles and procedures to be observed, and requiring that persons with impaired decision-making and their families are informed of and make use of the Act’s provisions.
  • Section 8 inserts principles to be observed by a guardian, such as a person’s decision-making ability, views, wishes, and preferences, and their personal and social well-being being respected and promoted.
  • Section 9 inserts a decision-making process to which a guardian must have regard in determining whether to make a decision for the appointer, and the matters to be taken into account when making the decision.
  • Section 11 sets out criteria for determining whether a person has decision-making ability, or has impaired decision-making ability. An adult is presumed to have decision-making ability unless a person or body responsible for assessing that ability determines otherwise.
  • Section 27A inserts obligations on the guardian to keep records of dealings and transactions made by the person as guardian. It provides a former guardian may give a copy of the records to a new guardian, the former represented person, to legal representatives, or persons responsible. It provides a penalty provision for circumstances in which this obligation is not met.

Amended sections relating to appointments of enduring guardian

The amending Act amends existing sections of the Guardianship and Administration Act 1995 that relate to appointments of enduring guardian:

  • Section 3 now includes a definition of close family member that includes adults of Aboriginal or Torres Strait Islander descent related to a person by kinship rules.
  • Section 26 now provides that a guardian must:
    • act in accordance with the Act’s principles;
    • promote the personal and social well-being of the represented person;
    • have regard to the Act’s decision-making process;
    • act honestly and in good faith;
    • communicate with the person by means they are best able to understand;
    • keep the represented person informed;
    • regularly consult with any other guardian or administrators of the person;
    • act as an advocate for the represented person where possible;
    • encourage the person to develop their decision-making ability;
    • protect the represented person from violence, abuse, neglect or exploitation.
  • Subsection 26(2) requires a guardian to ascertain whether the represented person has an advance care directive and to obtain a copy if so.
  • Section 27 provides for the right of a guardian to have access to all information to which the represented person is entitled, if the information is required for performing a function as guardian.
  • Section 32 now includes a requirement that the appointor of an enduring guardian to understand the nature and effect of the enduring guardianship instrument. It also sets out the matters the appointor is to understand about the nature and effect of the instrument, updates the witnessing requirements to make them consistent with those for appointment of an enduring power of attorney, and provides for the powers conferred on appointees and the circumstances in which the powers under the instrument are enlivened.
  • Section 32B removes the requirement for the appointor to have a disability and be able to make reasoned judgements as a condition of the enduring guardian having rights to access information and replaces it with a requirement that the appointor has impaired decision-making ability. It further provides for the circumstances in which an enduring guardian has a right to obtain the appointor’s will from another person.

New prescribed form

The prescribed form for an appointment of enduring guardian has been amended.

These amendments have all been incorporated into the commentary in the By Lawyers Powers or Attorney, Enduring Guardianship and Advance Care Planning (TAS) publication, and in the Appointment of Enduring Guardian precedent on the matter plan

Publication reviews – All states

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Publication reviews are part of By Lawyers’ commitment to quality and keeping our subscribers up to date with changes in practice and procedure.

Our publication reviews target commentaries, or precedents, or both. The purpose of the reviews is to update and ensure consistency in styles, formatting, hyperlinks, naming protocols and, if necessary, the substantive content.

The results of a review can include new, amended, or deleted commentary, commentary headings, and precedents.

Sometimes the title or location of a precedent will be altered.

Occasionally there are amendments to the sequence of folders, commentary headings, precedents, and hyperlinks on the matter plan.

Any changes applied will be reflected in an amended matter plan.

Practitioners using our guides will not always realise when a publication review has been conducted. However, sometimes the resulting changes will be apparent, and amendments or enhancements might take a moment to get used to.

Lately, our in-house team, in conjunction with our authors in the various jurisdictions around Australia, have been focussed on reviewing the Full Commentaries in the following publications:

Some of these are still a work in progress, so keep an eye out for any changes.

We love to help our subscribers, and we love feedback. If you have any questions or concerns about changes arising from a publication review, do not hesitate to let us know. We are always happy to discuss any change we have made, or consider others. If you can’t find a section of commentary or a precedent, send us an email and we will point you in the right direction.

And, if you like the changes we have made, please take a moment to let us know so we can continue helping you to enjoy practice more.

Our email is: askus@bylawyers.com.au

1 July – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts, and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year and they impact many different areas of law, and therefore numerous By Lawyers publications.

The 1 July updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, the cap on damages in defamation claims, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

Quite separately, there is also new and amending legislation from both Commonwealth and state parliaments that commences on 1 July. Substantive amendments have been made to a number of By Lawyers publications to account for the commencement of such legislation. Please see the various other By Lawyers News & Updates posts dealing with those updates.

By Lawyers is always up to date!

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