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The Succession Act now contains all legislative provisions relating to those areas, having repealed the following existing Acts: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

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.

Transfer duty – NSW

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A recent case dealing with transfer duty on real property in deceased estates has been added to the By Lawyers wills and estates publications in New South Wales.

A reassessment of duty almost 5 years after the transaction is a cautionary tale for practitioners to ensure compliance with the Duties Act 1997 and relevant transfer duty rulings.

Section 63 of the Duties Act 1997 provides for concessions when dutiable property is transferred pursuant to a will or the laws of intestacy. The concessions apply when a transfer is made to a beneficiary in conformity with the trusts contained in a will, or arising on an intestacy, or as an appropriation of the deceased’s property towards satisfaction of a beneficiary’s entitlement in the estate.

When a transfer is made to a beneficiary under an agreement, whether or not in writing, to vary the trusts contained in the will or arising on intestacy, the dutiable value of the property is reduced by the value of the beneficiary’s entitlement.

However, under s 63 and NSW Revenue Ruling DUT 046, the transfer duty concessions do not apply to a contract of sale, only to a transfer.

This was confirmed in Cohen v Chief Commissioner of State Revenue [2024] NSWCATAD 136, in this case, Harry Cohen left a property to his three children, Stephen, Peter, and Wendy, in equal shares. The beneficiaries agreed that Stephen could have the property if he paid each of his siblings for their one-third share plus an extra $100,000 each. Rather than a transfer pursuant to a deed of family arrangement, the executors of the estate executed a contract to sell the property to Stephen for the total value.

The contract was submitted to Revenue NSW in 2017, noting that Stephen was beneficially entitled to a one third share of the property from his father’s estate. Duty was assessed and paid on the reduced dutiable value, reflecting Stephen’s one-third interest in the property.

In 2022, the Chief Commissioner issued a Notice of Investigation and ultimately decided that duty had been underpaid. The reassessment stated the dutiable value was the full value of the property as shown on the contract, not two-thirds as initially assessed, resulting in a further duty liability of $29,315.00 plus interest, which was ultimately waived.

The commentary in the By Lawyers Probate (NSW) and Letters of Administration (NSW) guides has been enhanced to cover this situation, and a summary of the case is being added to both 101 Succession Answers (NSW) and 1001 Conveyancing Answers (NSW).

Probate – NSW

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From 1 August 2023 most applications for an uncontested grant of representation must be applied for and filed online. The lodgment platform is available via the Probate tab on the Supreme Court website, and on the NSW Online Registry website. New users are required to register for an account.

The online process provides guidance as to the evidence required for a grant to be determined. It is intended to facilitate uncontested probate matters being processed quickly and accurately.

The new system applies also to applications for Reseal, and Letters of Administration.

Under the new process applicants are no longer required to lodge notice of an intended application at least 14 days prior to filing a summons. Instead, a notice of intended application will automatically be generated when an online application is filed.

The current paper forms will no longer be used. The new Probate system will generate the summons, affidavit of executor or administrator, inventory of property, and grant based on the information provided in the online application. These documents are then downloaded, executed, and filed via the online system. The system prompts for and allows additional affidavit evidence to be uploaded.

Rather than the previous process where applicants provided the court with a pre-paid envelope for the sealed copies to be returned when the grant is made, the new Probate system will generate these documents with a digital seal on each page. Copies of the grant will be immediately available for download once the grant issues.

Copies of testamentary documents, such as wills and codicils, are scanned and uploaded into the new Probate system. The originals of testamentary documents must still be filed with the court registry, either personally or by mail. They must be accompanied by a coversheet. See our previous News & Updates post: Wills coversheet.

The court has advised that  the registry will continue to accept paper-based applications up to and including 1 September 2023 to assist with the transition.

The By Lawyers Probate (NSW) and Letters of Administration (NSW) guides have been updated accordingly.

Death certificates – VIC

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There is a new process for issuing death certificates in Victoria from 11 July 2022. However, effectively nothing changes from the point of view of an application for Probate or Letters of Administration.

Under the new process there are now two death certificates issued by the Registry of Births, Deaths and Marriages:

  • Death certificate; and
  • Death certificate – Cause of death.

The difference is, as the names suggest, that the Death certificate does not include the cause of death, whereas the Death certificate – Cause of death does. Previously the death certificate always had the cause of death on it, unless the death was being investigated by the coroner, in which case no death certificate would issue until the coroner’s finding.

While both certificates will usually now be issued, if the death is being investigated by the coroner the Death certificate – Cause of death will be withheld until the coroner’s finding. Once the coroner has reported, a Death certificate – cause of death will be automatically sent to the applicant. The new Death certificate excludes the cause of death and burial information, is available immediately, and will generally be accepted for administration processes at banks, government entities and utility companies, allowing families to start managing a deceased estate quickly.

The Supreme Court registry has advised that the Death certificate – Cause of death must be filed with any application for probate or letters of administration. See the Court’s website for more information. From 11 July 2022, a certified copy of the Death Certificate – Cause of death must be exhibited to the affidavit in support of the application.

Superannuation and insurance companies will also likely continue to require a death certificate that includes the cause of death.

The By Lawyers Estates publication has been updated accordingly.

Removal of an executor – VIC

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New precedents for the removal of an executor have been added to the Probate and Letters of Administration matter plans.

In Victoria, an application can be made to the Supreme Court for the removal of an executor under s 34(1)(c) of the Administration and Probate Act 1958.

The court can remove the executor if, following an examination of the facts including a significant weighting to the testator’s intention to appoint the executor, the court is satisfied there is:

  • undue delay in the administration of the estate; or
  • a conflict of interest; or
  • an unworkable relationship between co-executors;

that would lead to significant mischief or harm to the beneficiaries’ interests.

In Connock v Connock (in His Capacity as Executor of the Estate of Connock) [2021] VSC 64 the plaintiff was the widow of the deceased. Both had previously been married and had children from these marriages. The plaintiff’s interest in the estate was limited to the assets of the deceased’s superannuation fund and proceeds from various bank accounts. The deceased’s will made no provision for the widow to take an interest in the residue of the estate.

The executor, the deceased’s child of the first marriage, commenced estoppel proceedings seeking a declaration that the plaintiff held the estate assets for her benefit and maintenance during her lifetime, but, on her death, for the benefit equally of the deceased’s children – one of whom was the executor.

The plaintiff claimed and the court accepted that the executor had a conflict of interest between the executor’s duties and his personal interest in the outcome of the estoppel proceeding, but that this conflict did not warrant the removal of the executor. The court held that, although the executor is in a position of conflict, in the circumstances the welfare of the beneficiaries of the estate did not warrant his removal.

The new form content precedents added to the Probate and Letters of Administration publications are:

  • Originating motion to remove and replace executor;
  • Originating motion to remove and replace trustee;
  • Originating motion to remove and replace executor and trustee.

Special grants of probate – NSW

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A recent Supreme Court case on special grants of probate has been added to 101 Succession Answers NSW. Application of Penhall and Dutton; Estate of the late Kylie Anne Dutton [2021] NSWSC 79 relates to an application for special administration ad colligenda bona defuncti, whereby a grant is obtained to protect the estate.

In this case the deceased’s home was unoccupied for 6 months with no insurance cover, which presented a real risk of diminishing the value of the estate. The Court granted the application to allow the property to be sold and the proceeds placed in an interest bearing account. The Court noted this was an interim measure and a full grant was still required to distribute the estate.

The By Lawyers Probate and Letters and Administration commentaries and 101 Succession Answers all deal with special grants. These apply when there is no one able to seek a grant and there are special needs for the estate. The special grants include:

  • Administration de bonis non administrates cum testamento annexo – administrator dies before completing the administration of will;
  • Administration de bonis non administrates – administrator dies before completing the administration of intestacy;
  • Administration for the purposes of the family provisions claim under s 91 of the Succession Act 2006 – also covered in the By Lawyers Family provision claims guide;
  • Administration pendente lite – s 73 Administration during litigation;
  • Administration ad litem to commence or defend proceedings;
  • Administration by a manager appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal for a person lacking mental capacity;
  • Administration during minority;
  • Application by a guardian;
  • Administration durante absentia – executor or administrator outside NSW grant to an attorney – s 72;
  • Application under s 76 if executor or administrator out of jurisdiction special administrator may be appointed;
  • Administration when the sole beneficiary/executor/administrator suffers from a disability, he can nominate another; and
  • Grant to a creditor.

The 101 Succession Answers publication can be found in the Reference materials folder at the top of the matter plans in all By Lawyers succession-related guides – Wills, Powers of Attorney, Appointments of enduring guardian and Family provision claims.

101 Succession Answers – Vic

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By Lawyers is delighted to release the latest in our 101 Reference Series – the comprehensive reference guide 101 Succession Answers – VIC. This useful resource provides more detailed information than the By Lawyers commentaries on the various areas and issues in succession law. It includes discussion, with links to legislation and cases, on:

  • powers of attorney and supportive attorney appointment;
  • medical treatment decision-making;
  • wills;
  • appointments of guardianship and administration;
  • estates – probate and administration; and
  • family provision.

101 Succession Answers VIC is now a related guide in LEAP – and included for new and existing website subscribers – to these Victorian By Lawyers publications:

  • Wills, Powers of Attorney and Advance Health Directives;
  • Estates; and
  • Family Provision Claims.

This is a must-have, easy-reference, resource providing detailed information in a quickly accessible and searchable format. Tricky questions can be answered quickly using the guide’s alphabetical headings, ‘Ctrl+F’ searchability and plain English format. Practitioners can quickly address specific technical issues as they arise in a matter.

The By Lawyers team will be keeping 101 Succession Answers VIC updated with all relevant new cases and legislation as developments in these areas of law occur.

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