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 without a Will, there are laws about how the estate will be distributed to 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.

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 dependents.

If you were a dependent 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.

Very specific time limits apply to when the application can be made. You ought to get advice as soon as possible if you wish to contest a Will and your distribution from an estate in South Australia.


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/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 application.


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 very rare circumstances, the Court will allow an extension of time within which to make an application.

It is recommended that an application is made well within the time limit.

If you are outside of the time limit, you ought to 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 as follows:

  • Spouse or de facto partner;
  • Former spouse or de facto partner;
  • Children;
  • Stepchildren;
  • Grandchildren; and
  • The parents of the deceased.

The legislation provides the circumstances under which one or the other of the above parties can 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; and
  • the way you acted towards the deceased during their life and your relationship in general.


Inheritance (Family Provision) Act


If a person leaves assets as part of their estate, it can be contested by certain people under the Inheritance (Family Provision) Act.

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; and
  • the financial need of the person making the claim.

A court is not concerned with ‘fairness’, ‘moral duty’ or ‘equity’ when it is 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 the Inheritance (Family Provision) Act.

One of the considerations a court will take into account is the ‘character and conduct’ of the applicant.

Typically, this is considered in cases where a parent has decided to deny or confine the testamentary provisions for their children as a result of that child’s poor ‘character and conduct’ towards their parent by treating their parent callously, withholding their love and support from them in their declining years and even more so when the callousness is accompanied with hostility.


Contact Us


For more information about contesting a Will in South Australia, contact us at Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.

You can also read more about our Estate Planning services here.

Related Blog – Did You Know That You Can Place a Caveat Over a Grant of Probate?

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