‘Frivolous and speculative claims’ cut out of will claims under SA inheritance laws

The wishes of the deceased would have more weight in court under new laws the SA government says will cut down on inheritance battles.

Some relatives including ex-partners, siblings and stepchildren would be excluded from court claims over a family member’s will, under a state government proposal to reduce battles over inheritance.

The changes, to be debated soon in parliament, would also force courts to give more weight to the wishes of the deceased when relatives challenge a will.

Attorney-General Vickie Chapman said the shake-up was designed to stop “frivolous” claims resulting from family feuds that bog down the court system.

The Law Society is opposed to the changes, arguing they will strip the rights of some relatives who may have a valid claim.

Labor is considering the proposal, which it says will “affect every single member of our community”.

Currently some relatives who are unhappy with a will can take the matter to court, including former spouses and domestic partners, parents, brothers, sisters, grandchildren, as well as adults and minors who were stepchildren.

Attorney-General Vickie Chapman. Picture: Mark Brake

But the Succession Bill 2021 would severely limit these claims and make courts “prioritise” the wishes of the deceased.

Ms Chapman, ppictured, asked the University of Adelaide’s Law Reform Institute to review the current system, which led to recommendations to improve the system.

“This is a significant piece of work that puts the wishes of the will maker first and reflects the changing compositions of South Australian families,” Ms Chapman, who had a long career in family law, said.

“It will reshape the way succession law works in South Australia, placing more weight on the wishes of the testator, while still allowing eligible persons to make claims when they have a genuine need to do so.

“Under the new laws, we expect there to be less frivolous/speculative claims submitted.”

If they aren’t in the will, former spouses and domestic partners who have previously settled all financial matters would be excluded from making a legal claim.

Adult stepchildren would have to meet tests of whether they helped the deceased person before their death, or were vulnerable. Stepchildren who are minors would be entitled to make a claim but only if they could satisfy the court that they were wholly or partly maintained by the deceased immediately before their death.

Parents, brothers and sisters would be able to claim but only if they cared for, or contributed to the maintenance of, the deceased person immediately before their death.

Grandchildren would need to show that their parents died before the deceased. And even then, they would only be able to challenge a will if they were wholly or partly maintained by the person who died. A source involved in the inquiry said cases being considered by courts included relatives claiming money from family members they had nothing to do with for decades.

The wishes of the deceased would be given more weight under the planned changes. Picture: iStock

But Law Society Spokesman Graham Edmonds-Wilson QC said the changes would reduce the rights of entire groups of relatives that had stood for about 100 years.

He said a number of unsuccessful claims had prompted the Law Reform Institute to make the recommendations but they had gone too far.

“The greatest effect would be cutting out claims largely from grandchildren, largely from parents, stepchildren, brothers and sisters and former spouses,” Mr Edmonds-Wilson said. He said the Bill would also limit the rights of the courts to step in when the deceased had not properly provided for a needy claimant.

Opposition legal affairs spokesman Kyam Maher said the law would be carefully considered before Labor voted on the issue. “The Bill has attracted significant concerns from expert stakeholders and – with legislation that will eventually affect every single member of our community – they need to get it right,’’ he said.