Wills and Estates

As of 1 January 2025, major changes to the law governing wills and estates have come into effect. These changes include:

• Greater weight will be given to the wishes of the person who made the Will (known as the testator).
• The eligibility criteria for step-children to make claims against an estate has been expanded.
• More people will be entitled to inspect a person’s Will.
• Some claimants will need to prove that they cared for the deceased immediately before their death.

Please click here to find out what you need to know about SA’s wills and estates laws.

Preparing a Last Will and Testament

A will is a legal document which outlines what you want to done with your estate after your death. A will can be made by a person over the age of 18 years who has the mental capacity to understand what they are doing.

The Wills section of the Legal Services Commission of South Australia's Law Handbook contains important information about making a Will.

Locating the Missing Will of a Deceased Person

When someone close to you dies and you are unable to locate the will, a lawyer may be able to help you. When seeking a missing or lost will, the Lawyer will make the necessary enquiries of you to ensure that you are someone who is entitled to track it down i.e., a parent, child or spouse. To connect to a lawyer who can help you, visit See a Lawyer Referral Service.

To have the peace of mind that your own will can be located when it is required, make sure you ask your lawyer to register it on the Law Society’s Wills Register. Law Firms in South Australia have access to the Law Society’s Wills Register identifying the law firm who either holds the will or created the will and may have useful information to assist you further. The Wills Register is not an exhaustive list of all wills created; however, it currently contains over 70,000 wills and is continuing to grow over time. To enquire if the will you are seeking is on the Wills Register, please contact the Ethics and Practice unit via email, with the name of the testator and any other relevant details.

If the will you are seeking is not on the register, you or your lawyer can also place a notice in the Law Society’s weekly e-newsletter (InBrief) notifying lawyers across the state that you are searching for this will, which can often lead to positive results. If your lawyer is part of a Member Firm, they can include notice in one issue of InBrief, free of charge. For lawyers from non-Member Firms, as well as members of the general public, the cost is $149.00 per inclusion, per issue.

The key requirements for the notice are:

• Full name of testator;
• Last known address;
• Date of death;
• Date of birth;
• Name of legal practitioner/law practice who prepared the original will (if known);
• Contact details of the individual seeking the will - email, telephone and address (used only for invoice purposes) preferred; and
• Evidence of death (such as a funeral notice or death certificate).

Please contact Krystal Hender via email with the above requirements to place a Missing Will notice in InBrief.

For further information on what to do when someone dies, visit the South Australian Government Births, Deaths and Marriages website.

If you are a lawyer looking for more information about the Wills Register, click here.

Power of Attorney

A Power of Attorney can be just as important as your Will. Your Power of Attorney operates while you are alive but ceases on your death, when your Will takes over. A Power of Attorney is a document signed by you giving another person authority to act as your agent when you need someone to look after your affairs.

There are basically two types of Powers of Attorney:

1. General Power of Attorney
   This allows someone (the donee) to handle your affairs for you when you are still mentally and physically capable, but for some reason do not desire to do so. For instances, if you go overseas. A general Power of Attorney will cease if you become mentally incapacitated.
2. Enduring Power of Attorney
   This document enables someone (the donee) to act on your behalf, regardless of whether or not you become mentally incapacitated after the Power of Attorney is granted.

As a safeguard you can build restrictions into your Power of Attorney. For instances you might place a restriction in it that your attorney may not sell or dispose of your real estate. You might also place a restriction requiring that a medical certificate be obtained, certifying your incapacity, before an Enduring Power of Attorney can be used. The responsibility you give to someone to handle your affairs is a significant one and you should only give your Power of Attorney to somebody you trust.

Although a Power of Attorney does not grant the donee power to act against your wishes there is a danger of the power being used against your interest.

It is important that you completely understand the meaning and implications of a Power of Attorney before you sign it. If you are unsure about the person you wish to appoint as your attorney or you do not think they would be capable of handling all of your affairs, you may wish to appoint more than one attorney and stipulate that they act jointly, that is they both must sign any documents.

A person appointed under an Enduring Power of Attorney has particular responsibilities. They must act at all times with reasonable diligence and keep accurate records of all transactions. If you become mentally incapacitated, you cannot revoke the Power of Attorney and the person appointed can only renounce the Power with the permission of the Supreme Court.

What happens in the case where there is no Power of Attorney?

If you don’t have an Enduring Power of Attorney and become mentally incapable of handling your own affairs there are two options:

1. The South Australian Civil and Administrative Tribunal can appoint an administrator. The administrator may be a suitable relative or friend or Public Trustee. If Public Trustee is appointed a commission is charged to act as your administrator.
2. The Supreme Court can appoint a Manager of your affairs pursuant to the Aged and Infirm Persons Property Act. The Court can appoint a suitable relative or friend or Public Trustee.

Making a Power of Attorney while you are of sound mind will avoid the expense and complications of the above procedures. A solicitor can advise you in relation to the granting of a Power of Attorney, help you to draft the appropriate documentation and make sure that it represents your interests.

There are also Advance Care Directive Forms which relate to medical welfare and lifestyle matters as distinct from financial matters.

Advance Care Directives

Advance Care Directive are legal forms which allow people over the age of 18 years with decision-making capacity to write down their preferences and instructions for future health care, end of life, living arrangements and personal matters. Advance Care Directives can also be used to appoint one or more Substitute Decision-Makers to make decisions on their behalf when they are unable to do so.

Once completed, your Advance Care Directive can only be used if you are unable to make your own decisions, either permanently or temporarily.

An Advance Care Directive cannot be used to make financial decisions, nor is it a will. For financial matters, consider appointing a Power of Attorney.

For more specific information about Advance Care Directives, please visit SA Health | Advance Care Directives.

Are you looking for a lawyer who practices in Succession Law?

The Law Society's See a Lawyer Referral Service can provide details of lawyers to assist with matters such as:

• drafting or contesting wills
• finding lost or missing wills
• powers of attorney
• advance care directives