LAW CHANGE... Mildwaters Byrth Lawyers and Conveyancers warn new succession laws consider your actual wishes and intentions, not just your documented intentions.
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SOUTH Australia’s new succession laws, which came into effect on January 1, have fundamentally changed how courts interpret wills, according to Mildwaters Byrth Lawyers & Conveyancers.
For decades, South Australia operated under the Inheritance (Family Provision) Act 1975, where the court focused primarily on whether family members had been adequately provided for.
Under the new Succession Act 2023, the courts must now consider your actual wishes and intentions, not just your documented instructions, lawyer and principal Joel Byrth says.
“Consider this scenario: five years ago, David wrote his daughter Susan out of his will after a bitter falling out,” he says.
“He documented his reasons, keeping evidence of her hurtful behaviour. But in his final years, David and Susan reconciled completely — they exchanged loving letters, celebrated birthdays together, and rebuilt their relationship.
“David had meant to update his will but never got around to it.”
Under the new laws, Susan could argue that her father’s true wishes at the time of his death were to include her, despite what his old will said.
The court would need to weigh evidence of the reconciliation against the original documented exclusion.
“This change means that if you’re doing anything in your will that someone might contest, you need more than just the will itself,” Mr Byrth said.
“You need evidence of your reasoning and, crucially, evidence of any changes in your intentions over time.
“The challenging aspect of these new laws is that we won’t fully understand their impact until courts start interpreting them.
“Every legal professional in South Australia is watching carefully to see how judges apply these new requirements in real cases.
“If you have a will that’s more than a few years old, or if there have been significant changes in your family relationships, it’s worth reviewing whether your current arrangements reflect your actual wishes and whether you have adequate documentation to support them.”
If you’re concerned about how the new succession laws could affect your will, contact the Mildwaters Byrth Lawyers & Conveyancers Kadina office on 8821 2199 or Minlaton office on 0448 725 447; for more information go online to mildwatersbyrth.com.au.
