New wills laws will make it easier for stepchildren to make a claim and more difficult for grandchildren to contest

An ambiguous new law could open up a new battleground for unhappy family members to challenge a will in court.

Ambiguous new laws surrounding who can stake a claim in deceased estates could open up a new battleground for disgruntled family members to challenge wills in court, the state’s law fraternity warns.

The legislation also gives greater scope for stepchildren to make inheritance claims, and makes it more difficult for grandchildren to contest a will, while placing a greater emphasis on the wishes of the testator.

The laws are set to come into effect on January 1 next year, and while reforms seek to reduce the number of vexatious and unmeritorious claims lodged with court – The Law Society of South Australia says it may have the opposite effect.

Law Society president Alex Lazarevich said under the legislation, a parent or sibling would only be eligible to claim a slice of a deceased estate if they could demonstrate they cared for the deceased, or were cared for by the deceased, ‘immediately’ before their death, rather than at any stage during their lifetime.

“The new legislation does not give much guidance about the time frame that constitutes ‘immediately,’ nor is it clear on what would amount to a sufficient level of care or financial support,” he said.

“This could give rise to some attempts to manipulate or exaggerate the level of care and financial support provided to a deceased family member.”

Mr Lazarevich said senior wills and estate practitioners had suggested if a person had not provided care or maintenance to a person in the 12 months before a person’s death, they would likely be ineligible to make a claim.

However, he said it remained to be seen how the new laws would be interpreted and applied by the court.

New succession laws will come into effect on January 1.

Mr Lazarevich said the legislation also made it more difficult for grandchildren to contest a will, stipulating a person could only claim from their grandparent’s estate if their own parent had already died or if the grandchild was maintained by the grandparent immediately before their death.

Furthermore, he said the laws made it easier for stepchildren to make claims, which could also “result in an overall increase in claims, given the increasing prevalence of blended families”.

The society is urging people to make or review their current wills in light of the pending law changes and importantly they should also “tell their story”.

“In addition to a will, a person should write a letter of wishes, detailing their family circumstances and the reasons for the instructions they made in their will,” Mr Lazarevich said.

“If you are excluding someone from a will, put the reasons why in writing.”

A state government spokesperson said the reforms were developed after extensive consultation and research undertaken by the South Australian Law Reform Institute.

“SALRI recognised the growing presence of blended families in our community, and the inability for adult stepchildren to take action when they are cut out of a step-parent’s will when their biological parent dies before the step-parent under the current legal framework, even where this was against the wishes of the deceased biological parent,” they said.