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How do I challenge a Will in South Australia?

How do I challenge a Will in South Australia?

The Inheritance (Family Provision) Act allows certain people to make a claim against the estate of someone who has died.

It clearly allows a spouse, ex-spouse, domestic partner and child to contest the Will. Under certain circumstances it also allows a step child, grandchild, parent, brother or sister to make a claim.

If you lodge a claim to challenge a Will, you become an “applicant”. Basically, you are suggesting that you are left without adequate provision for your proper maintenance, education or advancement in life. The court may then exercise its discretion to vary the Will to make a provision for you.

"Often people believe that by providing an estranged son or daughter with say $1,000 in the Will, then that will prevent that child from contesting the Will by making a claim."

However, the court may refuse to make an order if an applicant’s character or conduct does not entitle them to a benefit (or for any other reason the court thinks sufficient). That said, such dis-entitling conduct is rare.

In South Australia, any potential applicant has six months from the date of a Grant of Probate, or Letters of Administration, to commence their claim through the courts.

The court may extend this time but an application for an extension of time must be made before the final distribution of the estate’s assets has occurred. It is important to note that any distribution of the estate made before the application for extension of time will not be changed.

An executor or administrator has certain protection in relation to distributions. If someone believes they have a claim to an estate, or part of it, they must provide written notice (signed by themselves or their solicitor) to the executor or administrator of that estate. On receiving that notice, the executor or administrator is then prevented from making any distributions. However, any such notice lapses after three months and if a court claim has not commenced in that time the executor or administrator may then distribute the assets of the estate without punishment.

You should speak to a solicitor if you wish to investigate making a claim or issuing a notice as there are many potential pitfalls.

I left $1,000 to my son to stop him making a further claim. Will this work?

Contrary to common misconception, a person’s claim cannot be defeated or declined simply because some token amount was provided for that person in the Will.

Often people believe that by providing an estranged son or daughter with say $1,000 in the Will, then that will prevent that child from contesting the Will by making a claim.

This is not correct.

There are no hard fast rules as to what a court may or may not do in relation to these sorts of claims.  The court places itself in the position of the deceased person and considers what he or she ought to have done in all the circumstances of the case.

The court will consider the deceased person as wise and just, rather than a fond and foolish spouse or parent.

A court will often consider the relationships involved and special circumstances of any applicants, the means of the applicant, the size of the estate and the relative importance of any competing claims.

For example, an elderly spouse versus any working-aged children.

The cost of contesting an estate is normally covered by the assets of the estate.  This often applies pressure to work towards a settlement or resolution as the cost of prosecuting and defending these sorts of matters in court can be significant and use a lot of funds out of the estate which will, in turn, leave less to be distributed to beneficiaries.

There can be many pitfalls with challenging a Will. So if you’re considering contesting a Will, you should definitely seek advice and assistance from a lawyer experienced in Wills and Estate Planning.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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