Inheritance Claims in South Australia

Part 6 of the Succession Act (2023) allows certain people to make a claim on an estate.

Subject to certain limitations the following classes of people can make a claim on a person’s estate:

The spouse or domestic partner of the deceased person;
A former spouse or domestic partner of the deceased person;
A child of the deceased person;
A step-child of the deceased person;
A grandchild of the deceased person;
A parent of the deceased person; and
A sibling of the deceased person.

‍Strict limitations apply and these people must bring the claim within 6 months of the date of the Grant of Probate.

‍One of the main purposes of the inheritance provisions of the Succession Act is to enable the Court to alter the distribution of the Estate, where the deceased has “failed” in their moral duty to make proper provision for those people who ought to have received.

Section 116(2) of the Succession Act sets out some of the issues and requirements that the Court considers when hearing a claim. The Act requires the Court to take the wishes of the deceased person to be the primary consideration. This is a significant change from the previous Inheritance (Family Provision) Act 1972 and was added in response to community outrage that a person could not do as they please with the assets they worked their entire life to accumulate.

The claim that a person makes is that adequate provision for their proper maintenance, education or advancement in life has not been made for them by the testator, and the testator had a moral duty to do so.

Each case is decided by the facts of that case, and outcomes can be vastly different in different factual situations. The following topics are usually the starting point of any inquiry or determination as to a person’s claim:

The size of the Estate;
The age and health of the claimant;
The means and financial position of the claimant, and any beneficiary defending the claim;
The standard of maintenance to which a deceased person may have accustomed the claimant and other beneficiaries in their lifetime;
Promises made to the claimant and other people in the making of Testamentary provisions;
Services rendered by the claimant and/or the beneficiaries to assist in building the Estate;
Any benefits by way of education, advancement or other equipping for life for which the deceased gave the claimant;
The closeness of the relationship between the deceased and the claimant;
The moral duty of the deceased to provide for other members of their family.

The Court also takes into account dis-entitling conduct and will look at the behaviour of the claimants and beneficiaries very closely.

The Court will generally take into account the whole of the circumstances regarding the relationship.

It is for the Court to evaluate all of the relevant circumstances when considering making a provision, if any for a claimant.

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