South Australia rewrote its succession law on 1 January 2025. The Succession Act 2023 replaced the Inheritance (Family Provision) Act 1972 along with the state’s separate wills and administration legislation, and it changed who can contest a will, what the court must weigh, and how much your own stated reasons count.
That last change is the significant one. The court is now directed to treat the wishes of the deceased as the primary consideration when deciding whether to make a family provision order. For anyone doing estate planning in South Australia, explaining your reasoning properly has gone from good practice to the single most useful protective step available.
Most of the material online about contesting a will in South Australia still describes the old Act, or describes New South Wales law, which is materially different. This guide sets out the current position, what actually reduces the risk of a claim, and what does not work despite being widely believed to.
What a family provision claim is
A family provision claim is not an argument that a will is invalid. Challenges to validity, on grounds such as lack of capacity or undue influence, are a separate matter.
A family provision claim accepts the will is valid and asks the Supreme Court of South Australia to change how the estate is distributed, on the basis that the applicant was left without adequate provision for their proper maintenance, education or advancement in life. The claim is brought under Part 6 of the Succession Act 2023.
Two things follow from that. Being unhappy with a will is not a claim. And being eligible to bring a claim is not the same as being entitled to an order, which is a distinction the Act makes explicitly.
Who can bring a claim in South Australia now
The Act sets out categories of eligible person, and for several of them added hurdles that did not exist under the old law. Broadly:
| Category | Position under the Succession Act 2023 |
|---|---|
| Spouse | Eligible |
| Domestic partner | Eligible, where the relationship is registered or declared under the relevant legislation at the date of death |
| Former spouse or former domestic partner | Eligible, subject to criteria |
| Child | Eligible |
| Stepchild | Eligibility broadened, now including a child of a former spouse or domestic partner who meets one of several criteria |
| Grandchild | Narrowed. Generally only where their parent, being the deceased’s child, died before the deceased, or where the grandchild was or was entitled to be maintained by the deceased immediately before death |
| Parent | Narrowed. Broadly requires that they cared for or maintained the deceased immediately before death or before the deceased entered residential care, or were themselves maintained by the deceased immediately before death |
| Sibling | Narrowed. Broadly requires that they cared for or maintained the deceased immediately before death or before the deceased entered residential care |
The direction of travel is clear. Adult children and spouses remain squarely eligible. Stepchildren, including those of former partners in defined circumstances, gained ground. Grandchildren, parents and siblings lost it, and now need a genuine care or maintenance connection at the relevant time rather than a family relationship alone.
The precise criteria in each category are detailed and fact specific, and this is a summary rather than the legislation. Anyone assessing their own position, on either side, needs a solicitor rather than a website.
The six month clock runs from the grant, not the death
This catches people, including people who have dealt with an estate interstate.
An application for a family provision order in South Australia must generally be made within six months of the date the grant of probate or administration is made. Not six months from the date of death. That is a different trigger to some other jurisdictions, and a rule carried over from another state can cause a claim to be lost.
The court can extend the time in some circumstances, but not once the estate has been finally distributed. For executors, that produces a practical rule that is worth taking seriously: distributing early can expose you personally, and distributing after the period has run, having made proper enquiries, is considerably safer. Our guide on what the executor role actually involves covers the broader duties.
What the court weighs, and the change that matters most
The threshold question is whether the applicant has been left without adequate provision for their proper maintenance, education or advancement in life. That language is old and deliberately flexible. It is not a share of the estate, and it is not fairness between children. It is about the applicant’s need, judged against the size of the estate and the competing claims on it.
What changed in 2025 is the weight given to your own intentions. The Act now requires the court to treat the wishes of the deceased as the primary consideration in deciding whether to make an order.
That does not make a will unchallengeable. A parent cannot leave an adult child in genuine hardship with nothing and expect a stated preference to settle it. But it substantially raises the value of explaining yourself clearly, contemporaneously and credibly, and it is a meaningful difference from the position in other states.
Factors typically relevant include the applicant’s financial position and needs, their relationship with the deceased, any contribution they made to the deceased’s estate or welfare, what the deceased provided during their lifetime, the size of the estate, and the position of other beneficiaries. Conduct can matter, in both directions.
Security for costs
The Act allows the court to order a party in a family provision proceeding to provide security for costs, including where a claim is considered to lack merit or where a party is unwilling to negotiate a settlement.
This is a deterrent to speculative claims and a nudge towards mediation, which is where most of these matters resolve. It also means the old assumption that costs will simply come out of the estate regardless of outcome is less safe than it used to be.
Eight things that genuinely reduce the risk
1. A current, properly drafted will
Most disputes begin with a will that was accurate a decade ago. Remarriage, separation, a new child, a business sale, a property purchase and the death of a beneficiary all change the picture. A will should be reviewed whenever the family or the balance sheet changes materially.
2. A statement of reasons, prepared with your solicitor
Given that the court must treat your wishes as the primary consideration, a clear explanation of why you have structured the estate as you have is now the most valuable single document you can leave alongside the will.
Done well, it records what you provided to each person during your lifetime, what you understood their circumstances to be, and why the distribution is what it is. Done badly, it becomes evidence against the estate, because an angry or inaccurate document can support a claim rather than defeat it. This is a document to prepare with your solicitor, not to draft at the kitchen table.
3. Superannuation, which is usually not estate property
Superannuation does not automatically form part of your estate. Where a valid binding nomination directs it to an eligible dependant, it is generally paid directly to that person and does not pass through the estate a family provision claim is made against.
For many households super is the second largest asset, so this matters considerably. Our guides on why super and your will do not automatically work together and binding, non-binding and reversionary nominations explain how to get the nominations right, and why an expired nomination undoes the whole plan.
4. How property is held
Property held as joint tenants passes automatically to the surviving owner and never becomes estate property. Because South Australia has no notional estate provisions of the kind New South Wales has, that outcome is considerably more final here than it would be across the border.
That cuts both ways, and it needs to be a deliberate choice rather than an accident of the paperwork at settlement. Our guide on joint tenants versus tenants in common deals with the choice in detail.
5. Provision made during your lifetime
Help given while you are alive, properly documented as to whether it is a gift or a loan and whether it is to be accounted for, does two things. It reduces the estate, and it evidences what you provided to that person. Undocumented help does neither and frequently becomes a point of dispute. Our guide on helping your children financially without risking your retirement covers how to structure it.
6. Structure, where it is appropriate
Testamentary trusts, family trusts and company structures each hold assets differently and each affects what sits in an estate. They are used for tax, protection and control reasons well beyond family provision, and they are not a device for defeating legitimate claims. Our guides on testamentary and family trusts and how each wealth structure protects your wealth set out what each does.
7. Telling people while you are alive
Uncomfortable, and consistently the most effective thing on this list. A large share of these disputes are driven by surprise rather than by need. An adult child who has known for a decade that the farm goes to the sibling who worked it, and why, is far less likely to litigate than one who finds out at the reading.
8. Choosing the right executor
An executor who is also the main beneficiary, in a family with existing tension, is a common ingredient in these disputes. Sometimes an independent executor, or a professional one, is worth the cost simply for the neutrality.
What does not work
- No contest clauses. A clause purporting to disinherit anyone who challenges the will cannot oust the court’s family provision jurisdiction. It may occasionally have some deterrent value, but it does not prevent a claim.
- Leaving a nominal amount. Leaving someone one dollar to show you thought about them does not defeat a claim. Eligibility does not depend on receiving nothing.
- Saying nothing. Silence about a deliberate decision is now a genuine weakness, because the court is directed to consider your wishes and you have not told it what they were.
- Moving assets at the last minute. Transfers made when death is foreseeable attract scrutiny, can have significant tax and duty consequences, and can create problems well beyond the estate.
- A do it yourself will kit. The savings are trivial against the cost of a contested estate, and homemade wills generate disputes about validity as well as adequacy.
If you are the one considering a claim
People arrive at this article from both directions, so briefly.
Check your eligibility category first, because the 2025 changes may mean you are eligible when you assumed you were not, or the reverse. Note the six month deadline from the grant, and get advice early, since the timeframe is short and extensions are limited and unavailable after final distribution. Understand that eligibility is not entitlement, and that the court is now directed to give primary consideration to the deceased’s wishes. And be aware of the security for costs provisions, because the assumption that the estate carries the costs regardless is no longer reliable.
Most of these claims settle, often at mediation, and the cost of a fully contested proceeding can consume a meaningful share of a modest estate. That is worth weighing early rather than late.
Where Professional Advice Adds Value
We are financial planners, not solicitors. Drafting wills and statements of reasons, advising on eligibility, and conducting or defending a claim are legal work, and they belong with a South Australian estate lawyer.
What we contribute at Money Path is the financial groundwork that makes the legal work effective. Establishing what is actually in the estate and what sits outside it, across property, superannuation, insurance, trusts and company interests, which is frequently the first time anyone has seen the whole picture. Modelling what each beneficiary would actually receive under the current arrangements, and what a surviving spouse would need to live on, because “adequate provision” is a question about numbers before it is a question about law. Making sure superannuation nominations are valid and current, since an expired nomination is one of the most common failures we see. And documenting lifetime support as it happens rather than reconstructing it years later.
We also raise the conversation that most people would rather avoid, which is telling the family. It prevents more disputes than any structure does.
If you are in the middle of this already, our guides on estate planning and financial planning for an inheritance deal with the stages either side of it.
Frequently asked questions
Who can contest a will in South Australia?
Under the Succession Act 2023, eligible categories include spouses, domestic partners, former spouses and domestic partners, children, stepchildren, grandchildren, parents and siblings. Since 1 January 2025, grandchildren, parents and siblings must satisfy additional criteria relating to care, maintenance or dependency, and eligibility for stepchildren has been broadened. Being eligible to claim is not the same as being entitled to an order.
How long do I have to contest a will in South Australia?
Generally six months from the date the grant of probate or administration is made, not from the date of death. The court can extend that time in some circumstances, but not once the estate has been finally distributed. The deadline is different to some other states, so do not rely on advice from interstate.
Did the law change in South Australia?
Yes. The Succession Act 2023 commenced on 1 January 2025 and replaced the Inheritance (Family Provision) Act 1972 along with the separate wills and administration legislation. It changed the eligibility criteria for several categories of claimant, requires the court to treat the deceased’s wishes as the primary consideration, and allows orders for security for costs.
Does a no contest clause in a will work?
Not for this purpose. A clause purporting to disinherit anyone who challenges the will cannot remove the court’s jurisdiction to make a family provision order. Leaving a nominal amount does not prevent a claim either.
Can superannuation be clawed back into an estate for a claim?
Superannuation paid directly to an eligible dependant under a valid binding nomination generally does not form part of the estate, so it is not usually available to satisfy a family provision order. This is why nominations need to be valid and current, and why they should be considered as part of the estate plan rather than separately.
Can property held as joint tenants be contested?
Generally not in South Australia. Property held as joint tenants passes automatically to the surviving owner and never becomes estate property. New South Wales has notional estate provisions that can allow a court to reach such property, but South Australia does not, so the outcome here is more final.
What is the best way to reduce the risk of a claim?
A current, properly drafted will, a considered statement of reasons prepared with your solicitor, valid and current superannuation nominations, deliberate decisions about how property is held, documented lifetime provision, and telling the family what you have decided and why. The last of those prevents more disputes than any structure.
Taking the next step
If your will predates 1 January 2025, or predates a significant change in your family or your finances, it is worth a review. The eligibility rules moved, and the weight the court gives to your stated reasons moved further. Both changes reward people who explain themselves properly, and neither helps anyone who has left the question open.
General advice warning: This article contains general information only. It does not take into account your objectives, financial situation or needs, and it is not legal advice. It describes the position in South Australia under the Succession Act 2023, which commenced on 1 January 2025. Succession law differs materially between Australian states and territories, and the eligibility criteria summarised here are simplified and fact specific. The drafting of a will or statement of reasons, advice on eligibility to make a claim, and the conduct or defence of a family provision claim are all legal matters requiring a solicitor practising in the relevant state. Seek personal advice from a licensed financial adviser before acting on any financial aspect of this information.
