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Challenging a Will in SA


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505

Anna Bratti

In South Australia, not just anyone can challenge a Will. In order to challenge a Will in South Australia, you need to have an interest in the estate of a deceased person. That is, you must have standing, or the right to challenge the validity of a deceased person’s Will.

You have a right to challenge the validity of a deceased person’s Will if you:

  • Are entitled to a share of the deceased’s estate under a previous Will or the last Will of the deceased – that is, if you are a beneficiary of the deceased’s last Will or an earlier Will of the deceased; or
  • If the deceased person did not have a Will, you would be entitled to a share of the deceased’s estate under the laws of intestacy in South Australia.

If you do not have an interest in the estate of a deceased person, then, unfortunately, you cannot challenge the validity of their Will.

WHAT ARE THE REASONS FOR CHALLENGING THE VALIDITY OF A WILL?

There are a number of reasons for challenging the validity of a Will in South Australia. These reasons include the following:

  • The deceased did not have the capacity to make his/her Will;
  • The deceased was unduly influenced into making his/her Will;
  • There is fraud involved;
  • The deceased did not know and approve the contents of his/her Will; or
  • The Will of the deceased is a forgery.

ARE THERE ANY OTHER WAYS A WILL CAN BE CONTESTED OR CHALLENGED?

A Will can also be contested or challenged for one of the following reasons:

  • Someone is making a claim for provision from the deceased’s estate (this is commonly referred to as contesting a Will);
  • There is a trust issue; or
  • There is a contract issue.

For more information about challenging a Will in South Australia or the reasons for challenging a Will in South Australia, please call one of our lawyers on 1300 168 676. Our experienced team of solicitors regularly act in matters involving challenges to the validity of Wills. We are able to assist you with challenging the validity of a deceased person's Will. Please call us for a free case assessment.

HOW TO CHALLENGE A WILL IN SA

A common question people have is how do you challenge a Will? It is important to speak to the right lawyer to get correct advice about how to challenge a Will. You have come to the right place. We regularly act for people who wish to challenge Wills.

To challenge a Will in South Australia, you need to commence Court proceedings.

Firstly you need to find out if Probate has been granted. Probate is the process of proving the deceased’s last Will. The deceased’s Will is registered with the Court and the Court grants Probate. This will enable an administrator to deal with the deceased’s assets.

You can find out if Probate has been granted by contacting the Supreme Court of SA. We can assist you with doing this.

If you are of the view that the deceased’s Will is invalid as the deceased did not have the requisite testamentary capacity to make his or her last Will, you may wish to challenge the deceased’s Will. Also if you are of the view that the deceased was unduly influenced in making his or her last Will, you may wish to challenge the deceased’s Will.

If you wish to challenge the deceased’s Will, you can take steps to prevent Probate being granted. You may wish to consider filing a Probate caveat. By filing a Probate Caveat, the Court will be prevented from granting Probate until:

  • The parties to the proceedings agree to remove the Probate caveat; or
  • The Court makes an order.

If you and the other parties in the proceedings do not agree to remove the Probate Caveat and cannot agree on the validity of the deceased’s Will, then one of the parties will need to start Court proceedings. Once Court proceedings have been commenced, a Judge will decide the outcome of the matter.

If you are the one who is claiming that the deceased’s Will is invalid, then you are usually the party to begin Court proceedings. You will need to set out for the Court your reasons why you claim that the deceased’s Will is invalid.

The other party (the defendant) will then file a Defence with the Court. This Defence will explain why they claim that the Will is valid.

Evidence is then filed with the Court in the form of affidavits. An affidavit is a written sworn statement of evidence. The Judge will consider all of the evidence and make a determination as to whether the deceased’s Will is valid.

If you have any questions regarding how to challenge a Will in South Australia, please do not hesitate to contact our team. We have experienced lawyers who can assist you and answer your questions.

WHO CAN CHALLENGE A WILL?

Challenging a Will refers to challenging the validity of a Will, rather than making a family provision claim (which is referred to as contesting a Will).

In South Australia, not just anyone can challenge a Will. You must have an “interest” in the estate of the person who has passed away in order to challenge a Will in South Australia.

If you do not have an “interest” in the deceased’s estate, then you will not be able to challenge the deceased’s Will.

So what is an “interest” in the deceased’s estate, for the purposes of challenging a Will in South Australia?

You have an “interest” in the deceased’s estate if you:-

  • Are a beneficiary in a prior Will of the deceased; or
  • Are a beneficiary in the deceased’s last Will; or
  • Would be a beneficiary under the laws of South Australia, if the deceased died without a Will (that is, if the deceased died intestate).

Intestacy is a situation where someone dies without leaving a Will. In those circumstances, the legislation sets out who is entitled to a deceased person’s estate on their death.

Therefore unless you have an “interest” as referred to above, you are not eligible to challenge a deceased person’s Will in South Australia.

If you do have an “interest” as referred to above, you may file a caveat to prevent a grant of Probate from being made.

You may wish to challenge the validity of a deceased person’s Will if:-

  • There are questions as to whether the deceased had the capacity to make their Will. In order to be successful in making this claim, normally you would need to present medical evidence to prove that the deceased did not have the requisite mental capacity when they made their Will. For example, the deceased may have been suffering from some type of mental impairment at, or around, the time that they made their Will;
  • The deceased was unduly influenced to change their Will. It is extremely difficult to prove this case. You need to show that there was more than just a suspicion that the deceased was unduly influenced to change their Will, but rather that the deceased was coerced into changing their Will;
  • You suspect that the deceased’s Will is fraudulent or has been forged. You may need to engage handwriting experts if you are claiming that the deceased’s signature has been forged on his or her Will.

If you are successful in proving that the deceased’s Will is invalid, then the Will would be revoked.

If you would like to discuss whether you are eligible to challenge a Will in South Australia, please contact one of our lawyers. We are able to have a discussion with you regarding challenging a Will and the persons who can challenge a Will in South Australia. Please do not hesitate to contact our experienced team.

GROUNDS/REASONS FOR CHALLENGING A WILL

In South Australia, a Will can be challenged on a number of grounds. The most common Challenges to Wills in SA arise in circumstances where the deceased:

  • Lacked testamentary capacity
  • Did not have testamentary intent at the time that the will was made;
  • Was subject to duress, fraudulent circumstances, undue influence or other vitiating factors;
  • Made a mistake;
  • Did not have knowledge and approval of the contents of the document;
  • Revoked the Will.

In order to be considered valid, a Will must meet certain requirements which are set out in the Wills Act 1936 (SA). These include the age of the will maker, the existence of a document, that the Will has not been revoked and that the Will is made after marriage or divorce of the testator.

In certain circumstances, the Court has the discretion to dispense with the formal validity requirements. This is assessed on the circumstances of the case and the evidence submitted to the Court to support such an application.

Challenging the Validity of a Will must be supported by strong evidence. It is important to discuss your case with a lawyer to assess the details of your case and the merits of your claim.

COSTS OF CHALLENGING A WILL

A common consideration when deciding whether to challenge the validity of a Will is who is responsible for paying the costs?

Legal costs are a significant aspect of cases involving challenges to the validity of a Will.

Challenging Will cases differ to family provision cases (which are commonly referred to as Contesting Will cases).

The Court has discretion as to who is to pay the costs of challenging a Will. What this means is that the Judge has the power to make orders as to who is to pay the costs of challenging a Will.

Usually costs follow an event. What this means is that normally the losing party in a Will challenge case has to pay their own legal costs, as well as the legal costs of the other party.

So ordinarily if a party is successful in challenging the validity of a Will, the Judge may order that the other party pay the successful party’s costs.

Legal costs in complicated matters involving challenges to the validity of a Will may be huge.

In some cases, the losing party may be able to obtain an order from the Court that his or her legal costs are to be paid from the deceased’s estate. This may happen if the Court finds that the reason for the uncertainty surrounding the Will was a result of the deceased. In that case, the Court may find that the parties were justified in commencing Court proceedings in order to seek an order from the Court regarding the proper result under the circumstances.

In certain cases, the issues with the Will may be the result of a lawyer or some other party who was involved. Under those circumstances, the Court may order that the person who was responsible for the problem is to pay the legal costs of the proceedings or at least a part of the legal costs.

If you have any questions about the costs involved in challenging a Will, please call us on (02) 9261 4555. We are able to discuss our costs structure with you. Further we can provide you with more information about the costs of challenging a Will.

CHALLENGING AN EXECUTOR OF A WILL

The executor or administrator of the estate is in charge of the assets of the deceased during the administration process. The deceased’s assets “vest” in the administrator personally. What this means is that the administrator has control of the deceased’s assets.

Usually, a beneficiary has no say during the administration of an estate. This means that a beneficiary has no rights until after the administration of an estate has been completed.

After an estate has been administered, a beneficiary can request estate accounts from the administrator. If the administrator does not provide the beneficiary with the estate accounts, a beneficiary can make an application to the Court to seek estate accounts.

Once a beneficiary has been provided with the estate accounts, a beneficiary can review them and ascertain if an estate has been administered properly. If a beneficiary disputes the way an estate has been administered, they can make an application to the Court for redress.

A beneficiary may be able to obtain redress if they have evidence of the following:

  • An administrator has been grossly negligent during the administration process
  • An administrator has acted fraudulently; or
  • An administrator has been dishonest and favoured themselves over other beneficiaries.

A beneficiary can also make an application to the Court to prevent the administrator or executor from administering the remainder of the deceased’s estate. In this case, a beneficiary may also request an order from the Court revoking the grant of Probate or Letters of Administration. However, this will occur in extreme cases only.

An executor may also make an application to the Court for commission. Normally an executor will only receive commission if a Court makes an order or if the beneficiaries are in agreement. If a beneficiary disputes the amount of commission that an executor is seeking, the beneficiary may request that the Court considers whether or not that executor is allowed to claim commission.

If you have any questions about challenging an executor or administrator of an estate, please give one of our experienced lawyers a call on 1300 168 676. We are able to help you with making an application for estate accounts. Further, we can provide advice to you regarding executors seeking commission from an estate.

HOW LONG CAN A WILL BE CHALLENGED (TIME LIMITS)

In South Australia, there is no time limit for challenging a Will. A Will can be challenged after Probate has been granted.

The validity of a Will can be challenged on a number of different grounds. These grounds for challenging the validity of a Will include the following:-

  • The person who made the Will did not have the testamentary (that is the mental) capacity to make the Will;
  • The person who made the Will was unduly influenced into making the Will;
  • The Will is a forgery;
  • The person who made the Will did not know and approve of the contents of the Will; or
  • There is fraud involved.

If you wish to challenge the validity of a Will on the basis of one of the grounds above, there is no time limit for challenging the Will.

However if you wish to challenge the validity of a person’s Will, we recommend that you do so sooner rather than later. The reason for this is that if you intend to challenge the validity of a person’s Will after Probate is granted, you have to prove why you failed to prevent Probate being granted in the first place. This is a great onus. You must show that there are grounds for revoking the grant and explain why you failed to stop the grant being made.

In this section, challenging a Will does not refer to ‘Contesting a Will’. The term ‘Contesting a Will’ is used to refer to making a family provision claim. Please note that there are time limits for ‘Contesting a Will’ or making a family provision claim.

In South Australia, the time limit for contesting a Will is within 6 months from the date that Probate or Letters of Administration is granted.

If you have any questions about the time limits for challenging the validity of a Will or contesting a Will, please call our office. We have experienced lawyers who act in matters involving challenging the validity of a Will or contesting a Will on a regular basis. Our team of skilled lawyers can answer your questions. Please do not hesitate to call us on 1300 168 676.

CHALLENGING THE VALIDITY OF A WILL

In South Australia, whether a Will is valid depends on whether or not the Will complies with certain criteria or requirements pursuant to the Wills Act 1936 (SA).

According to section 8 of the Wills Act, a Will must be in writing and must be signed by the testator (the person making the Will) on the presence of 2 other witnesses who sign the Will.

There are a number of critical requirements for a valid will including that:

  • The person making the Will is not a minor (section 5);
  • The Will is documented and signed in the presence of two or more witnesses (section 8);
  • The Will is made after marriage, unless it was specifically made in contemplation of marriage (section 20);
  • The Will reflects the testamentary intentions of the will maker (section 12);
  • The Will is made in the absence of vitiating factors such as testamentary capacity undue influence, fraud, mistake and duress;

If a Will has not been signed in accordance with the rules in the Wills Act but is compliant with the laws of the place where the Will was signed, then Section 25B of the Wills Act states that:

‘Notwithstanding any other provision of this Act, a will is to be treated as properly executed for all purposes if its execution conformed to the internal law in force in the place where it was executed, or in the place where, at the time of its execution or of the testator's death, he or she was domiciled or had his or her habitual residence, or in a country of which, at either of those times, he or she was a national.'

This means that a Court will consider the formal requirements for execution of the Will in the place that it was signed by the testator.

To Challenge the Validity of a Will, the applicant must demonstrate evidence of any of the above circumstances. Where claims are made of vitiating factors such as lack of testamentary capacity or undue influence strong medical and other evidence must be submitted to the Court in support of such a claim.

It is important to consult with a lawyer to discuss your case.

CHALLENGING CAVEATS

In South Australia, there are two types of caveats. These caveats are:

  • Probate Caveats; and
  • Property Caveats.

If you wish to challenge the validity of a Will in South Australia, you may file a Probate caveat. A Probate caveat is filed to stop Probate being granted. This type of caveat is different to a property caveat, which is filed over real estate.

A property caveat is a caveat filed at the Department of Lands over real estate. Normally a property caveat has nothing to do with Succession Law and Wills matters. Usually you are not entitled to file a property caveat if you are challenging a Will. However you are entitled to file a Probate caveat, which will stop Probate being made.

Not just anyone can challenge a Will in South Australia. You need to have an interest in the estate of a deceased person if you wish to challenge a Will in South Australia. That is you must have standing or the right to challenge the validity of a deceased person’s Will.

You have a right to challenge a Will if:-

  • You are a beneficiary of the deceased’s last Will or a prior Will of the deceased; or
  • You would be entitled to a share of the deceased’s estate under the laws of intestacy in South Australia (if the deceased did not have a Will).

If you wish to challenge a Will and you are an interested person, you may file a Probate caveat to prevent a grant of Probate being made.

The caveat can be removed if the parties to the proceedings reach an agreement. However, if no agreement is reached, an application can be made to the Court so that the Judge can decide the issue. If this occurs, the parties will file and serve evidence and the Court will make a determination.

If you have any questions regarding challenging a Will in South Australia or filing a caveat, please call our experienced team. We are able to provide you with more information about challenging a Will in South Australia and caveats. Please call us on 1300 168 676 for a free case assessment.



where to next?

Have you been left without adequate provision from a deceased estate? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Adelaide: (08) 8410 0055
Perth: (08) 9321 5505