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The Succession Act now contains all legislative provisions relating to those areas, having repealed the following existing Acts: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

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

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).

Succession & Probate Lists – NSW

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The New South Wales Supreme Court has introduced combined Succession & Probate lists, for family provision claims and contested probate applications.

The new list replaces the Family Provisions Claims list previously managed by Justice Hallen, who is retiring. The court has never previously had a specialist list for contested probate matters.

Re-issued Practice Note SC EQ 07 – Succession & Probate Lists updates the procedures applicable to family provision and contested probate matters in the Court.

Key points include:

  • These types of matters will be managed and heard in the Succession & Probate List.
  • Directions and the hearing of interlocutory motions will be dealt with on Fridays, with Monday directions being phased out.
  • There will be two judges managing the list, initially Justices Meek and Lindsay.
  • There will be two judges available for the list on Fridays.
  • If possible, family provision applications whether combined with probate or not, will be dealt with by one judge and probate matters will be dealt with by the other judge.
  • Most interlocutory motions for matters in the list will require leave except urgent matters which can be listed by arrangement.
  • Subpoenas and Notices to produce for matters in the list will require leave.
  • Mediation for all matters in the list will be court annexed by default, unless the parties consent to private mediation or the Court otherwise orders.
  • Requirements for the content of the plaintiff’s affidavit in Family Provision matters updated.

The Court has indicated that the emphasis of the new list will be on strict case management and efficiency, in accordance with the overriding principal of just, quick and cheap disposal of the real issues in the proceedings under Section 56 Civil Procedure Act 2005 .

By Lawyers Family Provision Claims (NSW) and Supreme Court (NSW) – Equity Division guides have been updated accordingly, including the Retainer Instructions precedents which prompt practitioners to obtain the necessary instructions and documents required by the practice note.

Wills guide review – TAS

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen a Tasmanian Wills guide review completed.

Subscribers using this publication will find a re-ordered and extended matter plan, plus a revised and updated commentary.

The commentary revisions and enhancements arising from this Wills guide review include:

  • The Overview has been expanded and re-ordered;
  • Additional practical guidance added under the new heading ‘Taking instructions for wills’;
  • New commentary on testamentary capacity and the test set out in the leading case of Banks v Goodfellow (1870) LR 5 QB 549 at 565;
  • Enhanced commentary and links to legislative provisions regarding the formal requirements for a valid will;
  • Newly consolidated commentary under  new heading: Revocation, marriage, divorce and revival;
  • Expanded commentary on Informal wills, with links to cases;
  • Re-ordered section on the rules of succession on intestacy, with relevant links to the Intestacy Act 2010 and the Relationships Act 2003;
  • Expanded commentary on executors and trustees, including solicitors as executors;
  • New commentary section focusing on the requirements for valid execution of a will, including issues such as blind witnesses, gifts to witnesses, and solicitors as witnesses;
  • Extensive discussion of the law on challenges to the validity of a will;
  • A new section called Finalising the matter which emphasises the importance of terminating the retainer.

A new To Do List precedent has also been added to the matter plan, under Folder A. Getting the matter underway. The new precedent provides a checklist of all usual and necessary steps in the preparation of a will for a client. The To Do list will assist practitioners and their support teams with both workflow and risk-management.

Wills guide reviewed – SA

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the South Australian Wills guide reviewed.

Subscribers using this popular publication will find a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents. Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions also include:

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will

New and amended precedents

  • Initial letter to client enclosing costs agreement
  • Letter to client to confirming instructions
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing

Other resources in the Wills guide reviewed

Links have been added to the By Lawyers reference materials Other trusted and useful resources. This resource can be found in the Reference materials folder on the matter plan.

Wills guide reviewed – QLD

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the Queensland Wills guide reviewed.

Subscribers using this popular publication will find a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents. Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions also include:

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will

New and amended precedents

  • Letter to client to confirming instructions
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing

Other resources in the Wills guide reviewed

Links have been added to the By Lawyers reference materials Other trusted and useful resources. New cases have been added to 101 Succession Answers (QLD).

Both of these resources can be found in the Reference materials folder on the matter plan.

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.

Family provision claims – Acting for the Plaintiff (NSW)

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A full review of the By Lawyers Family provision claims – Acting for the plaintiff guide has been conducted.

The review ensures that all content is in line with current law and practice.

Improved content and new precedents

Updates and enhancements include:

  • a re-organised and streamlined commentary that better caters for current practice;
  • additional assistance to help the practitioner get the matter underway;
  • enhanced commentary on preparing for and attending at mediation;
  • an updated matter plan that includes links to important sections of the commentary; and
  • six new precedents – additional initial letters which cater for different circumstances regarding the estate.

101 Succession Answers (NSW)

Subscribers are reminded that the By Lawyers reference manual 101 Succession Answers (NSW) also has a large and helpful section on Family provision claims. This includes many links to relevant sections of the legislation, plus links to leading and recent cases on various aspects of Family provision claims.

101 Succession Answers (NSW) is found at the top of the Family provision claims – Acting for the plaintiff matter plan and also in the Reference materials folder.

Keep up to date with By Lawyers

These updates to our Family provision claims – Acting for the plaintiff guide, and the regular updates to 101 Succession Answers (NSW) with the latest cases on Family provision claims, are part of By Lawyers commitment to the continual enhancement of our publications. By Lawyers subscribers can be confident that their guides and precedents are always kept up to date so they can enjoy practice more.

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