Contesting a Will in South Australia
Family Provision Orders (Contesting a Will) In South Australia, the Succession Act 2023 allows certain individuals to challenge a Will on the basis that the Will is invalid or unfair. You cannot prevent someone from contesting your Will after you have died, but having your Will professionally drafted by a lawyer will reduce the likelihood of a successful claim. The Court may make a Family Provision Order if it is satisfied that the deceased’s Will (or the intestate distribution) does not make adequate provision for the proper maintenance, education, or advancement in life of an eligible person. Who Can Claim? The following people may apply to the Supreme Court for a family provision order; however, some categories of claimants may need to meet certain criteria to be eligible: A child of the deceased The spouse or domestic partner of the deceased The former spouse or domestic partner of the deceased A stepchild of the deceased A grandchild of the deceased A parent of the deceased A sibling of the deceased You should seek legal advice as to your eligibility and the likely success of your claim. Factors considered by the Court When considering an application for family provision order, the wishes of the deceased person is the Court’s primary consideration, however, the Court must also consider: The deceased’s intentions and reasons for the provisions made in their Will. The contributions of the applicant to the deceased’s estate. The applicant’s vulnerability and dependence on the deceased. The applicant’s character and conduct. Other relevant matters. When determining adequate provision, the Court will have regard to the circumstances of each case, including matters such as the age, health and financial circumstances of the applicant, the relationship between the applicant and the deceased, and the estate size. Time Limits An application for a family provision order must generally be made within 6 months from the date of the Probate or Letters of Administration is granted. You should seek legal advice as soon as possible and before applying to the Court. Can I See a Copy of the Will? The Succession Act 2023 SA (Section 48) provides an entitlement for certain people to inspect or obtain a copy of the Will (at their own expense): A person named or referred to in the Will (whether as a beneficiary or not). A person named or referred to in an earlier Will as a beneficiary of the deceased. The surviving spouse, domestic partner, child or stepchild of the deceased. A former spouse or domestic partner of the deceased. A parent or guardian of the deceased. A person who would be entitled to a share of the estate of the deceased if the person had died intestate. A person managing the affairs of the deceased estate under the Guardianship and Administration Act 1993 immediately before the death of the deceased. If you believe you are entitled to a copy of the will but have been denied access, legal advice may assist in resolving the matter.
Read more
