Family Provision Claims in South Australia: What Executors Need to Know

A family provision claim is a formal legal challenge to how an estate is distributed. It does not cancel the will — it asks the Supreme Court of South Australia to order that certain eligible people receive more than the will provided, or receive something where the will left them nothing.

The Succession Act 2023 (SA), which replaced the Inheritance (Family Provision) Act 1972 from 1 January 2025, significantly changed who can bring these claims and how courts evaluate them. Executors who do not understand the new rules risk exposing themselves to personal financial liability.

Who Can Make a Family Provision Claim Under the New Act

The Succession Act 2023 (SA) defines the categories of eligible claimants. Not every disgruntled family member qualifies. Under the current law, eligible persons include:

• A spouse or domestic partner of the deceased
• A child of the deceased (including adopted children)
• A stepchild who was dependent on the deceased
• A grandchild — but only if the grandchild's parent is deceased and the grandchild was actively being maintained by the deceased at the date of death
• A parent of the deceased, in limited circumstances

The new Act places strict limitations on several categories that had broader standing under the old legislation. Former spouses, siblings, and parents now face significantly narrower pathways to claim. Grandchildren who were not financially dependent on the deceased cannot bring a claim simply because they are family.

If someone who does not meet the eligibility criteria threatens a claim, that threat carries little legal weight — though it can still create stress for the executor and delay distribution. Getting a solicitor's assessment of whether a threatened claimant is actually eligible is often the fastest way to defuse that pressure.

The Six-Month Filing Window

Under Section 118 of the Succession Act 2023 (SA), an eligible person must file their family provision claim within six months of the date the Grant of Probate or Letters of Administration is issued by the Supreme Court. This is not six months from the date of death — it is six months from the grant.

The court does have the power to extend this deadline, but only if the estate has not been fully distributed. That exception is important: it means the six-month window is not a hard cutoff for claimants, but it is a meaningful one for executors.

Why Executors Must Not Distribute Before Six Months

This is the rule most executors fail to appreciate until it is too late: distributing the estate before the six-month family provision window closes exposes the executor to personal financial liability if a successful claim is subsequently made.

Under the Succession Act 2023, if a beneficiary has already received their inheritance and a court later orders a provision for a claimant, the executor — not the beneficiary — may be ordered to personally compensate the claimant for the loss. The estate is gone and the executor is left responsible.

The practical implication is clear: do not pay out beneficiaries until six months after the grant issues. This does not mean the estate has to sit completely idle — debts can be paid, assets can be liquidated, accounts can be closed. But final distributions to beneficiaries should wait.

If beneficiaries are pressing for payment before the window closes, the executor can explain that this is a legal requirement under the Succession Act 2023 (SA) designed to protect them from being ordered to return funds they have already spent.

What Courts Look At When Deciding a Claim

The Succession Act 2023 (SA) introduced a significant change in how courts assess family provision claims: the deceased person's expressed wishes are now the primary, paramount factor the court must consider before making an order.

This is a deliberate shift from the previous approach, where courts could more readily override a testator's intentions in the name of family obligation. Under the new Act, a will that clearly explains why a particular family member was excluded — or why they received a smaller share — carries substantially more weight than it previously did.

The court also considers:

• The nature and length of the relationship between the claimant and the deceased
• Whether the claimant was financially dependent on the deceased
• The size of the estate and the needs of all beneficiaries
• Any contributions the claimant made to the deceased's welfare

For executors administering estates where there is likely to be a challenge, these factors are worth understanding. A well-documented estate file — including any letters or statements the deceased left explaining their testamentary decisions — strengthens the will's position significantly.

The Right to Inspect the Will Before Probate

The Succession Act 2023 introduced a new statutory right for certain people to demand to inspect the will before probate is granted — including anyone named in the current or previous will, and anyone who would inherit on intestacy. If an executor receives a formal demand to inspect the will, they cannot refuse. Ignoring the request can lead to a Supreme Court injunction that delays the entire probate application. Seek legal advice promptly; there are procedural responses that satisfy the obligation while protecting the original document.

When to Get a Solicitor Involved

Most family provision threats are exactly that: threats. Many never materialise into filed claims. However, an executor should immediately engage an estate litigation solicitor if:

• An eligible person formally notifies their intention to make a claim
• A claimant requests access to the will or seeks information about estate assets
• Any beneficiary proposes an informal redistribution of the estate to satisfy a potential claimant

Informal agreements that redistribute assets outside the terms of the will can have serious tax consequences and constitute a breach of the executor's fiduciary duty. Even if all beneficiaries agree, a private redistribution is not a substitute for a formal deed of family arrangement prepared by a solicitor.

Under the Succession Act 2023, an aggrieved beneficiary has three years from the date they became aware of an executor's breach to seek compensation. Document every decision, follow the statutory payment order under Section 83, and do not distribute ahead of the six-month window. A clear paper trail is the executor's best protection.

The South Australia Estate Settlement Guide covers the full distribution sequence, including the six-month holding period, the statutory debt payment order under Section 83, and the receipt documentation an executor needs to close the estate cleanly.

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