SA’s New Will Laws: Why Being ‘Fair’ in Your Will Isn’t Enough Anymore

How South Australia’s new succession laws change everything you thought you knew about will disputes.
Margaret spent months carefully crafting her will. She considered everyone’s needs, documented her decisions clearly, and felt confident that she’d prevented any family disputes. Her reasoning was simple: if she wrote her intentions clearly in black and white, surely that would be the end of it.

What Margaret didn’t know was that South Australia’s new succession laws, which came into effect on 1 January 2025, have fundamentally changed how courts interpret wills. Under the new Succession Act 2023, the courts must now consider your actual wishes and intentions, not just your documented instructions.

The Game-Changing Shift

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. The new Succession Act 2023 has introduced something unprecedented: courts must now consider “the wishes of the deceased person” as a primary factor when someone contests a will.

This might sound straightforward, but it creates a fascinating complexity. The law doesn’t specify whether it means your wishes when you wrote the will, or your wishes at the time of death. This difference could completely change the outcome of family disputes.

Why This Matters for Every Family

Consider this scenario: Five years ago, David wrote his daughter Susan out of his will after a bitter falling out. 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.

The Documentation You Now Need

This change means that if you’re doing anything in your will that someone might contest, you need more than just the will itself. You need evidence of your reasoning and, crucially, evidence of any changes in your intensions over time.

Here’s what we’re now encouraging clients to gather:

1. Supporting Evidence: If you’re leaving someone out or treating children differently, document why. Keep letters, emails, or statements that explain your decisions.
2. Witness Statements: If family members have witnessed behaviour that influenced your decisions, consider having them provide statements for your file.
3. Regular Updates: If your feelings about family members change, document those changes. A birthday card from a previously estranged child could become crucial evidence of reconciliation.
4. Professional File Notes: Your lawyer should be keeping detailed notes about your instructions and reasoning, not just preparing the legal documents, which is something we are now doing.

What Courts Will Consider

The new legislation doesn’t give us a definitive list of what evidence courts will accept, because it hasn’t been tested yet. Every lawyer practicing in this area is working with educated guesses about how judges will interpret these new requirements.

However, we know courts will likely consider:

1. Written communications between you and family members
2. Witness accounts of family relationships
3. Changes in circumstances over time
4. Evidence of reconciliation or ongoing conflict
5. Your expressed intentions outside of the formal will

The Responsibility Shifts to You

Previously, you could write a will and reasonably expect it would be followed. Now, if your family circumstances change significantly, you have a responsibility to either update your will or document why you’re choosing not to change it. If David had written a letter saying, “Susan and I have reconciled, but I’m keeping my will as is because she’s already financially secure,” that would give the court clear guidance about his actual wishes.

Practical Steps for Protection

1. Document Changes: If you reconcile with an estranged family member, either update your will or document why you’re not changing it.
2. Explain Unusual Decisions: If you’re treating children differently or leaving someone out, write a clear explanation of your reasoning.
3. Keep Evidence: Maintain copies of any communications that support your decisions.
4. Regular Reviews: Don’t let your will become outdated, especially after major family events.
5. Professional Guidance: Work with lawyers who understand these new requirements and can help you build a proper evidence file.

This Affects Everyone

You might think this only matters for families with obvious conflicts, but the new laws apply to all will disputes. Even traditional families need to consider how these changes might affect their estate planning. 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.

The Unknown Territory

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.

What we do know is that the old approach of “write it and forget it” is no longer sufficient. Estate planning now requires ongoing attention to ensure your documented wishes align with your actual intentions.

Moving Forward with Confidence

The new laws aren’t designed to make estate planning more difficult. They’re intended to ensure that courts can better understand what you actually wanted, rather than being limited to the formal language of legal documents. This means more work upfront, but potentially fewer family disputes and more accurate implementation of your true wishes.

If you haven’t reviewed your will recently, or if your family circumstances have changed significantly, now is an excellent time to ensure your estate planning reflects both your current wishes and the new legal requirements.

Concerned about how the new succession laws affect your will? Contact us to discuss how these changes impact your specific situation and what steps you should take to protect your family’s interests.