Contesting a Will in South Australia

When a person passes away, the law leaves it up to that person to decide how their assets will be shared or distributed according to their Will. If a person passes away without a Will, there are laws governing how the estate will be distributed to the surviving relatives.

A Court will not usually interfere with what a person has put in their Will, or how property will be distributed, even if there is no Will. However, a Court can, if asked, make orders that change the share of the estate each person receives, regardless of whether a Will has been prepared or not, if the deceased did not make adequate provision for the future needs of their dependants.

If you were a dependant of someone who has passed away and you do not receive an adequate share of their estate, you may be able to make an application to the Court to contest the Will and how the estate is distributed.

Strict time limits apply for contesting a Will and your distribution from an estate in South Australia, so it is important to seek advice as soon as possible.

Grounds to Contest a Will

A Will can be contested in two main ways:

By making a Family Provision Claim; or
By challenging its validity.

Challenging Validity

A Will may be challenged on the basis that it is invalid or unfair. Someone with a legal interest in the deceased estate may allege the Will is invalid for reasons such as:

The deceased lacked testamentary capacity when making it.
The Will does not reflect the deceased’s true intentions.
The Will was not made following proper legal formalities.
The Will was made under undue influence or pressure.
The signature on the Will was forged.
The deceased had no knowledge of the contents of the Will.
The document is not the deceased’s last Will and testament, or it has been legally revoked.

If the Court finds the Will invalid, an earlier valid Will may apply, or the estate may be distributed under intestacy laws.

How to Contest a Will in South Australia

You may contest a Will in South Australia and make an application for a greater share of an estate if:

You did not receive as much as other beneficiaries;
You believe you should have received a greater share of an inheritance; or
You are unhappy that other family members were included in the Will or distribution.

The law recognises that the role of a Will or inheritance is to assist the deceased’s surviving family members and relatives. The Court can make adjustments if the applicant can demonstrate that the Will or distribution does not make ‘adequate provision for the proper maintenance, support, education or advancement in life’ of the applicant.

How Long Do You Have to Contest a Will?

You must make an application to contest the Will in South Australia within six months of the grant of probate or letters of administration. In rare circumstances, the Court will allow an extension of time to make an application.

It is recommended that an application be made well within the time limit. If you are outside the time limit, you should obtain urgent legal advice.

Who Can Contest a Will in South Australia?

South Australian legislation sets out the persons who are entitled to contest a Will and make an application for a larger distribution. These include:

Spouse or de facto partner;
Former spouse or de facto partner;
Children;
Stepchildren (in certain circumstances, such as being dependent, vulnerable due to disability, providing care, or having contributed to the estate);
Grandchildren (if dependent on the deceased, or if their parent has died before the deceased);
Parents of the deceased; and
Siblings (if they provided or received care from the deceased).

The Succession Act 2023 (SA) provides detailed guidance on the circumstances under which the above parties may contest a Will and make an application for greater distribution.

What Factors Will the Court Consider?

The applicant will have to prove:

Their relationship to the deceased;
Why they are entitled to a share or a larger share of the property; and
Why the Will (or distribution if there is no Will) does not properly provide for their future needs.

It is for the Court to decide whether or not it will interfere. There are no automatic assumptions that all children should receive an equal share or how property should be divided under a Will.

The Court will take several things into account, including:

How any change to the share of the estate could affect other beneficiaries.
The sort of property involved and its value.
The ages of the surviving dependants.
The relationship to the deceased of other dependants.
The needs of other dependants and your needs.
The wishes of the deceased.
The reasons given by the deceased for the dispositions in the Will.
The way you acted towards the deceased during their life and your relationship in general.
Whether you made a contribution to the deceased’s estate or care during their lifetime.

Inheritance (Family Provision) Act

If a person leaves assets as part of their estate, it can be contested by certain people under Part 6 of the Succession Act 2023 (SA). This is known as a Family Provision Claim.

Typically, those people are spouses, a de facto, children, stepchildren, and people who may be dependent on the deceased. The success of a claim may depend on:

The strength of the relationship;
The size of the estate;
The wishes of the deceased;
The financial need of the person making the claim; and
The character and conduct of the applicant.

A Court is not concerned with ‘fairness’, ‘moral duty’ or ‘equity’ when asked to consider the terms of the disposition of a deceased’s estate. Rather, it considers whether ‘adequate’ and ‘proper’ provision has been made for persons entitled to claim under Part 6 of the Succession Act 2023.

Contact Us

For more information about contesting a Will in South Australia, contact us at Bambrick Legal today. We offer a free, no-obligation 30-min consultation for all enquiries.