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The Succession Act now contains all legislative provisions relating to those areas, having repealed the following existing Acts: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

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).

101 Succession Answers – QLD

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Two new Supreme Court cases have been added to the By Lawyers reference manual 101 Succession Answers (QLD).

In Re Chambers (dec’d) 2023 QSC 230 irregularities with signing a will did not invalidate it. The testator and the witnesses had missed signing parts of a two-page, pre-printed, will form. The court found there was no question that the testator intended the document to be a testamentary instrument. The evidence showed that he signed it, the two witnesses were both present and saw him sign it, and they each signed the will in his presence.

In Re Briggs (dec’d) [2023] QSC 226 the issue of capacity was determined without expert medical evidence. Letters written by two treating doctors shortly before the dates of the relevant will certifying the deceased did not have capacity for decision-making were enough for the court to find she had no testamentary capacity.

Interestingly, both of these cases were determined without oral evidence, under r 489 of the Uniform Civil Procedure Rules 1999 (QLD). This can occur in any case, on the application of a party, unless the court thinks it inappropriate. In Briggs the court noted:

Nothing in either r 489 or r 491 expressly defines the notion of disposal without oral hearing being “inappropriate”. The meaning of the term “inappropriate” must be taken from the context and purpose of the rule. Here, the clear purpose of r 489 is the efficient and economical disposal of the Court’s business. The primary aim though of the Court in exercise of any of its jurisdiction is to do justice. It will not be “inappropriate” to exercise the Court’s jurisdiction to determine the application without oral hearing where justice can be done without an oral hearing.

101 Succession Answers (QLD) is available in the Reference Materials folder in Folder A. Getting the matter underway on all succession related matter plans: Probate, Letters of Administration, Family Provision Claim, Wills, Powers of Attorney and Advance Health Directives.

Wills coversheets – NSW

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Wills coversheets are now mandatory at the New South Wales Supreme Court Probate registry for Wills filed online.

From 1 July 2023, when an application is filed online, and the original will is sent to the registry, it must have a coversheet.

NSW Online Registry can be used to lodge an application for either probate, or letters of administration with the will annexed. However, when filing the application online, the new rule 13.4 under the Uniform Civil Procedure Rules requires the original will to be filed at the registry or by post within seven days after the online filing with either the coversheet printed from the Online Registry or one that shows the case number.

The By Lawyers Probate (NSW) and Letters of Administration (NSW) matter plans contain precedent wills coversheets.

The commentary in those publications on filing applications has been updated accordingly.

Excluded beneficiary – NSW

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A recent Supreme Court case regarding an excluded beneficiary will be of interest to wills and estates practitioners. The court considered the effect of statements under s 100 of the Succession Act 2006 (NSW).

Nikolaos Tsiokanis died in 2019, aged 86. His will appointed two of his children as the executors of his estate. He made only $100  provision for his other daughter. The deceased made a lengthy statement in the will as to his reasons for effectively excluding his daughter.

The daughter brought a family provision claim. The estate was not a large one.

The court held that the relationship the deceased had with the executors was a stable one and they played an important role in caring for the deceased. The court said the deceased was entitled to, and did, take the plaintiff’s behaviour into account and was satisfied that it justified the reduction of the plaintiff’s share in the estate to nominal provision.

The court also held that the deceased was entitled, when considering any claim by an excluded beneficiary, to consider the nature and value of his estate and to consider, and give priority to, the competing claim of each of the executors with whom he had a close, loving, and supportive relationship.

The court noted that statements made by the deceased are admissible pursuant to s 100(2) of the Succession Act, however the court is not required to accept, unquestioningly, the truth, or accuracy, of the statements. This is particularly so if the content is denied by the applicant, or where there is other evidence that casts doubt upon their accuracy. The court needs to consider that the deceased may have made untrue, or inaccurate, statements, either deliberately, or unintentionally, or it may be that their view is misconceived.

Where evidence of a statement of a deceased is admitted under s 100(9), for the purpose of destroying, or supporting, the credibility of the deceased, s 100(10) permits evidence to be given for the purpose of showing that the deceased’s statement is inconsistent with another statement made, at any time, by the deceased.

Georgopoulos v Tsiokanis & Anor [2022] NSWSC 563 (11 May 2022) will be added to the By Lawyers 101 Succession Answers publication.

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