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The Succession Act now contains all legislative provisions relating to those areas, having repealed the following existing Acts: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

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.

Testamentary capacity checklist

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A testamentary capacity checklist has been added to the matter plans in all By Lawyers will guides. This helpful precedent distills the critical information that practitioners must elicit to properly assess capacity. It is designed to assist lawyers both when taking instructions and when the will is being executed, whether in the office or at the client’s bedside.

Whether or not a client has testamentary capacity is not calculated via a legislated formula but derived from case law. It has been described as requiring time, situation, person, and task specific focus on a testator’s ability to remember, reflect, and reason.

The cases, starting from Banks v Goodfellow (1870) LR 5 QB 549 require a testator to understand:

  • what it means to be making a will;
  • the assets they have and are leaving to others;
  • the obligation owed to those who could make a claim on the estate; and
  • whether or not they are affected by a delusion that influences the disposal of their assets.

The Court determines testamentary capacity on the facts and circumstances of each case.

In Star v Miller [2021] NSWSC 426, the court said that, when taking instructions, it is prudent for lawyers to ascertain the client’s capacity and the possibility of undue influence by asking non-leading questions to determine the facts and circumstances of each case. The By Lawyers testamentary capacity checklist includes such questions.

In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at 107, the court suggests that where an elderly client is being cared for by someone or is residing in an aged care facility, it is prudent to ask both clients and their carers whether there is any reason to be concerned about capacity. The By Lawyers testamentary capacity checklist prompts for these inquiries to be made.

The checklist was suggested by one of our subscribers. We worked with our authors to draft a document that is as short and simple as possible but protects practitioners by covering all necessary considerations. The checklist should be used in conjunction with the By Lawyers Wills retainer instructions.

Wills guide reviewed – WA

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

Subscribers using this popular publication will benefit from 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 and enhancements to commentary 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
  • 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, which can be found in the Reference materials folder on the matter plan and at the end of the full commentary.

COVID signing provisions – QLD

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From 1 July 2021, some of the COVID signing provisions applicable in Queensland during the pandemic will cease.

The Justice Legislation (COVID-19 Emergency Response– Documents and Oaths) Amendment Regulation (No.2) 2021 means that from 1 July any ‘enduring’ documents – wills, enduring powers of attorney, and advance health directives – to be signed by a signatory or substitute signatory need to be made, signed and witnessed under the ordinary law.

One remaining exception is the modified COVID signing provisions that enable nursing practitioners, in addition to doctors, to complete a certificate in an advance health directive stating that the signatory appeared to have the necessary capacity to make it.

This regulation also does not affect the modified arrangements under the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 in relation to the making, signing and witnessing of affidavits, statutory declarations, oaths, deeds, particular mortgages and general powers of attorney under the documents regulation. These measures are currently scheduled to expire on 30 September 2021.

The By Lawyers dedicated Dealing with COVID-19 legal issues commentary will be updated. This guide, accessed via a link at the top of every By Lawyers matter plan, provides practitioners with helpful information about all relevant COVID signing provisions and other important temporary COVID measures.

See the By Lawyers Wills, Powers of Attorney & Advance Health Directives and Mortgages publications for more information. See also the folder of Blank deeds, agreements, statutory declarations and execution clauses in folder A. Getting the matter underway folder on the matter plan in every By Lawyers publication.

Remote execution of wills – VIC

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Victoria has introduced a permanent procedure for remote execution of wills.

The procedure arises from the temporary COVID-19 related remote execution and witnessing laws, that are now repealed.

The remote execution of wills requires:

  1. A special witness, who can be an Australian legal practitioner or justice of the peace;
  2. All steps of the procedure to be completed on the same day and within Victoria;
  3. The testator to sign the will – or to direct someone to sign the will on their behalf, with that direction being heard by the witnesses – with all witnesses seeing the signature by audio visual link, or a combination of physical presence and audio visual link;
  4. The special witness to be the last person to witness the will;
  5. The will to be emailed to any witness attending by audio visual link, who must:
    • be reasonably satisfied that the will is the same document they witnessed the testator sign;
    • ensure that there is a statement on the will noting that the witness witnessed the will being signed by audio visual link in accordance with the procedure;
    • sign the will, with the testator clearly seeing them do so by audio visual link; and
    • in the case of the special witness, check to ensure the will complies with the remote execution procedure and also ensure there is a statement on the will noting that the will was witnessed in accordance with the procedure and that they are a special witness and note whether there is a recording of the remote execution process.

The procedure for remote execution of wills also applies to revoking or altering an existing will.

The By Lawyers Wills (Vic) guide has been updated accordingly. This includes the addition of two new jurat clause precedents to the matter plan: Remote execution procedure – Witness and Remote execution procedure – Special witness.

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.

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.

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.

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