Contesting A Will in SA


In South Australia, eligible persons can contest a will by making what is called a Family Provision claim if they have been left without adequate provision from a deceased estate.

Grounds for contesting a will

There are a number of critical issues which need to be considered before contesting a will. Firstly, you need to be an eligible person as set out in section 6 of the Inheritance (Family Provision) Act 1972. You must then demonstrate that you have been left without adequate provision for your proper maintenance, education or advancement in life.

The court will consider a number of matters when determining whether you have been left without adequate provision for your proper maintenance, education or advancement in life. These include your financial circumstances, your relationship with the deceased, the size of the estate and the circumstances of any other person who is a beneficiary or entitled to make a provision claim.

There is no formula to calculate the further provision which you should receive. The court will consider the circumstances of your matter and apply precedent to calculate the amount that you should receive. Because each case will turn on its own facts, we recommend that you consult with a lawyer to speak about your circumstances and assess whether you should proceed with a claim.

How to contest a will

A will be can be contested in South Australia pursuant to the Inheritance (Family Provision) Act 1972 when the deceased was domiciled in the state and died leaving assets there.

The claimant must prove that the deceased had a duty to provide for them in the will, but failed to make adequate provision their welfare and advancement in life.

It may be possible to resolve a contested will matter through negotiations. However, if negotiations are unsuccessful, documents are filed in court detailing the claim which is being made by the applicant.

It is important that if you intend to make a claim that you do so before the estate assets are distributed. It is possible that the estate property may be sold or transferred and estate funds may be spent. If you delay in making a claim, there may be no assets or funds left to claim on.

If you are thinking of making a claim contact one of our contested wills lawyers.

Eligible applicants

In South Australia, you cannot make a claim on a deceased person’s estate unless you fall within a class of eligible persons. The classes of people who can make a claim are as follows:

  1. The spouse of the deceased person;
  2. The former spouse;
  3. A domestic partner;
  4. The child of the deceased person;
  5. A child of the deceased’s spouse or domestic partner if they were being maintained by the deceased before his or her death;
  6. A parent if they can show that they cared for, or contributed to the maintenance of, the deceased person during his lifetime;
  7. A sibling if they can show that they cared for, or contributed to the maintenance of, the deceased person during his lifetime;

If you fall within the class of eligible people to make a claim pursuant to section 6(c) of the Inheritance (Family Provision) Act 1972, you should consult a lawyer to advise you on making a claim

Time limits

In South Australia, you have six months from the date of the grant of probate to make an application for family provision from the deceased’s estate. In certain circumstances, you can apply to the court for an extension of time to make an application. Section 8 of the Inheritance (Family Provision) Act 1972 states that the court may, after hearing the reasons for your delay extend the time for making an application for provision under the Act.

The court will consider closely the reasons for the delay in determining whether or not to extend time. The court will review the length of the delay, the reasons for the delay and any prejudice to other parties arising from the delay.

If a distribution has been made to other beneficiaries before your claim is heard, the court will not ‘disturb’ that distribution in order to meet your claim. In addition, the court may also consider whether a claim has been made by another party within time to allow you to be joined as a party to that proceeding (Section 8 (7) Inheritance Family Provision Act a972).

It is very important that you do not delay in making your application as the court may not consider the reasons which you provide sufficient to extend the time for making an application. You should consult with a lawyer promptly if you are aware that probate has been granted so that the appropriate steps are taken regarding your claim.

How do I get a copy of a will?

In South Australia, there are no specific legislative provisions for you to obtain a copy of the will.

You may consider approaching the Executor of the will to request a copy of the will, however the Executor is under no obligation to provide you with a copy. In the process of administering the estate, the Executor will contact beneficiaries to inform them that they have been named as beneficiaries in the will, but this is only required after a grant of probate has been obtained.

You will be able to obtain a copy of the deceased’s will after the Supreme Court has granted probate to the Executor. The process of obtaining a grant of probate can take some months after the deceased’s passing.

If you are considering making a claim, you should periodically check with the Supreme Court of South Australia as to whether the will has been lodged for probate.

Who pays the fees?

The legal costs in family provision cases in South Australia are at the discretion of the judge. Pursuant to Section 9 (8) of the Inheritance (Family Provision) Act 1972 (SA), the court may make such order as to the costs of any proceeding under this Act as it considers just. Generally, the court usually orders payment of a successful claimant’s costs by the estate.

Among other matters, the judge will consider whether or not the person making the claim has demonstrated that the testator failed to make adequate provision for the proper maintenance, welfare and advancement in life of the claimant.

If however the claimant’s case is not accepted by the court, then there will be no order for payment of the claimant’s costs. In fact, an unsuccessful claimant may be ordered to pay the costs of the executor defending the proceedings. This is particularly relevant where offers have been exchanged and the claimant has rejected an offer which is more favourable than the outcome achieved at court.

The cost of an Executor in family provision claims are usually paid for from the estate.

It is important to remember that each case will be determined on its own facts. This is why it is important to consult with a lawyer regarding your claim.

Intestacy

When a person dies without a will, they are said to have died intestate. There are rules governing who receives a person’s estate if they die without a will. Different rules apply to the distribution of the Deceased’s estate depending on the persons who survive the deceased. Is survived by a spouse or domestic partner and no children, the spouse or domestic partner receive the entire estate

If the deceased is survived by a spouse or domestic partner, and children, but the estate is less than $100,000.00, then the whole estate passes to the spouse or domestic partner. If the total estate is more than $100,000.00 then the spouse or domestic partner is entitled to the personal property, $100,000 and half the remaining balance. For example, if the estate is worth $200,000, then the spouse or domestic partner will receive $100,000 plus $50,000.

If the deceased owned the family home in their name alone, then the spouse or domestic partner has the right to purchase the home. If the child is under 18 their share must be given to the Public Trustee to manage under trust.

If the deceased is only survived by his or her children and not a spouse, then the children will take the estate equally. If a child has died before the deceased, then his or her children will take the share that their parent would have taken equally.

In circumstances where the deceased has died without a spouse or children the relatives of the deceased will take his or her estate in the following order:

  • Parents in equal shares or to the surviving parent;
  • Siblings in equal shares. If a sibling has died then their child would receive their share;
  • Nephews and nieces in equal shares or their children;
  • Grandparents in equal shares or to the surviving grandparent;
  • Uncles and aunts in equal shares or if one has died, then to their children in equal proportions;
  • First cousins in equal shares.

If the deceased has died with no relatives, then his or her estate will pass to the Crown.

What happens if the will is not valid?

In order for a will to be valid it must be in writing, witnessed correctly and dated. A court may in certain circumstances admit a document which does not meet all of these requirements.

The validity of a will may be challenged on other grounds including:

  1. That it is not the last will of the deceased;
  2. That the deceased lacked mental capacity. These cases usually arise when the deceased had dementia or was of unsound mind at the time that instructions were provided for the preparation of the will. In order to challenge a will based on mental capacity, the person challenging the will must prove that the testator:
    1. did not understand the consequences of making the will; or
    2. did not understand the extent and value of the testator’s property;
    3. did not understand who the persons were that the testator was expected to provide for and who the beneficiaries were; or
    4. was suffering a delusion of the mind.
  3. That the will was in whole or in part, a forgery;
  4. That undue influence was placed on the deceased in making the will; and

Fraud, forgery and undue influence matters involve establishing that the testator was in a vulnerable position and was manipulated to leave his or her property in a particular way.

There are specific evidentiary matters which must support such claims regarding the validity of a will.

In South Australia, if a dispute arises about the validity of a will, an interested party may approach the court to determine the deceased’s intention in the will. Pursuant to the Wills Act 1994, the court may rectify a will so that the deceased’s intentions are correctly set out.

What does the court consider when deciding a claim?

When making a Family Provision Claim, you must demonstrate that you have been left without adequate provision for your proper maintenance, education or advancement in life. The Inheritance (Family Provision) Act, does not set out a comprehensive list of considerations that a court must make when assessing your claim. Instead, the court applies methods which have been adopted in previous cases to compare and apply to your own case.

One of the test cases which the court applies in these matters is Singer v Berghouse [1994] HCA 40. This case requires the court to carry out a two-stage process to assess your claim.

First, the court must decide if the applicant has been left without adequate provision for his or her proper maintenance, education or advancement in life. The second stage involves the determination by the court of what provision ought to be made out of the deceased (testator’s) estate for the applicant. At the second stage, the court may have regard to circumstances existing at the time it is proposed to make the order.

In adopting this process, the court may consider the following non-exhaustive list of considerations:

  • your financial circumstances and that of your partner;
  • your health and medical circumstances and that of your immediate family;
  • your needs for the future;
  • your relationship with the deceased;
  • the provision made for you by the deceased during their lifetime;
  • the size of the estate; and
  • the circumstances of any other person who is a beneficiary or entitled to make a claim.

The law does not set out a particular formula to calculate the provision (if any) that you should receive from the estate. The Court will consider the circumstances of your case and apply precedents or previous cases to compare and consider what you should receive from the estate.

As each case is different, you need to consult with a lawyer to discuss your claim.

Can a niece or nephew contest a will?

The law is particular about the persons who can contest the will of the deceased person if they have been left out. The ability to contest a deceased’s will is not open to all relatives and friends. The reason that this is the case is because the law recognises that a person should be able to leave the assets which they have accumulated during their lifetime to whomever they please.

While this value of testamentary freedom is accepted, the law does recognise that a testator has a moral obligation to make adequate provision for certain persons which the community expects for them to do so. The various states in Australia have set out different rules about who is ‘an eligible person’ to make a claim on the deceased’s estate. These rules about eligibility to contest a will are different in each state.

In South Australia, the Inheritance Family Provision Act 1972, addresses eligibility of a person to make a claim. Sections 6 classifies the following people as eligible:

  • the spouse of the deceased person;
  • a person who has been divorced from the deceased person;
  • the domestic partner of the deceased person;
  • a child of the deceased person;
  • a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
  • a child of the child of the deceased person;
  • a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime;
  • a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.

Thus, because a nephew or niece are not included in the legislation they cannot make a claim on their aunt or uncle’s estate if they have been left out of the deceased’s will. This is the case even if the nephew or niece had a close relationship with the deceased or was dependant on them.

Can grandchildren contest a will?

The law recognises the principle of testamentary freedom. This means that a person is free to leave the assets which they have at the date of their death to the person or persons of their choice. However, the law does recognise that a testator has a moral obligation to provide for certain persons and the states in Australia have legislated to set out a list of eligible persons who can make a claim on the deceased’s estate if they have been left out of a will or have been left without adequate provision in the will.

In order to make a claim for what is called family provision in South Australia, a claimant must fall within a category of eligible persons pursuant to the Inheritance Family Provision Act 1972. Section 6 of the Act specifies the persons who are entitled to make a claim on the deceased’s estate for further provision. The categories of people do include a grandchild of the deceased in section 6 (h) of the Act provided the relationship meet certain conditions. The legislation states that an eligible person includes “a child of the child of the deceased person”.

Accordingly, a grandchild can make a claim without having to prove any further conditions. However, the success of a grandchild’s claim will not only depend on being able to prove eligibility. A claimant needs to satisfy the court that they have been left without adequate provision based on a number of factors (Singer v Berghouse [1994] HCA 40).

The court may consider the following non-exhaustive list of considerations:

  • the grandchild’s financial circumstances and if you have a partner, that of your partner;
  • the grandchild’s health and medical circumstances and that of your immediate family;
  • the grandchild’s needs for the future;
  • the grandchild’s relationship with the deceased;
  • the provision made for the grandchild by the deceased during their lifetime;
  • the size of the estate; and
  • the circumstances of any other person who is a beneficiary or entitled to make a claim.

If you require legal assistance, advice or representation in a contested wills matter or in any other legal matter, please contact Armstrong Legal. 

WHERE TO NEXT?

Have you been left out of a Will or treated unfairly? 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.

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