When a person dies and leaves behind a will, a family member may challenge or contest that will. Every state and territory of Australia has different procedures for contesting and challenging a will. This page deals with contesting a will in South Australia.
Contesting a will vs challenging a will
It is important to be aware of the difference between contesting a will and challenging a will. When a person challenges a will, they argue that the will is not legally valid and should be disregarded. This may be because the testator lacked testamentary capacity or because the will is a forgery. In contrast, when a person contests a will, they argue that the will is unfair because it fails to make adequate provision for someone to whom the deceased had an obligation.
Grounds for contesting a will
In South Australia, the laws surrounding contesting a will are set out in the Inheritance (family Provision) Act 1972. Under section 7 of that act, a person can contest a will if they are an eligible person and have been left without adequate provision for their maintenance, education and advancement in life.
In assessing whether a person has been left with adequate provision, the court will consider a number of factors including:
- their relationship with the deceased
- their financial situation
- the size of the estate
- the financial circumstances of any other claimants.
The Supreme Court has the discretion to order that provision be given to the claimant for their maintenance, education and advancement in life. However, the court may refuse to make such an order if it considers that the person’s character or conduct disentitles them or for any other reason that the court sees fit.
Who can make a family provision claim?
Under section 6 of the Inheritance (Family Provision) Act 1972, the following persons are entitled to make a claim:
- the deceased’s spouse or former spouse;
- the deceased’s partner;
- the deceased’s child;
- a child of a spouse or partner of the deceased who was wholly or partly supported by the deceased immediately before their death;
- a grandchild of the deceased;
- a parent of the deceased who contributed to the maintenance of the deceased;
- a sibling of the deceased who cared for or contributed to the maintenance of the deceased.
A person who falls within one of these classes or person and is considering making a claim should seek legal advice before doing so.
Time limits
Under section 8 of the Inheritance (Family Provision) Act 1972, a person must bring a claim for family provision within six months of the date that probate was granted. However, the court may grant an extension of time to make a claim after hearing from the affected persons. If the court has already made an order in favour of another claimant, it will not ‘disturb’ that division of the estate in order to make an order in favour of another claimant.
For these reasons, a person who believes they have a claim against an estate in South Australia should not delay in seeking legal advice about the appropriate steps to take.
Obtaining a copy of the will
A person who is considering making a family provision claim should first obtain a copy of the will.
If probate has already been granted, you will be able to obtain a copy of the will from the Probate Office of the Supreme Court for a fee.
If probate has not yet been granted, you can request a copy of the will from the person who has been named as the executor. However, the executor is not required to provide a copy of the will.
If you are unsure as to whether a grant of probate has made, you should check periodically with the Probate Office as to whether an application for probate has been made.
Legal costs
In South Australia, the court has a discretion as to the making of costs orders in family provision claims. The court may make any order for costs that it considers just. The court will usually order that a successful claimant’s costs be paid out of the estate.
Intestate estates
When a person dies without a will, their estate is dealt with under the laws of intestacy. In South Australia, the laws of intestacy are set out in section 3A of the Administration and Probate Act 1919. How an intestate estate is distributed depends on who the deceased is survived by.
If the deceased is survived by a spouse or partner only, the spouse or partner will inherit the entire estate.
If the deceased is survived by a spouse or partner and children, the estate will be distributed according to the rules set out in section 72G of the Administration and Probate Act 1919.
If the estate is worth less than $100,000, the spouse or partner will inherit the entire estate. If the estate is worth more than $100,000, the spouse or partner will inherit the first $100,000 worth of the estate, plus half of the balance of the estate and the deceased’s personal belongings. The deceased’s children will be entitled to the balance of the estate in equal shares.
If the deceased is survived by children only, those children inherit equal shares of the estate.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
