In South Australia, the law recognises freedom of testation: each person is free to leave their estate to whomever they choose. This can sometimes be considered unfair where there is a moral duty to provide for certain family members. For example, a will may be considered unfair where a deceased leaves their estate to a particular organisation and ignores the needs of their spouse, child or a dependant.

Accordingly, the Supreme Court may, on application, make a family provision order if satisfied that a deceased's will does not adequately provide for a person's proper maintenance, education or advancement [Succession Act 2023 (SA) s 116(1)]. A family provision order may be made whether or not a deceased person died with a valid will (see If there is no will). If a deceased person had a will, a family provision order will change how their estate is distributed.

The following people may apply to the Supreme Court for family provision [s 115(1)]:

In relation to a deceased person, a domestic partner is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016 (SA) at the date of death, or someone declared to have been the domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of death [Succession Act 2023 (SA) s 3]. For more information, see What is a domestic partnership?.

The classes of people who may apply for family provision changed on 1 January 2025 when the Succession Act 2023 (SA) repealed and replaced the Inheritance (Family Provision) Act 1972 (SA). Most significantly, new eligibility criteria apply to step-children, grandchildren, parents and siblings of the deceased. This is intended to limit claims for family provision to only those family members who can demonstrate genuine need.

An application for family provision must be made within 6 months after the grant of probate or letters of administration [Succession Act 2023 (SA) s 118(1)]. The Court may extend this time limit provided the estate has not been completely administered [s 118(2)].

How the Court decides

Not everyone entitled to apply under the Succession Act will obtain a family provision order. The test applied by the Court is whether the deceased failed to provide adequately for the applicant's proper maintenance, education or advancement in life.

From 1 January 2025, the law codifies a list of factors the Court must consider when deciding whether to make a family provision order [s 116(2)]. The primary consideration of the Court is the wishes of the deceased [s 116(2)(a)]. The Court must also consider [s 116(2)]:

A challenge will not succeed on the ground that the will was unfair or unjust in its distribution when in fact the will does provide adequately for the applicant's maintenance. For example, where a person leaves their large business to a football club and their house and a significant sum of money to their spouse, their spouse may have difficulty establishing inadequate provision, even though it is perhaps unjust that a football club will receive a larger sum.

Over the years, courts have created certain guidelines as to what amounts to adequate provision for proper maintenance. The main standard is that the Court must put itself in the position of the deceased and consider the case as a wise and just, rather than a fond and foolish, family member. Important considerations include: