Succession Act 2023 (SA)

South Australia Succession Act 2023 An Act to consolidate and amend the law relating to wills, probate and administration, the administration of deceased estates, intestacy and family provision, to repeal the Administration and Probate Act 1919, the Inheritance (Family Provision) Act 1972 and the Wills Act 1936, to make related amendments to various other Acts, and for other purposes.

Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Interpretation Part 2—Wills Division 1—Making, alteration, revocation and revival of wills Subdivision 1—Property that may be disposed of by will 4 All property may be disposed of by will Subdivision 2—Testamentary capacity 5 Will of minor 6 Will of minor authorised by Court 7 Will of person lacking testamentary capacity authorised by Court Subdivision 3—Execution and attestation of wills 8 Requirements as to writing and execution of will 9 Exercise of power of appointment by will 10 Will of ADF member on active service 11 Validity of will 12 Will not void by incompetency of witness 13 Gifts to attesting witness 14 Creditor attesting to be admitted as witness 15 Executor to be admitted as witness Subdivision 4—Alteration, revocation and revival of wills 16 Alteration of will 17 Revocation of will 18 Effect of marriage or registered relationship on will 19 Effect of end of marriage or registered relationship on will 20 Effect of change in testator's domicile 21 Revival of revoked will Division 2—Rectification of wills 22 Rectification of will by order of Court Division 3—Construction of wills 23 When will takes effect 24 Interests in property will disposes of 25 When a disposition is not to be rendered inoperative 26 General disposition of land includes leaseholds 27 What general disposition of property subject to power of appointment includes 28 Effect of disposition of real property without words of limitation 29 What a residuary disposition includes 30 How requirements to survive with issue are to be construed 31 Disposition to children or other issue who leave issue living at testator's death does not lapse 32 Construction of dispositions of real property to trustee or executor 33 Disposition of estates tail do not lapse 34 Effect of referring to valuation in will Division 4—Wills made outside the State 35 Interpretation 36 Application of system of law 37 General rule as to formal validity 38 Additional rules as to validity 39 Validity of statutory wills made outside State 40 Operation of international wills provisions not limited by this Division Division 5—International wills 41 Application of Convention 42 Persons authorised to act in connection with international wills 43 Witnesses to international wills 44 Application of Act to international wills Division 6—Deposit of and access to wills 45 Will may be deposited with Registrar 46 Delivery of wills by Registrar 47 Failure to retain does not affect validity of will 48 Persons entitled to inspect will of deceased person Part 3—Probate and administration Division 1—Interpretation 49 Interpretation Division 2—Granting and revoking of probate and administration Subdivision 1—Court's practice in testamentary jurisdiction 50 Practice of Court Subdivision 2—Registrar of Probates 51 Registrar of Probates 52 Registrar's powers and authorities 53 Exercise by Registrar of jurisdiction, powers or authorities of Court 54 Probate of will deposited with Registrar 55 Registrar to obtain direction of Judge in doubtful case Subdivision 3—General provisions relating to granting and revoking of probate and administration 56 Grant of probate or administration to adults only 57 Effect of probate and administration granted interstate or overseas 58 Provisions for evidence in case of foreign will 59 Appointment of joint administrators 60 Examination of witnesses 61 Order to produce document purporting to be testamentary 62 Caveats 63 When persons interested in real property affected by a will are to be served with proceedings 64 Grant of administration to duly authorised attorney 65 After grant of administration no person to have power to sue as executor 66 Rights of executor renouncing, not acting, or not appearing when cited, to cease as if not named in will 67 Grant of probate or administration to person other than the person otherwise entitled 68 Special administration 69 Revocation of grant of probate or administration not to prejudice legal action 70 Protection to persons acting in reliance on probate or administration 71 Statement of assets and liabilities to be provided with application for probate or administration 72 Obligation of person dealing with asset to ensure that it has been properly disclosed Subdivision 4—Small estates 73 Deemed grant of probate or administration to Public Trustee for small estate Part 4—Administration of deceased estates 74 Interpretation 75 Vesting of intestate estate on person's death 76 Vesting of land on person's death 77 Vesting of intestate estate on grant of administration 78 Administrator to hold intestate property on trust 79 Court's powers in relation to management of undevised land 80 Court may order partition of undevised land 81 General duties of executors and administrators 82 Power of executor or administrator to sell real property for payment of debts 83 Payment of debts and liabilities in the case of solvent estates 84 Mortgages and charges on land not be paid out of deceased's residuary or personal estate 85 Specialty and simple contract debts of deceased persons to stand in equal degree 86 Filing of declaration that estate is insufficient to pay debts and liabilities 87 Rules in insolvency administration to prevail in certain cases 88 How estate is to be administered 89 Court may order sale of property belonging to minor 90 Court may give permission to postpone realisation or carry on business 91 Administrator to pay over money and deliver property to Public Trustee 92 Statement and account to be provided to Public Trustee 93 Court may order provision of statement and account 94 Proceedings to compel provision of statements and account 95 Public Trustee, executors, administrators and trustees may obtain judicial advice or direction 96 Commission may be allowed to executors, administrators and trustees 97 Court may require undertakings from executor or administrator 98 Remedy if executor or administrator fails to perform duties etc 99 Payment of interest on legacies 100 Payment of money and personal property without grant of probate or administration Part 5—Intestacy Division 1—Interpretation 101 Interpretation Division 2—Election by spouse or domestic partner to acquire interest in dwelling 102 Election by spouse or domestic partner to acquire interest in dwelling 103 Restriction on right of spouse or domestic partner to acquire interest in dwelling 104 Restriction on right of administrator to sell interest in dwelling Division 3—Rules governing distribution of intestate estates 105 General rules as to distribution of intestate estate 106 Division of estate if intestate is survived by spouse or domestic partner, or both 107 Spouse or domestic partner not entitled to intestate estate in certain cases 108 Distribution among children and grandchildren of intestate 109 Distribution among relatives of intestate 110 Intestate estate passes to Crown if no surviving beneficiaries Division 4—Distribution of intestate estates according to Court approved agreements 111 Court may approve distribution of intestate estate in accordance with agreement Division 5—Miscellaneous 112 Value of intestate estate 113 This Part not to affect operation of Part 6 Part 6—Family provision 114 Interpretation 115 Persons entitled to claim under this Part 116 Persons entitled may obtain order for maintenance etc out of estate of deceased person 117 Power to require security for costs 118 Time within which application must be made 119 Provisions relating to family provision orders 120 Order to operate as will or codicil 121 Court may fix periodic payment or lump sum 122 Court may vary or discharge order 123 Mortgage or assignment of provision invalid 124 Liability of administrator after distribution of estate Part 7—Miscellaneous 125 Person disqualified from taking interest or share in deceased estate to be treated as having predeceased testator or intestate 126 Presumption of survivorship 127 Devolution of jointly‑owned property where order of death uncertain 128 Safe custody of wills and other documents 129 Office copies of wills or probate or administration may be obtained 130 Probate to be evidence of wills concerning real property 131 Will not to be registered or admissible as evidence until proved 132 Inspection of documents in Land Titles Registration Office or General Registry Office 133 Power of Public Trustee to move for attachment of administrator 134 Restrictions on exercise of rights of retainer and preference 135 Delegation 136 Person making false oath commits perjury 137 Applications to Court 138 Rules of court 139 Regulations and fee notices 140 Review of Act Schedule 1—Annex to Convention providing a Uniform Law on the Form of an International Will 1973 Schedule 2—Related amendments Part 1—Amendment of Aged and Infirm Persons' Property Act 1940 1 Amendment of section 11—Variation or rescission of protection order 2 Amendment of section 31—Expenses and remuneration of manager Part 2—Amendment of Guardianship and Administration Act 1993 3 Substitution of heading to Part 4 Division 3 Division 3—Administration orders (general) 4 Insertion of Part 4 Division 3A Division 3A—Administration orders (missing persons) 48A Administration orders (missing persons) Part 3—Amendment of Law of Property Act 1936 5 Amendment of section 114—Power of Court to sell interest of Crown in real estate 6 Repeal of section 115 Part 4—Amendment of Public Trustee Act 1995 7 Substitution of section 52 52 Deposit of certain wills and other documents with Public Trustee 8 Substitution of section 55 55 Regulations and fee notices Part 5—Amendment of Stamp Duties Act 1923 9 Amendment of section 71CB—Exemption from duty in respect of certain transfers between spouses etc or former spouses etc 10 Amendment of Schedule 2—Stamp duties and exemptions Part 6—Amendment of Supreme Court Act 1935 11 Substitution of section 18 18 Testamentary jurisdiction Part 7—Amendment of Trustee Act 1936 12 Amendment of section 91—Advice and directions of court and commission Schedule 3—Repeals and revocations 1 Repeal of Administration and Probate Act 1919 2 Repeal of Inheritance (Family Provision) Act 1972 3 Repeal of Wills Act 1936 4 Revocation of Administration and Probate Regulations 2009 Schedule 4—Savings and transitional provisions 1 Interpretation 2 Continuation of proceedings under repealed Acts Legislative history